G.R. No.

168338             February 15, 2008

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

DECISION

PUNO, C.J.:

A. Precis

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

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

B. The Facts

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

C. The Petition

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

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to
information on matters of public concern,14 petitioner specifically asked this Court:
 [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present
that curtail the public’s rights to freedom of expression and of the press, and to information on matters of public concern
specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of
the further commission of such acts, and making of such issuances, and orders by respondents. 15

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

D. The Procedural Threshold: Legal Standing

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

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

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

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

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

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

of expression and of the press

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

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

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

E.1. Abstraction of Free Speech

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

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

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

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

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

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

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

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

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

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

Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied
differently to each category, either consciously or unconsciously. 46 A study of free speech jurisprudence—whether here or abroad—
will reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive
speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting
associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. 47

Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a)
the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the
speech restrained and the danger contemplated; 48 (b) the balancing of interests tests, used as a standard when courts need to balance
conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests
observable in a given situation of type of situation; 49 and (c) the clear and present danger rule which rests on the premise that
speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to
prevent. This rule requires that the evil consequences sought to be prevented must be substantive, "extremely serious and the degree of
imminence extremely high." 50

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

E.3. In Focus: Freedom of the Press

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

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

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

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

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

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

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

Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always
been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the
parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance
or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or
dissemination.56 Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the
business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as
previous restraint or censorship. 57 Any law or official that requires some form of permission to be had before publication can be
made, commits an infringement of the constitutional right, and remedy can be had at the courts.

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

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

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

A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an
important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression;
and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of
that interest. 64

On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest
scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger
rule will it pass constitutional muster,65 with the government having the burden of overcoming the presumed unconstitutionality.

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

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

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

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

Thus, when the prior restraint partakes of a content-neutral regulation, it is subjected to an intermediate review. A content-based
regulation,73 however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter
will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor
vague. 74
Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger
rule, as they are content-based restrictions. The acts of respondents focused solely on but one object—a specific content— fixed as
these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely
provide regulations as to the time, place or manner of the dissemination of speech or expression.

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

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

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

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

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

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

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

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

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

xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and
expression clause. The test for limitations on freedom of expression continues to be the clear and present danger
rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will
bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition,
pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the
clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and
present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances
in all forums.
 Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation
cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others.

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

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

Similar considerations apply in the area of national security.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

F. The Case At Bar

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

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

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

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

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

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

SO ORDERED.

REYNATO S. PUNO
Chief Justice
WE CONCUR:

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Associate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice

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

Associate Justice Associate Justice

RUBEN T. REYES TERESITA LEONARDO-DE CASTRO

Associate Justice Associate Justice

CERTIFICATION

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

REYNATO S. PUNO
Chief Justice

Footnotes
1
 G.R. No. 103956, March 31, 1992, 207 SCRA 712.
2
 218 Phil. 754 (1984).
3
 G.R. No. 147571, May 5, 2001, 357 SCRA 496.
4
 G.R. No. 169838, April 25, 2006, 488 SCRA 226.
5
 Rollo, pp. 6-7 (citing the Philippine Daily Inquirer (PDI), June 7, 2005, pp. A1, A18; PDI, June 14, 2005, p. A1); and p. 58.
6
 Id. at 7-8 (citing the Manila Standard, June 10, 2005, p. A2); and 58.
7
 Id. at 7-8 and 59.
8
 Id.
9
 Id. at 8-9 and 59.
10
 Id. at 9.
11
 Id. at 10-12, 43-44, 60-62.
12
 Id. at 62-63, 86-87.
13
 Id. at 6.
14
 Respondents have "committed blatant violations of the freedom of expression and of the press and the right of the people to
information on matters of public concern enshrined in Article III, Sections 4 and 7 of the 1987 Constitution. Id. at 18.
Petitioner also argued that respondent NTC acted beyond its powers when it issued the press release of June 11, 2005. Id.
15
 Id. at 6.
16
 Through the Comment filed by the Solicitor-General. Id. at 56-83.
17
 Id. at 71-73.
18
 Id. at 74-75.
19
 The Court will exercise its power of judicial review only if the case is brought before it by a party who has the legal
standing to raise the constitutional or legal question. "Legal standing" means a personal and substantial interest in the case
such that the party has sustained or will sustain direct injury as a result of the government act that is being challenged. The
term "interest" is material interest, an interest in issue and to be affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest. Pimentel v. Executive Secretary, G.R. No. 158088, July 6, 2005, 462
SCRA 622, citing Joya vs. Presidential Commission on Good Government, G.R. No. 96541, August 24, 1993, 225 SCRA
568. See Kilosbayan, Inc. v. Morato, G.R. No. 118910, July 17, 1995, 246 SCRA 540, 562–563; and Agan v. PIATCO
(Decision), 450 Phil. 744 (2003).
20
 Araneta v. Dinglasan, 84 Phil. 368, 373 (1949), cited in Osmeña v. COMELEC, G.R. No. 100318, July 30, 1991, 199
SCRA 750.
21
 See Agan v. PIATCO (Decision), 450 Phil. 744 (2003).
22
 Philconsa v. Jimenez, 122 Phil. 894 (1965); Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22,
1991, 194 SCRA 317; Guingona v. Carague, G.R. No. 94571, April 22, 1991, 196 SCRA 221; Osmeña v. COMELEC, G.R.
No. 100318, July 30, 1991, 199 SCRA 750; Basco v. PAGCOR, 274 Phil. 323 (1991); Carpio v. Executive Secretary, G.R.
No. 96409, February 14, 1992, 206 SCRA 290; Del Mar v. PAGCOR, 400 Phil. 307 (2000).
23
 Basco v. PAGCOR, 274 Phil. 323 (1991), citing Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas Inc. v.
Tan, G.R. No. L-81311, June 30, 1988, 163 SCRA 371.
24
 1987 Phil. Const. Art. III, §4.
25
 U.S. Bill of Rights, First Amendment. ("Congress shall make no law…abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.")
26
 The First Amendment was so crafted because the founders of the American government believed -- as a matter of history
and experience -- that the freedom to express personal opinions was essential to a free government. See Larry Kramer, The
People Themselves: Popular Constitution and Judicial Review (2004).
27
 Article 19 of the 1948 Universal Declaration on Human Rights (UDHR) states: "Everyone has the right to freedom of
opinion and expression; this right includes the right to hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of frontiers." Although the UDHR is not binding as a treaty, many of
its provisions have acquired binding status on States and are now part of customary international law. Article 19 forms part of
the UDHR principles that have been transformed into binding norms. Moreover, many of the rights in the UDHR were
included in and elaborated on in the International Covenant on Civil and Political Rights (ICCPR), a treaty ratified by over
150 States, including the Philippines. The recognition of freedom of expression is also found in regional human rights
instruments, namely, the European Convention on Human Rights (Article 10), the American Convention on Human Rights
(Article 10), and the African Charter on Human and Peoples’ Rights (Article 9).
28
 Gonzales v. COMELEC, 137 Phil. 471, 492 (1969).
29
 Salonga v. Cruz-Pano, G.R. 59524, February 18, 1985, 134 SCRA 458-459; Gonzales v. COMELEC, 137 Phil. 489, 492-3
(1969); Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., 151-A Phil. 676-677
(1973); National Press Club v. COMELEC, G.R. No. 102653, March 5, 1992, 207 SCRA 1, 9; Adiong v. COMELEC, G.R.
No. 103956, March 31, 1992, 207 SCRA 712, 715.
30
 Indeed, the struggle that attended the recognition of the value of free expression was discussed by Justice Malcolm in the
early case United States v. Bustos, 37 Phil. 731, 739 (1918). Justice Malcolm generalized that the freedom of speech as
cherished in democratic countries was unknown in the Philippine Islands before 1900. Despite the presence of pamphlets and
books early in the history of the Philippine Islands, the freedom of speech was alien to those who were used to obeying the
words of barangay lords and, ultimately, the colonial monarchy. But ours was a history of struggle for that specific right: to
be able to express ourselves especially in the governance of this country. Id.
31
 Id.
32
 137 Phil. 471, 492 (1969).
33
 Id.
34
 Id. at 493, citing Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 Yale Law Journal 877 (1963).
35
 Id. citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).
36
 Id.
37
 Id.
38
 Id.
39
 Id. citing Terminiello v. City of Chicago, 337 US 1, 4 (1949).
40
 Id. citing U.S. v. Schwimmer, 279 US 644, 655 (1929).
41
 G.R. No. L-59329, July 19, 1985, 137 SCRA 628.
42
 Gonzales v. COMELEC, 137 Phil. 471, 494(1969).
43
 Hector S. De Leon, I Philippine Constitutional Law: Principles and Cases 485 (2003) [Hereinafter De Leon, Constitutional
Law].
44
 See John E. Nowak & Ronald D. Rotunda, Constitutional Law §16.1, 1131 (7 th ed.2000 [Hereinafter Nowak & Rotunda,
Constitutional Law].
45
 De Leon, Constitutional Law at 485. Laws have also limited the freedom of speech and of the press, or otherwise affected
the media and freedom of expression. The Constitution itself imposes certain limits (such as Article IX on the Commission
on Elections, and Article XVI prohibiting foreign media ownership); as do the Revised Penal Code (with provisions on
national security, libel and obscenity), the Civil Code (which contains two articles on privacy), the Rules of Court (on the fair
administration of justice and contempt) and certain presidential decrees. There is also a "shield law," or Republic Act No. 53,
as amended by Republic Act No. 1477. Section 1 of this law provides protection for non-disclosure of sources of information,
without prejudice to one’s liability under civil and criminal laws. The publisher, editor, columnist or duly accredited reporter
of a newspaper, magazine or periodical of general circulation cannot be compelled to reveal the source of any information or
news report appearing in said publication, if the information was released in confidence to such publisher, editor or reporter
unless the court or a Committee of Congress finds that such revelation is demanded by the security of the state.
46
 See Nowak & Rotunda, Constitutional Law §16.1, 1131 (7th ed.2000).
47
 Id.
48
 Cabansag v. Fernandez, 102 Phil. 151 (1957); Gonzales v. COMELEC, 137 Phil. 471 (1969). See People v. Perez, 4 Phil.
599 (1905); People v. Nabong, 57 Phil. 455 (1933); People v. Feleo, 57 Phil. 451 (1933).
49
 This test was used by J. Ruiz-Castro in his Separate Opinion in Gonzales v. COMELEC, 137 Phil. 471, 532-537 (1969).
50
 Cabansag v. Fernandez, 102 Phil. 151 (1957).
51
 ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (2000).
52
 See U.S. v. Bustos, 37 Phil. 731 (1918).
53
 The aspect of freedom from liability subsequent to publication precludes liability for completed publications of views
traditionally held innocent. Otherwise, the prohibition on prior restraint would be meaningless, as the unrestrained threat of
subsequent punishment, by itself, would be an effective prior restraint. Thus, opinions on public issues cannot be punished
when published, merely because the opinions are novel or controversial, or because they clash with current doctrines. This
fact does not imply that publishers and editors are never liable for what they print. Such freedom gives no immunity from
laws punishing scandalous or obscene matter, seditious or disloyal writings, and libelous or insulting words. As classically
expressed, the freedom of the press embraces at the very least the freedom to discuss truthfully and publicly matters of public
concern, without previous restraint or fear of subsequent punishment. For discussion to be innocent, it must be truthful, must
concern something in which people in general take a healthy interest, and must not endanger some important social end that
the government by law protects. See Joaquin G. Bernas, S.J., The 1987 Constitution of the Republic of the Philippines: A
Commentary, 225 (2003 ed.).
54
 Freedom of access to information regarding matters of public interest is kept real in several ways. Official papers, reports
and documents, unless held confidential and secret by competent authority in the public interest, are public records. As such,
they are open and subject to reasonable regulation, to the scrutiny of the inquiring reporter or editor. Information obtained
confidentially may be printed without specification of the source; and that source is closed to official inquiry, unless the
revelation is deemed by the courts, or by a House or committee of Congress, to be vital to the security of the State. Id.
55
 Freedom of circulation refers to the unhampered distribution of newspapers and other media among customers and among
the general public. It may be interfered with in several ways. The most important of these is censorship. Other ways include
requiring a permit or license for the distribution of media and penalizing dissemination of copies made without it;[55] and
requiring the payment of a fee or tax, imposed either on the publisher or on the distributor, with the intent to limit or restrict
circulation. These modes of interfering with the freedom to circulate have been constantly stricken down as unreasonable
limitations on press freedom. Thus, imposing a license tax measured by gross receipts for the privilege of engaging in the
business of advertising in any newspaper, or charging license fees for the privilege of selling religious books are
impermissible restraints on the freedom of expression. Id. citing Grosjean v. American Press Co., 297 U.S. 233
(1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943), and American Bible Society v. City of Manila, 101 Phil. 386 (1957).
It has been held, however, even in the Philippines, that publishers and distributors of newspapers and allied media cannot
complain when required to pay ordinary taxes such as the sales tax. The exaction is valid only when the obvious and
immediate effect is to restrict oppressively the distribution of printed matter.
56
 Id at 225.
57
 Burgos v. Chief of Staff, 218 Phil. 754 (1984).
58
 Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000)
("Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an
exemption."); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5, 2001, 357 SCRA 496 ("[A]ny system of
prior restraint comes to court bearing a heavy burden against its constitutionality. It is the government which must show
justification for enforcement of the restraint."). See also Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996) (religious
speech falls within the protection of free speech).
59
 Iglesia ni Cristo v. CA, 328 Phil. 893, 928 (1996), citing Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v.
Sullivan, 372 US 58 (1963); New York Times v. United States, 403 US 713 (1971).
60
 See J.B.L. Reyes v. Bagatsing, 210 Phil. 457 (1983), Navarro v. Villegas, G.R. No. L-31687, February 18, 1970, 31 SCRA
730; Ignacio v. Ela, 99 Phil. 346 (1956); Primicias v. Fugosa, 80 Phil. 71 (1948).
61
 Determining if a restriction is content-based is not always obvious. A regulation may be content-neutral on its face but
partakes of a content-based restriction in its application, as when it can be shown that the government only enforces the
restraint as to prohibit one type of content or viewpoint. In this case, the restriction will be treated as a content-based
regulation. The most important part of the time, place, or manner standard is the requirement that the regulation be content-
neutral both as written and applied. See Nowak & Rotunda, Constitutional Law §16.1, 1133 (7th ed.2000).
62
 See Osmeña v. COMELEC, 351 Phil. 692, 718 (1998). The Court looked to Adiong v. COMELEC, G.R. No. 103456,
March 31, 1992, 207 SCRA 712, which had cited a U.S. doctrine, viz. "A governmental regulation is sufficiently justified if it
is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the furtherance of that interest."
63
 Nowak & Rotunda, Constitutional Law §16.1, 1133 (7th ed.2000). This was also called a "deferential standard of review"
in Osmeña v. COMELEC, 351 Phil. 692, 718 (1998). It was explained that the clear and present danger rule is not a
sovereign remedy for all free speech problems, and its application to content-neutral regulations would be tantamount to
"using a sledgehammer to drive a nail when a regular hammer is all that is needed." Id. at 478.
64
 Osmeña v. COMELEC, 351 Phil. 692, 717, citing Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA
712. It was noted that the test was actually formulated in United States v. O’Brien, 391 U.S. 367 (1968), which was deemed
appropriate for restrictions on speech which are content-neutral.
65
 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996). In this case, it was found that the act of respondent Board of
Review for Motion Pictures and Television of rating a TV program with "X"— on the ground that it "offend[s] and
constitute[s] an attack against other religions which is expressly prohibited by law"— was a form of prior restraint and
required the application of the clear and present danger rule.
66
 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN
Broadcasting Corp. v. COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5,
2001, 357 SCRA 496.
67
 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996).
68
 Schenke v. United States, 249 U.S. 47, 52 (19191), cited in Cabansag v. Fernandez, 102 Phil. 151 (1957); and ABS-CBN
Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (2000).
69
 Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, cited in ABS-CBN Broadcasting Corp. v.
COMELEC, 380 Phil. 780, 795 (2000).
70
 See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712, and Gonzales v. COMELEC, 137 Phil. 471
(1969), cited in ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 795 (2000).
71
 See Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207 SCRA 712.
72
 See Osmeña v. COMELEC, 351 Phil. 692 (1998).
73
 Parenthetically, there are two types of content-based restrictions. First, the government may be totally banning some type
of speech for content (total ban). Second, the government may be requiring individuals who wish to put forth certain types of
speech to certain times or places so that the type of speech does not adversely affect its environment. See Nowak & Rotunda,
Constitutional Law §16.1, 1131 (7th ed.2000). Both types of conten-based regulations are subject to strict scrutiny and the
clear and present danger rule.
74
 Iglesia ni Cristo v. Court of Appeals, 328 Phil. 893 (1996); Gonzales v. COMELEC, 137 Phil. 471 (1969); ABS-CBN
Broadcasting Corp. v. COMELEC, 380 Phil. 780 (2000); Social Weather Stations v. COMELEC, G.R. No. 147571, May 5,
2001, 357 SCRA 496.
75
 This is based on a finding that "broadcast regulation involves unique considerations," and that "differences in the
characteristics of new media justify differences in the First Amendment standards applied to them." Red Lion Broad. Co. v.
Federal Communications Commission [FCC], 395 U.S. 367, 386 (1969). See generally National Broadcasting Co. v. United
States, 319 U.S. 190, 219 (1943) (noting that the public interest standard denoted to the FCC is an expansive power).
76
 See Federal Communications Commission [FCC] v. Pacifica Foundation, 438 U.S. 726 (1978); Sable Communications v.
FCC, 492 U.S. 115 (1989); and Reno v. American Civil Liberties Union [ACLU], 521 U.S. 844, 874 (1997). In these cases,
U.S. courts disregarded the argument that the offended listener or viewer could simply turn the dial and avoid the unwanted
broadcast [thereby putting print and broadcast media in the same footing], reasoning that because the broadcast audience is
constantly tuning in and out, prior warnings cannot protect the listener from unexpected program content.
77
 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 386 (1969). Red Lion involved the application of the fairness doctrine and
whether someone personally attacked had the right to respond on the broadcast medium within the purview of FCC
regulation. The court sustained the regulation. The Court in Red Lion reasoned that because there are substantially more
individuals who want to broadcast than there are frequencies available, this "scarcity of the spectrum" necessitates a stricter
standard for broadcast media, as opposed to newspapers and magazines. See generally National Broadcasting v. United
States, 319 U.S. 190, 219 (1943) (noting that the public interest standard denoted to the FCC is an expansive power).
78
 See Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Sable Communications v.
FCC, 492 U.S. 115 (1989); and Reno v. American Civil Liberties Union [ACLU], 521 U.S. 844, 874 (1997). In FCC v.
Pacifica Foundation, involving an FCC decision to require broadcasters to channel indecent programming away from times
of the day when there is a reasonable risk that children may be in the audience, the U.S. Court found that the broadcast
medium was an intrusive and pervasive one. In reaffirming that this medium should receive the most limited of First
Amendment protections, the U.S. Court held that the rights of the public to avoid indecent speech trump those of the
broadcaster to disseminate such speech. The justifications for this ruling were two-fold. First, the regulations were necessary
because of the pervasive presence of broadcast media in American life, capable of injecting offensive material into the
privacy of the home, where the right "to be left alone plainly outweighs the First Amendment rights of an intruder." Second,
the U.S. Court found that broadcasting "is uniquely accessible to children, even those too young to read." The Court
dismissed the argument that the offended listener or viewer could simply turn the dial and avoid the unwanted broadcast,
reasoning that because the broadcast audience is constantly tuning in and out, prior warnings cannot protect the listener from
unexpected program content.
 79
 FCC v. League of Women Voters, 468 U.S. 364, 376 (1984).
80
 Id. at 380.
81
 See Estrada v. Escritor (Resolution), A.M. No. P-02-1651, June 22, 2006 (free exercise of religion); and Osmeña v.
COMELEC, 351 Phil. 692, 718 (1998) (speech restrictions to promote voting rights). The Court in Osmeña v. COMELEC, for
example, noted that it is a foreign notion to the American Constitution that the government may restrict the speech of some in
order to enhance the relative voice of others [the idea being that voting is a form of speech]. But this Court then declared that
the same does not hold true of the Philippine Constitution, the notion "being in fact an animating principle of that document."
351 Phil. 692, 718 (1998).
82
 G.R. No. L-59329, July 19, 1985, 137 SCRA 628.
83
 Id.
84
 Id. at 634-637.
85
 There is another case wherein the Court had occasion to refer to the differentiation between traditional print media and
broadcast media, but of limited application to the case at bar inasmuch as the issues did not invoke a free-speech challenge,
but due process and equal protection. See Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.
COMELEC, 352 Phil. 153 (1998) (challenge to legislation requiring broadcast stations to provide COMELEC Time free of
charge).
86
 G.R. No. L-69500, July 22, 1985, 137 SCRA 717. In this case, the classification of a movie as "For Adults Only" was
challenged, with the issue focused on obscenity as basis for the alleged invasion of the right to freedom on artistic and literary
expression embraced in the free speech guarantees of the Constitution. The Court held that the test to determine free
expression was the clear and present danger rule. The Court found there was an abuse of discretion, but did not get enough
votes to rule it was grave. The decision specifically stated that the ruling in the case was limited to concept of obscenity
applicable to motion pictures. Id. at 723-729.
87
 Id. at 725.
88
 Id.
89
 ABS-CBN Broadcasting Corp. v. COMELEC, 380 Phil. 780, 794 (COMELEC Resolution restraining ABS-CBN, a
corporation engaged in broadcast media of television and radio, from conducting exit surveys after the 1998 elections).
Although the decision was rendered after the 1998 elections, the Court proceeded to rule on the case to rule on the issue of
the constitutionality of holding exit polls and the dissemination of data derived therefrom. The Court ruled that restriction on
exit polls must be tested against the clear and present danger rule, the rule we "unquestionably" adhere to. The framing of the
guidelines issued by the Court clearly showed that the issue involved not only the conduct of the exit polls but also its
dissemination by broadcast media. And yet, the Court did not distinguish, and still applied the clear and present danger rule.
90
 351 Phil. 692 (1998) (challenge to legislation which sought to equalize media access through regulation).
91
 Id. at 718.
92
 Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. COMELEC, 352 Phil. 153 (1998) (challenge to
legislation requiring broadcast stations to provide COMELEC Time free of charge).
93
 Helen Fenwick, Civil Liberties and Human Rights 296 (3rd ed. 2002).
94
 Id.
95
 Stephen J. Shapiro, How Internet Non-Regulation Undermines The Rationales Used To Support Broadcast Regulation, 8-
FALL Media L. & Pol'y 1, 2 (1999).
96
 Technological advances, such as software that facilitates the delivery of live, or real-time, audio and video over the
Internet, have enabled Internet content providers to offer the same services as broadcasters. Indeed, these advancements blur
the distinction between a computer and a television. Id. at 13.
97
 Id.
98
 The current rationales used to support regulation of the broadcast media become unpersuasive in light of the fact that the
unregulated Internet and the regulated broadcast media share many of the same features. Id. In other words, as the Internet
and broadcast media become identical, for all intents and purposes, it makes little sense to regulate one but not the other in an
effort to further First Amendment principles. Indeed, as Internet technologies advance, broadcasters will have little incentive
to continue developing broadcast programming under the threat of regulation when they can disseminate the same content in
the same format through the unregulated Internet. In conclusion, "the theory of partial regulation, whatever its merits for the
circumstances of the last fifty years, will be unworkable in the media landscape of the future." Id. at 23.

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

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

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

Section 15(a) of the resolution provides:

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

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

Section 21 (f) of the same resolution provides:

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

It is unlawful:

xxx xxx xxx

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

x x x           x x x          x x x

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

Lawful election propaganda. — Lawful election propaganda shall include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including
reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with
the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)
The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on
Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between
permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections.
In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated
COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case
basis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the
preservation of a free society that, putting aside reasonable police and health regulations of time and manner of
distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal
methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that
stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the
dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])
The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of
justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

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

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

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

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

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

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

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

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

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept
or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is
espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are
constrained to rule against the COMELEC prohibition.
WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on
Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of
Section 21 hereof" is DECLARED NULL and VOID.

SO ORDERED.

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

Feliciano and Bellosillo, JJ., are on leave.

 Separate Opinions 

CRUZ, J.: concurring:

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

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

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

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

Separate Opinions

CRUZ, J., concurring:

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

Regarding the sticker ban, I think we are being swamped with regulations that unduly obstruct the free flow of information so vital in
an election campaign. The Commission on Elections seems to be bent on muzzling the candidates and imposing all manner of silly
restraints on their efforts to reach the electorate. Reaching the electorate is precisely the purpose of an election campaign, but the
Commission on Elections obviously believes that the candidates should be as quiet as possible.
Instead of limiting the dissemination of information on the election issues and the qualifications of those vying for public office, what
the Commission on Elections should concentrate on is the education of the voters on the proper exercise of their suffrages. This
function is part of its constitutional duty to supervise and regulate elections and to prevent them from deteriorating into popularity
contests where the victors are chosen on the basis not of their platforms and competence but on their ability to sing or dance, or play a
musical instrument, or shoot a basketball, or crack a toilet joke, or exhibit some such dubious talent irrelevant to their ability to
discharge a public office. The public service is threatened with mediocrity and indeed sheer ignorance if not stupidity. That is the
problem the Commission on Elections should try to correct instead of wasting its time on much trivialities as where posters shall be
allowed and stickers should not be attached and speeches may be delivered.

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

G.R. No. 88373 May 18, 1990

JUAN PONCE ENRILE, petitioner,

vs.
HON. IGNACIO CAPULONG and AYER PRODUCTIONS PTY. LTD., respondents.

G.R. No. 82330 May 18, 1990

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

G.R. No. 82398 May 18, 1990

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

SARMIENTO, J.:

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

xxx xxx xxx

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

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

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

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

xxx xxx xxx

(Emphasis supplied)

On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for 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, petitioner Hal McElroy also filed a separate Petition for Certiorari with Urgent
Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.

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

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

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

WHEREFORE,

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

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

No pronouncement as to costs.

SO ORDERED. 3
On May 16, 1988, the petitioner filed a Motion for Reconsideration. 4 On June 9, 1988, this Court denied the Motion with
finality. 5 On June 20, 1988, our Decision was entered in the Book of Entries. 6

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

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

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

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

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

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

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

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

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

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

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

According to the respondent court:

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

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

RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE

OF DISCRETION IN ADMITTING AYERS APPLICATION FOR DAMAGES, NOTWITHSTANDING THAT
THIS HONORABLE COURTS DECISION IN G.R. NO. 82380, WHICH HAD LONG BECOME FINAL AND
EXECUTORY, OPERATED TO DISMISS, OR RESULTED IN THE EFFECTIVE DISMISSAL OF, THE MAIN
CASE.

II

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

III

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

IV

RESPONDENT JUDGE ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE

OF DISCRETION IN REFUSING TO SUPPRESS THE DEPOSITION PROCEEDING WHICH WAS
PROPOSED IN CONNECTION WITH THE INADMISSIBLE APPLICATION FOR DAMAGES. 22

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

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

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

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

RESPONDENT JUDGE ACTED CORRECTLY WHEN HE REFUSED TO ACCEPT PETITIONER'S

GRATUITOUS CLAIM THAT THE DECISION OF THIS HONORABLE SUPREME COURT IN G.R. NO.
82380, "OPERATED TO DISMISS" CIVIL CASE NO. 88-151, AND THAT THE 15-DAY PERIOD FOR
FINALITY OF THE DECISION SHOULD BE COUNTED FROM RECEIPT OF THIS HONORABLE COURTS
DECISION. 24

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

III

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

IV

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

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

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

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

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

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

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

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

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

If we made the Temporary Restraining Order (TRO) of March 24, 1988 permanent, it means that no injunctive writ may be issued in
any manner whatsoever, because, as we said there: "The production and filming by petitioners of the projected motion picture "The
Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon [the petitionersl "right of
privacy,"" 34 and that injunction was a prior restraint to free speech and consequently, injunction was not permissible. Accordingly,
there is no doubt that when we gave due course to the private respondent's Petition, and made the TRO permanent. we could not have
been any more clear that we were disposing of Civil Case No. 88-151 on the merits. And when we granted the private' respondent's
Petition, we also unavoidably dismissed Civil Case No. 88-151.
It is also to be noted that the petitioner's Complaint was in essence one for injunction, and corrollarily for the issuance of preliminary
injunction pending further proceedings. The fact that it also prayed for damages, the question of which the private respondent alleges
has been left untouched, is insignificant, because demands for damages customarily shadow actions for injunction. In the petitioner's
Complaint, it was prayed thus:

WHEREFORE, plaintiff respectfully prays that:

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

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

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

a) P1 Million by way of moral damages;

b) P1 Million by way of exemplary damages; and

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

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

Again, when this Court declared that the petitioner had no cause of action for injunction because, first, of an insufficient showing of
invasion of his privacy, and second, because injunction operated as a prior restraint to the guaranty of free expression, we declared to
all intents and purposes, that he, the petitioner, had no right of relief whatsoever, preliminary or permanent injunction or damages.
And when we declared so, there was therefore absolutely nothing else for Judge Capulong to hear and decide. Certainly, His Honor
could not have further acted on petitioner Enrile's right to stop the of the motion picture in question, when we had already spoken:
petitioner Enrile had no right.

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

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

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

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

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

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

Costs against the private respondents.

SO ORDERED.

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

Medialdea, J., took no part.

Gancayco, J., is on leave.

Separate Opinions 

NARVASA, J., dissenting:

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

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

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

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

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

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

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

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

Before the expiration of 15 days from notice of the Order of dismissal of January 19, 1989, one of the defendants Ayer Productions —
claiming to have suffered damages by reason of the preliminary injunction earlier issued — moved, with notice to the surety on the
injunction bond, for leave to present evidence on said damages, with a view to holding the surety liable therefor. Senator Enrile
opposed the motion, as well as Ayers attempts to take the depositions of certain witnesses in Australia. After an exchange of
pleadings, the Trial Judge ruled, by Order dated June 1, 1989, that Senator Enrile's objections should be overruled and his motion for
reconsideration denied; that Ayer Productions' "right . . . to file its application and claim for damages under the injunction bond"
should be recognized; and that the application had been timely filed, i.e., before finality of its order of dismissal of January 19, 1989.
This is the Order that Senator Enrile now impugns (in G.R. No. 88373).

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

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

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

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

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

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

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

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

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

Footnotes
1 G.R. Nos. L-82380 & 82398, April 29,1988,160 SCRA 861; Feliciano, J.
2 Supra, 867-869.
3 Supra, 878.
4 Rollo G.R. Nos. 82380 & 82398, 242-252; 211-221.
5 Id., 276-277; 237-238.
6 Id., 280; 248.
7 Ayer, supra, 867.
8 G.R. No. 88373, rollo 123-124.
9 Id., 125-129.
10 Id., 126.
11 Id.
12 Id.
13 Id., 130-131.
14 Id., 131.
15 Id., 217.
16 Id., 216.
17 Id., 16.
18 Id., 220-223.
19 Id., 223-244.
20 Id., 266-267.
21 Id., 267.
22 Id., 17-18.
23 Id., 268; 269.
24 Id., 272.
25 Id., 279.
26 Id., 283.
27 Id., 288.
28 Id., 338
29 Visayan Surety & Insurance Corporation v. Pascual, 85 Phil. 779 (1950).
30 Rivera v. Talavera, Nos. L-16280 & 16805, May 30, 1961, 2 SCRA 272.
31 Pacis v. Commission on Elections, No. L-29026, August 22, 1969, 29 SCRA 24.
31 Aguasin v. Velasquez, 88 Phil. 357 (1951).
32 Ayer, supra, 878; emphasis supplied.
34 Supra, 878.
35 Rollo, id., 50-51.
36 See Ayer, supra, 867.
38 Rollo, id., 120.
38 Supra.
NARVASA, J., dissenting:
1 At page 12 of his ponencia.
29 Visayan Surety & Insurance Corporation v. Pascual, 85 Phil. 779 (1950).
30 Rivera v. Talavera, Nos. L-16280 & 16805, May 30, 1961, 2 SCRA 272.
31 Pacis v. Commission on Elections, No. L-29026, August 22, 1969, 29 SCRA 24.
* "Reference being made to "Section 20, Rule 57, of the Rules of Court, in relation to Section 9,
Rule 58".
32 Aguasin v. Velasquez, 88 Phil. 357 (1951)".
2 Docketed as G.R. Nos. 82380 and 82398.
3 This Court's judgment, per Feliciano, J., was promulgated on April 29, 1988 and is now reported in 160 SCRA
861.

G.R. No. 133486           January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

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

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en
banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body

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

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

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

The Issues

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

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

The Court's Ruling

The Petition5 is meritorious.

Procedural Issues:

Mootness and Prematurity

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

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

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

The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available remedies before
the issuing forum, specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of
justice,8 when the issue involves the principle of social justice or the protection of labor, 9 when the decision or resolution sought to be
set aside is a nullity,10 or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.11

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

Main Issue:

Validity of Conducting Exit Polls

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

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

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

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

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

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

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

Nature and Scope of Freedoms of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore,
stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both
political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15 In the landmark
case Gonzales v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss
publicly and truthfully any matter of public interest without prior restraint.

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

Limitations

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

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

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

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

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v.
Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong
v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the
"clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree."32

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

Justification for a Restriction

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

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

A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an
important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression;
and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that
interest.38
Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties, when the end can be more narrowly achieved.39

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

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

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

Comelec Ban on Exit Polling

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

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

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

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

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

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

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

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

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

Violation of Ballot Secrecy

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

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

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

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

SO ORDERED.

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

Separate Opinions

KAPUNAN, J., dissenting opinion;

I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot. Since the Comelec has not declared
exit polls to be illegal and neither did the petitioner present its methodology or system of conducting the exit polls to the poll body, the
nullification of the Comelec's questioned resolution is bereft of empirical basis. The decision of this Court constitutes a mere academic
exercise in view of the premature nature of the issues and the lack of "concreteness" of the controversy. I wish however, to express my
thoughts on a few material points.
The majority opinion cites the general rules that any restrictions to freedom of expression would be burdened with a presumption of
invalidity and should be greeted with "furrowed brews."1 While this has been the traditional approach, this rules does not apply where,
as in this case, the Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots and ensuring the
integrity of the elections. Thus, Mr. Justice Feliciano in National Press (NPC) v. Comelec2 wrote:

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

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

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

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

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

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

VITUG, J., separate opinion;

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

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

Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed by the Court at this time.
I vote, therefore, to dismiss the petition on the foregoing thesis.

Footnotes

1 
Rollo, p. 14.
2 
Ibid. Words in parentheses in the original; those in brackets supplied.
3 
Petition, p. 4.
4 
Rollo, p. 78 et seq.
5 
This case was deemed submitted for resolution on January 19, 1999, upon receipt by the Court of the Memorandum for the
Respondent.
6 
See Gamboa Jr. v. Aguirre Jr., G.R. No. 134213, July 20, 1999.
7 
134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.
8 
Solis v. NLRC, 263 SCRA 629, October 28, 1996.
9 
Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.
10 
Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v. Court of Appeals, 190 SCRA 386, October 11, 1990.
11 
Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart Industries Phils., Inc. v. NLRC, 176 SCRA 295,
August 10, 1989; Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 111 SCRA 215, January 30,
1982.
12 
Sec. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot . . . .
13 
Citing §§ 195, 196, 207 and 261 (z-5, 7 & 16).
14 
Salonga a Cruz Paño, supra, pp. 458-459. See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18, 1969;
Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191, June 5, 1973;
National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207 SCRA 712, 715,
March 31, 1992.
15 
§ 4, Art. III of the Constitution.
16 
Supra, p. 856, per Fernando, J. (later CJ).
17 
Ibid., p. 857; citing Emerson, Toward a General Theory of the First Amendment (1966).
18 
Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964).
19 
US v. Schwimmer, 279 US 644 (1929).
20 
Ibid., p. 858.
21 
Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.
22 
102 Phil 152, October 18, 1957, per Bautista-Angelo, J.
23 
Ibid., p. 161.
24 
Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925).
25 
80 Phil 71 (1948).
26 
101 Phil 386 (1957).
27 
28 SCRA 351, May 26, 1969.
28 
31 SCRA 731, February 261 1970.
29 
35 SCRA 28, September 11, 1970.
30 
Supra.
31 
259 SCRA 529, July 26, 1996.
32 
Cabansag v. Fernandez, supra; citing Schenck v. US, 249 US 47 (1919).
33 
Gonzales v. Comelec, supra, pp. 860-861.
34 
Adiong v. Comelec, supra.
35 
Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137 SCRA 717, July 22, 1985.
36 
Iglesia ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v. Minnesota, 283 US 697 (1931); Bantam Books,
Inc. v. Sullivan, 372 US 58 (1963); and New York Times Co. v. Sullivan, supra.
37 
Blo Umpar Adiong v. Comelec, supra. See also National Press Club v. Comelec, supra.
38 
Adiong v. Comelec, supra.
39 
Gonzales v. Comelec, supra, p. 871, citing Shelton v. Tucker, 364 US 479, 488.
40 
Mutuc v. Comelec, 36 SCRA 228, 233-34, November 26, 1970; per Fernando, J. (later CJ).
41 
Ibid., p. 236.
42 
Adiong v. Comelec, supra.
43 
Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985).
44 
See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988).
45 
See § 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised Penal Code.
46 
838 F 2d 380 (9th Cir. 1988).
47 
Ibid., citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434, 1436-37, 16 L Ed. 2d 484 (1966); Vanasco v. Schwartz,
401 F Supp. 87, 100 (SDNY 1975), aff'd mem., 423 US 1041, 96 S. Ct. 763, 46 L Ed. 2d 630 (1976).
48 
Exit Polls and the First Amendment, supra, p. 1935.
49 
Petitioner's Memorandum, p. 15.
KAPUNAN, J., dissenting opinion;
1 
Iglesia ni Crislo vs. MTRCB, 259 SCRA 529 (1996).
2 
207 SCRA 1 (l992).
3 
Ibid, citing as examples: Abbas vs. Commission on Elections, 179 SCRA 287 (1989); People vs. Dacuycuy, 173 SCRA 90
(1989); Heirs of Ordera vs. Reyes, 125 SCRA 380 (1983) (sic); Peralta vs. Commission on Elections, 82 SCRA 30 (1978);
Solar vs. Jarencio, 46 SCRA 734 (1972).
4 
The norm embodied in Article IX (C) (4) of the Constitution in the NPC case aims to equalize opportunity, time and space,
and the right to reply in the use of media for campaign purposes.
5 
CONST. art V, sec. 2; art IX (C), sec. 2 (1).
6 
Osmeña vs. Comelec, 288 SCRA 447 (1998).
7 
BATAS PAMBANSA BLG. 881 (as amended), secs. 5 & 6 and R.A No. 7166, sec. 4. These situations are replete with
cases; see for e.g. Hassan vs. Comelec, 264 SCRA 125 (1996); Sanchez vs. Comelec, 145 SCRA 454 (1982); Mangudadatu
vs. Comelec, G.R. No. 86053, May 4, 1989; Barabu vs. Comelec, G.R. No. 78820, May 17, 1988.

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 court latter affirmed in toto the decision of the trial court, as follows,

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

Costs against accused-appellants.

SO ORDERED.7

Hence the instant petition assigning the following errors:

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

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

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

Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic materials.
Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must
prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the appellate court’s
reason for convicting him, on a presumption of continuing ownership shown by an expired mayor’s permit, has no sufficient basis
since the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that he was not an
attendant in Music Fair, nor did he introduce himself so.9
The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201,
and petitioner Fernando’s ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was
naturally a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that Estorninos was
identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable.10

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

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

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

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

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

In People v. Go Pin, the Court said:

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

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

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

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

Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a
conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the
absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve
their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be
obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-
cents worths" among judges as to what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how
jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It
is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization. 25 It
seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.

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

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

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

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

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

In one (1) case the Supreme Court ruled:

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

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

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

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

We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under
Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any
of the forms under Article 201 is committed only when there is publicity. 32 The law does not require that a person be caught in the act
of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or
exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner
Fernando.33 The mayor’s permit was under his name. Even his bail bond shows that Hhe lives in the same place. 34 Moreover, the
mayor’s permit dated August 8, 1996, shows that he is the owner/operator of the store.35 While the mayor’s permit had already
expired, it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make his failure to
renew his business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not to
present contrary evidence, the things which he possessed were presumptively his.36

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

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

SO ORDERED.

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

Footnotes

1
 Rollo, pp. 44-52.
2
 ART. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. – The penalty of prision mayor or
a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature;
and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs, or any other place, exhibit, indecent or immoral plays, scenes, acts or
shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in
film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or religion; (4) tend to abet
traffic in and use of prohibited drugs; and (5) are contrary to law, public order, morals, good customs, established policies,
lawful orders, decrees and edicts;
3. Those who shall sell, give away, or exhibit films, prints, engravings, sculptures, or literature which are offensive to morals.
3
 Records, p. 3.
4
 Id. at 1.
5
 Id. at 150.
6
 Rollo, pp. 42-43.
7
 Id. at 51.
8
 Id. at 13.
9
 Id. at 101-103.
10
 Id. at 120-122.
11
 Records, pp. 135-136 and 145.
12
 Id. at 150.
13
 R. Aquino, The Revised Penal Code book two 395 (1987).
14
 45 Phil. 352 (1923).
15
 Id. at 356.
16
 Id. at 356-357.
17
 Pita v. Court of Appeals, G.R. No. 80806, October 5, 1989, 178 SCRA 362, 368.
18
 97 Phil. 418 (1955).
19
 101 Phil. 749 (1957).
20
 People v. Go Pin, supra note 18, at 419.
21
 People v. Padan y Alova, et al., supra note 19, at 752.
22
 No. L-69500, July 22, 1985, 137 SCRA 717, 726.
23
 Pita v. Court of Appeals, supra note 17, at 369-370.
24
 Id. at 370.
25
 Id. at 372.
26
 Id. at 371.
 27
 Jenkins v. Georgia, 418 U.S. 153 (1974).
28
 Id.
29
 Miller v. California, 413 U.S. 15 (1973).
30
 Rollo, pp. 40-42.
31
 Pangonorom v. People, G.R. No. 143380, April 11, 2005, 455 SCRA 211, 220 and Jose v. People, G.R. No. 148371,
August 12, 2004, 436 SCRA 294, 303.
32
 L. Reyes, Revised Penal Code Book Two 347 (1998).
33
 Records, p. 3.
34
 Id. at 27.
35
 Id. at 71.
36
 People v. Agcaoili, G.R. No. 92143, February 26, 1992, 206 SCRA 606, 613.
37
 TSN, October 11, 1999, p. 6.
38
 People v. Khor, G.R. No. 126391, May 19, 1999, 307 SCRA 295, 326.
A1
 Explain the demurrer to evidence. Why is non-presentation of evidence detrimental to the petitioners’ case?

G.R. No. 127930               December 15, 2000

MIRIAM COLLEGE FOUNDATION, INC., petitioner,

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

KAPUNAN, J.:

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

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

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

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

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

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

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

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

"Kaskas mo pa, kaskas mo pa!"

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

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

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

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

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

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

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

may mga palangganang nakatiwangwang -

mga putang biyak na sa gitna,

'di na puwedeng paglabhan,

'di na maaaring pagbabaran . . ."

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

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

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

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

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

'Na picture mo na ba

no'ng magkatabi tayong dalawa

 sa pantatluhang sofa -

ikaw, the legitimate asawa

at ako, biro mo, ang kerida?

tapos, tumabi siya, shit!

kumpleto na:

ikaw, ako at siya

kulang na lang, kamera."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED.9

Both parties moved for a reconsideration of the above order. In an Order dated 22 February 1995, the RTC dismissed the petition,
thus:
 4. On the matter raised by both parties that it is the DECS which has jurisdiction, inasmuch as both parties do not want this
court to assume jurisdiction here then this court will not be more popish than the Pope and in fact is glad that it will have one
more case out of its docket.

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

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

SO ORDERED.10

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

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

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

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

SO ORDERED.13

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

Hence, this petition by Miriam College.

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

(1) The alleged moot character of the case.

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

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

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

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

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

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

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

We find that the case is not moot.

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

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

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

This limitation as to the duration of the temporary restraining order was the rule prevailing when the CA issued its TRO dated 19 May
1995.21 By that time respondents Elizabeth Valdezco and Joel Tan had already served their respective suspensions. The TRO was
applicable only to respondents Jasper Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary Renacido all of whom
were dismissed, and respondent Camille Portugal whose graduation privileges were withheld. The TRO, however, lost its effectivity
upon the lapse of the twenty days. It can hardly be said that in that short span of time, these students had already graduated as to
render the case moot.

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

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

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

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

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

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

Tested by such standards, we find that the order was indeed intended for private respondents (in the appellate court) Miriam College,
et al., and not public respondent Judge. In dismissing the case, the trial judge recalled and set aside all orders it had previously issued,
including the writ of preliminary injunction. In doing so, the trial court allowed the dismissal and suspension of the students to remain
in force. Thus, it would indeed be absurd to construe the order as being directed to the RTC. Obviously, the TRO was intended for
Miriam College.
True, respondent-students should have asked for a clarification of the above order. They did not. Nevertheless, if Miriam College
found the order "absurd," then it should have sought a clarification itself so the Court of Appeals could have cleared up any confusion.
It chose not to. Instead, it took advantage of the supposed vagueness of the order and used the same to justify its refusal to readmit the
students.

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

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

II

"To uphold and protect the freedom of the press even at the campus level and to promote the development and growth of campus
journalism as a means of strengthening ethical values, encouraging critical and creative thinking, and developing moral character and
personal discipline of the Filipino youth,"28 Congress enacted in 1991 Republic Act No. 7079. Entitled "AN ACT PROVIDING FOR
THE DEVELOPMENT AND PROMOTION OF CAMPUS JOURNALISM AND FOR OTHER PURPOSES,"29 the law contains
provisions for the selection of the editorial board30 and publication adviser,31 the funding of the school publication,32 and the grant of
exemption to donations used actually, directly and exclusively for the promotion of campus journalism from donor's or gift tax.33

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

Section 7, in particular, provides:

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

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

GENERAL PROVISIONS

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

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

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

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

DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD OF DEFENDANT SCHOOL HAVE NO

JURISDICTION OVER THE CASE.35

II

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

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

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

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

III

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

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

A.

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

(1) Who may teach,

(2) What may be taught,

(3) How it shall be taught, and

(4) Who may be admitted to study.40

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

Thus, there can be no doubt that the establishment of an educational institution requires rules and regulations necessary for
the maintenance of an orderly educational program and the creation of an educational environment conducive to learning.
Such rules and regulations are equally necessary for the protection of the students, faculty, and property.41
Moreover, the school has an interest in teaching the student discipline, a necessary, if not indispensable, value in any field of learning.
By instilling discipline, the school teaches discipline. Accordingly, the right to discipline the student likewise finds basis in the
freedom "what to teach."

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

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

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

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

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

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

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

Tracing the development of academic freedom, the Court continued:

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

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

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

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

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

In essence, education must ultimately be religious - not in the sense that the founders or charter members of the institution are
sectarian or profess a religious ideology. Rather, a religious education, as the renowned philosopher Alfred North Whitehead
said, is 'an education which inculcates duty and reverence.' It appears that the particular brand of religious education offered
by the Ateneo de Manila University has been lost on the respondent students.
 Certainly, they do not deserve to claim such a venerable institution as the Ateneo de Manila University as their own a minute
longer, for they may foreseeably cast a malevolent influence on the students currently enrolled, as well as those who come
after them.1avvphi1

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

B.

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

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

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

C.

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

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

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

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

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

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

IV.

From the foregoing, the answer to the question of who has jurisdiction over the cases filed against respondent students becomes self-
evident. The power of the school to investigate is an adjunct of its power to suspend or expel. It is a necessary corollary to the
enforcement of rules and regulations and the maintenance of a safe and orderly educational environment conducive to learning.58 That
power, like the power to suspend or expel, is an inherent part of the academic freedom of institutions of higher learning guaranteed by
the Constitution. We therefore rule that Miriam College has the authority to hear and decide the cases filed against respondent
students.1âwphi1.nêt

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.

Footnotes
1 
Rollo, p. 66.
2 
CA Rollo, pp. 41-44.
3 
Jasper Briones, Editor-in-Chief; Jerome Gomez, Associate Editor, Deborah Ligon, Business Manager; Imelda Hilario, News
Editor Elizabeth Valdezco, Lay-Out Editor; Jose Mari Ramos, Art Editor; Camille Portugal, Asst. Art Editor; Joel Tan, Photo
Editor; Gerald Gary Renacido, a member of the literary staff; and Daphne Cowper, Asst. Literary Editor.
4 
CA Rollo, p. 59.
5 
Id., at 60.
6 
Id., at 62.
7 
Rollo, pp. 19-20.
8 
CA Rollo, p. 29.
9 
Id., at 48-49.
10 
Rollo, p. 89-90.
11 
Docketed herein as G.R. No. 119027.
12 
CA Rollo, p. 76.
13 
Id., at 78.
14 
Rollo, p. 24.
15 
Golangco vs. Court of Appeals, 283 SCRA 493 (1997).
16 
Cagayan de Oro City Landless Residents Asso., Inc. vs. Court of Appeals, 254 SCRA 220 (1996).
17 
Asset Privatization Trust vs. Court of Appeals, 214 SCRA 400 (1992).
18 
Carbungco vs. Court of Appeals, 181 SCRA 313 (1990).
19 
Board of Transportation vs. Castro, 125 SCRA 411 (1983).
20 
Johannesburg Packaging Corporation vs. Court of Appeals, 216 SCRA 439 (1992).
21 
Under §5, Rule 58 of the present Rules of Court, a TRO issued by the Court of Appeals or a member thereof shall be
effective for sixty (60) days from notice to the party or person sought to be enjoined.
22 
Philippine National Bank vs. Court of Appeals and Romeo Barilea, 291 SCRA 271 (1998).
23 
4 C.J.S. Appeal and Error §40.
24 
Rollo, p. 125. In their Rejoinder, private respondents attached a "Joint Affidavit" stating:
xxx
 4. That the claim of the petitioner, that we have not employed the TRO issued by the Court of Appeals in filing for
reinstatement or gaining entry into the campus premises, is completely false and misleading. The truth of the matter
being that members of our group had initially tried to gain admittance into the school premises but were barred from
doing so by the guards who claimed it was for security reasons, as mandated on them [sic] by the petitioners.
xxx
6. Except for the two [referring to Jose Mari Ramos and Elizabeth Valdezco], we have stopped schooling and we are
waiting for the case to be resolved to continue our studies and finish the courses we started. We need only a year or
two to do it.
xxx
8. We respectfully petition the court to admit this affidavit as proof against the petitioners’ [sic] false manifestation.
We hope that the facts we have provided will help clear the cloud of confusion intentionally raised by the petitioners
through their allegations. We also hope that they be held in contempt of their attempt to intentionally mislead the
honorable court. And we also pray that the court grant the speedy resolution of the case in our favor, thereby
facilitating in [sic] our long-awaited vindication.
On October 21, 1998, the Court resolved to require the petitioner to file a Sur-Rejoinder within ten (10) days from
notice, directing the petitioner to address in particular the above statements of private respondents in their "Joint
Affidavit." Petitioner, however, never filed the required Sur-Rejoinder and we resolve to dispense with the same.
25 
Id., at 157.
26 
Reply, p. 2.
27 
66 SCRA 485 (1975).
28 
Section 2, Republic Act No. 7079.
29 
Also known as the "Campus Journalism Act of 1991." (Section 1, Id.)
30 
Sec. 4. Student Publication.-- A student publication is published by the student body through an editorial board and
publication staff composed of students selected by fair and competitive examinations.
Once the publication is established, its editorial board shall freely determine its editorial policies and manage the
publication’s funds.
31 
Sec. 6 Publication Adviser.- The publication adviser shall be selected by the school administration from a list of
recommendees submitted by the publication staff. The function of the adviser shall be limited to one of technical guidance.
32 
Sec. 5. Funding of Student Publication.- Funding for the student publication may include the savings of the respective
school’s appropriations, student subscriptions, donations, and other sources of funds.
33 
Sec. 10. The Tax Exemption.- Pursuant to paragraph 4, Section 4, Article XIV of the Constitution, all grants, endowments,
donations, or contributions used actually, directly and exclusively for the promotion of campus journalism as provided for in
this Act shall be exempt from donor’s or gift tax.
34 
Sec. 9.
35 
Id., at 95.
36 
Id., at 96-97.
37 
100 SCRA 254 (1980).
38 
20 Am Jur 2d, Courts §93.
39 
Tangonan vs. Pan, 137 SCRA 245, 256-257 (1985).
40 
Isabelo, Jr. vs. Perpetual Help College of Rizal, Inc. 227 SCRA 591, 595 (1993), Ateneo de Manila University vs.
Capulong, 222 SCRA 643, 660 (1993), Garcia vs. the Faculty Admission Committee, Loyola School of Tehology, 68 SCRA
277, 285 (1975). The above formulation was made by Justice Felix Frankfurter in his concurring opinion is Sweezy v. New
Hampshire, 354 U.S. 234, 263.
41 
Angeles vs. Sison, 112 SCRA 26, 37 (1982).
42 
Section 3 (2), Article XIV Constitution.
43 
Supra, at 37.
44 
222 SCRA 643 (1993).
45 
Id., at 659-660.
46 
Id., at 663-665.
47 
129 SCRA 359 (1984).
48 
393 U.S. 503 (1968).
49 
Id., at 367-368.
50 
135 SCRA 706 (1985).
51 
137 SCRA 94 (1985).
52 
185 SCRA 523 (1990).
53 
Healy vs. James, 408 US 169, 33 L Ed 2d 266, 92 S Ct 2338, citing Tinker vs. Des Moines, supra.
54 
Malabanan vs. Ramento, supra, at 368. See also Arreza vs. Gregorio Araneta University Foundation, supra, at 97-98, and
Non vs. Dames II, supra, at 535.
55 
Id., at 369; Underscoring supplied.
56 
Herras Teehankee vs. Rovira, 75 Phil. 634, at 643 (1945).
57 
Bernhardt v. Polygraphic Co., 350 US 198, 202, 100 L ed 199, 76 Ct 273 (1955).
58 
Angeles vs. Sison, 112 SCRA 26, 37 (1982).
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, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA
DALIDA, NELSON DUL-DULAO, LEA POCONG, ENRICO RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE,
JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA
BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO, ANACLETA
CORRALES, GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE,
ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN,
DEMOCRITO FLORES, ROSALIA GARCENILA, CORAZON GONZALES, VIOLETA GUANIZO, SURENA GUNDRAN,
HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESTTA LAURENTE,
CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT,
AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA
NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA PANGINDIAN, MA. LUZ PEREZ, LYDIA
QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE SAN
AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA,
DONATO VALDEMORO, ROSEMARIE VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA
VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE PARMISANO, FELIPE ALACAR, JOSE FETAL
ALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA CLEMENCIA, petitioners,
vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND
SPORTS, respondents.

BELLOSILLO, J.:

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

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

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

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

Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.
 In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the
Application of Penalty in Administrative Cases, the herein respondents are dismissed from Office effective
immediately.

The decisions dismissing petitioners were immediately implemented.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And since it was already the final dismissal orders of Secretary Cariño which were being carried out, immediate
implementation even pending appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of
1987. 26 Hence, being legal, the immediate execution of the dismissal orders could not be considered unjustified.
The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of Baguio 27 and Bautista
v. Peralta 28 being cases which involved the unjustified immediate execution of the dismissal orders of the then Civil Service
Commissioner pending appeal to the Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither
could petitioners be considered to have been exonerated from the charges levelled against them by Secretary Cariño from the mere
fact that they were found guilty only of conduct prejudicial to the best interest of the service by the CSC. It must be remembered that
Secretary Cariño charged petitioners with grave misconduct, gross neglect of duty, gross violation of civil service law, rules and
regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC while affirming the factual finding that
petitioners indeed participated in the mass the factual finding that petitioners indeed participated in the mass actions found them liable
only for conduct prejudicial to the best interest of the service. Clearly the CSC decision did not proceed from a finding that petitioners
did not commit the acts complained of. Having been found to have actually participated in the illegal mass actions although found
answerable for a lesser offense, petitioners could not be considered as fully innocent of the charges against them. 29 Being found liable
for a lesser offense is not equivalent to exoneration. 30

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

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

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

SO ORDERED.

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

Footnotes

1 In G.R. No. 126183, petitioners are Luzviminda de la Cruz, Mercy de Leon, Teresita Eugenio, Corazon Gomez, Elena
Guevarra, Rosalina Jingco, Loida Ignacio, and Emerita Pizarro, while respondents are Court of Appeals, Civil Service
Commission and the Secretary of the Department of Education, Culture and Sports.
In G.R. No. 129221 petitioners are Rolando Alura, Clara Alvarez, Pofirio Austria, Vicente Carranza, Elmer Dalida,
Rosalinda Dalida, Nelson Duldulao, Lea Pocong, Enrico Raymundo, Margie Serrano, Susan Sierte, Jessie Villanueva,
Norberto Abad, Maria Acejo, Elvira Alano, Susana Banua, Carolina Bulaclac, Danilo Caballes, Echelita Calma, Jesusa
Caraig, Cecilia Castillo, Anacleta Corrales, Gloria Cuevas, Concondia de Guzman, Rowena del Rosario, Matilde Dingle,
Rosario Duldulao, Conrada Endrina, Luzviminda Espino, Virgilio Estrada, Damian Fetizanan, Democrito Flores, Rosalia
Garcenila, Corazon Gonzales, Violeta Guanizo, Surena Gundran, Hilaria Hidalgo, Nerissa Ignacio, Leonor Lacerna, Teresita
Lagumbay, Teresita Laurenti, 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, Bernadita 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, Carolino Coligado, Rolando Cerbo and Lora
Clemencia, while respondents are Court of Appeals, Civil Service Commision, and Secretary of Education, Culture and
Sports.
2 Wilson Perez, et al. v. Civil Service Commission, et al.
3 Rolando Alura, et al. v. Civil Service Commission, et al.
4 Luzviminda dela Cruz, et al. v. Civil Service Commission, et al.
5 Re: Rules Governing Appeals to the Court of Appeals from Judgments or Final Orders of the Court of Tax Appeals and
Quasi-Judial Agencies.
6 Fidel R. Purisima (Chairman), JJ. Ruben T. Reyes, Consuelo Ynares-Santiago, Romeo J. Callejo, Sr., and Romeo A.
Brawner (Members).
7 G.R. No. 129221, Rollo, pp. 75-87.
8 Civil Service Law.
9 Rollo, pp. 95-96.
10 J. Alfredo L. Benipayo [ponente], JJ. Buenaventura J. Guerrero and Romeo A. Brawner [concurring].
 11 G.R. No. 126183, Rollo, pp. 64-77.
12 G.R. No. 95445, 6 August 1991, 200 SCRA 323.
13 Rollo, p. 78.
14 Moreno, Philippine Law Dictionary, 1988 Ed., p. 902, citing Government v. Jalandoni, 44 O. G. 1840.
15 Santiago v. Valenzuela, 78 Phil. 397 (1947).
16 G.R. No. 95445, 6 August 1991.
17 G.R. No. 95590, 6 August 1991.
18 G.R. Nos. 110717 and 110721-22, 14 December 1993.
19 Jacinto v. Court of Appeals, G.R. No. 124540, 14 November 1997, 281 SCRA 657, 675.
20 No. L-31195, 5 June 1973, 51 SCRA 189.
21 See Note 18.
22 Ibid.
23 G.R. No. 126567, Minute Resolution dated 9 September 1997.
24 G.R. No. 124678, 31 July 1997, 276 SCRA 619.
25 See Note 24.
26 Jacinto v. Court of Appeals, G.R. No. 124540, 14 November 1997, 281 SCRA 657, 679-680.
27 No. L-23957, 18 March 1967, 19 SCRA 600.
28 No. L-21967, 29 September 1966, 18 SCRA 223.
29 Jacinto v. Court of Appeals, G.R. No. 124540, 14 November 1997, 281 SCRA 657, 682.
30 Ibid.
31 G.R. No. 126540, 14 November 1997, 281 SCRA 657.

G.R. No. 170132             December 6, 2006

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

DECISION

GARCIA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Government Service Insurance System (GSIS) and its
President and General Manager Winston F. Garcia (Garcia, for short) assail and seek to nullify the Decision1 dated June 16, 2005 of
the Court of Appeals (CA) in CA-G.R. SP No. 87220, as reiterated in its Resolution2 of October 18, 2005 denying Garcia's motion for
reconsideration.

The recourse is cast against the following setting:

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

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

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

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

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

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

On June 16, 2005, the CA rendered the herein assailed decision7 holding that Garcia's "filing of administrative charges against 361 of
[KMG's] members is tantamount to grave abuse of discretion which may be the proper subject of the writ of prohibition."
Dispositively, the decision reads:

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

SO ORDERED. (Emphasis in the original)

Unable to accept the above ruling and the purported speculative factual and erroneous legal premises holding it together, petitioner
Garcia sought reconsideration. In its equally assailed Resolution8 of October 18, 2005, however, the appellate court denied
reconsideration of its decision.

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

We resolve to GRANT the petition.

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

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

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

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

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

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

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

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

We are unable to lend concurrence to the above CA posture. For, let alone the fact that it ignores what the Court has uniformly held all
along, the appellate court's position is contrary to what Section 4 in relation to Section 5 of CSC Resolution No. 021316 17 provides.
Besides, the appellate court's invocation of Justice Cruz's opinion in MPSTA is clearly off-tangent, the good Justice's opinion thereat
being a dissent. It may be, as the appellate court urged¸ that the freedom of expression and assembly and the right to petition the
government for a redress of grievances stand on a level higher than economic and other liberties. Any suggestion, however, about
these rights as including the right on the part of government personnel to strike ought to be, as it has been, trashed. We have made this
abundantly clear in our past determinations. For instance, in Alliance of Government Workers v. Minister of Labor and
Employment,18 a case decided under the aegis of the 1973 Constitution, an en banc Court declared that it would be unfair to allow
employees of government corporations to resort to concerted activity with the ever present threat of a strike to wring benefits from
Government. Then came the 1987 Constitution expressly guaranteeing, for the first time, the right of government personnel to self-
organization19 to complement the provision according workers the right to engage in "peaceful concerted activities, including the right
to strike in accordance with law."20

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

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

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

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

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

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

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

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

When we proposed this amendment providing for self organization of government employees, it does not mean that because
they have the right to organize, they have also the right to strike. That is a different matter. xxx25

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

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

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

We are not convinced.

In whatever name respondent desires to call the four-day mass action in October 2004, the stubborn fact remains that the erring
employees, instead of exploring non-crippling activities during their free time, had taken a disruptive approach to attain whatever it
was they were specifically after. As events evolved, they assembled in front of the GSIS main office building during office hours and
staged rallies and protests, and even tried to convince others to join 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 action31 and doubtless actionable administratively. Bangalisan even went further to say the following: "[i]n
the absence of statute, public employees do not have the right to engage in concerted work stoppages for any purpose."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No Cost.

SO ORDERED.

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

Corona, J., On Leave.

Footnotes

1
 Penned by Associate Justice Rebecca DeGuia-Salvador, concurred in by Associate Justices Amelita G. Tolentino and
Aurora Santiago-Lagman, Rollo, pp. 78-98.
2
 Id. at 101-105.
3
 CA Decision, p. 2; Id. at 79.
4
 Id. at 80.
5
 Id. at 79-81.
6
 Garcia's Motion for Reconsideration of the [CA's] Decision dated June 22, 2005, pp. 8-9; Annex "G," Petition, Id. at 44-45.
7
 Supra note 1.
8
 Supra note 2.
9
 GSIS exists pursuant to PD 1146, as amended by RA No. 8291, or the Government Service Insurance System Act of 1997.
10
 Constitution, Art. IX(B), Sec. 2(1); SSS Employees Association v. CA, G.R. No. 85279, July 28, 1989, 175 SCRA 686;
Home Development Mutual Fund v. COA, G.R. No. 142297, June 15, 2004, 432 SCRA 127.
11
 G.R. No. 124540, November 14, 1997, 281 SCRA 657.
12
 Bangalisan v. Court of Appeals, G.R. No. 124678, July 31, 1997, 276 SCRA 619.
13
 CA Resolution, p. 4; Rollo, p. 104.
 14
 CA Resolutions pp. 3-4; Rollo, 103-104.
15
 G.R. Nos. 95445 & 95590, August 6, 1991, 200 SCRA 323.
16
 CA Decision, p. 10; Rollo, p. 87.
17
 Sec. 4. Limitation on the Right to Self-Organization. – The right to self-organization accorded to government employees as
described in the foregoing section shall not carry with it the right to engage in any form of prohibited concerted activity or
mass action causing or intending to cause work stoppage or service disruption, albeit of temporary nature.
Sec. 5. Definition of Prohibited Concerted Mass Action. – As used in this Omnibus rules, the phrase "prohibited concerted
activity" shall be understood to refer to any collective activity undertaken by government employees, by themselves or
through their employees' organizations, with the intent of effecting work stoppage or service disruption in order to realize
their demands or force concessions, economic or otherwise, from their respective agencies or the government. It shall include
mass leaves, walkouts, pickets and acts of similar nature.
18
 No. L-60403, August 3, 1983, 124 SCRA 1.
19
 Art. IX(B), Sec. 2 (5).
20
 Art. XIII, Sec. 2.
21
 G.R. No. 124678, July 31, 1997, 276 SCRA 619.
22
 Supra note 15.
23
 Supra note 11.
25
 Bernas, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES A COMMENTARY, 337 (1st ed, 1988).
26
 CSC Res. No. 021316, Sec. 5; Supra note 17. .
27
 Annex "C" and Annex "I," Petition, Rollo, p. 107 and 173, respectively.
28
 Id. at 267.
29
 Rep. Act No. 6713.
30
 Jacinto v. CA, supra note 22..
31
 CSC Resolution No. 021316, Sec. 5.
32
 SEC. 45. Powers and Duties of the President and General Manager.- xxx The President and General Manager [of the
GSIS], subject to the approval of the Board, shall appoint the personnel of the GSIS, remove, suspend or otherwise discipline
them for cause, in accordance with existing Civil Service rules and regulations ….
33
 KMG's basic petition for prohibition, p. 13; Rollo, p. 121 et seq.
34
 CA Decision, pp. 17-18; Id. at 94-95.
35
 Petition, p. 41; Id. at 43.
36
 Annex "D," Petition; Id. at 108.
37
 Allied Banking Corporation v. NLRC, G.R. No. 116128, July 12, 1996, 258 SCRA 724; Lapanday Workers Union v.
NLRC, G.R. Nos. 95494-97, September 7, 1995, 248 SCRA 95; International Container Terminal Services, Inc. v. NLRC,
G.R. No. 98295, April 10, 1996, 256 SCRA 134.
38
 Supra note 32.

G.R. No. 107566             November 25, 2004

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

DECISION

CHICO-NAZARIO, J.:

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

Culled from the records are the following facts:

During the time material to this case, petitioner Oseo C. Hamada (Hamada) was the president and general manager of the Baguio
Printing and Publishing Co., Inc., which publishes the Baguio Midland Courier, a weekly newspaper published and circulated in
Baguio City and other provinces within the Cordillera region. He was also, at that time, the business manager of said newsweekly.
Petitioner Cecille Afable (Afable) was Baguio Midland Courier's editor-in-chief and one of its columnists who ran the column "In and
Out of Baguio."
On the other hand, private respondent Ramon L. Labo, Jr., was among the mayoralty candidates in Baguio City for the 18 January
1988 local elections.3 Prior to this, in 1984, private respondent had already embarked on a political career by running for a seat in the
former Batasang Pambansa during which time he appointed a certain Benedicto Carantes (Carantes) as his campaign manager. It
appears that as part of the campaign propaganda for private respondent in the 1984 local elections, political ads appeared in the
various issues of Baguio Midland Courier and campaign paraphernalia were printed by Baguio Printing and Publishing Co., Inc., on
his behalf.

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

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

January 3, 1988

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

January 10, 1988

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

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

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

Prior to filing their respective answers, petitioners filed separate motions to dismiss7 upon the ground that there was failure to comply
with Section 6 of Presidential Decree (P.D.) No. 1508,8 otherwise known as the Katarungang Pambarangay Law, which required the
referral of certain disputes to the barangay conciliation process before they are filed in court. Petitioner Hamada also claimed that the
complaint stated no cause of action.

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

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

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

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

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

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

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

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

On the other hand, the petitioners presented Ms. Sylvia Lambino (Lambino), Baguio Printing and Publishing Co., Inc.'s, bookkeeper
and accountant, as their first witness. According to Lambino, Baguio Printing and Publishing Co., Inc., sent several statements of
accounts and demand letters to private respondent pertaining to his unpaid obligations amounting to P27,415 which he incurred during
his campaign for the Batasang Pambansa in 1984.20 She further testified that despite the repeated demands to private respondent, the
aforementioned obligations remained unpaid.21

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

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

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

In its decision, dated 14 June 1990, the trial court dismissed the complaint for lack of merit. According to the trial court, the article in
question was privileged and constituted fair comment on matters of public interest as it dealt with the integrity, reputation, and honesty
of private respondent who was a candidate for local elective office at that time.
This decision of the trial court was, however, reversed by the appellate court in a decision, dated 07 January 1992, the dispositive
portion of which reads:

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

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

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

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

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

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

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

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

II

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

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

III

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

IV

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

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

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

The Court's Ruling

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

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

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

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

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

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

Third. In its assailed decision, the Court of Appeals likewise highlighted the fact that petitioners Hamada and Afable were husband
and wife and went on to conclude, albeit erroneously, that "(t)here is good reason and reasonable ground to assume that the
publication of the libelous article was a manifestation of the spouses' thinking on the merit or demerit of candidates for Baguio City
mayor for the 18 January 1988 elections."35 Again, we disagree in this conclusion of the appellate court. The records of this case
clearly establish the fact that petitioners Hamada and Afable were siblings and not spouses in that during his testimony on 19
December 1989, petitioner Hamada referred to petitioner Afable as his sister. 36 The Court of Appeals' supposition, therefore, that the
article subject of this petition reflected the stance of the "husband and wife team" of the petitioners utterly lacks factual support.
Having addressed the factual issues of this case, we shall now proceed to discuss its substantive question of whether the 10 January
1988 article of petitioner Afable was defamatory.

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

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

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

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

A That is what I understand.

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

A That is what I understand.

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

A No, sir.

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

A That I cannot answer.

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

A Maybe.42

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

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

We do not agree.

Concededly, private respondent was not yet a public official at the time the 10 January 1988 article was published. Nevertheless, this
fact does not remove said article from the mantle of protection guaranteed by the freedom of expression provision of the Constitution.
Indeed, as early as 1909, in the case of United States v. Sedano, 44 this Court had recognized the public's right to be informed on the
mental, moral, and physical fitness of candidates for public office.
Subsequently, in the leading case of New York Times Co. vs. Sullivan,45 the US Supreme Court expounded on this principle, viz:

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

...

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

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

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

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

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

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

SO ORDERED.

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

Footnotes

1 
Penned by Associate Justice Jose C. Campos, Jr., with Associate Justices Alicia V. Sempio-Diy and Filemon H. Mendoza,
concurring; Rollo, pp. 54-61.
2 
Rollo, p. 81.
3 
Private respondent Ramon L. Labo, Jr., eventually won said election.
 4 
Complaint dated 11 January 1988; Rollo, p. 55.
5 
Records, p 139.
6 
Records, pp. 172-176; Exhibit "17" for petitioner Afable.
7 
Records, pp. 9-12; pp. 14-15.
8 
Section 6. Conciliation, pre-condition to filing of complaint. – No complaint, petition, action or proceeding involving any
matter within the authority of the Lupon as provided in Section 2 hereof shall be filed or instituted in Court or in any other
government office for adjudication unless there has been a confrontation of the parties before the Lupon Chairman or Pangkat
and no conciliation or settlement had been reached as certified by the Lupon Secretary or the Pangkat Secretary attested by
the Lupon or Pangkat Chairman or unless the settlement has been repudiated.
9 
Records, pp. 29-30.
10 
Records, pp. 31-37.
11 
Records, pp. 41-45.
12 
Rollo, pp. 31-35; Annex "B" of the Petition.
13 
Rollo, pp. 36-41; Annex "C" of the Petition.
14 
Id. at 38.
15 
Rollo, p. 45.
16 
TSN, 18 July 1989, p. 6.
17 
Id. at 10.
18 
TSN, 21 August 1989, p.4.
19 
Ibid.
20 
TSN, 10 September 1989, pp. 5-9.
21 
Id. at 19.
22 
TSN, 19 December 1989, p. 4.
23 
TSN, 20 December 1989, p. 15.
24 
Id. at 15-16.
25 
Rollo, p. 60.
26 
Rollo, pp. 62-79; Annexes "G" and "H" of the Petition.
27 
Rollo, p. 81.
28 
Rollo, pp. 2-3.
29 
Rollo, p. 154.
30 
Austria v. Court of Appeals, G.R. No. 133323, 09 March 2000, 327 SCRA 668; Ladignon v. Court of Appeals, G.R. No.
122973, 18 July 2000, 336 SCRA 42.
31 
G.R. No. 126850, 28 April 2004.
32 
Id. at 7-8, citations omitted.
33 
Rollo, p. 59.
34 
Rollo, p. 143; Memorandum for Petitioners, p. 12.
35 
Rollo, p. 59.
36 
TSN, 19 December 1989, p. 7.
37 
Newsweek, Inc. v. Intermediate Appellate Court, G.R. No. L-63559, 30 May 1986, 142 SCRA 171.
38 
Corpus v. Cuaderno, Sr., G.R. No. L-16969, 30 April 1966, 16 SCRA 807.
39 
G.R. No. 126466, 14 January 1999, 310 SCRA 1.
40 
Id. at 18.
41 
According to Dr. Rovillos, the term meant "a zero or a big lie;" TSN, 21 August 1989, p. 4.
42 
TSN, 21 August 1989, pp. 9-10.
43 
Rollo, p. 60.
44 
14 Phil. 338 (1909).
45 
376 US 254.
46 
Id. at 281-282, citing Coleman v. MacLennan, 78 Kan. 711, 98 P. 281.
47 
Supra, note 40 at 341-342.
48 
Article 354 of the Revised Penal Code provides: "Every defamatory imputation is presumed to be malicious, even if it be
true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral or social duty;
and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of their functions."
49 
Supra note 37 at 28.
50 
Supra note 39 at 30 citing the Concurring Opinion of US Supreme Court Justice Rutledge in Pennekamp v. Florida, 328 US
331, 371-372.

G.R. No. 153888             July 9, 2003

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

CORONA, J.:

Before us is a petition for prohibition filed by petitioner Islamic Da'wah Council of the Philippines, Inc. (IDCP) praying for the
declaration of nullity of Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents Office of the Executive Secretary
and Office of Muslim Affairs (OMA) from implementing the subject EO.

Petitioner IDCP, a corporation that operates under Department of Social Welfare and Development License No. SB-01-085, is a non-
governmental organization that extends voluntary services to the Filipino people, especially to Muslim communities. It claims to be a
federation of national Islamic organizations and an active member of international organizations such as the Regional Islamic Da'wah
Council of Southeast Asia and the Pacific (RISEAP)1 and The World Assembly of Muslim Youth. The RISEAP accredited petitioner
to issue halal2 certifications in the Philippines. Thus, among the functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to qualified products and manufacturers.

Petitioner alleges that, on account of the actual need to certify food products as halal and also due to halal food producers' request,
petitioner formulated in 1995 internal rules and procedures based on the Qur'an3 and the Sunnah4 for the analysis of food, inspection
thereof and issuance of halal certifications. In that same year, petitioner began to issue, for a fee, certifications to qualified products
and food manufacturers. Petitioner even adopted for use on its halal certificates a distinct sign or logo registered in the Philippine
Patent Office under Patent No. 4-2000-03664.

On October 26, 2001, respondent Office of the Executive Secretary issued EO 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 PEOPLE'S ORGANIZATIONS

Sec. 15. The State shall respect the role of independent people's organizations to enable the people to pursue and protect,
within the democratic framework, their legitimate and collective interests and aspirations through peaceful and lawful means.
 People's organizations are bona fide associations of citizens with demonstrated capacity to promote the public interest and
with identifiable leadership, membership, and structure.

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

According to petitioner, the subject EO was issued with utter haste and without even consulting Muslim people's organizations like
petitioner before it became effective.

We grant the petition.

OMA was created in 1981 through Executive Order No. 697 (EO 697) "to ensure the integration of Muslim Filipinos into the
mainstream of Filipino society with due regard to their beliefs, customs, traditions, and institutions."8 OMA deals with the societal,
legal, political and economic concerns of the Muslim community as a "national cultural community" and not as a religious group.
Thus, bearing in mind the constitutional barrier between the Church and State, the latter must make sure that OMA does not intrude
into purely religious matters lest it violate the non-establishment clause and the "free exercise of religion" provision found in Article
III, Section 5 of the 1987 Constitution.9

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe
as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with
the common good."10

Without doubt, classifying a food product as halal is a religious function because the standards used are drawn from the Qur'an and
Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious freedom of
Muslim organizations like herein petitioner to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also,
by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of
the Qur'an and Sunnah on halal food.

To justify EO 46's intrusion into the subject religious activity, the Solicitor General argues that the freedom of religion is subservient
to the police power of the State. By delegating to OMA the authority to issue halal certifications, the government allegedly seeks to
protect and promote the muslim Filipinos' right to health, and to instill health consciousness in them.

We disagree.

Only the prevention of an immediate and grave danger to the security and welfare of the community can justify the infringement of
religious freedom.11 If the government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally
unacceptable. In a society with a democratic framework like ours, the State must minimize its interference with the affairs of its
citizens and instead allow them to exercise reasonable freedom of personal and religious activity.

In the case at bar, we find no compelling justification for the government to deprive muslim organizations, like herein petitioner, of
their religious right to classify a product as halal, even on the premise that the health of muslim Filipinos can be effectively protected
by assigning to OMA the exclusive power to issue halal certifications. The protection and promotion of the muslim Filipinos' right to
health are already provided for in existing laws and ministered to by government agencies charged with ensuring that food products
released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the
religious freedom of muslims.

Section 48(4) of the Administrative Code of 1987 gives to the National Meat Inspection Commission (NMIC) of the Department of
Agriculture (DOA) the power to inspect slaughtered animals intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known as "The Consumer Act of 1992," gives to certain government
departments the duty to protect the interests of the consumer, promote his general welfare and to establish standards of conduct for
business and industry.12 To this end, a food product, before its distribution to the market, is required to secure the Philippine Standard
Certification Mark after the concerned department inspects and certifies its compliance with quality and safety standards.13

One such government agency designated by RA 7394 is the Bureau of Food and Drugs (BFD) of the Department of Health (DOH).
Under Article 22 of said law, BFD has the duty to promulgate and enforce rules and regulations fixing and establishing a reasonable
definition and standard of identity, a standard of quality and a standard of fill of containers for food. The BFD also ensures that food
products released in the market are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of Trade and Industry (DTI) is tasked to protect the consumer against
deceptive, unfair and unconscionable sales acts or practices as defined in Article 50.15 DTI also enforces compulsory labeling and fair
packaging to enable the consumer to obtain accurate information as to the nature, quality and quantity of the contents of consumer
products and to facilitate his comparison of the value of such products.16

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

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

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

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

SO ORDERED.

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

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

Separate Opinions

VITUG, J.:

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

Puno, J ., concurs.

Footnotes
1
 According to the petitioner, RISEAP is a federation of Muslim organizations in non-Muslim countries where Muslims are
minorities in Asia and the Pacific.
2
 Halal is a Muslim term that means lawful food, things, manners and actions allowed by God for mankind and enjoined upon
the believers (Petition, p. 6; Rollo, p. 8). It is a term that means "to slaughter for food" (WEBSTER'S THIRD
INTERNATIONAL DICTIONARY, 1986 Ed., p. 1021).
3
 The book composed of writings accepted by Muslims as revelations made to Mohammad by Allah and the divinely
authorized basis for the religious, social, civil, commercial, military, and legal regulations of the Islamic world (WEBSTER'S
THIRD INTERNATIONAL DICTIONARY, 1986 Ed., p. 1255).
4
 The body of Islamic custom and practice based on Mohammad's words and deeds (WEBSTER'S THIRD
INTERNATIONAL DICTIONARY, 1986 Ed., p. 2292).
5

EXECUTIVE ORDER NO. 46

AUTHORIZING THE OFFICE ON MUSLIM AFFAIRS TO
UNDERTAKE PHILIPPINE HALAL CERTIFICATION
WHEREAS, it is the policy of the State to protect and promote the Filipinos' right to health and instill health
consciousness among them;
xxx             xxx             xxx
WHEREAS, the establishment of a Philippine Halal Certification Scheme for food and non-food products will
contribute toward:
1. The establishment of a national standards and certification scheme for halal food and non-food products
and a national standards and accreditation scheme for establishments;
2. The opening of new markets and the development of strong consumer awareness of, and confidence in,
Philippine halal food and non-food products;
3. The development and promotion of Philippine industries through the increase in the volume and value of
Philippine halal food and non-food exports; and
4. The development of Philippine products which comply with halal standards established in accordance
with Shari'ah Law and which are highly competitive and acceptable to the Muslim Market;
xxx             xxx             xxx
WHEREAS, the establishment of a Philippine Halal Certification Scheme is in accordance with our country's
commitments to the World Trade Organization (WTO), the Brunei-Indonesia-Malaysia-Philippines East ASEAN
Growth Area (BIMP-EAGA), the ASEAN Free Trade Area (AFTA), The Asia Pacific Economic Cooperation
(APEC), and the Association of Southeast Asian Nations (ASEAN), specifically, the Consultative Committee on
Standards and Quality and the Senior Officials Meeting-ASEAN Ministers on Agriculture and Forestry (SOM-
AMAF), and with the efforts of SOM-AMAF to provide mechanisms for identifying halal food and non-food
products in order that ASEAN member countries may better comply with international halal standards and
processes;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Philippines, by virtue of the powers
vested in me by law and the Constitution, do hereby order the following:
SECTION 1. Designation of the Office on Muslim Affairs to Undertake Philippine Halal Certification and
Regulatory Activities. — The Office on Muslim Affairs is hereby designated to undertake Philippine halal
certification and regulatory activities. The Office on Muslim Affairs shall oversee the Philippine Halal Certification
Scheme.
SECTION 2. Halal Certification and Regulatory Functions. — The halal certification and regulatory functions to be
exercised by the Office on Muslim Affairs shall involve the following powers and functions:
1. Formulate policies, guidelines and developmental goals within the context of the Philippine Halal
Certification Scheme;
2. Plan, facilitate, and supervise the implementation and monitoring of components and developmental
activities relating to the Philippine Halal Certification Scheme;
3. Ensure strict implementation of and compliance with halal standards and guidelines;
4. Coordinate with appropriate agencies, both at local and international level as may be required, to ensure
the enforcement of the Philippine Halal Certification Scheme and the acceptance of Philippine products
certified under the Philippine Halal Certification Scheme;
5. Issue Halal Certificates to applicants;
6. Validate whether imported halal products complied with halal standards; and
7. Adopt measures to ensure the success of the Philippine Halal Certification Scheme.
SECTION 3. Training and Research. — A halal training and research facility to support the Philippine Halal
Certification Scheme shall be established. Said facility shall be operated under the auspices of the Office on Muslim
Affairs.
SECTION 4. Funding. — Funds necessary for the initial halal certification and regulatory functions of the Office on
Muslim Affairs shall be sourced from the Office of the President, upon submission by the Office on Muslim Affairs
of its work and financial plan. Subsequent annual funding requirement shall be sourced from the General
Appropriations Act and from the income generated by the Office on Muslim Affairs.
SECTION 5. Rules and Regulations; Sanctions. — The Office on Muslim Affairs shall formulate rules and
regulations, and impose sanctions as may be allowed by law to ensure compliance therewith, for the successful
implementation of the Philippine Halal Certification Scheme; Provided, that the Office on Muslim Affairs shall
consider the pertinent provisions of Republic Act No. 4109 in the formulation and eventual implementation of said
rules and regulations.
SECTION 6. Repealing Clause. — All executive issuances, orders, rules and regulations which are inconsistent with
any provision of this Executive Order are hereby revoked, amended or modified accordingly.
 SECTION 7. Effectivity. — This Executive Order shall take effect fifteen (15) days after its publication in two (2)
newspapers of national circulation.
City of Manila, October 26, 2001.
By the President:
ALBERTO ROMULO (Sgd.)
Executive Secretary
6
 An Act to Convert the Division of Standards Under the Bureau of Commerce into A Bureau of Standards, to Provide for the
Standardization and/or Inspection of Products and Imports of the Philippines and for other Purposes.
7
 Section 6, Article II of the 1987 Philippine Constitution provides that:
Sec. 6. The separation of the Church and State shall be inviolable.
8
 Section 1, EO 697.
9
 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.
10
 Iglesia ni Cristo vs. Court of Appeals, 259 SCRA 529 [1996] citing Victoriano vs. Elizalde Rope Workers Union, 59 SCRA
54 [1974].
11
 Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72 [1974].
12
 Article 2, RA 7394.
13
 Article 14, RA 7394.
14
 Article 23, RA 7394.
15
 ARTICLE 50. Prohibition Against Deceptive Sales Acts or Practices. — A deceptive act or practice by a seller or supplier
in connection with a consumer transaction violates this Act whether it occurs before, during or after the transaction. An act or
practice shall be deemed deceptive whenever the producer, manufacturer, supplier or seller, through concealment, false
representation or fraudulent manipulation, induces a consumer to enter into a sales or lease transaction of any consumer
product or service.
Without limiting the scope of the above paragraph, the act or practice of a seller or supplier is deceptive when it represents
that:
a) a consumer product or service has the sponsorship, approval, performance, characteristics, ingredients,
accessories, uses, or benefits it does not have;
b) a consumer product or service is of a particular standard, quality, grade, style, or model when in fact it is not;
c) a consumer product is new, original or unused, when in fact, it is in a deteriorated, altered, reconditioned,
reclaimed or second-hand state;
d) a consumer product or service is available to the consumer for a reason that is different from the fact;
e) a consumer product or service has been supplied in accordance with the previous representation when in fact it is
not;
f) a consumer product or service can be supplied in a quantity greater than the supplier intends;
g) a service, or repair of a consumer product is needed when in fact it is not;
h) a specific price advantage of a consumer product exists when in fact it does not;
i) the sales act or practice involves or does not involve a warranty, a disclaimer of warranties, particular warranty
terms or other rights, remedies or obligations if the indication is false; and
j) the seller or supplier has a sponsorship, approval, or affiliation he does not have.
16
 Article 74, RA 7394.
17

CHAPTER IV
LABELING AND FAIR PACKAGING
ARTICLE 74. Declaration of Policy. — The State shall enforce 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.
ARTICLE 75. Implementing Agency. — The Department of Trade and Industry shall enforce the provisions of this
Chapter and its implementing rules and regulations: Provided, That with respect to food, drugs, cosmetics, devices
and hazardous substances, it shall be enforced by the concerned department.
ARTICLE 76. Prohibited Acts on Labeling and Packaging. — It shall be unlawful for any person, either as principal
or agent, engaged in the labeling or packaging of any consumer product, to display or distribute or to cause to be
displayed or distributed in commerce any consumer product whose package or label does not conform to the
provisions of this Chapter.
The prohibition in this Chapter shall not apply to persons engaged in the business of wholesale or retail distributors
of consumer products except to the extent that such persons:
a) are engaged in the packaging or labeling of such products;
b) prescribe or specify by any means the manner in which such products are packaged or labeled; or
c) having knowledge, refuse to disclose the source of the mislabeled or mispackaged products.
ARTICLE 77. Minimum Labeling Requirements for Consumer Products. — All consumer products domestically
sold whether manufactured locally or imported shall indicate the following in their respective labels of packaging:
 a) its correct and registered trade name or brand name;
b) its duly registered trademark;
c) its duly registered business name;
d) the address of the manufacturer, importer, repacker of the consumer product in the Philippines;
e) its general make or active ingredients;
f) the net quality of contents, in terms of weight, measure or numerical count rounded off to at least the
nearest tenths in the metric system;
g) country of manufacture, if imported; and
h) if a consumer product is manufactured, refilled or repacked under license from a principal, the label shall
so state the fact.
The following may be required by the concerned department in accordance with the rules and regulations
they will promulgate under authority of this Act:
a) whether it is flammable or inflammable;
b) directions for use, if necessary;
c) warning of toxicity;
d) wattage, voltage or amperes; or
e) process of manufacture used if necessary.
Any word, statement or other information required by or under authority of the preceding paragraph shall appear on
the label or labeling with such conspicuousness as compared with other words, statements, designs or devices
therein, and in such terms as to render it likely to be read and understood by the ordinary individual under customary
conditions of purchase or use.
The above requirements shall form an integral part of the label without danger of being erased or detached under
ordinary handling of the product.
ARTICLE 78. Philippine Product Standard Mark. — The label may contain the Philippine Product Standard Mark
if it is certified to have passed the consumer product standard prescribed by the concerned department.
ARTICLE 79. Authority of the Concerned Department to Provide for Additional Labeling and Packaging
Requirements. — Whenever the concerned department determines that regulations containing requirements other
than those prescribed in Article 77 hereof are necessary to prevent the deception of the consumer or to facilitate
value comparisons as to any consumer product, it may issue such rules and regulations to:
a) establish and define standards for characterization of the size of a package enclosing any consumer
product which may be used to supplement the label statement of net quality, of contents of packages
containing such products but this clause shall not be construed as authorizing any limitation on the size,
shape, weight, dimensions, or number of packages which may be used to enclose any product;
b) regulate the placement upon any package containing any product or upon any label affixed to such
product of any printed matter stating or representing by implication that such product is offered for retail at
a price lower than the ordinary and customary retail price or that a price advantage is accorded to purchases
thereof by reason of the size of the package or the quantity of its contents;
c) prevent the nonfunctional slack-fill of packages containing consumer products.
For purposes of paragraph (c) of this Article, a package shall be deemed to be nonfunctionally slack-filled
if it is filled to substantially less than its capacity for reasons other than (1) protection of the contents of
such package, (2) the requirements of machines used for enclosing the contents in such package, or (3)
inherent characteristics of package materials or construction being used.
ARTICLE 80. Special Packaging of Consumer Products for the Protection of Children. — The concerned
department may establish standards for the special packaging of any consumer product if it finds that:
a) the degree or nature of the hazard to children in the availability of such product, by reason of its
packaging, is such that special packaging is required to protect children from serious personal injury or
serious illness resulting from handling and use of such product; and
b) the special packaging to be required by such standard is technically feasible, practicable and appropriate
for such product. In establishing a standard under this Article, the concerned department shall consider:
1) the reasonableness of such standard;
2) available scientific, medical and engineering data concerning special packaging and concerning
accidental ingestions, illnesses and injuries caused by consumer product;
3) the manufacturing practices of industries affected by this Article; and
4) the nature and use of consumer products.
ARTICLE 81. Price Tag Requirement. — It shall be unlawful to offer any consumer product for retail sale to the
public without an appropriate price tag, label or marking publicly displayed to indicate the price of each article and
said products shall not be sold at a price higher than that stated therein and without discrimination to all buyers:
Provided, That lumber sold, displayed or offered for sale to the public shall be tagged or labeled by indicating
thereon the price and the corresponding official name of the wood: Provided, further, That if consumer products for
sale are too small or the nature of which makes it impractical to place a price tag thereon price list placed at the
nearest point where the products are displayed indicating the retail price of the same may suffice.
 ARTICLE 82. Manner of Placing Price Tags. — Price tags, labels or markings must be written clearly, indicating
the price of the consumer product per unit in pesos and centavos.
ARTICLE 83. Regulations for Price Tag Placement. — The concerned department shall prescribe rules and
regulations for the visible placement of price tags for specific consumer products and services. There shall be no
erasures or alterations of any sort of price tags, labels or markings.
ARTICLE 84. Additional Labeling Requirements for Food. — The following additional labeling requirements shall
be imposed by the concerned department for food:
a) expiry or expiration date, where applicable;
b) whether the consumer product is semi-processed, fully processed, ready-to-cook, ready-to-eat, prepared
food or just plain mixture;
c) nutritive value, if any;
d) whether the ingredients used are natural or synthetic, as the case may be;
e) such other labeling requirements as the concerned department may deem necessary and reasonable.
ARTICLE 85. Mislabeled Food. — A food shall also be deemed mislabeled:
a) if its labeling or advertising is false or misleading in any way;
b) if it is offered for sale under the name of another food;
c) if it is an imitation of another food, unless its label bears in type of uniform size and prominence, the
word "imitation" and, immediately thereafter, the name of the food imitated;
d) its container is so made, formed, or filled as to be misleading;
e) if in package form unless it bears a label conforming to the requirements of this Act: Provided, That
reasonable variation on the requirements of labeling shall be permitted and exemptions as to small
packages shall be established by the regulations prescribed by the concerned department of health;
f) if any word, statement or other information required by or under authority of this Act to appear on the
principal display panel of the label or labeling is not prominently placed thereon with such conspicuousness
as compared with other words, statements, designs or devices in the labeling and in such terms as to render
it likely to be read and understood by the ordinary individual under customary conditions of purchase and
use;
g) if it purports to be or is represented as a food for which a definition or standard of identity has been
prescribed unless:
1) it conforms to such definition and standard; and
2) its label bears the name of the food specified in the definition or standards, and insofar as may
be required by such regulations, the common names of optional ingredients other than spices,
flavoring and coloring, present in such food;
h) if it purports to be or represented as:
1) a food for which a standard of quality has been prescribed by regulations as provided in this Act
and its quality fall below such standard, unless its label bears in such manner and form as such
regulations specify, a statement that it falls below such standard; or
2) a food for which a standard or standards or fill of container have been prescribed by regulations
as provided by this Act and it falls below the standard of fill of container applicable thereto, unless
its label bears, in such manner and form as such regulations specify, a statement that it falls below
such standard;
i) if it is not subject to the provisions of paragraph (g) of this Article unless its label bears:
1) the common or usual name of the food, if there be any; and
2) in case it is manufactured or processed from two or more ingredients, the common or usual
name of such ingredient; except the spices, flavorings and colorings other than those sold as such,
may be designated as spices, flavorings and colorings without naming each: Provided, That to the
extent that compliance with the requirement of clause (2) of this paragraph is impracticable or
results in deception or unfair competition, exemptions shall be established by regulations
promulgated by the concerned department of health;
j) if it purports to be or is represented for special dietary uses, unless its label bears such information
concerning its vitamin or mineral or other dietary properties as the concerned department determines to be,
or by regulations prescribed as necessary in order fully to inform purchasers as its value for such uses;
k) if it bears or contains any artificial flavoring, artificial coloring, or chemical preservative, unless it bears
labeling, stating that fact: Provided, That to the extent that compliance with the requirements of this
paragraph is impracticable, exemptions shall be established by regulations promulgated by the concerned
department. The provisions of this paragraph or paragraphs (g) and (i) with respect to the artificial coloring
shall not apply in the case of butter, cheese or ice cream.

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

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

DECISION

CORONA, J.:

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

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

Meanwhile, hostility among the members of the PIC in Socorro, Surigao del Norte worsened when petitioner Taruc tried to organize
an open mass to be celebrated by a certain Fr. Renato Z. Ambong during the town fiesta of Socorro. When Taruc informed Bishop de
la Cruz of his plan, the Bishop tried to dissuade him from pushing through with it because Fr. Ambong was not a member of the
clergy of the diocese of Surigao and his credentials as a parish priest were in doubt. The Bishop also appealed to petitioner Taruc to
refrain from committing acts inimical and prejudicial to the best interests of the PIC. He likewise advised petitioners to air their
complaints before the higher authorities of PIC if they believed they had valid grievances against him, the parish priest, the laws and
canons of the PIC.

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

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

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

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

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

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

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

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

Because of the order of expulsion/excommunication, petitioners filed a complaint for damages with preliminary injunction against
Bishop de la Cruz before the Regional Trial Court of Surigao City, Branch 32. They impleaded Fr. Florano and one Delfin T. Bordas
on the theory that they conspired with the Bishop to have petitioners expelled and excommunicated from the PIC. They contended that
their expulsion was illegal because it was done without trial thus violating their right to due process of law.
Respondents filed a motion to dismiss the case before the lower court on the ground of lack of jurisdiction but it was denied. Their
motion for reconsideration was likewise denied so they elevated the case to the Court of Appeals.

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

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

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

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

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

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

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

We rule that the courts do not.

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

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

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

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

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

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

In the leading case of Fonacier v. Court of Appeals, 6 we enunciated the doctrine that in disputes involving religious institutions or
organizations, there is one area which the Court should not touch: doctrinal and disciplinary differences.7 Thus,
The amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by appellant,
having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the
power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which
are outside the province of the civil courts. (emphasis ours)

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

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

Costs against petitioners.

SO ORDERED.

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

Carpio-Morales, J., on leave.

Garcia, J., no part.

Footnotes

1
 Rollo, p. 73.
2
 Rollo, p. 129.
3
 Penned by Associate Justice Bennie A. Adefuin-de la Cruz and concurred in by Associate Justices Cancio C. Garcia (now
Associate Justice of the Supreme Court) and Renato C. Dacudao, Rollo, p. 82.
4
 Gonzales v. R. Archbishop, 51 Phil. 420, 434 (1928).
5
 In Watson v. Jones, 13 Wall. 679, 723; 20 Law ed., 666, quoted in Gonzales v. R. Archbishop, supra.
6
 96 Phil. 417 (1955).
7
 Bernas, J., The 1987 Constitution of the Republic of the Philippines, A Commentary, 1996 ed., p. 322.

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

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

PUNO, J.:

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

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

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

Judge Caoibes referred the letter to Escritor who stated that "there is no truth as to the veracity of the allegation" and challenged
Estrada to "appear in the open and prove his allegation in the proper forum." 6 Judge Caoibes set a preliminary conference on October
12, 2000. Escritor moved for the inhibition of Judge Caoibes from hearing her case to avoid suspicion and bias as she previously filed
an administrative complaint against him and said case was still pending in the Office of the Court Administrator (OCA). Escritor's
motion was denied. The preliminary conference proceeded with both Estrada and Escritor in attendance. Estrada confirmed that he
filed the letter-complaint for immorality against Escritor because in his frequent visits to the Hall of Justice of Las Piñas City, he
learned from conversations therein that Escritor was living with a man not her husband and that she had an eighteen to twenty-year old
son by this man. This prompted him to write to Judge Caoibes as he believed that employees of the judiciary should be respectable and
Escritor's live-in arrangement did not command respect.7

Respondent Escritor testified that when she entered the judiciary in 1999,8 she was already a widow, her husband having died in
1998.9 She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they
have a son. But as a member of the religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible Tract Society,
their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July
28, 1991 a "Declaration of Pledging Faithfulness," viz:

DECLARATION OF PLEDGING FAITHFULNESS

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

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

Signed this 28th day of July 1991.10

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

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

Herein respondent does not ignore alleged accusation but she reiterates to state with candor that there is no truth as to the
veracity of same allegation. Included herewith are documents denominated as Declaration of Pledging Faithfulness (Exhibit 1
and Exhibit 2) duly signed by both respondent and her mate in marital relationship with the witnesses concurring their
acceptance to the arrangement as approved by the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
 Same marital arrangement is recognized as a binding tie before "JEHOVAH" God and before all persons to be held to and
honored in full accord with the principles of God's Word.

xxx           xxx           xxx

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

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

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

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

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

Q:         What is that document?

A:         Declaration of Pledge of faithfulness.

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

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

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

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

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

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

Q:         And what does pledge mean to you?

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

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

A:         Yes, Sir.

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

A:         Well, the Pledge of faithfulness document is (sic) already approved as to the marital relationship.
 Q:         Do you mean to say, Minister, by executing this document the contracting parties have the right to cohabit?

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

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

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

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

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

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

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

The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah's Witnesses admit and recognize (sic) the supremacy of the proper public
authorities in the marriage arrangement. However, it is helpful to understand the relative nature of Caesar's authority
 regarding marriage. From country to country, marriage and divorce legislation presents a multitude of different angles and
aspects. Rather than becoming entangled in a confusion of technicalities, the Christian, or the one desiring to become a
disciple of God's Son, can be guided by basic Scriptural principles that hold true in all cases.

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

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

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

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

Respondent also brought to the attention of the investigating judge that complainant's Memorandum came from Judge Caoibes'
chambers21 whom she claims was merely using petitioner to malign her.

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

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

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

III. Applicable Laws

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

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

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

xxx           xxx           xxx

(5) Disgraceful and immoral conduct; xxx.

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

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

IV. Old World Antecedents of the American Religion Clauses

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

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

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

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

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

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

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

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

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

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

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

The onset of Christianity, however, posed a difficulty to the emperor as the Christians' dogmatic exclusiveness prevented them from
paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution.
By the time of the emperor Trajan, Christians were considered outlaws. Their crime was "hatred of the human race", placing them in
the same category as pirates and brigands and other "enemies of mankind" who were subject to summary punishments.41

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

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

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

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

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

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

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

Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German
doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as
an engine of state policy as demonstrated by Luther's belief that civic cohesion could not exist without religious unity so that coercion
to achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further
religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World,
was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle in
religious affairs.55 After the Reformation, Erastianism pervaded all Europe except for Calvin's theocratic Geneva. In England, perhaps
more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678, which, to
encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any
substance other than wool.56 Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were
regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high
treason, the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal
status.57 Elizabeth was to be recognized as "the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things
or causes as temporal." She and her successors were vested, in their dominions, with "all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or ecclesiastical jurisdiction."58 Later, however, Cromwell established
the constitution in 1647 which granted full liberty to all Protestant sects, but denied toleration to Catholics. 59 In 1689, William III
issued the Act of Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in
the 19th century when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally
permitted to sit in Parliament.60

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

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

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

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

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

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

Settlers fleeing from religious persecution in Europe, primarily in Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants brought with them their religious and political ideas from England
and English books and pamphlets largely provided their cultural fare. 64 But although these settlers escaped from Europe to be freed
from bondage of laws which compelled them to support and attend government favored churches, some of these settlers themselves
transplanted into American soil the oppressive practices they escaped from. The charters granted by the English Crown to the
individuals and companies designated to make the laws which would control the destinies of the colonials authorized them to erect
religious establishments, which all, whether believers or not, were required to support or attend.65 At one time, six of the colonies
established a state religion. Other colonies, however, such as Rhode Island and Delaware tolerated a high degree of religious diversity.
Still others, which originally tolerated only a single religion, eventually extended support to several different faiths.66
This was the state of the American colonies when the unique American experiment of separation of church and state came about. The
birth of the experiment cannot be attributed to a single cause or event. Rather, a number of interdependent practical and ideological
factors contributed in bringing it forth. Among these were the "English Act of Toleration of 1689, the multiplicity of sects, the lack of
church affiliation on the part of most Americans, the rise of commercial intercourse, the exigencies of the Revolutionary War, the
Williams-Penn tradition and the success of their experiments, the writings of Locke, the social contract theory, the Great Awakening,
and the influence of European rationalism and deism."67 Each of these factors shall be briefly discussed.

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

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

However, for those who were affiliated to churches, the colonial policy regarding their worship generally followed the tenor of the
English Act of Toleration of 1689. In England, this Act conferred on Protestant dissenters the right to hold public services subject to
registration of their ministers and places of worship.73 Although the toleration accorded to Protestant dissenters who qualified under its
terms was only a modest advance in religious freedom, it nevertheless was of some influence to the American experiment. 74 Even
then, for practical considerations, concessions had to be made to other dissenting churches to ensure their cooperation in the War of
Independence which thus had a unifying effect on the colonies.

Next, the ideological factors. First, the Great Awakening in mid-18th century, an evangelical religious revival originating in New
England, caused a break with formal church religion and a resistance to coercion by established churches. This movement emphasized
an emotional, personal religion that appealed directly to the individual, putting emphasis on the rights and duties of the individual
conscience and its answerability exclusively to God. Thus, although they had no quarrel with orthodox Christian theology as in fact
they were fundamentalists, this group became staunch advocates of separation of church and state.75

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

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

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

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

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

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

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

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

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

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

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presbyterians and Lutherans flooded
the first legislative assembly with petitions for abolition of establishment. While the majority of the population were dissenters, a
majority of the legislature were churchmen. The legislature compromised and enacted a bill in 1776 abolishing the more oppressive
features of establishment and granting exemptions to the dissenters, but not guaranteeing separation. It repealed the laws punishing
heresy and absence from worship and requiring the dissenters to contribute to the support of the establishment. 93 But the dissenters
were not satisfied; they not only wanted abolition of support for the establishment, they opposed the compulsory support of their own
religion as others. As members of the established church would not allow that only they would pay taxes while the rest did not, the
legislature enacted in 1779 a bill making permanent the establishment's loss of its exclusive status and its power to tax its members;
but those who voted for it did so in the hope that a general assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every person to enroll his name with the county clerk and indicate
which "society for the purpose of Religious Worship" he wished to support. On the basis of this list, collections were to be made by
the sheriff and turned over to the clergymen and teachers designated by the religious congregation. The assessment of any person who
failed to enroll in any society was to be divided proportionately among the societies.94 The bill evoked strong opposition.

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

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

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

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

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

xxx           xxx           xxx

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

This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular
establishment in Virginia.99 But the passage of this law was obtained not only because of the influence of the great leaders in Virginia
but also because of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the
Baptists. The former were never established in Virginia and an underprivileged minority of the population. This made them anxious to
pull down the existing state church as they realized that it was impossible for them to be elevated to that privileged position. Apart
from these expediential considerations, however, many of the Presbyterians were sincere advocates of separation100 grounded on
rational, secular arguments and to the language of natural religion.101 Influenced by Roger Williams, the Baptists, on the other hand,
assumed that religion was essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural,
having no relation with the social order.102 To them, the Holy Ghost was sufficient to maintain and direct the Church without
governmental assistance and state-supported religion was contrary ti the spirit of the Gospel. 103 Thus, separation was
necessary.104 Jefferson's religious freedom statute was a milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference with religious liberty as the Virginia Statute of Religious
Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of
any religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject
not expressly mentioned in the Constitution.105 However, omission of an express guaranty of religious freedom and other natural rights
nearly prevented the ratification of the Constitution.106 In the ratifying conventions of almost every state, some objection was
expressed to the absence of a restriction on the Federal Government as regards legislation on religion.107 Thus, in 1791, this restriction
was made explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part
usually referred to as the Establishment Clause and the second part, the Free Exercise Clause, viz:

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

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

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

One source of difficulty is the difference in the context in which the First Amendment was adopted and in which it is applied today. In
the 1780s, religion played a primary role in social life - i.e., family responsibilities, education, health care, poor relief, and other
aspects of social life with significant moral dimension - while government played a supportive and indirect role by maintaining
conditions in which these activities may be carried out by religious or religiously-motivated associations. Today, government plays
this primary role and religion plays the supportive role.109 Government runs even family planning, sex education, adoption and foster
care programs.110 Stated otherwise and with some exaggeration, "(w)hereas two centuries ago, in matters of social life which have a
significant moral dimension, government was the handmaid of religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of government." 111 With government regulation of individual conduct having
become more pervasive, inevitably some of those regulations would reach conduct that for some individuals are religious. As a result,
increasingly, there may be inadvertent collisions between purely secular government actions and religion clause values.112

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

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

With the change in political and social context and the increasing inadvertent collisions between law and religious exercise, the
definition of religion for purposes of interpreting the religion clauses has also been modified to suit current realities. Defining religion
is a difficult task for even theologians, philosophers and moralists cannot agree on a comprehensive definition. Nevertheless, courts
must define religion for constitutional and other legal purposes. 119 It was in the 1890 case of Davis v. Beason 120 that the United States
Supreme Court first had occasion to define religion, viz:
 The term 'religion' has reference to one's views of his relations to his Creator, and to the obligations they impose of reverence
for his being and character, and of obedience to his will. It is often confounded with the cultus or form of worship of a
particular sect, but is distinguishable from the latter. The First Amendment to the Constitution, in declaring that Congress
shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow
everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the
duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of
worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any
religious tenets, or the modes of worship of any sect.121

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

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

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

The Court was convinced that Seeger, Peter and the others were conscientious objectors possessed of such religious belief and
training.

Federal and state courts have expanded the definition of religion in Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet four criteria to qualify as religion under the First Amendment. First,
there must be belief in God or some parallel belief that occupies a central place in the believer's life. Second, the religion must involve
a moral code transcending individual belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity in belief is necessary,
but the court must not inquire into the truth or reasonableness of the belief.127 Fourth, there must be some associational ties,128 although
there is also a view that religious beliefs held by a single person rather than being part of the teachings of any kind of group or sect are
entitled to the protection of the Free Exercise Clause.129

Defining religion is only the beginning of the difficult task of deciding religion clause cases. Having hurdled the issue of definition,
the court then has to draw lines to determine what is or is not permissible under the religion clauses. In this task, the purpose of the
clauses is the yardstick. Their purpose is singular; they are two sides of the same coin.130 In devoting two clauses to religion, the
Founders were stating not two opposing thoughts that would cancel each other out, but two complementary thoughts that apply in
different ways in different circumstances.131 The purpose of the religion clauses - both in the restriction it imposes on the power of the
government to interfere with the free exercise of religion and the limitation on the power of government to establish, aid, and support
religion - is the protection and promotion of religious liberty. 132 The end, the goal, and the rationale of the religion clauses is this
liberty.133 Both clauses were adopted to prevent government imposition of religious orthodoxy; the great evil against which they are
directed is government-induced homogeneity.134 The Free Exercise Clause directly articulates the common objective of the two clauses
and the Establishment Clause specifically addresses a form of interference with religious liberty with which the Framers were most
familiar and for which government historically had demonstrated a propensity. 135 In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of those who might dissent from whatever religion is
established.136 It has even been suggested that the sense of the First Amendment is captured if it were to read as "Congress shall make
no law respecting an establishment of religion or otherwise prohibiting the free exercise thereof" because the fundamental and single
purpose of the two religious clauses is to "avoid any infringement on the free exercise of religions"137 Thus, the Establishment Clause
mandates separation of church and state to protect each from the other, in service of the larger goal of preserving religious liberty. The
effect of the separation is to limit the opportunities for any religious group to capture the state apparatus to the disadvantage of those
of other faiths, or of no faith at all 138 because history has shown that religious fervor conjoined with state power is likely to tolerate far
less religious disagreement and disobedience from those who hold different beliefs than an enlightened secular state. 139 In the words of
the U.S. Supreme Court, the two clauses are interrelated, viz: "(t)he structure of our government has, for the preservation of civil
liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the
invasion of the civil authority."140

In upholding religious liberty as the end goal in religious clause cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not absolutely straight. Chief Justice Burger explains, viz:

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

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

A. Free Exercise Clause

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

That to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation
of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty;

that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into
overt acts against peace and good order.145 (emphasis supplied)

The Court then held, viz:

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

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

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

The construct was thus simple: the state was absolutely prohibited by the Free Exercise Clause from regulating individual religious
beliefs, but placed no restriction on the ability of the state to regulate religiously motivated conduct. It was logical for belief to be
accorded absolute protection because any statute designed to prohibit a particular religious belief unaccompanied by any conduct
would most certainly be motivated only by the legislature's preference of a competing religious belief. Thus, all cases of regulation of
belief would amount to regulation of religion for religious reasons violative of the Free Exercise Clause. On the other hand, most state
regulations of conduct are for public welfare purposes and have nothing to do with the legislature's religious preferences. Any burden
on religion that results from state regulation of conduct arises only when particular individuals are engaging in the generally regulated
conduct because of their particular religious beliefs. These burdens are thus usually inadvertent and did not figure in the belief-action
test. As long as the Court found that regulation address action rather than belief, the Free Exercise Clause did not pose any
problem.147 The Free Exercise Clause thus gave no protection against the proscription of actions even if considered central to a religion
unless the legislature formally outlawed the belief itself.148

This belief-action distinction was held by the Court for some years as shown by cases where the Court upheld other laws which
burdened the practice of the Mormon religion by imposing various penalties on polygamy such as the Davis case and Church of Latter
Day Saints v. United States.149 However, more than a century since Reynolds was decided, the Court has expanded the scope of
protection from belief to speech and conduct. But while the belief-action test has been abandoned, the rulings in the earlier Free
Exercise cases have gone unchallenged. The belief-action distinction is still of some importance though as there remains an absolute
prohibition of governmental proscription of beliefs.150

The Free Exercise Clause accords absolute protection to individual religious convictions and beliefs 151 and proscribes government
from questioning a person's beliefs or imposing penalties or disabilities based solely on those beliefs. The Clause extends protection to
both beliefs and unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a state law requiring as a qualification for
public office an oath declaring belief in the existence of God. The protection also allows courts to look into the good faith of a person
in his belief, but prohibits inquiry into the truth of a person's religious beliefs. As held in United States v. Ballard,153 "(h)eresy trials
are foreign to the Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines
or beliefs."

Next to belief which enjoys virtually absolute protection, religious speech and expressive religious conduct are accorded the highest
degree of protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court struck down a state law prohibiting door-to-door
solicitation for any religious or charitable cause without prior approval of a state agency. The law was challenged by Cantwell, a
member of the Jehovah's Witnesses which is committed to active proselytizing. The Court invalidated the state statute as the prior
approval necessary was held to be a censorship of religion prohibited by the Free Exercise Clause. The Court held, viz:

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

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

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

The Court stated, however, that government had the power to regulate the times, places, and manner of solicitation on the streets and
assure the peace and safety of the community.

Three years after Cantwell, the Court in Douglas v. City of Jeanette,157 ruled that police could not prohibit members of the Jehovah's
Witnesses from peaceably and orderly proselytizing on Sundays merely because other citizens complained. In another case likewise
involving the Jehovah's Witnesses, Niemotko v. Maryland,158 the Court unanimously held unconstitutional a city council's denial of a
permit to the Jehovah's Witnesses to use the city park for a public meeting. The city council's refusal was because of the
"unsatisfactory" answers of the Jehovah's Witnesses to questions about Catholicism, military service, and other issues. The denial of
the public forum was considered blatant censorship. While protected, religious speech in the public forum is still subject to reasonable
time, place and manner regulations similar to non-religious speech. Religious proselytizing in congested areas, for example, may be
limited to certain areas to maintain the safe and orderly flow of pedestrians and vehicular traffic as held in the case of Heffron v.
International Society for Krishna Consciousness.159

The least protected under the Free Exercise Clause is religious conduct, usually in the form of unconventional religious practices.
Protection in this realm depends on the character of the action and the government rationale for regulating the action. 160 The Mormons'
religious conduct of polygamy is an example of unconventional religious practice. As discussed in the Reynolds case above, the Court
did not afford protection to the practice. Reynolds was reiterated in the 1890 case of Davis again involving Mormons, where the Court
held, viz: "(c)rime is not the less odious because sanctioned by what any particular sect may designate as religion."161

The belief-action test in Reynolds and Davis proved unsatisfactory. Under this test, regulation of religiously dictated conduct would be
upheld no matter how central the conduct was to the exercise of religion and no matter how insignificant was the government's non-
religious regulatory interest so long as the government is proscribing action and not belief. Thus, the Court abandoned the simplistic
belief-action distinction and instead recognized the deliberate-inadvertent distinction, i.e., the distinction between deliberate state
interference of religious exercise for religious reasons which was plainly unconstitutional and government's inadvertent interference
with religion in pursuing some secular objective.162 In the 1940 case of Minersville School District v. Gobitis,163 the Court upheld a
local school board requirement that all public school students participate in a daily flag salute program, including the Jehovah's
Witnesses who were forced to salute the American flag in violation of their religious training, which considered flag salute to be
worship of a "graven image." The Court recognized that the general requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses' practice of their religion, but justified the government regulation as an appropriate means of attaining national
unity, which was the "basis of national security." Thus, although the Court was already aware of the deliberate-inadvertent distinction
in government interference with religion, it continued to hold that the Free Exercise Clause presented no problem to interference with
religion that was inadvertent no matter how serious the interference, no matter how trivial the state's non-religious objectives, and no
matter how many alternative approaches were available to the state to pursue its objectives with less impact on religion, so long as
government was acting in pursuit of a secular objective.

Three years later, the Gobitis decision was overturned in West Virginia v. 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 Jehovah's Witnesses from saluting the flag. A close scrutiny of the case,
however, would show that it was decided not on the issue of religious conduct as the Court said, "(n)or does the issue as we see it turn
on one's possession of particular religious views or the sincerity with which they are held. While religion supplies appellees' motive
for enduring the discomforts of making the issue in this case, many citizens who do not share these religious views hold such a
compulsory rite to infringe constitutional liberty of the individual." (emphasis supplied)165 The Court pronounced, however, that,
"freedoms of speech and of press, of assembly, and of worship . . . are susceptible only of restriction only to prevent grave and
immediate danger to interests which the state may lawfully protect."166 The Court seemed to recognize the extent to which its approach
in Gobitis subordinated the religious liberty of political minorities - a specially protected constitutional value - to the common
everyday economic and public welfare objectives of the majority in the legislature. This time, even inadvertent interference with
religion must pass judicial scrutiny under the Free Exercise Clause with only grave and immediate danger sufficing to override
religious liberty. But the seeds of this heightened scrutiny would only grow to a full flower in the 1960s.167

Nearly a century after Reynolds employed the belief-action test, the Warren Court began the modern free exercise jurisprudence. 168 A
two-part balancing test was established in Braunfeld v. Brown169 where the Court considered the constitutionality of applying Sunday
closing laws to Orthodox Jews whose beliefs required them to observe another day as the Sabbath and abstain from commercial
activity on Saturday. Chief Justice Warren, writing for the Court, found that the law placed a severe burden on Sabattarian retailers.
He noted, however, that since the burden was the indirect effect of a law with a secular purpose, it would violate the Free Exercise
Clause only if there were alternative ways of achieving the state's interest. He employed a two-part balancing test of validity where the
first step was for plaintiff to show that the regulation placed a real burden on his religious exercise. Next, the burden would be upheld
only if the state showed that it was pursuing an overriding secular goal by the means which imposed the least burden on religious
practices.170 The Court found that the state had an overriding secular interest in setting aside a single day for rest, recreation and
tranquility and there was no alternative means of pursuing this interest but to require Sunday as a uniform rest day.

Two years after came the stricter compelling state interest test in the 1963 case of Sherbert v. Verner.171 This test was similar to the
two-part balancing test in Braunfeld, 172 but this latter test stressed that the state interest was not merely any colorable state interest, but
must be paramount and compelling to override the free exercise claim. In this case, Sherbert, a Seventh Day Adventist, claimed
unemployment compensation under the law as her employment was terminated for refusal to work on Saturdays on religious grounds.
Her claim was denied. She sought recourse in the Supreme Court. In laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:

Plainly enough, appellee's conscientious objection to Saturday work constitutes no conduct prompted by religious principles
of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand
appellant's constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement
by the State of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellant's
religion may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to
regulate. . .' NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational relationship of the
substantial infringement to the religious right and a colorable state interest. "(I)n this highly sensitive constitutional area, '[o]nly the
gravest abuses, endangering paramount interests, give occasion for permissible limitation.' Thomas v. Collins, 323 US 516, 530, 89 L
ed 430, 440, 65 S Ct 315."174 The Court found that there was no such compelling state interest to override Sherbert's religious liberty.
It added that even if the state could show that Sherbert's exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state to show that no alternative means of regulations would
address such detrimental effects without infringing religious liberty. The state, however, did not discharge this burden. The Court thus
carved out for Sherbert an exemption from the Saturday work requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial of Sherbert's benefits would force her to choose between
receiving benefits and following her religion. This choice placed "the same kind of burden upon the free exercise of religion as would
a fine imposed against (her) for her Saturday worship." This germinal case of Sherbert firmly established the exemption
doctrine,175 viz:

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

Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even as early as Braunfeld), the Court moved from the
doctrine that inadvertent or incidental interferences with religion raise no problem under the Free Exercise Clause to the doctrine that
such interferences violate the Free Exercise Clause in the absence of a compelling state interest - the highest level of constitutional
scrutiny short of a holding of a per se violation. Thus, the problem posed by the belief-action test and the deliberate-inadvertent
distinction was addressed.176

Throughout the 1970s and 1980s under the Warren, and afterwards, the Burger Court, the rationale in Sherbert continued to be
applied. In Thomas v. Review Board177 and Hobbie v. Unemployment Appeals Division,178 for example, the Court reiterated the
exemption doctrine and held that in the absence of a compelling justification, a state could not withhold unemployment compensation
from an employee who resigned or was discharged due to unwillingness to depart from religious practices and beliefs that conflicted
with job requirements. But not every governmental refusal to allow an exemption from a regulation which burdens a sincerely held
religious belief has been invalidated, even though strict or heightened scrutiny is applied. In United States v. Lee,179 for instance, the
Court using strict scrutiny and referring to Thomas, upheld the federal government's refusal to exempt Amish employers who
requested for exemption from paying social security taxes on wages on the ground of religious beliefs. The Court held that "(b)ecause
the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of
taxes affords no basis for resisting the tax."180 It reasoned that unlike in Sherbert, an exemption would significantly impair
government's achievement of its objective - "the fiscal vitality of the social security system;" mandatory participation is indispensable
to attain this objective. The Court noted that if an exemption were made, it would be hard to justify not allowing a similar exemption
from general federal taxes where the taxpayer argues that his religious beliefs require him to reduce or eliminate his payments so that
he will not contribute to the government's war-related activities, for example.

The strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to religiously motivated
conduct. While not affording absolute immunity to religious activity, a compelling secular justification was necessary to uphold public
policies that collided with religious practices. Although the members of the Court often disagreed over which governmental interests
should be considered compelling, thereby producing dissenting and separate opinions in religious conduct cases, this general test
established a strong presumption in favor of the free exercise of religion.181

Heightened scrutiny was also used in the 1972 case of Wisconsin v. Yoder182 where the Court upheld the religious practice of the Old
Order Amish faith over the state's compulsory high school attendance law. The Amish parents in this case did not permit secular
education of their children beyond the eighth grade. Chief Justice Burger, writing for the majority, held, viz:

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

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

. . . our decisions have rejected the idea that that religiously grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal government
in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be subject to the broad
police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First
Amendment and thus beyond the power of the State to control, even under regulations of general applicability. . . .This case,
therefore, does not become easier because respondents were convicted for their "actions" in refusing to send their children to
the public high school; in this context belief and action cannot be neatly confined in logic-tight compartments. . .183
The onset of the 1990s, however, saw a major setback in the protection afforded by the Free Exercise Clause. In Employment
Division, Oregon Department of Human Resources v. Smith,184 the sharply divided Rehnquist Court dramatically departed from
the heightened scrutiny and compelling justification approach and imposed serious limits on the scope of protection of religious
freedom afforded by the First Amendment. In this case, the well-established practice of the Native American Church, a sect outside
the Judeo-Christian mainstream of American religion, came in conflict with the state's interest in prohibiting the use of illicit drugs.
Oregon's controlled substances statute made the possession of peyote a criminal offense. Two members of the church, Smith and
Black, worked as drug rehabilitation counselors for a private social service agency in Oregon. Along with other church members,
Smith and Black ingested peyote, a hallucinogenic drug, at a sacramental ceremony practiced by Native Americans for hundreds of
years. The social service agency fired Smith and Black citing their use of peyote as "job-related misconduct". They applied for
unemployment compensation, but the Oregon Employment Appeals Board denied their application as they were discharged for job-
related misconduct. Justice Scalia, writing for the majority, ruled that "if prohibiting the exercise of religion . . . is . . . merely the
incidental effect of a generally applicable and otherwise valid law, the First Amendment has not been offended." In other words, the
Free Exercise Clause would be offended only if a particular religious practice were singled out for proscription. The majority opinion
relied heavily on the Reynolds case and in effect, equated Oregon's drug prohibition law with the anti-polygamy statute in Reynolds.
The relevant portion of the majority opinion held, viz:

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

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

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

Justice O'Connor wrote a concurring opinion pointing out that the majority's rejection of the compelling governmental interest test was
the most controversial part of the decision. Although she concurred in the result that the Free Exercise Clause had not been offended,
she sharply criticized the majority opinion as a dramatic departure "from well-settled First Amendment jurisprudence. . . and . . . (as)
incompatible with our Nation's fundamental commitment to religious liberty." This portion of her concurring opinion was supported
by Justices Brennan, Marshall and Blackmun who dissented from the Court's decision. Justice O'Connor asserted that "(t)he
compelling state interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it
occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest 'of the highest order'." Justice Blackmun registered a separate dissenting
opinion, joined by Justices Brennan and Marshall. He charged the majority with "mischaracterizing" precedents and "overturning. . .
settled law concerning the Religion Clauses of our Constitution." He pointed out that the Native American Church restricted and
supervised the sacramental use of peyote. Thus, the state had no significant health or safety justification for regulating the sacramental
drug use. He also observed that Oregon had not attempted to prosecute Smith or Black, or any Native Americans, for that matter, for
the sacramental use of peyote. In conclusion, he said that "Oregon's interest in enforcing its drug laws against religious use of peyote
(was) not sufficiently compelling to outweigh respondents' right to the free exercise of their religion."

The Court went back to the Reynolds and Gobitis doctrine in Smith. The Court's standard in Smith virtually eliminated the
requirement that the government justify with a compelling state interest the burdens on religious exercise imposed by laws neutral
toward religion. The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.185 First, the First amendment was intended to protect minority religions from the tyranny
of the religious and political majority. A deliberate regulatory interference with minority religious freedom is the worst form of this
tyranny. But regulatory interference with a minority religion as a result of ignorance or sensitivity of the religious and political
majority is no less an interference with the minority's religious freedom. If the regulation had instead restricted the majority's religious
practice, the majoritarian legislative process would in all probability have modified or rejected the regulation. Thus, the imposition of
the political majority's non-religious objectives at the expense of the minority's religious interests implements the majority's religious
viewpoint at the expense of the minority's. Second, government impairment of religious liberty would most often be of the inadvertent
kind as in Smith considering the political culture where direct and deliberate regulatory imposition of religious orthodoxy is nearly
inconceivable. If the Free Exercise Clause could not afford protection to inadvertent interference, it would be left almost meaningless.
Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The state should not be allowed to interfere with the most
deeply held fundamental religious convictions of an individual in order to pursue some trivial state economic or bureaucratic
objective. This is especially true when there are alternative approaches for the state to effectively pursue its objective without serious
inadvertent impact on religion.186
Thus, the Smith decision has been criticized not only for increasing the power of the state over religion but as discriminating in favor
of mainstream religious groups against smaller, more peripheral groups who lack legislative clout, 187 contrary to the original theory of
the First Amendment.188 Undeniably, claims for judicial exemption emanate almost invariably from relatively politically powerless
minority religions and Smith virtually wiped out their judicial recourse for exemption. 189 Thus, the Smith decision elicited much
negative public reaction especially from the religious community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.190 So much was the uproar that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all levels from substantially burdening a person's free exercise
of religion, even if such burden resulted from a generally applicable rule, unless the government could demonstrate a compelling state
interest and the rule constituted the least restrictive means of furthering that interest. 191 RFRA, in effect, sought to overturn the
substance of the Smith ruling and restore the status quo prior to Smith. Three years after the RFRA was enacted, however, the Court,
dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital
principles necessary to maintain separation of powers and the federal balance." It emphasized the primacy of its role as interpreter of
the Constitution and unequivocally rejected, on broad institutional grounds, a direct congressional challenge of final judicial authority
on a question of constitutional interpretation.

After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 193 which was ruled consistent with the Smith doctrine.
This case involved animal sacrifice of the Santeria, a blend of Roman Catholicism and West African religions brought to the
Carribean by East African slaves. An ordinance made it a crime to "unnecessarily kill, torment, torture, or mutilate an animal in public
or private ritual or ceremony not for the primary purpose of food consumption." The ordinance came as a response to the local concern
over the sacrificial practices of the Santeria. Justice Kennedy, writing for the majority, carefully pointed out that the questioned
ordinance was not a generally applicable criminal prohibition, but instead singled out practitioners of the Santeria in that it forbade
animal slaughter only insofar as it took place within the context of religious rituals.

It may be seen from the foregoing cases that under the Free Exercise Clause, religious belief is absolutely protected, religious speech
and proselytizing are highly protected but subject to restraints applicable to non-religious speech, and unconventional religious
practice receives less protection; nevertheless conduct, even if its violates a law, could be accorded protection as shown in
Wisconsin.194

B. Establishment Clause

The Court's first encounter with the Establishment Clause was in the 1947 case of Everson v. Board of Education.195 Prior cases had
made passing reference to the Establishment Clause196 and raised establishment questions but were decided on other grounds.197 It was
in the Everson case that the U.S. Supreme Court adopted Jefferson's metaphor of "a wall of separation between church and state" as
encapsulating the meaning of the Establishment Clause. The often and loosely used phrase "separation of church and state" does not
appear in the U.S. Constitution. It became part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v. United
States198 quoted Jefferson's famous letter of 1802 to the Danbury Baptist Association in narrating the history of the religion
clauses, viz:

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

Chief Justice Waite, speaking for the majority, then added, "(c)oming as this does from an acknowledged leader of the advocates of
the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."200

The interpretation of the Establishment Clause has in large part been in cases involving education, notably state aid to private religious
schools and prayer in public schools.201 In Everson v. Board of Education, for example, the issue was whether a New Jersey local
school board could reimburse parents for expenses incurred in transporting their children to and from Catholic schools. The
reimbursement was part of a general program under which all parents of children in public schools and nonprofit private schools,
regardless of religion, were entitled to reimbursement for transportation costs. Justice Hugo Black, writing for a sharply divided Court,
justified the reimbursements on the child benefit theory, i.e., that the school board was merely furthering the state's legitimate interest
in getting children "regardless of their religion, safely and expeditiously to and from accredited schools." The Court, after narrating the
history of the First Amendment in Virginia, interpreted the Establishment Clause, viz:

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

The Court then ended the opinion, viz:

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

By 1971, the Court integrated the different elements of the Court's Establishment Clause jurisprudence that evolved in the 1950s and
1960s and laid down a three-pronged test in Lemon v. Kurtzman204 in determining the constitutionality of policies challenged under
the Establishment Clause. This case involved a Pennsylvania statutory program providing publicly funded reimbursement for the cost
of teachers' salaries, textbooks, and instructional materials in secular subjects and a Rhode Island statute providing salary supplements
to teachers in parochial schools. The Lemon test requires a challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. "First, the statute must have a secular legislative purpose; second, its primary or principal effect must be one
that neither advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923
[1968]); finally, the statute must not foster 'an excessive entanglement with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25
L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis supplied) 205 Using this test, the Court held that the Pennsylvania statutory program
and Rhode Island statute were unconstitutional as fostering excessive entanglement between government and religion.

The most controversial of the education cases involving the Establishment Clause are the school prayer decisions. "Few decisions of
the modern Supreme Court have been criticized more intensely than the school prayer decisions of the early 1960s." 206 In the 1962
case of Engel v. Vitale,207 the Court invalidated a New York Board of Regents policy that established the voluntary recitation of a
brief generic prayer by children in the public schools at the start of each school day. The majority opinion written by Justice Black
stated that "in this country it is no part of the business of government to compose official prayers for any group of the American
people to recite as part of a religious program carried on by government." In fact, history shows that this very practice of establishing
governmentally composed prayers for religious services was one of the reasons that caused many of the early colonists to leave
England and seek religious freedom in America. The Court called to mind that the first and most immediate purpose of the
Establishment Clause rested on the belief that a union of government and religion tends to destroy government and to degrade
religion. The following year, the Engel decision was reinforced in Abington School District v. Schempp 208 and Murray v.
Curlett209 where the Court struck down the practice of Bible reading and the recitation of the Lord's prayer in the Pennsylvania and
Maryland schools. The Court held that to withstand the strictures of the Establishment Clause, a statute must have a secular legislative
purpose and a primary effect that neither advances nor inhibits religion. It reiterated, viz:

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

The school prayer decisions drew furious reactions. Religious leaders and conservative members of Congress and resolutions passed
by several state legislatures condemned these decisions.211 On several occasions, constitutional amendments have been introduced in
Congress to overturn the school prayer decisions. Still, the Court has maintained its position and has in fact reinforced it in the 1985
case of Wallace v. Jaffree212 where the Court struck down an Alabama law that required public school students to observe a moment
of silence "for the purpose of meditation or voluntary prayer" at the start of each school day.

Religious instruction in public schools has also pressed the Court to interpret the Establishment Clause. Optional religious instruction
within public school premises and instructional time were declared offensive of the Establishment Clause in the 1948 case
of McCollum v. Board of Education,213 decided just a year after the seminal Everson case. In this case, interested members of the
Jewish, Roman Catholic and a few Protestant faiths obtained permission from the Board of Education to offer classes in religious
instruction to public school students in grades four to nine. Religion classes were attended by pupils whose parents signed printed
cards requesting that their children be permitted to attend. The classes were taught in three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were held weekly from thirty to forty minutes during regular class hours in the regular
classrooms of the school building. The religious teachers were employed at no expense to the school authorities but they were subject
to the approval and supervision of the superintendent of schools. Students who did not choose to take religious instruction were
required to leave their classrooms and go to some other place in the school building for their secular studies while those who were
released from their secular study for religious instruction were required to attend the religious classes. The Court held that the use of
tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in
promoting religious education amounted to a prohibited use of tax-established and tax-supported public school system to aid religious
groups spread their faith. The Court rejected the claim that the Establishment Clause only prohibited government preference of one
religion over another and not an impartial governmental assistance of all religions. In Zorach v. Clauson,214 however, the Court
upheld released time programs allowing students in public schools to leave campus upon parental permission to attend religious
services while other students attended study hall. Justice Douglas, the writer of the opinion, stressed that "(t)he First Amendment does
not require that in every and all respects there shall be a separation of Church and State." The Court distinguished Zorach from
McCollum, viz:

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

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

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

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

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

Some view the Marsh ruling as a mere aberration as the Court would "inevitably be embarrassed if it were to attempt to strike down a
practice that occurs in nearly every legislature in the United States, including the U.S. Congress." 220 That Marsh was not an aberration
is suggested by subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court upheld a city-sponsored nativity scene in Rhode
Island. By a 5-4 decision, the majority opinion hardly employed the Lemon test and again relied on history and the fact that the creche
had become a "neutral harbinger of the holiday season" for many, rather than a symbol of Christianity.

The Establishment Clause has also been interpreted in the area of tax exemption. By tradition, church and charitable institutions have
been exempt from local property taxes and their income exempt from federal and state income taxes. In the 1970 case of Walz v. Tax
Commission,222 the New York City Tax Commission's grant of property tax exemptions to churches as allowed by state law was
challenged by Walz on the theory that this required him to subsidize those churches indirectly. The Court upheld the law stressing its
neutrality, viz:

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

The Court added that the exemption was not establishing religion but "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions"224 and preventing excessive entanglement between state and religion. At the same time,
the Court acknowledged the long-standing practice of religious tax exemption and the Court's traditional deference to legislative
bodies with respect to the taxing power, viz:
 (f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times,
than for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so
long as none was favored over others and none suffered interference.225 (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

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

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

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

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

To succinctly and poignantly illustrate the historical basis of benevolent neutrality that gives room for accommodation, less than
twenty-four hours after Congress adopted the First Amendment's prohibition on laws respecting an establishment of religion, Congress
decided to express its thanks to God Almighty for the many blessings enjoyed by the nation with a resolution in favor of a presidential
proclamation declaring a national day of Thanksgiving and Prayer. Only two members of Congress opposed the resolution, one on the
ground that the move was a "mimicking of European customs, where they made a mere mockery of thanksgivings", the other on
establishment clause concerns. Nevertheless, the salutary effect of thanksgivings throughout Western history was acknowledged and
the motion was passed without further recorded discussion.231 Thus, accommodationists also go back to the framers to ascertain the
meaning of the First Amendment, but prefer to focus on acts rather than words. Contrary to the claim of separationists that rationalism
pervaded America in the late 19th century and that America was less specifically Christian during those years than at any other time
before or since,232 accommodationaists claim that American citizens at the time of the Constitution's origins were a remarkably
religious people in particularly Christian terms.233
The two streams of jurisprudence - separationist or accommodationist - are anchored on a different reading of the "wall of separation."
The strict separtionist view holds that Jefferson meant the "wall of separation" to protect the state from the church. Jefferson was a
man of the Enlightenment Era of the eighteenth century, characterized by the rationalism and anticlericalism of that philosophic
bent.234 He has often been regarded as espousing Deism or the rationalistic belief in a natural religion and natural law divorced from its
medieval connection with divine law, and instead adhering to a secular belief in a universal harmony. 235 Thus, according to this
Jeffersonian view, the Establishment Clause being meant to protect the state from the church, the state's hostility towards religion
allows no interaction between the two.236 In fact, when Jefferson became President, he refused to proclaim fast or thanksgiving days on
the ground that these are religious exercises and the Constitution prohibited the government from intermeddling with religion. 237 This
approach erects an absolute barrier to formal interdependence of religion and state. Religious institutions could not receive aid,
whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics would eliminate the formal influence of religious institutions and
provide for a free choice among political views thus a strict "wall of separation" is necessary. 239 Strict separation faces difficulties,
however, as it is deeply embedded in history and contemporary practice that enormous amounts of aid, both direct and indirect, flow
to religion from government in return for huge amounts of mostly indirect aid from religion. Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed and is never likely to.240

A tamer version of the strict separationist view, the strict neutrality or separationist view is largely used by the Court, showing the
Court's tendency to press relentlessly towards a more secular society.241 It finds basis in the Everson case where the Court declared that
Jefferson's "wall of separation" encapsulated the meaning of the First Amendment but at the same time held that the First Amendment
"requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be
their adversary. State power is no more to be used so as to handicap religions than it is to favor them." (emphasis supplied)242 While
the strict neutrality approach is not hostile to religion, it is strict in holding that religion may not be used as a basis for classification
for purposes of governmental action, whether the action confers rights or privileges or imposes duties or obligations. Only secular
criteria may be the basis of government action. It does not permit, much less require, accommodation of secular programs to religious
belief.243 Professor Kurland wrote, viz:

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

The Court has repeatedly declared that religious freedom means government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government from acting except for secular purposes and in ways that have
primarily secular effects.245

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

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

The separationist approach, whether strict or tame, is caught in a dilemma because while the Jeffersonian wall of separation "captures
the spirit of the American ideal of church-state separation", in real life church and state are not and cannot be totally separate. 249 This
is all the more true in contemporary times when both the government and religion are growing and expanding their spheres of
involvement and activity, resulting in the intersection of government and religion at many points.250

Consequently, the Court has also decided cases employing benevolent neutrality. Benevolent neutrality which gives room for
accommodation is buttressed by a different view of the "wall of separation" associated with Williams, founder of the Rhode Island
colony. In Mark DeWolfe Howe's classic, The Garden and the Wilderness, he asserts that to the extent the Founders had a wall of
separation in mind, it was unlike the Jeffersonian wall that is meant to protect the state from the church; instead, the wall is meant to
protect the church from the state, 251 i.e., the "garden" of the church must be walled in for its own protection from the "wilderness" of
the world252 with its potential for corrupting those values so necessary to religious commitment. 253 Howe called this the "theological"
or "evangelical" rationale for church-state separation while the wall espoused by "enlightened" statesmen such as Jefferson and
Madison, was a "political" rationale seeking to protect politics from intrusions by the church.254 But it has been asserted that this
contrast between the Williams and Jeffersonian positions is more accurately described as a difference in kinds or styles of religious
thinking, not as a conflict between "religious" and "secular (political)"; the religious style was biblical and evangelical in character
while the secular style was grounded in natural religion, more generic and philosophical in its religious orientation.255

The Williams wall is, however, breached for the church is in the state and so the remaining purpose of the wall is to safeguard
religious liberty. Williams' view would therefore allow for interaction between church and state, but is strict with regard to state action
which would threaten the integrity of religious commitment.256 His conception of separation is not total such that it provides basis for
certain interactions between church and state dictated by apparent necessity or practicality.257 This "theological" view of separation is
found in Williams' writings, viz:

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

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

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

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

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

xxx           xxx           xxx

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

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

It is widely held by students of society that there are certain functional prerequisites without which society would not
continue to exist. At first glance, this seems to be obvious - scarcely more than to say that an automobile could not exist, as a
going system, without a carburetor. . . Most writers list religion among the functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known human society without something which modern social
scientists would classify as a religion…Religion is as much a human universal as language."264

Benevolent neutrality thus recognizes that religion plays an important role in the public life of the United States as shown by many
traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are the inscription of
"In God We Trust" on American currency, the recognition of America as "one nation under God" in the official pledge of allegiance to
the flag, the Supreme Court's time-honored practice of opening oral argument with the invocation "God save the United States and this
honorable Court," and the practice of Congress and every state legislature of paying a chaplain, usually of a particular Protestant
denomination to lead representatives in prayer.265 These practices clearly show the preference for one theological viewpoint -the
existence of and potential for intervention by a god - over the contrary theological viewpoint of atheism. Church and government
agencies also cooperate in the building of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral dimension.266 The persistence of these de facto
establishments are in large part explained by the fact that throughout history, the evangelical theory of separation, i.e., Williams' wall,
has demanded respect for these de facto establishments. 267 But the separationists have a different explanation. To characterize these
as de jure establishments according to the principle of the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and
concurring opinions explain some of these practices as "'de minimis' instances of government endorsement or as historic governmental
practices that have largely lost their religious significance or at least have proven not to lead the government into further involvement
with religion.268

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take religion specifically into account not to promote the government's
favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect
therefore is to remove a burden on, or facilitate the exercise of, a person's or institution's religion. As Justice Brennan explained, the
"government [may] take religion into account…to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish."269 (emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect for the conflict between the temporal and spiritual authority in
which the minority finds itself.270

Accommodation is distinguished from strict neutrality in that the latter holds that government should base public policy solely on
secular considerations, without regard to the religious consequences of its actions. The debate between accommodation and strict
neutrality is at base a question of means: "Is the freedom of religion best achieved when the government is conscious of the effects of
its action on the various religious practices of its people, and seeks to minimize interferences with those practices? Or is it best
advanced through a policy of 'religious blindness' - keeping government aloof from religious practices and issues?" An
accommodationist holds that it is good public policy, and sometimes constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On the other hand, the strict neutrality adherent believes that it is good
public policy, and also constitutionally required, for the government to avoid religion-specific policy even at the cost of inhibiting
religious exercise.271

There are strong and compelling reasons, however, to take the accommodationist position rather than the strict neutrality position.
First, the accommodationist interpretation is most consistent with the language of the First Amendment. The religion clauses contain
two parallel provisions, both specifically directed at "religion." The government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be read most plausibly as warding off two equal and opposite threats
to religious freedom - government action that promotes the (political) majority's favored brand of religion and government action that
impedes religious practices not favored by the majority. The substantive end in view is the preservation of the autonomy of religious
life and not just the formal process value of ensuring that government does not act on the basis of religious bias. On the other hand,
strict neutrality interprets the religion clauses as allowing government to do whatever it desires to or for religion, as long as it does the
same to or for comparable secular entities. Thus, for example, if government prohibits all alcoholic consumption by minors, it can
prohibit minors from taking part in communion. Paradoxically, this view would make the religion clauses violate the religion clauses,
so to speak, since the religion clauses single out religion by name for special protection. Second, the accommodationist position best
achieves the purposes of the First Amendment. The principle underlying the First Amendment is that freedom to carry out one's duties
to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it is necessarily limited
by the rights of others, including the public right of peace and good order. Nevertheless it is a substantive right and not merely a
privilege against discriminatory legislation. The accomplishment of the purpose of the First Amendment requires more than the
"religion blindness" of strict neutrality. With the pervasiveness of government regulation, conflicts with religious practices become
frequent and intense. Laws that are suitable for secular entities are sometimes inappropriate for religious entities, thus the government
must make special provisions to preserve a degree of independence for religious entities for them to carry out their religious missions
according to their religious beliefs. Otherwise, religion will become just like other secular entities subject to pervasive regulation by
majoritarian institutions. Third, the accommodationist interpretation is particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility to the minority. In a
democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they come into conflict
with the religious scruples of those holding different world views, even in the absence of a deliberate intent to interfere with religious
practice. At times, this effect is unavoidable as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so great and the advancement of public purposes
so small or incomparable that only indifference or hostility could explain a refusal to make exemptions. Because of plural traditions,
legislators and executive officials are frequently willing to make such exemptions when the need is brought to their attention, but this
may not always be the case when the religious practice is either unknown at the time of enactment or is for some reason unpopular. In
these cases, a constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of those
who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends this treatment
to religious faiths that are less able to protect themselves in the political arena. Fourth, the accommodationist position is practical as it
is a commonsensical way to deal with the various needs and beliefs of different faiths in a pluralistic nation. Without accommodation,
many otherwise beneficial laws would interfere severely with religious freedom. Aside from laws against serving alcoholic beverages
to minors conflicting with celebration of communion, regulations requiring hard hats in construction areas can effectively exclude
Amish and Sikhs from the workplace, or employment anti-discrimination laws can conflict with the Roman Catholic male priesthood,
among others. Exemptions from such laws are easy to craft and administer and contribute much to promoting religious freedom at
little cost to public policy. Without exemptions, legislature would be frequently forced to choose between violating religious
conscience of a segment of the population or dispensing with legislation it considers beneficial to society as a whole. Exemption
seems manifestly more reasonable than either of the alternative: no exemption or no law.272

Benevolent neutrality gives room for different kinds of accommodation: those which are constitutionally compelled, i.e., required by
the Free Exercise Clause; and those which are discretionary or legislative, i.e., and those not required by the Free Exercise Clause but
nonetheless permitted by the Establishment Clause.273 Some Justices of the Supreme Court have also used the term accommodation to
describe government actions that acknowledge or express prevailing religious sentiments of the community such as display of a
religious symbol on public property or the delivery of a prayer at public ceremonial events.274 Stated otherwise, using benevolent
neutrality as a standard could result to three situations of accommodation: those where accommodation is required, those where it is
permissible, and those where it is prohibited. In the first situation, accommodation is required to preserve free exercise protections and
not unconstitutionally infringe on religious liberty or create penalties for religious freedom. Contrary to the Smith declaration that free
exercise exemptions are "intentional government advancement", these exemptions merely relieve the prohibition on the free exercise
thus allowing the burdened religious adherent to be left alone. The state must create exceptions to laws of general applicability when
these laws threaten religious convictions or practices in the absence of a compelling state interest. 275 By allowing such exemptions, the
Free Exercise Clause does not give believers the right or privilege to choose for themselves to override socially-prescribed decision; it
allows them to obey spiritual rather than temporal authority276 for those who seriously invoke the Free Exercise Clause claim to be
fulfilling a solemn duty. Religious freedom is a matter less of rights than duties; more precisely, it is a matter of rights derived from
duties. To deny a person or a community the right to act upon such a duty can be justified only by appeal to a yet more compelling
duty. Of course, those denied will usually not find the reason for the denial compelling. "Because they may turn out to be right about
the duty in question, and because, even if they are wrong, religion bears witness to that which transcends the political order, such
denials should be rare and painfully reluctant."277

The Yoder case is an example where the Court held that the state must accommodate the religious beliefs of the Amish who objected
to enrolling their children in high school as required by law. The Sherbert case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious convictions of Sherbert. 278 In these cases of "burdensome effect",
the modern approach of the Court has been to apply strict scrutiny, i.e., to declare the burden as permissible, the Court requires the
state to demonstrate that the regulation which burdens the religious exercise pursues a particularly important or compelling
government goal through the least restrictive means. If the state's objective could be served as well or almost as well by granting an
exemption to those whose religious beliefs are burdened by the regulation, such an exemption must be given.279 This approach of the
Court on "burdensome effect" was only applied since the 1960s. Prior to this time, the Court took the separationist view that as long as
the state was acting in pursuit of non-religious ends and regulating conduct rather than pure religious beliefs, the Free Exercise Clause
did not pose a hindrance such as in Reynolds. 280 In the second situation where accommodation is permissible, the state may, but is not
required to, accommodate religious interests. The Walz case illustrates this situation where the Court upheld the constitutionality of
tax exemption given by New York to church properties, but did not rule that the state was required to provide tax exemptions. The
Court declared that "(t)he limits of permissible state accommodation to religion are by no means co-extensive with the noninterference
mandated by the Free Exercise Clause."281 The Court held that New York could have an interest in encouraging religious values and
avoiding threats to those values through the burden of property taxes. Other examples are the Zorach case allowing released time in
public schools and Marsh allowing payment of legislative chaplains from public funds. Finally, in the situation where accommodation
is prohibited, establishment concerns prevail over potential accommodation interests. To say that there are valid exemptions buttressed
by the Free Exercise Clause does not mean that all claims for free exercise exemptions are valid. 282 An example where accommodation
was prohibited is McCollum where the Court ruled against optional religious instruction in the public school premises. 283 In effect, the
last situation would arrive at a strict neutrality conclusion.

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

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

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

Second, the court asks: "(i)s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In this step,
the government has to establish that its purposes are legitimate for the state and that they are compelling. Government must do more
than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will be
undermined if exemptions are granted.289 The person claiming religious freedom, on the other hand, will endeavor to show that the
interest is not legitimate or that the purpose, although legitimate, is not compelling compared to infringement of religious liberty. This
step involves balancing, i.e., weighing the interest of the state against religious liberty to determine which is more compelling under
the particular set of facts. The greater the state's interests, the more central the religious belief would have to be to overcome it. In
assessing the state interest, the court will have to determine the importance of the secular interest and the extent to which that interest
will be impaired by an exemption for the religious practice. Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation by granting the exemption.290

Third, the court asks: "(h)as the state in achieving its legitimate purposes used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the legitimate goal of the state?" 291 The analysis requires the state to show
that the means in which it is achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to achieve its
legitimate state end that imposes as little as possible on religious liberties. In Cantwell, for example, the Court invalidated the license
requirement for the door-to-door solicitation as it was a forbidden burden on religious liberty, noting that less drastic means of
insuring peace and tranquility existed. As a whole, in carrying out the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined judgment.292

In sum, as shown by U.S. jurisprudence on religion clause cases, the competing values of secular government and religious freedom
create tensions that make constitutional law on the subject of religious liberty unsettled, mirroring the evolving views of a dynamic
society.293

VII. Religion Clauses in the Philippines

A. History
Before our country fell under American rule, the blanket of Catholicism covered the archipelago. There was a union of church and
state and Catholicism was the state religion under the Spanish Constitution of 1876. Civil authorities exercised religious functions and
the friars exercised civil powers.294 Catholics alone enjoyed the right of engaging in public ceremonies of worship. 295 Although the
Spanish Constitution itself was not extended to the Philippines, Catholicism was also the established church in our country under the
Spanish rule. Catholicism was in fact protected by the Spanish Penal Code of 1884 which was in effect in the Philippines. Some of the
offenses in chapter six of the Penal Code entitled "Crimes against Religion and Worship" referred to crimes against the state
religion.296 The coming of the Americans to our country, however, changed this state-church scheme for with the advent of this
regime, the unique American experiment of "separation of church and state" was transported to Philippine soil.

Even as early as the conclusion of the Treaty of Paris between the United States and Spain on December 10, 1898, the American
guarantee of religious freedom had been extended to the Philippines. The Treaty provided that "the inhabitants of the territories over
which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion." 297 Even the Filipinos themselves
guaranteed religious freedom a month later or on January 22, 1899 upon the adoption of the Malolos Constitution of the Philippine
Republic under General Emilio Aguinaldo. It provided that "the State recognizes the liberty and equality of all religion (de todos los
cultos) in the same manner as the separation of the Church and State." But the Malolos Constitution and government was short-lived
as the Americans took over the reigns of government.298

With the Philippines under the American regime, President McKinley issued Instructions to the Second Philippine Commission, the
body created to take over the civil government in the Philippines in 1900. The Instructions guaranteed religious freedom, viz:

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

This provision was based on the First Amendment of the United States Constitution. Likewise, the Instructions declared that "(t)he
separation between State and Church shall be real, entire and absolute."300

Thereafter, every organic act of the Philippines contained a provision on freedom of religion. Similar to the religious freedom clause
in the Instructions, the Philippine Bill of 1902 provided that:

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

In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of 1902 "caused the complete separation of church and state, and the
abolition of all special privileges and all restrictions theretofor conferred or imposed upon any particular religious sect."302

The Jones Law of 1916 carried the same provision, but expanded it with a restriction against using public money or property for
religious purposes, viz:

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

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence
to the Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion
in drafting their constitution preparatory to the grant of independence. The law prescribed that "(a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on
account of religious belief or mode of worship."303

The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as
Chairman of the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of Paris of December 10, 1898, which first
introduced religious toleration in our country. President McKinley's Instructions to the Second Philippine Commission reasserted this
right which later was incorporated into the Philippine Bill of 1902 and in the Jones Law."304 In accordance with the Tydings-McDuffie
Law, the 1935 Constitution provided in the Bill of Rights, Article IV, Section 7, viz:
 Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free
exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or political rights.

This provision, borrowed from the Jones Law, was readily approved by the Convention. 305 In his speech as Chairman of the
Committee on Bill of Rights, Delegate Laurel said that modifications in phraseology of the Bill of Rights in the Jones Law
were avoided whenever possible because "the principles must remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and interpreted by the great statesmen and jurists that vitalized
them."306

The 1973 Constitution which superseded the 1935 Constitution contained an almost identical provision on religious freedom in the
Bill of Rights in Article IV, Section 8, viz:

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

This time, however, the General Provisions in Article XV added in Section 15 that "(t)he separation of church and state shall be
inviolable."

Without discussion by the 1986 Constitutional Commission, the 1973 religious clauses were reproduced in the 1987 Constitution
under the Bill of Rights in Article III, Section 5.307 Likewise, the provision on separation of church and state was included verbatim in
the 1987 Constitution, but this time as a principle in Section 6, Article II entitled Declaration of Principles and State Policies.

Considering the American origin of the Philippine religion clauses and the intent to adopt the historical background, nature, extent and
limitations of the First Amendment of the U.S. Constitution when it was included in the 1935 Bill of Rights, it is not surprising that
nearly all the major Philippine cases involving the religion clauses turn to U.S. jurisprudence in explaining the nature, extent and
limitations of these clauses. However, a close scrutiny of these cases would also reveal that while U.S. jurisprudence on religion
clauses flows into two main streams of interpretation - separation and benevolent neutrality - the well-spring of Philippine
jurisprudence on this subject is for the most part, benevolent neutrality which gives room for accommodation.

B. Jurisprudence

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

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct
or indirect, in the practice of one's religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment
Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the
support of the state.312

In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of
Education313 is instructive on the matter, viz:

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

The difficulty in interpretation sets in when belief is externalized into speech and action.

Religious speech comes within the pale of the Free Exercise Clause as illustrated in the American Bible Society case. In that case,
plaintiff American Bible Society was a foreign, non-stock, non-profit, religious missionary corporation which sold bibles and gospel
portions of the bible in the course of its ministry. The defendant City of Manila required plaintiff to secure a mayor's permit and a
municipal license as ordinarily required of those engaged in the business of general merchandise under the city's ordinances. Plaintiff
argued that this amounted to "religious censorship and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the Philippines."

After defining religion, the Court, citing Tanada and Fernando, made this statement, viz:

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

This was the Court's maiden unequivocal affirmation of the "clear and present danger" rule in the religious freedom area, and in
Philippine jurisprudence, for that matter.315 The case did not clearly show, however, whether the Court proceeded to apply the test to
the facts and issues of the case, i.e., it did not identify the secular value the government regulation sought to protect, whether the
religious speech posed a clear and present danger to this or other secular value protected by government, or whether there was danger
but it could not be characterized as clear and present. It is one thing to apply the test and find that there is no clear and present danger,
and quite another not to apply the test altogether.

Instead, the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was not engaged in the
business or occupation of selling said "merchandise" for profit. To add, the Court, citing Murdock v. Pennsylvania,316 ruled that
applying the ordinance requiring it to secure a license and pay a license fee or tax would impair its free exercise of religious profession
and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a privilege is the power to control or
suppress its enjoyment." Thus, in American Bible Society, the "clear and present danger" rule was laid down but it was not clearly
applied.

In the much later case of Tolentino v. Secretary of Finance,317 also involving the sale of religious books, the Court distinguished the
American Bible Society case from the facts and issues in Tolentino and did not apply the American Bible Society ruling. In Tolentino,
the Philippine Bible Society challenged the validity of the registration provisions of the Value Added Tax (VAT) Law as a prior
restraint. The Court held, however, that the fixed amount of registration fee was not imposed for the exercise of a privilege like a
license tax which American Bible Society ruled was violative of religious freedom. Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a central feature of the VAT system. Citing Jimmy Swaggart
Ministries v. Board of Equalization,318 the Court also declared prefatorily that "the Free Exercise of Religion Clause does not
prohibit imposing a generally applicable sales and use tax on the sale of religious materials by a religious organization." In the Court's
resolution of the motion for reconsideration of the Tolentino decision, the Court noted that the burden on religious freedom caused by
the tax was just similar to any other economic imposition that might make the right to disseminate religious doctrines costly.

Two years after American Bible Society came the 1959 case of Gerona v. Secretary of Education,319 this time involving conduct
expressive of religious belief colliding with a rule prescribed in accordance with law. In this case, petitioners were members of the
Jehovah's Witnesses. They challenged a Department Order issued by the Secretary of Education implementing Republic Act No. 1265
which prescribed compulsory flag ceremonies in all public schools. In violation of the Order, petitioner's children refused to salute the
Philippine flag, sing the national anthem, or recite the patriotic pledge, hence they were expelled from school. Seeking protection
under the Free Exercise Clause, petitioners claimed that their refusal was on account of their religious belief that the Philippine flag is
an image and saluting the same is contrary to their religious belief. The Court stated, viz:

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

The Court then proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the
petitioners with the following justification:
After all, the determination of whether a certain ritual is or is not a religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect; otherwise, there would be confusion and misunderstanding for
there might be as many interpretations and meaning to be given to a certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all sincerity and good faith, may want to give to such ritual or
ceremony.321

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

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

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

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

It stated in categorical terms, viz:

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

Thus, the religious freedom doctrines one can derive from Gerona are: (1) it is incumbent upon the Court to determine whether a
certain ritual is religious or not; (2) religious freedom will not be upheld if it clashes with the established institutions of society and
with the law such that when a law of general applicability (in this case the Department Order) incidentally burdens the exercise of
one's religion, one's right to religious freedom cannot justify exemption from compliance with the law. The Gerona ruling was
reiterated in Balbuna, et al. v. Secretary of Education, et al.325

Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope Workers Union.[326] In this unanimously decided en
banc case, Victoriano was a member of the Iglesia ni Cristo which prohibits the affiliation of its members with any labor organization.
He worked in the Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope Workers Union which had with the company a
closed shop provision pursuant to Republic Act No. 875 allowing closed shop arrangements. Subsequently, Republic Act No. 3350
was enacted exempting from the application and coverage of a closed shop agreement employees belonging to any religious sect
which prohibits affiliation of their members with any labor organization. Victoriano resigned from the union after Republic Act No.
3350 took effect. The union notified the company of Victoriano's resignation, which in turn notified Victoriano that unless he could
make a satisfactory arrangement with the union, the company would be constrained to dismiss him from the service. Victoriano sought
to enjoin the company and the union from dismissing him. The court having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350 was unconstitutional for impairing the obligation of contracts and
for granting an exemption offensive of the Establishment Clause. With respect to the first issue, the Court ruled, viz:

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

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

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

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

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

The Court stressed that "(a)lthough the exemption may benefit those who are members of religious sects that prohibit their members
from joining labor unions, the benefit upon the religious sects is merely incidental and indirect." 332 In enacting Republic Act No. 3350,
Congress merely relieved the exercise of religion by certain persons of a burden imposed by union security agreements which
Congress itself also imposed through the Industrial Peace Act. The Court concluded the issue of exemption by citing Sherbert which
laid down the rule that when general laws conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. The Court then abruptly added that "(i)n the instant case, We see no compelling state interest to
withhold exemption."333

A close look at Victoriano would show that the Court mentioned several tests in determining when religious freedom may be validly
limited. First, the Court mentioned the test of "immediate and grave danger to the security and welfare of the community" and
"infringement of religious freedom only to the smallest extent necessary" to justify limitation of religious freedom. Second, religious
exercise may be indirectly burdened by a general law which has for its purpose and effect the advancement of the state's secular goals,
provided that there is no other means by which the state can accomplish this purpose without imposing such burden. Third, the Court
referred to the "compelling state interest" test which grants exemptions when general laws conflict with religious exercise, unless a
compelling state interest intervenes.

It is worth noting, however, that the first two tests were mentioned only for the purpose of highlighting the importance of the
protection of religious freedom as the secular purpose of Republic Act No. 3350. Upholding religious freedom was a secular purpose
insofar as it relieved the burden on religious freedom caused by another law, i.e, the Industrial Peace Act providing for union shop
agreements. The first two tests were only mentioned in Victoriano but were not applied by the Court to the facts and issues of the case.
The third, the "compelling state interest" test was employed by the Court to determine whether the exemption provided by Republic
Act No. 3350 was not unconstitutional. It upheld the exemption, stating that there was no "compelling state interest" to strike it down.
However, after careful consideration of the Sherbert case from which Victoriano borrowed this test, the inevitable conclusion is that
the "compelling state interest" test was not appropriate and could not find application in the Victoriano case. In Sherbert, appellant
Sherbert invoked religious freedom in seeking exemption from the provisions of the South Carolina Unemployment Compensation
Act which disqualified her from claiming unemployment benefits. It was the appellees, members of the South Carolina Employment
Commission, a government agency, who propounded the state interest to justify overriding Sherbert's claim of religious freedom. The
U.S. Supreme Court, considering Sherbert's and the Commission's arguments, found that the state interest was not sufficiently
compelling to prevail over Sherbert's free exercise claim. This situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption in Republic Act No. 3350 to allow Victoriano's exercise of
religion. Thus, the government could not argue against the exemption on the basis of a compelling state interest as it would be arguing
against itself; while Victoriano would not seek exemption from the questioned law to allow the free exercose of religion as the law in
fact provides such an exemption. In sum, although Victoriano involved a religious belief and conduct, it did not involve a free exercise
issue where the Free Exercise Clause is invoked to exempt him from the burden imposed by a law on his religious freedom.

Victoriano was reiterated in several cases involving the Iglesia ni Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union, et al.,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 one's religion is guaranteed in Section 8 of our Bill of Rights. (footnote omitted) Freedom of
worship, alongside with freedom of expression and speech and peaceable assembly "along with the other intellectual
freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary -
even more so than on the other departments - rests the grave and delicate responsibility of assuring respect for and deference
to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously
termed by Justice Holmes 'as the sovereign prerogative of judgment.' Nonetheless, the presumption must be to incline the
weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy.' (J.B.L. Reyes, 125
SCRA at pp. 569-570)

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

The J.B.L. Reyes v. Bagatsing case from which this portion of Justice Teehankee's dissent was taken involved the rights to free speech
and assembly, and not the exercise of religious freedom. At issue in that case was a permit sought by retired Justice J.B.L. Reyes, on
behalf of the Anti-Bases Coalition, from the City of Manila to hold a peaceful march and rally from the Luneta to the gates of the U.S.
Embassy. Nevertheless Bagatsing was used by Justice Teehankee in his dissent which had overtones of petitioner German and his
companions' right to assemble and petition the government for redress of grievances.340

In 1993, the issue on the Jehovah's Witnesses' participation in the flag ceremony again came before the Court in Ebralinag v. The
Division Superintendent of Schools.341 A unanimous Court overturned the Gerona ruling after three decades. Similar to Gerona, this
case involved several Jehovah's Witnesses who were expelled from school for refusing to salute the flag, sing the national anthem and
recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the same religious freedom issue as in Gerona,
the Court this time transported the "grave and imminent danger" test laid down in Justice Teehankee's dissent in German, viz:

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

The Court added, viz:

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

Barnette also found its way to the opinion, viz:

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

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

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

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

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

The Court annulled the orders expelling petitioners from school.

Thus, the "grave and imminent danger" test laid down in a dissenting opinion in German which involved prior restraint of religious
worship with overtones of the right to free speech and assembly, was transported to Ebralinag which did not involve prior restraint of
religious worship, speech or assembly. Although, it might be observed that the Court faintly implied that Ebralinag also involved the
right to free speech when in its preliminary remarks, the Court stated that compelling petitioners to participate in the flag ceremony "is
alien to the conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to
free speech and the free exercise of religious profession and worship;" the Court then stated in a footnote that the "flag salute, singing
the national anthem and reciting the patriotic pledge are all forms of utterances."346

The "compelling state interest" test was not fully applied by the Court in Ebralinag. In the Solicitor General's consolidated comment,
one of the grounds cited to defend the expulsion orders issued by the public respondents was that "(t)he State's compelling interests
being pursued by the DEC's lawful regulations in question do not warrant exemption of the school children of the Jehovah's Witnesses
from the flag salute ceremonies on the basis of their own self-perceived religious convictions." 347 The Court, however, referred to the
test only towards the end of the decision and did not even mention what the Solicitor General argued as the compelling state interest,
much less did the Court explain why the interest was not sufficiently compelling to override petitioners' religious freedom.

Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni Cristo v. Court of Appeals, et al. 348 Although there was a
dissent with respect to the applicability of the "clear and present danger" test in this case, the majority opinion in unequivocal terms
applied the "clear and present danger" test to religious speech. This case involved the television program, "Ang Iglesia ni Cristo,"
regularly aired over the television. Upon petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its episodes, respondent
Board of Review for Motion Pictures and Television classified these as "X" or not for public viewing on the ground that they "offend
and constitute an attack against other religions which is expressly prohibited by law." Invoking religious freedom, petitioner alleged
that the Board acted without jurisdiction or with grave abuse of discretion in requiring it to submit the VTR tapes of its television
program and x-rating them. While upholding the Board's power to review the Iglesia television show, the Court was emphatic about
the preferred status of religious freedom. Quoting Justice Cruz' commentary on the constitution, the Court held that freedom to believe
is absolute but freedom to act on one's belief, where it affects the public, is subject to the authority of the state. The commentary
quoted Justice Frankfurter's dissent in Barnette which was quoted in Gerona, viz: "(t)he constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because of religious dogma." 349 Nevertheless, the Court was quick
to add the criteria by which the state can regulate the exercise of religious freedom, that is, when the exercise will bring about the
"clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more
overriding interest of public health, public morals, or public welfare."350

In annulling the x-rating of the shows, the Court stressed that the Constitution is hostile to all prior restraints on speech, including
religious speech and the x-rating was a suppression of petitioner's freedom of speech as much as it was an interference with its right to
free exercise of religion. Citing Cantwell, the Court recognized that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from protecting any religion from this kind of attack.

The Court then called to mind the "clear and present danger" test first laid down in the American Bible Society case and the test of
"immediate and grave danger" with "infringement only to the smallest extent necessary to avoid danger" in Victoriano and pointed out
that the reviewing board failed to apply the "clear and present danger" test. Applying the test, the Court noted, viz:

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

Replying to the challenge on the applicability of the "clear and present danger" test to the case, the Court acknowledged the
permutations that the test has undergone, but stressed that the test is still applied to four types of speech: "speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a
fair trial"351 and ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at
bar which concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be
doubted that religious truths disturb and disturb terribly.352

In Iglesia therefore, the Court went back to Gerona insofar as holding that religious freedom cannot be invoked to seek exemption
from compliance with a law that burdens one's religious exercise. It also reiterated the "clear and present danger" test in American
Bible Society and the "grave and imminent danger" in Victoriano, but this time clearly justifying its applicability and showing how the
test was applied to the case.

In sum, the Philippine Supreme Court has adopted a posture of not invalidating a law offensive to religious freedom, but carving out
an exception or upholding an exception to accommodate religious exercise where it is justified.353

2. Establishment Clause

In Philippine jurisdiction, there is substantial agreement on the values sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the human conscience which, as discussed above, is also protected by
the free exercise clause. From the religious perspective, religion requires voluntarism because compulsory faith lacks religious
efficacy. Compelled religion is a contradiction in terms.354 As a social value, it means that the "growth of a religious sect as a social
force must come from the voluntary support of its members because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without benefit of official patronage. Such voluntarism cannot be
achieved unless the political process is insulated from religion and unless religion is insulated from politics."355 Non-establishment
thus calls for government neutrality in religious matters to uphold voluntarism and avoid breeding interfaith dissension.356

The neutrality principle was applied in the first significant non-establishment case under the 1935 Constitution. In the 1937 case
of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the issuance and sale of postage stamps commemorating the
Thirty-Third International Eucharistic Congress of 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. 4052358 which appropriated a sum for the cost of plates and printing of postage stamps with new designs and
authorized the Director of Posts to dispose of the sum in a manner and frequency "advantageous to the Government." The printing and
issuance of the postage stamps in question appears to have been approved by authority of the President. Justice Laurel, speaking for
the Court, took pains explaining religious freedom and the role of religion in society, and in conclusion, found no constitutional
infirmity in the issuance and sale of the stamps, viz:

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

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

xxx           xxx           xxx

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

In so deciding the case, the Court, citing U.S. jurisprudence, laid down the doctrine that a law or government action with a legitimate
secular purpose does not offend the Establishment Clause even if it incidentally aids a particular religion.

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

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

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

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

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

On the other hand, the prevailing five other members of the Court - Chief Justice Castro, Justices Barredo, Makasiar, Antonio and
Aquino - approached the case from a non-establishment perspective and upheld the law as a safeguard against the constant threat of
union of church and state that has marked Philippine history. Justice Makasiar stated: "To allow an ecclesiastic to head the executive
department of a municipality is to permit the erosion of the principle of separation of Church and State and thus open the floodgates
for the violation of the cherished liberty of religion which the constitutional provision seeks to enforce and protect." Consequently, the
Court upheld the validity of Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office
of municipal mayor.

Another type of cases interpreting the establishment clause deals with intramural religious disputes. Fonacier v. Court of
Appeals365 is the leading case. The issue therein was the right of control over certain properties of the Philippine Independent Church,
the resolution of which necessitated the determination of who was the legitimate bishop of the church. The Court cited American
Jurisprudence,366 viz:

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

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

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

VIII. Free Exercise Clause vis-à-vis Establishment Clause

In both Philippine and U.S. jurisdiction, it is recognized that there is a tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between a command not to establish religion and a command not to inhibit
its practice; this tension between the religion clauses often leaves the courts with a choice between competing values in religion
cases.370

One set of facts, for instance, can be differently viewed from the Establishment Clause perspective and the Free Exercise Clause point
of view, and decided in opposite directions. In Pamil, the majority gave more weight to the religious liberty of the priest in holding
that the prohibition of ecclesiastics to assume elective or appointive government positions was violative of the Free Exercise Clause.
On the other hand, the prevailing five justices gave importance to the Establishment Clause in stating that the principle of separation
of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise Clause and consequently exemptions from a law of
general applicability are afforded by the Court to the person claiming religious freedom; the question arises whether the exemption
does not amount to support of the religion in violation of the Establishment Clause. This was the case in the Free Exercise Clause case
of Sherbert where the U.S. Supreme Court ruled, viz:

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

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

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

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

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

Finally, in some cases, a practice is obviously violative of the Establishment Clause but the Court nevertheless upholds it. In Schempp,
Justice Brennan stated: "(t)here are certain practices, conceivably violative of the Establishment Clause, the striking down of which
might seriously interfere with certain religious liberties also protected by the First Amendment."

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

IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on Philippine and American Religion Clause History, Law and
Jurisprudence

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

We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church property in Article VI, Section 22, par. 3(b), viz:

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

Before the advent of the 1935 Constitution, Section 344 of the Administrative Code provided for a similar exemption. To the same
effect, the Tydings-McDuffie Law contained a limitation on the taxing power of the Philippine government during the Commonwealth
period.379 The original draft of the Constitution placed this provision in an ordinance to be appended to the Constitution because this
was among the provisions prescribed by the Tydings-McDuffie Law. However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision was introduced in the body of the Constitution on the rationale that
"if churches, convents [rectories or parsonages] and their accessories are always necessary for facilitating the exercise of such
[religious] freedom, it would also be natural that their existence be also guaranteed by exempting them from taxation." 380 The
amendment was readily approved with 83 affirmative votes against 15 negative votes.381

The Philippine constitutional provision on tax exemption is not found in the U.S. Constitution. In the U.S. case of Walz, the Court
struggled to justify this kind of exemption to withstand Establishment Clause scrutiny by stating that church property was not singled
out but was exempt along with property owned by non-profit, quasi-public corporations because the state upheld the secular policy
"that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable,
and in the public interest." The Court also stated that the exemption was meant to relieve the burden on free exercise imposed by
property taxation. At the same time, however, the Court acknowledged that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion of the church property tax exemption in the body of the 1935
Constitution and not merely as an ordinance appended to the Constitution, the benevolent neutrality referred to in the Walz case was
given constitutional imprimatur under the regime of the 1935 Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the exercise of religious liberty, thereby evincing benevolence towards
religious exercise.

Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:

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

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

No public money or property shall ever be appropriated, applied, or used, directly or indirectly, for the use, benefit, or
support of any sect, church denomination, sectarian institution, or system of religion, or for the use, benefit or support of any
priest, preacher, minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was proposed to strike down everything after "church denomination." 383 The
proposal intended to imitate the silence of the U.S. Constitution on the subject of support for priests and ministers. It was also an
imitation of the silence of the Malolos Constitution to restore the situation under the Malolos Constitution and prior to the Jones Law,
when chaplains of the revolutionary army received pay from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations were made to chaplains of the national penitentiary and
the Auditor General upheld its validity on the basis of a similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the Jones Law. 384 To settle the question on the constitutionality
of payment of salaries of religious officers in certain government institutions and to avoid the feared situation where the enumerated
government institutions could not employ religious officials with compensation, the exception in the 1935 provision was introduced
and approved. The provision garnered 74 affirmative votes against 34 negative votes.385 As pointed out in the deliberations, the U.S.
Constitution does not provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a benevolent
neutrality approach, implicitly approved the state of Texas' payment of prison chaplains' salaries as reasonably necessary to permit
inmates to practice their religion. Also, in the Marsh case, the U.S. Supreme Court upheld the long-standing tradition of beginning
legislative sessions with prayers offered by legislative chaplains retained at taxpayers' expense. The constitutional provision
exempting religious officers in government institutions affirms the departure of the Philippine Constitution from the U.S. Constitution
in its adoption of benevolent neutrality in Philippine jurisdiction. While the provision prohibiting aid to religion protects the wall of
separation between church and state, the provision at the same time gives constitutional sanction to a breach in the wall.

To further buttress the thesis that benevolent neutrality is contemplated in the Philippine Establishment Clause, the 1935 Constitution
provides for optional religious instruction in public schools in Article XIII, Section 5, viz:

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

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

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

During the debates of the Constitutional Convention, there were three positions on the issue of religious instruction in public schools.
The first held that the teaching of religion in public schools should be prohibited as this was a violation of the principle of separation
of church and state and the prohibition against the use of public funds for religious purposes. The second favored the proposed
optional religious instruction as authorized by the Administrative Code and recognized that the actual practice of allowing religious
instruction in the public schools was sufficient proof that religious instruction was not and would not be a source of religious discord
in the schools.386 The third wanted religion to be included as a course in the curriculum of the public schools but would only be taken
by pupils at the option of their parents or guardians. After several rounds of debate, the second camp prevailed, thus raising to
constitutional stature the optional teaching of religion in public schools, despite the opposition to the provision on the ground of
separation of church and state.387 As in the provisions on church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional religious instruction in public schools. In fact, in the
McCollum case, the Court, using strict neutrality, prohibited this kind of religious instruction where the religion teachers would
conduct class within the school premises. The constitutional provision on optional religious instruction shows that Philippine
jurisdiction rejects the strict neutrality approach which does not allow such accommodation of religion.

Finally, to make certain the Constitution's benevolence to religion, the Filipino people "implored (ing) the aid of Divine Providence (,)
in order to establish a government that shall embody their ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the blessings of independence under a regime of justice, liberty, and
democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A preamble is a "key to open the mind of the authors of the
constitution as to the evil sought to be prevented and the objects sought to be accomplished by the provisions thereof." 388 There was no
debate on the inclusion of a "Divine Providence" in the preamble. In Aglipay, Justice Laurel noted that when the Filipino people
implored the aid of Divine Providence, "(t)hey thereby manifested their intense religious nature and placed unfaltering reliance upon
Him who guides the destinies of men and nations."389 The 1935 Constitution's religion clauses, understood alongside the other
provisions on religion in the Constitution, indubitably shows not hostility, but benevolence, to religion.390

The 1973 Constitution contained in Article VI, Section 22(3) a provision similar to Article VI, Section 22, par. 3(b) of the 1935
Constitution on exemption of church property from taxation, with the modification that the property should not only be used directly,
but also actually and exclusively for religious or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935 Constitution, the
1973 Constitution also contained a similar provision on salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional religious instruction was also carried to the 1973 Constitution
in Article XV, Section 8(8) with the modification that optional religious instruction shall be conducted "as may be provided by law"
and not "as now authorized by law" as stated in the 1935 Constitution. The 1973 counterpart, however, made explicit in the
constitution that the religious instruction in public elementary and high schools shall be done "(a)t the option expressed in writing by
the parents or guardians, and without cost to them and the government." With the adoption of these provisions in the 1973
Constitution, the benevolent neutrality approach continued to enjoy constitutional sanction. In Article XV, Section 15 of the General
Provisions of the 1973 Constitution this provision made its maiden appearance: "(t)he separation of church and state shall be
inviolable." The 1973 Constitution retained the portion of the preamble "imploring the aid of Divine Providence."

In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the "absolute" separation of Church and State as enunciated in the
Everson case and reiterated in Schempp - i.e., neutrality not only as between one religion and another but even as between religion and
non-religion - is embodied in the Philippine Constitution. The sub-committee's answer was that it did not seem so. Citing the Aglipay
case where Justice Laurel recognized the "elevating influence of religion in human society" and the Filipinos' imploring of Divine
Providence in the 1935 Constitution, the sub-committee asserted that the state may not prefer or aid one religion over another, but may
aid all religions equally or the cause of religion in general. 391 Among the position papers submitted to the Committee on Church on
State was a background paper for reconsideration of the religion provisions of the constitution by Fr. Bernas, S.J. He stated therein
that the Philippine Constitution is not hostile to religion and in fact recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a strict neutrality but benevolent neutrality. While the
Committee introduced the provision on separation of church and state in the General Provisions of the 1973 Constitution, this was
nothing new as according to it, this principle was implied in the 1935 Constitution even in the absence of a similar provision.393

Then came the 1987 Constitution. The 1973 Constitutional provision on tax exemption of church property was retained with minor
modification in Article VI, Section 28(3) of the 1987 Constitution. The same is true with respect to the prohibition on the use of public
money and property for religious purposes and the salaries of religious officers serving in the enumerated government institutions,
now contained in Article VI, Section 29(2). Commissioner Bacani, however, probed into the possibility of allowing the government to
spend public money for purposes which might have religious connections but which would benefit the public generally. Citing the
Aglipay case, Commissioner Rodrigo explained that if a public expenditure would benefit the government directly, such expense
would be constitutional even if it results to an incidental benefit to religion. With that explanation, Commissioner Bacani no longer
pursued his proposal.394

The provision on optional religious instruction was also adopted in the 1987 Constitution in Article XIV, Section 3(3) with the
modification that it was expressly provided that optional instruction shall be conducted "within the regular class hours" and "without
additional cost to the government". There were protracted debates on what additional cost meant, i.e., cost over and above what is
needed for normal operations such as wear and tear, electricity, janitorial services,395 and when during the day instruction would be
conducted.396 In deliberating on the phrase "within the regular class hours," Commissioner Aquino expressed her reservations to this
proposal as this would violate the time-honored principle of separation of church and state. She cited the McCullom case where
religious instruction during regular school hours was stricken down as unconstitutional and also cited what she considered the most
liberal interpretation of separation of church and state in Surach v. Clauson where the U.S. Supreme Court allowed only release time
for religious instruction. Fr. Bernas replied, viz:

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

"(W)ithin regular class hours" was approved.

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

. . . It is true, I maintain, that as a legal statement the sentence 'The separation of Church and State is inviolable,' is almost a
useless statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end,
if we look at the jurisprudence on Church and State, arguments are based not on the statement of separation of church and
state but on the non-establishment clause in the Bill of Rights.398

The preamble changed "Divine Providence" in the 1935 and 1973 Constitutions to "Almighty God." There was considerable debate on
whether to use "Almighty God" which Commissioner Bacani said was more reflective of Filipino religiosity, but Commissioner
Rodrigo recalled that a number of atheistic delegates in the 1971 Constitutional Convention objected to reference to a personal
God.399 "God of History", "Lord of History" and "God" were also proposed, but the phrase "Almighty God" prevailed. Similar to the
1935 and 1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor indifferent to religion; 400 its wall of separation
is not a wall of hostility or indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of church property, salary of religious officers in
government institutions, optional religious instruction and the preamble all reveal without doubt that the Filipino people, in adopting
these constitutions, did not intend to erect a high and impregnable wall of separation between the church and state. 402 The strict
neutrality approach which examines only whether government action is for a secular purpose and does not consider inadvertent burden
on religious exercise protects such a rigid barrier. By adopting the above constitutional provisions on religion, the Filipinos manifested
their adherence to the benevolent neutrality approach in interpreting the religion clauses, an approach that looks further than the
secular purposes of government action and examines the effect of these actions on religious exercise. Benevolent neutrality recognizes
the religious nature of the Filipino people and the elevating influence of religion in society; at the same time, it acknowledges that
government must pursue its secular goals. In pursuing these goals, however, government might adopt laws or actions of general
applicability which inadvertently burden religious exercise. Benevolent neutrality gives room for accommodation of these religious
exercises as required by the Free Exercise Clause. It allows these breaches in the wall of separation to uphold religious liberty, which
after all is the integral purpose of the religion clauses. The case at bar involves this first type of accommodation where an exemption is
sought from a law of general applicability that inadvertently burdens religious exercise.

Although our constitutional history and interpretation mandate benevolent neutrality, benevolent neutrality does not mean that the
Court ought to grant exemptions every time a free exercise claim comes before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices and that it will strive to accommodate them when it can within
flexible constitutional limits; it does mean that the Court will not simply dismiss a claim under the Free Exercise Clause because the
conduct in question offends a law or the orthodox view for this precisely is the protection afforded by the religion clauses of the
Constitution, i.e., that in the absence of legislation granting exemption from a law of general applicability, the Court can carve out an
exception when the religion clauses justify it. While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or importance of the state interest or the sufficiency of
the means adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed.403 We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality
approach not only because of its merits as discussed above, but more importantly, because our constitutional history and interpretation
indubitably show that benevolent neutrality is the launching pad from which the Court should take off in interpreting religion clause
cases. The ideal towards which this approach is directed is the protection of religious liberty "not only for a minority, however small-
not only for a majority, however large- but for each of us" to the greatest extent possible within flexible constitutional limits.

Benevolent neutrality is manifest not only in the Constitution but has also been recognized in Philippine jurisprudence, albeit not
expressly called "benevolent neutrality" or "accommodation". In Aglipay, the Court not only stressed the "elevating influence of
religion in human society" but acknowledged the Constitutional provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and Sundays legal holidays. In Garces, the Court not only recognized
the Constitutional provisions indiscriminately granting concessions to religious sects and denominations, but also acknowledged that
government participation in long-standing traditions which have acquired a social character - "the barrio fiesta is a socio-religious
affair" - does not offend the Establishment Clause. In Victoriano, the Court upheld the exemption from closed shop provisions of
members of religious sects who prohibited their members from joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve the burden on free exercise of religion. In Ebralinag, members of
the Jehovah's Witnesses were exempt from saluting the flag as required by law, on the basis not of a statute granting exemption but of
the Free Exercise Clause without offending the Establishment Clause.

While the U.S. and Philippine religion clauses are similar in form and origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality approach. The Philippine religion clauses have taken a life of their own,
breathing the air of benevolent neutrality and accommodation. Thus, the wall of separation in Philippine jurisdiction is not as high and
impregnable as the wall created by the U.S. Supreme Court in Everson.404 While the religion clauses are a unique American
experiment which understandably came about as a result of America's English background and colonization, the life that these clauses
have taken in this jurisdiction is the Philippines' own experiment, reflective of the Filipinos' own national soul, history and tradition.
After all, "the life of the law. . . has been experience."

But while history, constitutional construction, and earlier jurisprudence unmistakably show that benevolent neutrality is the lens with
which the Court ought to view religion clause cases, it must be stressed that the interest of the state should also be afforded utmost
protection. To do this, a test must be applied to draw the line between permissible and forbidden religious exercise. It is quite
paradoxical that in order for the members of a society to exercise their freedoms, including their religious liberty, the law must set a
limit when their exercise offends the higher interest of the state. To do otherwise is self-defeating for unlimited freedom would erode
order in the state and foment anarchy, eventually destroying the very state its members established to protect their freedoms. The very
purpose of the social contract by which people establish the state is for the state to protect their liberties; for this purpose, they give up
a portion of these freedoms - including the natural right to free exercise - to the state. It was certainly not the intention of the authors
of the constitution that free exercise could be used to countenance actions that would undo the constitutional order that guarantees free
exercise.405
The all important question then is the test that should be used in ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise Clause, American
Bible Society, the Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this test continued to be
cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The Victoriano case mentioned the "immediate and grave danger"
test as well as the doctrine that a law of general applicability may burden religious exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling state interest" test. After
Victoriano, German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of American
Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious freedom will not prevail over established institutions of society and law. Gerona,
however, which was the authority cited by German has been overruled by Ebralinag which employed the "grave and immediate
danger" test. Victoriano was the only case that employed the "compelling state interest" test, but as explained previously, the use of
the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present
danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The Gerona
and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate
in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The "compelling state
interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect the interests of the
state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any interest of the state
would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. 406 This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty,407 thus the Filipinos implore the "aid of Almighty God in order to build
a just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering paramount interests
can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state interest is therefore
not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to batter religion, especially the
less powerful ones until they are destroyed.408 In determining which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide.409 The "compelling state interest" serves the purpose of revering religious liberty while at the same
time affording protection to the paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved.

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

A. The Religion Clauses and Morality

In a catena of cases, the Court has ruled that government employees engaged in illicit relations are guilty of "disgraceful and immoral
conduct" for which he/she may be held administratively liable.410 In these cases, there was not one dissent to the majority's ruling that
their conduct was immoral. The respondents themselves did not foist the defense that their conduct was not immoral, but instead
sought to prove that they did not commit the alleged act or have abated from committing the act. The facts of the 1975 case of De Dios
v. Alejo411 and the 1999 case of Maguad v. De Guzman,412 are similar to the case at bar - i.e., the complainant is a mere stranger and
the legal wife has not registered any objection to the illicit relation, there is no proof of scandal or offense to the moral sensibilities of
the community in which the respondent and the partner live and work, and the government employee is capacitated to marry while the
partner is not capacitated but has long been separated in fact. Still, the Court found the government employees administratively liable
for "disgraceful and immoral conduct" and only considered the foregoing circumstances to mitigate the penalty. Respondent Escritor
does not claim that there is error in the settled jurisprudence that an illicit relation constitutes disgraceful and immoral conduct for
which a government employee is held liable. Nor is there an allegation that the norms of morality with respect to illicit relations have
shifted towards leniency from the time these precedent cases were decided. The Court finds that there is no such error or shift, thus we
find no reason to deviate from these rulings that such illicit relationship constitutes "disgraceful and immoral conduct" punishable
under the Civil Service Law. Respondent having admitted the alleged immoral conduct, she, like the respondents in the above-cited
cases, could be held administratively liable. However, there is a distinguishing factor that sets the case at bar apart from the cited
precedents, i.e., as a defense, respondent invokes religious freedom since her religion, the Jehovah's Witnesses, has, after thorough
investigation, allowed her conjugal arrangement with Quilapio based on the church's religious beliefs and practices. This
distinguishing factor compels the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both the dissenting opinion of Mme. Justice Ynares-Santiago
and the separate opinion of Mr. Justice Vitug dwell more on the standards of morality than on the religion clauses in deciding the
instant case. A discussion on morality is in order.

At base, morality refers to, in Socrates' words, "how we ought to live" and why. Any definition of morality beyond Socrates' simple
formulation is bound to offend one or another of the many rival theories regarding what it means to live morally. 413 The answer to the
question of how we ought to live necessarily considers that man does not live in isolation, but in society. Devlin posits that a society is
held together by a community of ideas, made up not only of political ideas but also of ideas about the manner its members should
behave and govern their lives. The latter are their morals; they constitute the public morality. Each member of society has ideas about
what is good and what is evil. If people try to create a society wherein there is no fundamental agreement about good and evil, they
will fail; if having established the society on common agreement, the agreement collapses, the society will disintegrate. Society is kept
together by the invisible bonds of common thought so that if the bonds are too loose, the members would drift apart. A common
morality is part of the bondage and the bondage is part of the price of society; and mankind, which needs society, must pay its
price.414 This design is parallel with the social contract in the realm of politics: people give up a portion of their liberties to the state to
allow the state to protect their liberties. In a constitutional order, people make a fundamental agreement about the powers of
government and their liberties and embody this agreement in a constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by revolution destroys the old order and creates a new one. 415 Similarly, in the
realm of morality, the breakdown of the fundamental agreement about the manner a society's members should behave and govern their
lives would disintegrate society. Thus, society is justified in taking steps to preserve its moral code by law as it does to preserve its
government and other essential institutions.416 From these propositions of Devlin, one cannot conclude that Devlin negates diversity in
society for he is merely saying that in the midst of this diversity, there should nevertheless be a "fundamental agreement about good
and evil" that will govern how people in a society ought to live. His propositions, in fact, presuppose diversity hence the need to come
to an agreement; his position also allows for change of morality from time to time which may be brought about by this diversity. In the
same vein, a pluralistic society lays down fundamental rights and principles in their constitution in establishing and maintaining their
society, and these fundamental values and principles are translated into legislation that governs the order of society, laws that may be
amended from time to time. Hart's argument propounded in Mr. Justice Vitug's separate opinion that, "Devlin's view of people living
in a single society as having common moral foundation (is) overly simplistic" because "societies have always been diverse" fails to
recognize the necessity of Devlin's proposition in a democracy. Without fundamental agreement on political and moral ideas, society
will fall into anarchy; the agreement is necessary to the existence and progress of society.

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every
opinion, every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the
order of their life together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic governance. 417 Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream
or median groups.418 Nevertheless, in the very act of adopting and accepting a constitution and the limits it specifies -- including
protection of religious freedom "not only for a minority, however small- not only for a majority, however large- but for each of us" --
the majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride roughshod over the
dissenting minorities.419 In the realm of religious exercise, benevolent neutrality that gives room for accommodation carries out this
promise, provided the compelling interests of the state are not eroded for the preservation of the state is necessary to the preservation
of religious liberty. That is why benevolent neutrality is necessary in a pluralistic society such as the United States and the Philippines
to accommodate those minority religions which are politically powerless. It is not surprising that Smith is much criticized for it blocks
the judicial recourse of the minority for religious accommodations.

The laws enacted become expressions of public morality. As Justice Holmes put it, "(t)he law is the witness and deposit of our moral
life."420 "In a liberal democracy, the law reflects social morality over a period of time." 421 Occasionally though, a disproportionate
political influence might cause a law to be enacted at odds with public morality or legislature might fail to repeal laws embodying
outdated traditional moral views.422 Law has also been defined as "something men create in their best moments to protect themselves
in their worst moments."423 Even then, laws are subject to amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a given time. After all, "the life of the law...has been
experience," in the words of Justice Holmes. This is not to say though that law is all of morality. Law deals with the minimum
standards of human conduct while morality is concerned with the maximum. A person who regulates his conduct with the sole object
of avoiding punishment under the law does not meet the higher moral standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about a proper or ideal public morality for a society" 425 in pursuit of
moral progress.

In Magno v. Court of Appeals, et al.,426 we articulated the relationship between law and public morality. We held that under the
utilitarian theory, the "protective theory" in criminal law, "criminal law is founded upon the moral disapprobation x x x of actions
which are immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of
human society. This disapprobation is inevitable to the extent that morality is generally founded and built upon a certain concurrence
in the moral opinions of all. x x x That which we call punishment is only an external means of emphasizing moral disapprobation: the
method of punishment is in reality the amount of punishment."427 Stated otherwise, there are certain standards of behavior or moral
principles which society requires to be observed and these form the bases of criminal law. Their breach is an offense not only against
the person injured but against society as a whole. 428 Thus, even if all involved in the misdeed are consenting parties, such as in the case
at bar, the injury done is to the public morals and the public interest in the moral order. 429 Mr. Justice Vitug expresses concern on this
point in his separate opinion. He observes that certain immoral acts which appear private and not harmful to society such as sexual
congress "between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this
country." His opinion asks whether these laws on private morality are justified or they constitute impingement on one's freedom of
belief. Discussion on private morality, however, is not material to the case at bar for whether respondent's conduct, which constitutes
concubinage,430 is private in the sense that there is no injured party or the offended spouse consents to the concubinage, the
inescapable fact is that the legislature has taken concubinage out of the sphere of private morals. The legislature included concubinage
as a crime under the Revised Penal Code and the constitutionality of this law is not being raised in the case at bar. In the definition of
the crime of concubinage, consent of the injured party, i.e., the legal spouse, does not alter or negate the crime unlike in rape 431 where
consent of the supposed victim negates the crime. If at all, the consent or pardon of the offended spouse in concubinage negates the
prosecution of the action,432 but does not alter the legislature's characterization of the act as a moral disapprobation punishable by law.
The separate opinion states that, "(t)he ponencia has taken pains to distinguish between secular and private morality, and reached the
conclusion that the law, as an instrument of the secular State should only concern itself with secular morality." The Court does not
draw this distinction in the case at bar. The distinction relevant to the case is not, as averred and discussed by the separate opinion,
"between secular and private morality," but between public and secular morality on the one hand, and religious morality on the other,
which will be subsequently discussed.

Not every moral wrong is foreseen and punished by law, criminal or otherwise. We recognized this reality in Velayo, et al. v. Shell
Co. of the Philippine Islands, et al., where we explained that for those wrongs which are not punishable by law, Articles 19 and 21 in
Chapter 2 of the Preliminary Title of the New Civil Code, dealing with Human Relations, provide for the recognition of the wrong and
the concomitant punishment in the form of damages. Articles 19 and 21 provide, viz:

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

xxx           xxx           xxx

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

We then cited in Velayo the Code Commission's comment on Article 21:

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

But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that,
in the last analysis, every good law draws its breath of life from morals, from those principles which are written with words
of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face
of the impossibility of enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of
law and statutes have changed from age to age, the conscience of man has remained fixed to its ancient moorings, one can not
but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal
system that enduring quality which ought to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity
cause damage to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred
postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief.

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

The public morality expressed in the law is necessarily secular for in our constitutional order, the religion clauses prohibit the state
from establishing a religion, including the morality it sanctions. Religious morality proceeds from a person's "views of his relations to
His Creator and to the obligations they impose of reverence to His being and character and obedience to His Will," in accordance with
this Court's definition of religion in American Bible Society citing Davis. Religion also dictates "how we ought to live" for the nature
of religion is not just to know, but often, to act in accordance with man's "views of his relations to His Creator." 434 But the
Establishment Clause puts a negative bar against establishment of this morality arising from one religion or the other, and implies the
affirmative "establishment" of a civil order for the resolution of public moral disputes. This agreement on a secular mechanism is the
price of ending the "war of all sects against all"; the establishment of a secular public moral order is the social contract produced by
religious truce.435

Thus, when the law speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for
lawyers436, or "public morals" in the Revised Penal Code,437 or "morals" in the New Civil Code,438 or "moral character" in the
Constitution,439 the distinction between public and secular morality on the one hand, and religious morality, on the other, should be
kept in mind.440 The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio
holds. "Religious teachings as expressed in public debate may influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms." 441 Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom for all its citizens, or even make it appear that those whose
beliefs are disapproved are second-class citizens. Expansive religious freedom therefore requires that government be neutral in matters
of religion; governmental reliance upon religious justification is inconsistent with this policy of neutrality.442

In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have
a secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or
the other. Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents
of a religion and thus have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to
regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth with heaven. 443 Succinctly put, a law
could be religious or Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular
purpose and justification to pass scrutiny of the religion clauses. Otherwise, if a law has an apparent secular purpose but upon closer
examination shows a discriminatory and prohibitory religious purpose, the law will be struck down for being offensive of the religion
clauses as in Church of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance prohibiting animal
sacrifice of the Santeria. Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however,
the Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could
allow for accommodation of morality based on religion, provided it does not offend compelling state interests.

Mr. Justice Vitug's separate opinion embraces the benevolent neutrality approach when it states that in deciding the case at bar, the
approach should consider that, "(a)s a rule . . . moral laws are justified only to the extent that they directly or indirectly serve to protect
the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to
uphold, or defeat the purpose for which they are enacted would, a departure be justified." In religion clause parlance, the separate
opinion holds that laws of general applicability governing morals should have a secular purpose of directly or indirectly protecting the
interests of the state. If the strict application of these laws (which are the Civil Service Law and the laws on marriage) would erode the
secular purposes of the law (which the separate opinion identifies as upholding the sanctity of marriage and the family), then in a
benevolent neutrality framework, an accommodation of the unconventional religious belief and practice (which the separate opinion
holds should be respected on the ground of freedom of belief) that would promote the very same secular purpose of upholding the
sanctity of marriage and family through the Declaration Pledging Faithfulness that makes the union binding and honorable before God
and men, is required by the Free Exercise Clause. The separate opinion then makes a preliminary discussion of the values society
seeks to protect in adhering to monogamous marriage, but concludes that these values and the purposes of the applicable laws should
be thoroughly examined and evidence in relation thereto presented in the OCA. The accommodation approach in the case at bar would
also require a similar discussion of these values and presentation of evidence before the OCA by the state that seeks to protect its
interest on marriage and opposes the accommodation of the unconventional religious belief and practice regarding marriage.

The distinction between public and secular morality as expressed - albeit not exclusively - in the law, on the one hand, and religious
morality, on the other, is important because the jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bar should be understood only in this realm where it has authority. More concretely,
should the Court declare respondent's conduct as immoral and hold her administratively liable, the Court will be holding that in the
realm of public morality, her conduct is reprehensible or there are state interests overriding her religious freedom. For as long as her
conduct is being judged within this realm, she will be accountable to the state. But in so ruling, the Court does not and cannot say that
her conduct should be made reprehensible in the realm of her church where it is presently sanctioned and that she is answerable for her
immorality to her Jehovah God nor that other religions prohibiting her conduct are correct. On the other hand, should the Court
declare her conduct permissible, the Court will be holding that under her unique circumstances, public morality is not offended or that
upholding her religious freedom is an interest higher than upholding public morality thus her conduct should not be penalized. But the
Court is not ruling that the tenets and practice of her religion are correct nor that other churches which do not allow respondent's
conjugal arrangement should likewise allow such conjugal arrangement or should not find anything immoral about it and therefore
members of these churches are not answerable for immorality to their Supreme Being. The Court cannot speak more than what it has
authority to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire about the truth of religious beliefs. Similarly, in
Fonacier, this Court declared that matters dealing with "faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church…are unquestionably ecclesiastical matters which are outside the province of the civil courts."444 But while the state,
including the Court, accords such deference to religious belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that when religious belief flows into speech and conduct that
step out of the religious sphere and overlap with the secular and public realm, the state has the power to regulate, prohibit and penalize
these expressions and embodiments of belief insofar as they affect the interests of the state. The state's inroad on religion exercise in
excess of this constitutional design is prohibited by the religion clauses; the Old World, European and American history narrated
above bears out the wisdom of this proscription.

Having distinguished between public and secular morality and religious morality, the more difficult task is determining which
immoral acts under this public and secular morality fall under the phrase "disgraceful and immoral conduct" for which a government
employee may be held administratively liable. The line is not easy to draw for it is like "a line that divides land and sea, a coastline of
irregularities and indentations."445 But the case at bar does not require us to comprehensively delineate between those immoral acts for
which one may be held administratively liable and those to which administrative liability does not attach. We need not concern
ourselves in this case therefore whether "laziness, gluttony, vanity, selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend too much energy grappling with the propositions that not all
immoral acts are illegal or not all illegal acts are immoral, or different jurisdictions have different standards of morality as discussed
by the dissents and separate opinions, although these observations and propositions are true and correct. It is certainly a fallacious
argument that because there are exceptions to the general rule that the "law is the witness and deposit of our moral life," then the rule
is not true; in fact, that there are exceptions only affirms the truth of the rule. Likewise, the observation that morality is relative in
different jurisdictions only affirms the truth that there is morality in a particular jurisdiction; without, however, discounting the truth
that underneath the moral relativism are certain moral absolutes such as respect for life and truth-telling, without which no society will
survive. Only one conduct is in question before this Court, i.e., the conjugal arrangement of a government employee whose partner is
legally married to another which Philippine law and jurisprudence consider both immoral and illegal. Lest the Court inappropriately
engage in the impossible task of prescribing comprehensively how one ought to live, the Court must focus its attention upon the sole
conduct in question before us.

In interpreting "disgraceful and immoral conduct," the dissenting opinion of Mme. Justice Ynares-Santiago groped for standards of
morality and stated that the "ascertainment of what is moral or immoral calls for the discovery of contemporary community standards"
but did not articulate how these standards are to be ascertained. Instead, it held that, "(f)or those in the service of the Government,
provisions of law and court precedents . . . have to be considered." It identified the Civil Service Law and the laws on adultery and
concubinage as laws which respondent's conduct has offended and cited a string of precedents where a government employee was
found guilty of committing a "disgraceful and immoral conduct" for maintaining illicit relations and was thereby penalized. As stated
above, there is no dispute that under settled jurisprudence, respondent's conduct constitutes "disgraceful and immoral conduct."
However, the cases cited by the dissent do not involve the defense of religious freedom which respondent in the case at bar invokes.
Those cited cases cannot therefore serve as precedents in settling the issue in the case at bar.

Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United States446 in laying down the standard of morality, viz:
"(w)hether an act is immoral within the meaning of the statute is not to be determined by respondent's concept of morality. The law
provides the standard; the offense is complete if respondent intended to perform, and did in fact perform, the act which it condemns."
The Mann Act under consideration in the Cleveland case declares as an offense the transportation in interstate commerce of "any
woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." 447 The resolution of that case hinged
on the interpretation of the phrase "immoral purpose." The U.S. Supreme Court held that the petitioner Mormons' act of transporting at
least one plural wife whether for the purpose of cohabiting with her, or for the purpose of aiding another member of their Mormon
church in such a project, was covered by the phrase "immoral purpose." In so ruling, the Court relied on Reynolds which held that the
Mormons' practice of polygamy, in spite of their defense of religious freedom, was "odious among the northern and western nations of
Europe,"448 "a return to barbarism,"449 "contrary to the spirit of Christianity and of the civilization which Christianity has produced in
the Western world,"450 and thus punishable by law.

The Cleveland standard, however, does not throw light to the issue in the case at bar. The pronouncements of the U.S. Supreme Court
that polygamy is intrinsically "odious" or "barbaric" do not apply in the Philippines where Muslims, by law, are allowed to practice
polygamy. Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction holding that the defense of religious freedom of a
member of the Jehovah's Witnesses under the same circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore that her conduct is likewise so "odious" and "barbaric" as to
be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more on determining the applicable moral standards and less on
religious freedom, Mme. Justice Ynares-Santiago's dissent nevertheless discussed respondent's plea of religious freedom and disposed
of this defense by stating that "(a) clear and present danger of a substantive evil, destructive to public morals, is a ground for the
reasonable regulation of the free exercise and enjoyment of religious profession. (American Bible Society v. City of Manila, 101 Phil.
386 [1957]). In addition to the destruction of public morals, the substantive evil in this case is the tearing down of morality, good
order, and discipline in the judiciary." However, the foregoing discussion has shown that the "clear and present danger" test that is
usually employed in cases involving freedom of expression is not appropriate to the case at bar which involves purely religious
conduct. The dissent also cites Reynolds in supporting its conclusion that respondent is guilty of "disgraceful and immoral conduct."
The Reynolds ruling, however, was reached with a strict neutrality approach, which is not the approach contemplated by the
Philippine constitution. As discussed above, Philippine jurisdiction adopts benevolent neutrality in interpreting the religion clauses.

In the same vein, Mr. Justice Carpio's dissent which employs strict neutrality does not reflect the constitutional intent of employing
benevolent neutrality in interpreting the Philippine religion clauses. His dissent avers that respondent should be held administratively
liable not for "disgraceful and immoral conduct" but "conduct prejudicial to the best interest of the service" as she is a necessary co-
accused of her partner in concubinage. The dissent stresses that being a court employee, her open violation of the law is prejudicial to
the administration of justice. Firstly, the dissent offends due process as respondent was not given an opportunity to defend herself
against the charge of "conduct prejudicial to the best interest of the service." In addition, there is no evidence of the alleged prejudice
to the best interest of the service. Most importantly, the dissent concludes that respondent's plea of religious freedom cannot prevail
without so much as employing a test that would balance respondent's religious freedom and the state's interest at stake in the case at
bar. The foregoing discussion on the doctrine of religious freedom, however, shows that with benevolent neutrality as a framework,
the Court cannot simply reject respondent's plea of religious freedom without even subjecting it to the "compelling state interest" test
that would balance her freedom with the paramount interests of the state. The strict neutrality employed in the cases the dissent cites -
Reynolds, Smith and People v. Bitdu decided before the 1935 Constitution which unmistakably shows adherence to benevolent
neutrality - is not contemplated by our constitution.

Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J. Malik 451 cited in Mr. Justice Carpio's dissent decisive of
the immorality issue in the case at bar. In that case, the Court dismissed the charge of immorality against a Tausug judge for engaging
in an adulterous relationship with another woman with whom he had three children because "it (was) not 'immoral' by Muslim
standards for Judge Malik to marry a second time while his first marriage (existed)." Putting the quoted portion in its proper context
would readily show that the Sulu Islamic case does not provide a precedent to the case at bar. Immediately prior to the portion quoted
by the dissent, the Court stressed, viz: "(s)ince Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of
the Philippines, provides that the penal laws relative to the crime of bigamy 'shall not apply to a person married x x x under Muslim
Law,' it is not 'immoral' by Muslim standards for Judge Malik to marry a second time while his first marriage exists." 452 It was by law,
therefore, that the Muslim conduct in question was classified as an exception to the crime of bigamy and thus an exception to the
general standards of morality. The constitutionality of P.D. No. 1083 when measured against the Establishment Clause was not raised
as an issue in the Sulu Islamic case. Thus, the Court did not determine whether P.D. No. 1083 suffered from a constitutional infirmity
and instead relied on the provision excepting the challenged Muslim conduct from the crime of bigamy in holding that the challenged
act is not immoral by Muslim standards. In contradistinction, in the case at bar, there is no similar law which the Court can apply as
basis for treating respondent's conduct as an exception to the prevailing jurisprudence on illicit relations of civil servants. Instead, the
Free Exercise Clause is being invoked to justify exemption.

B. Application of Benevolent Neutrality and the Compelling State Interest Test to the Case at Bar

The case at bar being one of first impression, we now subject the respondent's claim of religious freedom to the "compelling state
interest" test from a benevolent neutrality stance - i.e. entertaining the possibility that respondent's claim to religious freedom would
warrant carving out an exception from the Civil Service Law; necessarily, her defense of religious freedom will be unavailing should
the government succeed in demonstrating a more compelling state interest.

In applying the test, the first inquiry is whether respondent's right to religious freedom has been burdened. There is no doubt that
choosing between keeping her employment and abandoning her religious belief and practice and family on the one hand, and giving
up her employment and keeping her religious practice and family on the other hand, puts a burden on her free exercise of religion. In
Sherbert, the Court found that Sherbert's religious exercise was burdened as the denial of unemployment benefits "forces her to choose
between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her
religion in order to accept work, on the other hand." The burden on respondent in the case at bar is even greater as the price she has to
pay for her employment is not only her religious precept but also her family which, by the Declaration Pledging Faithfulness, stands
"honorable before God and men."

The second step is to ascertain respondent's sincerity in her religious belief. Respondent appears to be sincere in her religious belief
and practice and is not merely using the "Declaration of Pledging Faithfulness" to avoid punishment for immorality. She did not
secure the Declaration only after entering the judiciary where the moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The Declaration was issued to her by her congregation after ten years of
living together with her partner, Quilapio, and ten years before she entered the judiciary. Ministers from her congregation testified on
the authenticity of the Jehovah's Witnesses' practice of securing a Declaration and their doctrinal or scriptural basis for such a practice.
As the ministers testified, the Declaration is not whimsically issued to avoid legal punishment for illicit conduct but to make the
"union" of their members under respondent's circumstances "honorable before God and men." It is also worthy of notice that the
Report and Recommendation of the investigating judge annexed letters 453 of the OCA to the respondent regarding her request to be
exempt from attending the flag ceremony after Circular No. 62-2001 was issued requiring attendance in the flag ceremony. The OCA's
letters were not submitted by respondent as evidence but annexed by the investigating judge in explaining that he was caught in a
dilemma whether to find respondent guilty of immorality because the Court Administrator and Deputy Court Administrator had
different positions regarding respondent's request for exemption from the flag ceremony on the ground of the Jehovah's Witnesses'
contrary belief and practice. Respondent's request for exemption from the flag ceremony shows her sincerity in practicing the
Jehovah's Witnesses' beliefs and not using them merely to escape punishment. She is a practicing member of the Jehovah's Witnesses
and the Jehovah ministers testified that she is a member in good standing. Nevertheless, should the government, thru the Solicitor
General, want to further question the respondent's sincerity and the centrality of her practice in her faith, it should be given the
opportunity to do so. The government has not been represented in the case at bar from its incipience until this point.

In any event, even if the Court deems sufficient respondent's evidence on the sincerity of her religious belief and its centrality in her
faith, the case at bar cannot still be decided using the "compelling state interest" test. The case at bar is one of first impression, thus the
parties were not aware of the burdens of proof they should discharge in the Court's use of the "compelling state interest" test. We note
that the OCA found respondent's defense of religious freedom unavailing in the face of the Court's ruling in Dicdican v. Fernan, et
al., viz:

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

It is apparent from the OCA's reliance upon this ruling that the state interest it upholds is the preservation of the integrity of the
judiciary by maintaining among its ranks a high standard of morality and decency. However, there is nothing in the OCA's
memorandum to the Court that demonstrates how this interest is so compelling that it should override respondent's plea of religious
freedom nor is it shown that the means employed by the government in pursuing its interest is the least restrictive to respondent's
religious exercise.

Indeed, it is inappropriate for the complainant, a private person, to present evidence on the compelling interest of the state. The burden
of evidence should be discharged by the proper agency of the government which is the Office of the Solicitor General. To properly
settle the issue in the case at bar, the government should be given the opportunity to demonstrate the compelling state interest it seeks
to uphold in opposing the respondent's stance that her conjugal arrangement is not immoral and punishable as it comes within the
scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause,
the Court's action would be an unconstitutional encroachment of her right to religious freedom.454 We cannot therefore simply take a
passing look at respondent's claim of religious freedom, but must instead apply the "compelling state interest" test. The government
must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the state's compelling
interest which can override respondent's religious belief and practice. To repeat, this is a case of first impression where we are
applying the "compelling state interest" test in a case involving purely religious conduct. The careful application of the test is
indispensable as how we will decide the case will make a decisive difference in the life of the respondent who stands not only before
the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator. The Solicitor General is ordered to
intervene in the case where it will be given the opportunity (a) to examine the sincerity and centrality of respondent's claimed religious
belief and practice; (b) to present evidence on the state's "compelling interest" to override respondent's religious belief and practice;
and (c) to show that the means the state adopts in pursuing its interest is the least restrictive to respondent's religious freedom. The
rehearing should be concluded thirty (30) days from the Office of the Court Administrator's receipt of this Decision.

SO ORDERED.

Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.

Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.

Footnotes
1
 Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in Weber, P., Equal Separation (1990), p. 17.
2
 Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p. 668.
3
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse," University of Pennsylvania Law Review,
vol. 140(1), November 1991, pp. 149-150.
4
 Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p. 416 (1963).
5
 Rollo, pp. 5-6.
6
 Id. at 8.
7
 Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
8
 Id. at 101.
9
 Id. at 100; Exhibit 3, Certificate of Death.
10
 Id. at 10; Exhibit 1.
11
 Id. at 11; Exhibit 2.
12
 Id. at 27-33.
13
 Id. at 37.
14
 Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
15
 Id. at 156-160, TSN, May 29, 2002, pp. 5-9.
16
 Citing biblical passages, this article addresses the question, "Does the validity of a marriage depend entirely upon its
recognition by civil authorities and does their validation determine how Jehovah God, the author of marriage, views the
union?" It traces the origins of marriage to the time of the Hebrews when marriage was a family or tribal affair. With the
forming of Israel as a nation, God gave a law containing provisions on marriage, but there was no requirement for a license to
be obtained from the priesthood nor that a priest or a representative from government be present in the marriage to validate it.
Instead, as long as God's law was adhered to, the marriage was valid and honorable within the community where the couple
lived. In later Bible times, marriages came to be registered, but only after the marriage had been officiated, thereby making
the government only a record-keeper of the fact of marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was likewise chiefly a family affair and there was no
requirement of license from the religious or civil authority to make it valid and honorable. It was conformity to God's law that
was necessary for the marriage to be viewed as honorable within the congregation. Later, however, the civil authorities came
to have more prominence in determining the validity of a marriage while the role of the congregation waned. Christians
cannot turn their back on this reality in desiring to make their marriage honorable "among all", i.e., in the sight of God and
men. However, the view of civil authorities regarding the validity of marriage is relative and sometimes even contradictory to
the standards set by the Bible. For example, in some lands, polygamy is approved while the Bible says that a man should only
have one wife. Likewise, some countries allow divorce for the slightest reasons while others do not allow divorce. The Bible,
on the other hand, states that there is only one ground for divorce, namely, fornication, and those divorcing for this reason
become free to marry.
To obtain a balanced view of civil authority (or Caesars' authority in Biblical terms) regarding marriage, it is well to
understand the interest of civil governments in marriage. The government is concerned with the practical aspects of marriage
such as property rights and weakening genetic effects on children born to blood relatives, and not with the religious or moral
aspects of marriage. Caesar's authority is to provide legal recognition and accompanying protection of marital rights in court
systems, thus a Christian desiring this recognition and rights must adhere to Caesar's requirements. However, God is not
bound by Caesar's decisions and the Christian "should rightly give conscientious consideration to Caesar's marriage and
divorce provisions but will always give greatest consideration to the Supreme Authority, Jehovah God (Acts 4:19; Rom.
13:105). . . Thus the Christian appreciates that, even though Caesar's rulings of themselves are not what finally determine the
validity of his marriage in God's eyes, this does not thereby exempt him from the Scriptural injunction: 'Let marriage be
honorable among all.' (Heb. 13:4) He is obligated to do conscientiously whatever is within the power to see that his marriage
is accorded such honor by all." Those who wish to be baptized members of the Christian congregation but do not have legal
recognition of their marital union should do all that is possible to obtain such recognition, thereby removing any doubt as to
the honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition. For instance, in countries where divorce is not allowed
even on the Scriptural ground of fornication, either because of the dominance of one religion or other reasons, a man might
have left his unfaithful wife and lives with another woman with whom he has a family. He may later learn the truth of God's
Word and desire to be baptized as a disciple of God's Son, but he cannot obtain divorce and remarry as the national laws do
not allow these. He might go to a land which permits divorce and remarry under the laws of that land and add honor to his
union, but upon returning to his homeland, the law therein might not recognize the union. If this option is not available to that
man, he should obtain a legal separation from his estranged mate or resort to other legal remedies, then "make a written
statement to the local congregation pledging faithfulness to his present mate and declaring his agreement to obtain a legal
marriage certificate if the estranged legal wife should die or if other circumstances should make possible the obtaining of
such registration. If his present mate likewise seeks baptism, she would also make such a signed statement." (p. 182) In some
cases, a person might have initiated the process of divorce where the law allows it, but it may take a long period to finally
obtain it. If upon learning Bible truth, the person wants to be baptized, his baptism should not be delayed by the pending
divorce proceedings that would make his present union honorable for "Bible examples indicate that unnecessary delay in
taking the step of baptism is not advisable (Acts 2:37-41; 8:34-38; 16:30-34; 22:16)." Such person should then provide the
congregation with a statement pledging faithfulness, thereby establishing his determination to maintain his current union in
honor while he exerts effort to obtain legal recognition of the union. Similarly, in the case of an already baptized Christian
whose spouse proves unfaithful and whose national laws do not recognize the God-given right to divorce an adulterous mate
and remarry, he should submit clear evidence to the elders of the congregation of the mate's infidelity. If in the future he
decides to take another mate, he can do this in an honorable way by signing declarations pledging faithfulness where they
also promise to seek legal recognition of their union where it is feasible. This declaration will be viewed by the congregation
as "a putting of oneself on record before God and man that the signer will be just as faithful to his or her existing marital
relationship as he or she would be if the union were one validated by civil authorities. Such declaration is viewed as no less
binding than one made before a marriage officer representing a 'Caesar' government of the world. . . It could contain a
statement such as the following:
I, __________, do here declare that I have accepted __________ 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 declaration pledging faithfulness in this marital relationship. I
recognize this relationship as a binding tie before Jehovah God and before all persons, to be held to and honored in full
accord with the principles of God's Word. I will continue to seek the means to obtain legal recognition of this relationship by
the civil authorities and if at any future time a change in circumstances makes this possible I promise to legalize this union."
The declaration is signed by the declarant and by two others as witnesses and the date of declaration is indicated therein. A
copy of the declaration is kept by the persons involved, by the congregation to which they belong, and by the branch office of
the Watch Tower Society in that area. It is also beneficial to announce to the congregation that a declaration was made for
their awareness that conscientious steps are being undertaken to uphold the honorableness of the marriage relationship. It
must be realized, however, that if the declarant is unable to obtain recognition from the civil authorities, even if he makes that
declaration, "whatever consequences result to him as far as the world outside is concerned are his sole responsibility and must
be faced by him." (p. 184) For instance, should there be inheritance or property issues arising from an earlier marriage, he
cannot seek legal protection with regard to his new, unrecognized union.
17
 Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp. 12-32.
18
 Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit 6.
19
 Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
20 
Rollo, pp. 239-240; Respondent's Memorandum, pp. 1-2; Rollo, pp. 109-110, "Maintaining Marriage Before God and
Men", pp. 184-185.
21
 Rollo, p, 240; Respondent's Memorandum, p. 2.
22
 Report and Recommendation of Executive Judge Bonifacio Sanz Maceda, p. 3.
23
 Id. at 4.
24
 Memorandum by Deputy Court Administrator Christopher Lock dated August 28, 2002, p. 6.
25
 A.M. No. P-96-1231, February 12, 1997.
26
 Memorandum by Deputy Court Administrator Christopher Lock dated August 28, 2002, p. 7.
27
 Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
28
 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson, and Horton, Walter M., The Growth
of Religion (1938), p. 22.
29
 Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman, Henry Nelson, and Horton, Walter M., The Growth
of Religion (1938), p. 29.
30
 Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and Evolution of Religion (1923), pp. 68, 206.
31
 Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512-528.
32
 Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World (1931), p. 47.
33
 Pfeffer, L., supra, p. 4.
34
 Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in Complete Works of Josephus, p. 500.
35
 Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
36
 It may also be said that Moses actually used the concept of a single all-powerful God as a means of unifying the Hebrews
and establishing them as a nation, rather than vice versa. What is important to note, however, is that the monotheism which
served as foundation of Christianity of western civilization with its consequences in church-state relations was established by
Moses of the Bible, not the Moses of history. Pfeffer, L., supra, p. 5.
37
 Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949), p. 24.
38
 Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
39
 Pfeffer, L., supra, p. 7.
40
 Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions (1934), p. 108.
41
 Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
42
 Pfeffer, L., supra, p. 13.
43
 Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian Church (1940), p. 108.
44
 Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
45
 Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, "Charles the Great," 14th ed., V, p. 258.
46
 Pfeffer, L., supra, p. 22.
47
 Pfeffer, L., supra, p. 23.
48
 Greene, E., Religion and the State (1941), p. 8.
49
 Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luther's Primary Works (1885), pp. 194-185.
50
 Pfeffer, L., supra, p. 23, citing Acton, "History of Freedom in Chrisitianity," in Essays on Freedom and Power (1949), p.
103.
51
 Pfeffer, L., supra, pp. 24-25.
52
 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
53
 Greene, E., supra, p. 9.
54
 Pfeffer, L., supra, p. 26, citing Stokes, I, p. 113.
55
 Pfeffer, L., supra, p. 26.
56
 Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church and State in England (1950), p. 93.
57
 Pfeffer, L., supra, p. 27, citing Noss, J.B., Man's Religions (1949), pp. 674-675 and Garbett, C., pp. 61-62.
58
 Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents, 130-135.
59
 Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p. 243.
60
 Pfeffer, L., supra, p. 28, citing Stokes, I, p. 132.
61
 Everson v.Board of Education of the Township of Ewing, et al., 330 U.S. 1 (1947), pp. 8-9.
62
 Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.
63
 Pfeffer, L., supra, p. 30.
64
 Beth, L., American Theory of Church and State (1958), p. 3.
65
 Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
66
 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
67
 Pfeffer, L., supra, pp. 92-93.
68
 Pfeffer, L., supra, p. 96.
69
 Pfeffer, L., supra, p. 95
70
 Another estimate of church membership in 1775 is that in none of the colonies was membership in excess of 35 percent of
the population. (Beth, L., American Theory of Church and State [1958], p. 73.)
71
 Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making, Second Edition (1980), p. 1276.
72
 Pfeffer, L., supra, pp. 96.
73
 Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American Dissent (1934), p. 202.
74
 Pfeffer, L., supra, p. 93.
75
 Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb, S.H., The Rise of Religious Liberty in America
(1902), p. 485.
76
 Pfeffer, L., supra, p. 85.
77
 Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.
78
 Pfeffer, L., supra, p. 87.
79
 Pfeffer, L., supra, p. 86.
80
 Pfeffer, L., supra, pp. 88-89.
81
 Pfeffer, L., supra, p. 101.
82
 Pfeffer, L., supra, p. 99.
83
 Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of Government (edited by C.B: Macpherson), pp. 8-10.
84
 Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and Religion in America, 1774-1789 (1924), pp. 368-369.
85
 Pfeffer, L., supra, p. 103.
86
 Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
87
 Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of American Civilization, I (1947), p. 449.
88
 Drakeman, D., supra, p. 55.
89
 Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican Democracy (1948), p. 267.
90
 Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in Establishing Religious Liberty as a Foundation
of the American Government, Papers of the American Historical Association, II, p. 26.
91
 Beth, L., American Theory of Church and State (1958), pp. 61-62.
92
 Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American Tradition in Religion and Education (1950), pp. 46-47.
93
 Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Religion in America, 1774-1789 (1924), p. 379.
94
 Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
95
 Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode, N.J., The Separation of Church and State in Virginia
(1910), p. 86.
96
 Beth, L., supra, p. 63.
97
 Id. at 81-82.
98
 Id. at 74-75.
99
 Beth, L., supra, p. 63.
100
 Id at 63-65.
101
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse", University of Pennsylvania Law Review,
vol. 140(1), November 1991, p. 149, 160.
102
 Id. at 63-65.
103
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse", University of Pennsylvania Law Review,
vol. 140(1), November 1991, p. 149, 160.
104
 Beth, L., supra, pp. 63-65.
105
 Id. at 69.
106
 Drakeman, D., supra, p. 59.
107
 Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer, L., supra, p. 92, 125, citing Kohler, M.J., "The
Fathers of the Republic and Constitutional Establishment of Religious Liberty" (1930), pp. 692-693.
108
 Beth, L., supra, p. 71.
109
 Berman, H., "Religious Freedom and the Challenge of the Modern State," Emory Law Journal, vol. 39, Winter 1990-Fall
1990, pp. 151-152.
110
 Monsma, S., "The Neutrality Principle and a Pluralist Concept of Accommodation" in Weber, P., Equal Separation (1990),
p. 74.
111
 Berman, H., supra, pp. 151-152.
112
 McCoy, T., "A Coherent Methodology for First Amendment Speech and Religion Clause Cases," Vanderbilt Law Review,
vol. 48(5), October 1995, p. 1335, 1340.
113
 Weber, P., "Neutrality and first Amendment Interpretation" in Equal Separation (1990), pp. 5-7. See also Kauper, P.,
Religion and the Constitution (1964), p. 99.
114
 Monsma, S., supra, p. 73.
115
 See Carter, S., "The Resurrection of Religious Freedom," Harvard Law Review (1993), vol. 107(1), p. 118, 128-129.
116
 Emanuel, S., Constitutional Law (1992), p. 633.
117
 Carter, S., supra, p. 118, 140.
118
 Sullivan, K., "Religion and Liberal Democracy," The University of Chicago Law Review (1992), vol. 59(1), p. 195, 214-
215.
119
 Kauper, P., Religion and the Constitution (1964), pp, 24-25.
120
 133 U.S. 333 (1890).
121
 133 U.S. 333 (1890), p. 342.
122
 322 U.S. 78 (1944).
123
 United States v. Ballard, 322 U.S. 78 (1944), p. 86.
124
 Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law, Second Edition (1999), pp. 522-523.
125
 367 U.S. 488 (1961).
126
 380 U.S. 163 (1965).
127
 Stephens, Jr., supra, p. 645.
128
 Id. at 524.
129
 Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of Employment Security, 489 U.S. 829 (1989).
130
 McCoy, T., "A Coherent Methodology for First Amendment Speech and Religion Clause Cases," Vanderbilt Law Review,
vol. 48(5), October 1995, p. 1335, 1336-1337.
131
 Kelley, D. "'Strict Neutrality' and the Free Exercise of Religion" in Weber, P., Equal Separation (1990), p. 20.
132
 Kauper, P., supra, p, 13.
133
 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law Review (1992), vol. 60 (2), p. 620, 626-
627.
134
 McConnell, M., "Religious Freedom at a Crossroads," The University of Chicago Law Review (1992), vol. 59(1), p. 115,
168.
135
 McCoy, T., supra, p. 1335, 1336-1337.
136
 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law Review (1992), vol. 60 (2), p. 620, 626-
627.
137
 Monsma, S., supra, p. 88, citing Neuhaus, R., "Contending for the Future: Overcoming the Pfefferian Inversion," in The
First Amendment Religion Liberty Clauses and American Public Life, p. 183.
138
 Carter, S., supra, p. 118, 134-135.
139
 Lupu, I., "The Religion Clauses and Justice Brennan in Full," California Law Review (1999), vol. 87(5), p. 1105, 1114.
140
 Everson v. Board of Education, 330 US 1 (1946), p. 15.
141
 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
142
 See McCoy, T., supra, p. 1335, 1336.
143
 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 49; Drakeman, Church-State
Constitutional Issues (1991), p. 2.
144
 Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
145
 Id. at 163.
146
 98 U.S. 145, 166.
147
 McCoy, T., supra, p. 1335, 1344-45.
148
 Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), p. 1069.
149
 136 U.S. 1 (1890).
150
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
151
 Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
152
 367 U.S. 488 (1961).
153
 322 U.S. 78, 86 (1944).
154
 310 U.S. 296 (1940).
155
 Id. at 310.
156
 Id at 303-304.
157
 319 U.S. 157 (1943).
158
 340 U.S. 268 (1951).
159
 452 U.S. 640 (1981).
160
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
161
 133 U.S. 333, 345.
162
 McCoy, T., supra, p. 1335, 1344-45.
163
 310 U.S. 586 (1940).
164
 319 U.S. 624 (1943).
165
 Id. at 634.
166
 Id. at 639.
167
 McCoy, T., supra, p. 1335, 1345-46.
168
 See Bloostein, M., "The 'Core'-'Periphery' Dichotomy in First Amendment Free Exercise Clause Doctrine: Goldman v.
Weinberger, Bowen v. Roy, and O'Lone v. Estate of Shabbaz,z" Cornell Law Review, vol. 72 (4), p. 827, 828.
169
 366 U.S. 599 (1961).
170
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
171
 374 U.S. 398 (1963).
172
 Nowak, J., Rotunda, R., and Young, J., supra, pp. 1072-1073.
173
 Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
174
 Id. at 406.
175
 Lupu, I., supra, p. 1105, 1110.
176
 McCoy, T., supra, p. 1335, 1346-1347.
177
 450 U.S. 707 (1981).
178
 480 U.S. 136 (1987).
179
 455 U.S. 252 (1982).
180
 United States v. Lee, 455 U.S. 252 (1982), p. 260.
181
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 526.
182
 406 U.S. 205 (1972).
183
 Id. at 214-215, 219-220.
184
 494 U.S. 872 (1990).
185
 McConnell, M., supra, p. 685, 726.
186
 McCoy, T., supra, p. 1335, 1350-1351.
187
 Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and 1191. See also Sullivan, K., "Religion and Liberal
Democracy", The University of Chicago Law Review (1992), vol. 59(1), p. 195, 216.
188
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115,
139.
189
 Sullivan, K., "Religion and Liberal Democracy," The University of Chicago Law Review (1992), vol. 59(1), p. 195, 216.
190
 Carter, S., supra, p. 118.
191
 Rosenzweig, S., "Restoring Religious Freedom to the Workplace: Title VII, RFRA and Religious Accommodation,"
University of Pennsylvania Law Review (1996), vol. 144(6), p. 2513, 2516.
192
 138 L.Ed. 2d 624 (1994).
193
 508 U.S. 520 (1993).
194
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 529.
195
 330 U.S. 1 (1946).
196
 Drakeman, D., supra, p. 4-6.
197
 Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53.
198
 98 U.S. 164 (1878).
199
 Reynolds v. United States, 98 U.S. 164 (1878), p. 164.
200
 Id. at 164.
201
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 532.
202
 Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
203
 Id. at 18.
204
 403 U.S. 602 (1971).
205
 Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
206
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
207
 370 U.S. 421 (1962).
208
 374 U.S. 203 (1963).
209
 Id.
210
 Id. at 222.
211
 Witt, E. (ed.), supra, p. 93.
212
 472 U.S. 38 (1985).
213
 333 U.S. 203 (1948).
214
 343 U.S. 306 (1952).
215
 Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
216
 366 U.S. 420 (1961).
217
 Id. at 451-452.
218
 463 U.S. 783 (1983).
219
 Marsh v. Chambers, 463 US 783 (1983).
220
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
221
 465 U.S. 668 (1984).
222
 397 U.S. 664 (1970).
223
 Id. at 673.
224
 Id.
225
 Id. at 676.
226
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115,
119-120.
227
 Drakeman, D., supra, p. 51.
228
 Id. at 53.
229
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 541.
230
 Drakeman, supra, p. 52, citing Cord, R., Separation of Church and State: Historical Fact and Current Fiction. p. 50.
231
 Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds., The Debates and Proceedings in the Congress of the
United States, Compiled from Authentic Materials (Annala), vol. 1, pp. 949-950.
232
 Beth, L., supra, p. 74.
233
 Drakeman, supra, pp. 57, 82.
234
 Buzzard, L., Ericsson, S., supra, p. 46.
235
 Beth, L., supra, p. 72.
236
 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
237
 Beth, L., supra, p. 71.
238
 The Constitution and Religion, p. 1541.
239
 Id. at 1539.
240
 Weber, P., "Neutrality and First Amendment Interpretation" in Equal Separation (1990), p. 3.
241
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115,
120.
242
 Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.
243
 The Constitution and Religion, p. 1541, citing Kurland, Of Church and State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5
(1961).
244
 Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion and the Law (1962), p. 18.
245
 Smith, S., "The Rise and Fall of Religious Freedom in Constitutional Discourse," University of Pennsylvania Law Review,
vol. 140(1), November 1991, p. 149, 186.
246
 Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
247
 Buzzard, L., Ericsson, S., supra, p. 60.
248
 Kelley, D., supra, p. 1189.
249
 Monsma, S., supra, p. 74.
250
 Id. at 75.
251
 Smith, S., supra, p. 149, 159.
252
 Drakeman, supra, p. 54.
253
 Grossman, J.B. and Wells, R.S., supra, p. 1276.
254
 Smith, S., supra, p. 149, 159.
255
 Id. at 149, 159-160.
256
 Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
257
 Id. at 1276-1277, citing Kirby, Jr., J., "Everson to Meek and Roemer: From Separation to Détente in Church-State
Relations", 55 North Carolina Law Review (April 1977), 563-75.
258
 Buzzard, L., Ericsson, S., supra, p. 51.
259
 Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
260
 Buzzard, L., Ericsson, S., supra, p. 61.
261
 Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
262
 Kelley, D., supra, p. 34.
263
 Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion (1970), p. 21.
264
 Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of Religion (1963), pp. xxvii, xxviii.
265
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 533.
266
 Berman, H., supra, p. 162.
267
 The Constitution and Religion, p. 1569.
268
 McCoy, T., supra, p. 1335, 1338-1339.
269
 McConnell, M., "Accommodation of Religion: An Update and a Response to the Critics", The George Washington Law
Review (1992), vol. 60 (3), p. 685, 688.
270
 Id.
271
 Id. at 689.
272
 Id. at 690-694, 715.
273
 Id. at 686.
274
 Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663, 679 (1989) (Kennedy, J., concurring); Lynch v.
Donnelly, 465 U.S. 668, 673 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).
275
 McConnell, M., "Religious Freedom at a Crossroads," The University of Chicago Law Review (1992), vol. 59(1), p. 115,
139, 184.
276
 Id. at 174.
277
 Neuhaus, R., "A New Order of Religious Freedom," The George Washington Law Review (1992), vol. 60 (2), p. 620, 631.
278
 Buzzard, L., Ericsson, S., supra, pp. 61-62.
279
 Emanuel, S., supra, pp. 633-634, citing Tribe, L., American Constitutional Law, 2nd ed. (1988), p. 1251. See also Nowak,
J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986), pp. 1067-1069.
280
 Id. at 633.
281
 Walz v. Tax Commission, 397 U.S. 664 (1969), p. 673.
282
 McConnell, M., "Accommodation of Religion: An Update and a Response to the Critics", The George Washington Law
Review (1992), vol. 60 (3), p. 685, 715.
283
 Buzzard, L., Ericsson, S., supra, pp. 61-63.
284
 McConnell, "The Origins and Historical Understanding of Free Exercise of Religion," Harvard Law Review , vol. 103
(1990), p. 1410, 1416-7.
285
 Buzzard, L., Ericsson, S., supra, p. 70.
286
 McConnell, M., "Accommodation of Religion: An Update and a Response to the Critics," The George Washington Law
Review (1992), vol. 60 (3), p. 685, 735.
287
 Buzzard, L., Ericsson, S., supra, pp. 68-71.
288
 Lupu, I., supra, p. 743, 775.
289
 Id. at 775.
290
 Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
291
 Buzzard, L., Ericsson, S., supra, p. 68.
292
 Lupu, I., supra, p. 743, 776.
293
 Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 544.
294
 Martinez, H., "The High and Impregnable Wall of Separation Between Church and State", Philippine Law Journal (1962),
vol. 37(5), p. 748, 766.
295
 Article II.
296
 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), p. 284.
297
 Coquia, J., Church and State Law and Relations, p. 52, citing Article X of the Treaty of Paris. The territories referred to
were Cuba, Puerto Rico, Guam, the West Indies and the Philippine Islands.
298
 Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la Republica Filipina promulgada el dia 22 de Enero de
1899 (Edicion oficial, Islas Filipinas, Barazoain, Bul., 1899), p. 9.
299
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 13, 148.
300
 Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With Philippine Organic Laws 10.
301
 25 Phil. 273 (1913).
302
 Id. at 276.
303
 Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd Congress (1934).
304
 Laurel, S., Proceedings of the Philippine Constitutional Convention, vol. III (1966), pp. 654-655.
305
 Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p. 164.
306
 Id. at 150.
307
 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
308
 Baddiri, E., "Islam and the 1987 Constitution: An Issue on the Practice of Religion," 45 Ateneo Law Journal 161 (2001),
p. 208, citing Syed Muhammad Al-Naquib Al-Attas, Islam and Secularism 46 (1978).
309
 Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
310
 64 Phil 201 (1937).
311
 101 Phil. 386 (1957).
312
 Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
313
 106 Phil. 2 (1959).
314
 Id. at 9-10.
315
 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 225, Footnote 38.
316
 319 U.S. 103.
317
 234 SCRA 630 (1994).
318
 493 U.S. 378 (1990).
319
 106 Phil. 2 (1959).
320
 106 Phil. 2 (1959), p. 10.
321
 Id. at 11-12.
322
 Id. at 14.
323
 Id. at 25.
324
 Id. at 24-25.
325
 110 Phil 150.
326
 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93 (1974); Gonzalez v. Central Azucarera de Tarlac
Labor Union, 139 SCRA (1985).
327
 Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54 (1974), p. 72.
328
 Id. at 73.
329
 64 Phil 201.
330
 392 US 236.
331
 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
332
 Id. at 75.
333
 Id.
334
 61 SCRA 93 (1974).
335
 80 SCRA 350 (1977).
336
 139 SCRA 30 (1985).
337
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing Cantwell v. Connecticut, 310 U.S. 296.
338
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.
339
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
340
 German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting Opinion of Justice Teehankee.
341
 219 SCRA 256 (1993), March 1, 1993.
342
 Id. at 270-271.
343
 Id. at 271-272.
344
 Id. at 272.
345
 Id. at 272-273.
346
 Id. at 270.
347
 Id. at 269.
348
 259 SCRA 529 (1996).
349
 Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
350
 Id., citing Cruz, I., Constitutional Law (1991), p. 544.
351
 Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff, Speech, Harm and Self-Government: Understanding
the Ambit of the Clear and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991).
352
 Id.
353
 Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
354
 This argument was a central theme in John Locke's A Letter Concerning Toleration, which strongly influenced the
thinking of many Americans, including Jefferson and Madison. (Smith, S., "The Rise and Fall of Religious Freedom in
Constitutional Discourse", University of Pennsylvania Law Review, vol. 140[1], November 1991, p. 149, 155).
355
 Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 233.
356
 Id. at 234.
357
 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the Philippines: A Commentary (1987), p. 234.
358
 An Act Appropriating the Sum of Sixty Thousand Pesos and Making the Same Available out of any Funds in the Insular
Treasury not otherwise Appropriated for the Cost of Plates and Printing of Postage Stamps with New Designs, and for other
Purposes.
359
 Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
360
 Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
361
 104 SCRA 510 (1981).
362
 86 SCRA 413 (1978).
363
 367 U.S. 488 (1961).
364
 Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
365
 96 Phil. 417 (1955).
366
 45 Am. Jur. 77.
367
 96 Phil 417 (1955), p. 426.
368
 Id. at 441, citing American authorities.
369
 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
370
 Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
371
 Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
372
 Walz v. Tax Commission, supra, p. 668.
373
 Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.
374
 Drakeman, D., supra, p. 127.
375
 Buzzard, L. and Ericsson, S., supra, p. 75.
376
 Bernas, J., The 1987 Constitution of the Republic of the Philippines: A Commentary (1995), pp. 288-289.
377
 Ang-Angco v. Castillo, 9 SCRA 619 (1963).
378
 Martin, Statutory Construction (1979), p. 210.
379
 Aruego, J., supra, pp. 331-337.
380
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 154-155, citing Francisco (ed.),
Journal of the Constitutional Convention of the Philippines, vol. 4, pp. 1550, 1552.
381
 Aruego, J., supra, p. 337.
382
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), p. 153.
383
 Id. at 153, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, p. 1539.
384
 Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional Convention of the Philippines, vol. 4, pp. 1541-1543.
385
 Aruego, J., supra, pp. 340-345.
386
 Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights (1971), pp. 156-157, citing Escareal (ed.),
Constitutional Convention Record, vol. 10 (1967), p. 29.
387
 Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp. 627-629.
388
 Martin, supra, p. 218.
389
 Aglipay v. Ruiz, supra, p. 206.
390
 Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1 (1952), pp. 269-270.
391
 Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems of the Committee on Church and State of the
1971 Constitutional Convention, p. 18.
392
 Bernas, J., Background paper for reconsideration of the religion provisions of the constitution (1971), pp. 41-43.
393
 Tingson, J., Report of the Committee on Church and State of the 1971 Constitutional Convention Report, p. 5.
394
 Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406, citing Records of the Constitutional Commission,
vol. II, pp. 193-194.
395
 Records of the Constitutional Commission, vol. 4, p. 362.
396
 Id. at 358.
397
 Id. at 359.
398
 Id. at 973.
399
 Records of the Constitutional Commission, vol. 1, p. 102.
400
 Bernas, Constitutional Rights and Social Demands, Part II (1991), p. 268.
401
 Cruz, I., Constitutional Law (1995), p. 167.
402
 Martinez, H., supra, p. 768-772.
403
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115,
169.
404
 Martinez, H., supra, p. 773.
405
 Neuhaus, R., supra, p. 630.
406
 Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the University of Virginia, in The Complete Jefferson
(Saul K. Padover ed., 1969), p. 957, 958.
407
 Neuhaus, R., supra, p. 630.
408
 Carter, S., supra, pp. 140-142.
409
 Cruz, I., Constitutional Law (1995), p. 178.
410
 Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; Bucatcat v. Bucatcat, 380 Phil. 555 (2000); Navarro v.
Navarro, 339 SCRA 709 (2000); Ecube-Badel v. Badel, 339 Phil. 510 (1997); Nalupta v. Tapec, 220 SCRA 505 (1993);
Aquino v. Navarro, 220 Phil. 49 (1985).
411
 68 SCRA 354 (1975).
412
 305 SCRA 469 (1999).
413
 Rachels, J., The Elements of Moral Philosophy (1986), p. 1.
414
 Devlin, P., The Enforcement of Morals (1965), p. 10.
415
 Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).
416
 Devlin, P., supra, 13.
417
 Neuhaus, R., supra, pp. 621, 624-625.
418
 McConnell, M., "Religious Freedom at a Crossroads", The University of Chicago Law Review (1992), vol. 59(1), p. 115,
139.
419
 Neuhaus, R., supra, pp. 624-625.
420
 Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The Path of the Law, 10 Harv. L. Rev., 457, 459
(1897).
421
 Id. at 247.
422
 Greenwalt, K., supra, p. 272.
423
 Buzzard, L. and Ericsson, S., supra, p. 31.
424
 Devlin, P., supra, pp. 19-20.
425
 Id. at 247.
426
 210 SCRA 471 (1992).
427
 Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing Aquino, The Revised Penal Code, 1987 Edition,
Vol. I, pp. 11-12, citing People v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice Pablo's view in People v. Piosca and
Peremne, 86 Phil. 31.
428
 Devlin, P., supra, pp. 6-7.
429
 Id. at 19.
430
 Article 334 of the Revised Penal Code provides, viz:
"Art. 334. Concubinage. – Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse,
under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be
punished by prision correccional in its minimum and medium period.
The concubine shall suffer the penalty of destierro."
431
 Article 266-A of the Revised Penal Code.
432
 Rule 110 of the Revised Rules of Criminal Procedure, as amended provides in relevant part, viz:
"The crime of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended
spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are
alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders."
433
 Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186 (1956), pp. 202-203, citing Report of the Code
Commission on the Proposed Civil Code of the Philippines, pp. 40-41.
434
 Carter, S., supra, p. 138.
435
 Sullivan, K., supra, pp. 197-198.
436
 Rule 1.01 of the Code of Professional Responsibility provides that, "(a) lawyer shall not engage in unlawful, dishonest,
immoral or deceitful conduct. (emphasis supplied)
437
 Title Six of the Revised Penal Code is entitled Crimes against Public Morals and includes therein provisions on gambling
and betting. (emphasis supplied)
438
 The New Civil Code provides, viz:
"Article 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good
customs or prejudicial to a third person with a right recognized by law.
Article 21. Any person who wilfully 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.
Article 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided that are not contrary to law, morals, good customs, public order, or public policy.
Article 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy; x x
x" (emphasis supplied)
439
 Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the Constitution as part of the curricula.
They 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. (emphasis
supplied)
440
 To illustrate the distinction between public or secular morality and religious morality, we take the example of a judge. If
the public morality of a society deems that the death penalty is necessary to keep society together and thus crystallizes this
morality into law, a judge might find himself in a conflict between public morality and his religious morality. He might
discern that after weighing all considerations, his religious beliefs compel him not to impose the death penalty as to do so
would be immoral. If the judge refuses to impose the death penalty where the crime warrants it, he will be made accountable
to the state which is the authority in the realm of public morality and be held administratively liable for failing to perform his
duty to the state. If he refuses to act according to the public morality because he finds more compelling his religious morality
where he is answerable to an authority he deems higher than the state, then his choice is to get out of the public morality
realm where he has the duty to enforce the public morality or continue to face the sanctions of the state for his failure to
perform his duty. See Griffin, L., "The Relevance of Religion to a Lawyer's Work: Legal Ethics", Fordham Law Review
(1998), vol. 66(4), p. 1253 for a discussion of a similar dilemma involving lawyers.
441
 Sullivan, K., supra, p. 196.
442
 Smith, S., supra, pp. 184-185. For a defense of this view, see William P. Marshall, We Know It When We See It": The
Supreme Court and Establishment, 59 S.Cal. L. Rev. 495 (1986). For an extended criticism of this position, see Steven D.
Smith, "Symbols, Perceptions, and Doctrinal Illusions: Establishment Neutrality and the 'No Establishment' Test", 86 Mich.
L. Rev. 266 (1987).
443
 Ostrom, V., "Religion and the Constitution of the American Political System", Emory Law Journal, vol. 39(1), p. 165,
citing 1 A. Tocqueville, Democracy in America (1945), p. 305.
444
 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
445
 Devlin, P., supra, p. 22.
446
 329 U.S. 14 (1946).
447
 Cleveland v. United States, 329 U.S. 14, p. 16.
 448
 Reynolds v. United States, supra, p. 164.
449
 Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
450
 Id.
451
 226 SCRA 193 (1993).
452
 Id. at 199.
453
 Annexes "A" and "B" of the Report and Recommendation of Executive Judge Bonifacio Sanz Maceda.
454
 Cruz, I., supra, p. 176.

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

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

MENDOZA, J.:

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

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

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

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

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

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

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

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

3. Are these tests available here?

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

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

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

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

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

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

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

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

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

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

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

On January 20, 1994, the Sandiganbayan received by FAX machine the report of the committee, 4 containing findings which were
contrary to the conclusions of petitioner's physicians. The Presiding Justice immediately informed by phone petitioner's counsel,
Attorneys Vicente D. Millora and Manuel M. Lazaro, of 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 Center5 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 propio contacted a
third party asking the latter to give an opinion on petitioner's motion and medical findings; (b) it unusually participated in the
examination of petitioner's witnesses; (c) thru its PJ, it presented as own witness; (d) it requested the formation of a
committee to study the evidence presented; (e) it did not decide the case on the basis of the evidence presented; (f) it decided
on the basis of evidence (academic) it sought;

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

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

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

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

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

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

Respondent court had to seek expert opinion because petitioner's motion was based on the advice of her physician. The court could not
be expected to just accept the opinion of petitioner's physician in resolving her request for permission to travel. The subject lay beyond
its competence and since the grant of the request depended on the verification of the claim that petitioner was suffering from a medical
condition that was alleged to be serious and life threatening, the respondent court, we think, followed the only prudent course
available of seeking the opinion of other specialists in the field.

Indeed, when even in their own field of expertise (law) courts are allowed to invite amici curiae to shed light on recondite points of
law, there is no reason for denying them assistance on other subjects. Presiding Justice Garchitorena's letter to Dr. Patacsil is notable
in this regard for its sedulous concern for "greater need for information and expert advise" to the end that respondent court may be
able to determine "whether or not it is necessary and urgent for petitioner to travel abroad."

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 ischemia8 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 eye13-16mm Hg, left eye
Disc: Cupping of 0.6-0.7, both eyes

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

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

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

WHEREFORE, the petitioner is DISMISSED without prejudice to the filling of another motion for leave to travel abroad, should
petitioner still desire, based on her heart condition. In such an event the determination of her medical condition should be made by
joint panel of medical specialists recommended by both the accused and the prosecution.

Petitioner's motion for leave to travel for medical treatment of her alleged failing eyesight is hereby referred to the Sandiganbayan
with directive to the latter to appoint a joint panel of eye specialists as outlined above.

SO ORDERED.

Narvasa, C.J., Regalado, Puno and Francisco, JJ., concur.

Footnotes

1 For violation of §3(h) of the Anti Graft and Corrupt Practices Act (R.A. No. 3019).
2 The letter, dated January 4, 1994, reads in full:
This is further to my conversation with you over the telephone this afternoon with respect to the need of the
Sandiganbayan for expert opinion on coronary medicine.
At this time Mrs. Imelda R. Marcos is requesting permission from this court to travel abroad for medical reasons,
through a motion dated December 24, 1993, copy of which is enclosed herewith together with correspondence and
technical data in support thereof. Normally, requests for travel such as this would be granted as a matter of course.
Considering, however, that Mrs. Marcos has been convicted in two cases (Although the decision thereon is not yet
final), the Court must respond with greater caution, and, therefore, with a greater need for information and expert
advise.
Mrs. Marcos will present her evidence in justification of her request on January 7, 1994 at 2:00. p.m. The Court
would certainly want independent verification of the facts and professional opinion presented at that time.
Our primary concern on the basis of the motion filed with us together with its annexes are the following general
areas of inquiry:
Is her present condition life threatening? if so, to what extent?
What are the "sophisticated biochemical tests" necessary (not merely desirable), if any are needed at all, to ascertain
and remedy her condition?
Are these test available here?
Is the present level of expertise in the Philippines adequate respond to her condition?
The answer to the above question will lead us to determine whether or not it is necessary (not merely desirable) and
urgent for her to travel abroad, whether to the People's Republic of China, the United States and/or to Europe.
Your comment either personally or through a referral to competent specialists in the Heart Center will be
appreciated.
Should you feel need for it, may call me at the following telephone numbers: 481-333; 475-387.
3 Through Prosecutor Erdulfo O. Querubin.
4 Composed of Dr. Ramon F. Abarquez, Jr., chairman, Dr. Homobono B. Calleja and Dr. Romeo A. Divinagracia,
members.
5 The examination was conducted by a new team of doctors composed of Dr. Teresita S. de Guia and Dr. Ivan N.
Villespin, pulmonologists, Dr. Avenilo P. Aventura, cardiovascular surgeon, and Dr. Santos-Jose G. Abad,
cardiologist.
6 Speaker Jose de Venecia Speaker Protempore Raul Daza, and Majority Floor Leader Ronaldo Zamora and
Congressmen Antonio Abaya, Jose Aspiras, Luz Bakunawa, Benjamin Bautista, Elias Balut, Samuel Dangwa,
Renato Diaz, Ali Dimaporo, Salvador Escudero III, Arnulfo Fuentebella, Nur Jafaar, Edgar Lara, Simeon
 Maguindanao, Roger Mercado, Victor Ortega, Pedro Pancho, Amadeo Perez, Mariano Tajon, Asani Tammang,
Alberto Veloso, and Dominador Venegas.
7 See Manotoc v. Intermediate Appellate Court, 142 SCRA 149 (1986); Silverio v. Court of Appeals, 195 SCRA
260 (1991).
8 Lack of blood supply in a tissue or organ.
9 Petition, Annex J.
10 Resolution, p. 17.
11 55 SCRA 465, 471 (1974).
12 105 Phil. 287, 294 (1959).
13 Annex B-1, Petition.

G.R. No. 133250           July 9, 2002

FRANCISCO I. CHAVEZ, petitioner,
vs.
PUBLIC ESTATES AUTHORITY and AMARI COASTAL BAY DEVELOPMENT CORPORATION, respondents.

CARPIO, J.:

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

The Facts

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

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

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

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

xxx

(iii) x x x CDCP shall give up all its development rights and hereby agrees to cede and transfer in favor of PEA, all of the
rights, title, interest and participation of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP as of
December 30, 1981 which have not yet been sold, transferred or otherwise disposed of by CDCP as of said date, which areas
consist of approximately Ninety-Nine Thousand Four Hundred Seventy Three (99,473) square meters in the Financial Center
Area covered by land pledge No. 5 and approximately Three Million Three Hundred Eighty Two Thousand Eight Hundred
Eighty Eight (3,382,888) square meters of reclaimed areas at varying elevations above Mean Low Water Level located
outside the Financial Center Area and the First Neighborhood Unit."3

On January 19, 1988, then President Corazon C. Aquino issued Special Patent No. 3517, granting and transferring to PEA "the parcels
of land so reclaimed under the Manila-Cavite Coastal Road and Reclamation Project (MCCRRP) containing a total area of one million
nine hundred fifteen thousand eight hundred ninety four (1,915,894) square meters." Subsequently, on April 9, 1988, the Register of
Deeds of the Municipality of Parañaque issued Transfer Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA, covering
the three reclaimed islands known as the "Freedom Islands" located at the southern portion of the Manila-Cavite Coastal Road,
Parañaque City. The Freedom Islands have a total land area of One Million Five Hundred Seventy Eight Thousand Four Hundred and
Forty One (1,578,441) square meters or 157.841 hectares.

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

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 lands sold to private corporations which
acquired the lands from private parties. The transferors of the private corporations claimed or could claim the right to judicial
confirmation of their imperfect titles 19 under Title II of Commonwealth Act. 141 ("CA No. 141" for brevity). In the instant case,
AMARI seeks to acquire from PEA, a public corporation, reclaimed lands and submerged areas for non-agricultural purposes
by purchase under PD No. 1084 (charter of PEA) and Title III of CA No. 141. Certain undertakings by AMARI under the Amended
JVA constitute the consideration for the purchase. Neither AMARI nor PEA can claim judicial confirmation of their titles because the
lands covered by the Amended JVA are newly reclaimed or still to be reclaimed. Judicial confirmation of imperfect title requires open,
continuous, exclusive and notorious occupation of agricultural lands of the public domain for at least thirty years since June 12, 1945
or earlier. Besides, the deadline for filing applications for judicial confirmation of imperfect title expired on December 31, 1987.20

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

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

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

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

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

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

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

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

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

PEA argues that petitioner has no standing to institute mandamus proceedings to enforce his constitutional right to information
without a showing that PEA refused to perform an affirmative duty imposed on PEA by the Constitution. PEA also claims that
petitioner has not shown that he will suffer any concrete injury because of the signing or implementation of the Amended JVA. Thus,
there is no actual controversy requiring the exercise of the power of judicial review.
The petitioner has standing to bring this taxpayer's suit because the petition seeks to compel PEA to comply with its constitutional
duties. There are two constitutional issues involved here. First is the right of citizens to information on matters of public concern.
Second is the application of a constitutional provision intended to insure the equitable distribution of alienable lands of the public
domain among Filipino citizens. The thrust of the first issue is to compel PEA to disclose publicly information on the sale of
government lands worth billions of pesos, information which the Constitution and statutory law mandate PEA to disclose. The thrust
of the second issue is to prevent PEA from alienating hundreds of hectares of alienable lands of the public domain in violation of the
Constitution, compelling PEA to comply with a constitutional duty to the nation.

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

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

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

xxx

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

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

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

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

We rule that since the instant petition, brought by a citizen, involves the enforcement of constitutional rights - to information and to
the equitable diffusion of natural resources - matters of transcendental public importance, the petitioner has the requisite locus standi.

Fifth issue: whether the constitutional right to information includes official information on on-going negotiations before a final
agreement.

Section 7, Article III of the Constitution explains the people's right to information on matters of public concern in this manner:

"Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records,
and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law."
(Emphasis supplied)
The State policy of full transparency in all transactions involving public interest reinforces the people's right to information on matters
of public concern. This State policy is expressed in Section 28, Article II of the Constitution, thus:

"Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest." (Emphasis supplied)

These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as
well as provide the people sufficient information to exercise effectively other constitutional rights. These twin provisions are essential
to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens,
whatever citizens say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are
also essential to hold public officials "at all times x x x accountable to the people," 29 for unless citizens have the proper information,
they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public
discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to
the existence and proper functioning of any democracy. As explained by the Court in Valmonte v. Belmonte, Jr.30 –

"An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the
government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the
end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to
the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating thereto can such bear fruit."

PEA asserts, citing Chavez v. PCGG,31 that in cases of on-going negotiations the right to information is limited to "definite
propositions of the government." PEA maintains the right does not include access to "intra-agency or inter-agency recommendations
or communications during the stage when common assertions are still in the process of being formulated or are in the 'exploratory
stage'."

Also, AMARI contends that petitioner cannot invoke the right at the pre-decisional stage or before the closing of the transaction. To
support its contention, AMARI cites the following discussion in the 1986 Constitutional Commission:

"Mr. Suarez. And when we say 'transactions' which should be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to the consummation of the contract, or does he refer to the contract
itself?

Mr. Ople: The 'transactions' used here, I suppose is generic and therefore, it can cover both steps leading to a contract
and already a consummated contract, Mr. Presiding Officer.

Mr. Suarez: This contemplates inclusion of negotiations leading to the consummation of the transaction.

Mr. Ople: Yes, subject only to reasonable safeguards on the national interest.

Mr. Suarez: Thank you."32 (Emphasis supplied)

AMARI argues there must first be a consummated contract before petitioner can invoke the right. Requiring government officials to
reveal their deliberations at the pre-decisional stage will degrade the quality of decision-making in government agencies. Government
officials will hesitate to express their real sentiments during deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they decide.

We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and information the
constitutional right to information requires PEA to release to the public. Before the consummation of the contract, PEA must, on its
own and without demand from anyone, disclose to the public matters relating to the disposition of its property. These include the size,
location, technical description and nature of the property being disposed of, the terms and conditions of the disposition, the parties
qualified to bid, the minimum price and similar information. PEA must prepare all these data and disclose them to the public at the
start of the disposition process, long before the consummation of the contract, because the Government Auditing Code requires public
bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding
process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is
not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises
a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen
can access all the non-proprietary information leading to such definite proposition. In Chavez v. PCGG,33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as
well as other government representatives, to disclose sufficient public information on any proposed settlement they have
decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain
to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still in the process of being formulated or are in the
"exploratory" stage. There is need, of course, to observe the same restrictions on disclosure of information in general, as
discussed earlier – such as on matters involving national security, diplomatic or foreign relations, intelligence and other
classified information." (Emphasis supplied)

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that the right to
information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated
contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no
contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.1âwphi1.nêt

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes a fait accompli. This negates the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."

The right covers three categories of information which are "matters of public concern," namely: (1) official records; (2) documents
and papers pertaining to official acts, transactions and decisions; and (3) government research data used in formulating policies. The
first category refers to any document that is part of the public records in the custody of government agencies or officials. The second
category refers to documents and papers recording, evidencing, establishing, confirming, supporting, justifying or explaining official
acts, transactions or decisions of government agencies or officials. The third category refers to research data, whether raw, collated or
processed, owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation reports, recommendations, legal and
expert opinions, minutes of meetings, terms of reference and other documents attached to such reports or minutes, all relating to the
JVA. However, the right to information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the
renegotiation of the JVA.34 The right only affords access to records, documents and papers, which means the opportunity to inspect
and copy them. One who exercises the right must copy the records, documents and papers at his expense. The exercise of the right is
also subject to reasonable regulations to protect the integrity of the public records and to minimize disruption to government
operations, like rules specifying when and how to conduct the inspection and copying.35

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 title48 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,55 Justice Reynato S. Puno
summarized succinctly the law on this matter, as follows:
 "Foreshore lands are lands of public dominion intended for public use. So too are lands reclaimed by the government by
dredging, filling, or other means. Act 1654 mandated that the control and disposition of the foreshore and lands under water
remained in the national government. Said law allowed only the 'leasing' of reclaimed land. The Public Land Acts of 1919
and 1936 also declared that the foreshore and lands reclaimed by the government were to be "disposed of to private parties by
lease only and not otherwise." Before leasing, however, the Governor-General, upon recommendation of the Secretary of
Agriculture and Natural Resources, had first to determine that the land reclaimed was not necessary for the public service.
This requisite must have been met before the land could be disposed of. But even then, the foreshore and lands under water
were 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 from acquiring any kind of
alienable land of the public domain. Like the 1973 Constitution, the 1987 Constitution allows private corporations to hold alienable
lands of the public domain only through lease. As in the 1935 and 1973 Constitutions, the general law governing the lease to private
corporations of reclaimed, foreshore and marshy alienable lands of the public domain is still CA No. 141.

The Rationale behind the Constitutional Ban

The rationale behind the constitutional ban on corporations from acquiring, except through lease, alienable lands of the public domain
is not well understood. During the deliberations of the 1986 Constitutional Commission, the commissioners probed the rationale
behind this ban, thus:

"FR. BERNAS: Mr. Vice-President, my questions have reference to page 3, line 5 which says:

`No private corporation or association may hold alienable lands of the public domain except by lease, not to exceed one
thousand hectares in area.'

If we recall, this provision did not exist under the 1935 Constitution, but this was introduced in the 1973 Constitution. In
effect, it prohibits private corporations from acquiring alienable public lands. But it has not been very clear in jurisprudence
what the reason for this is. In some of the cases decided in 1982 and 1983, it was indicated that the purpose of this is to
prevent large landholdings. Is that the intent of this provision?
MR. VILLEGAS: I think that is the spirit of the provision.

FR. BERNAS: In existing decisions involving the Iglesia ni Cristo, there were instances where the Iglesia ni Cristo was not
allowed to acquire a mere 313-square meter land where a chapel stood because the Supreme Court said it would be in
violation of this." (Emphasis supplied)

In Ayog v. Cusi,64 the Court explained the rationale behind this constitutional ban in this way:

"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 42274 of the Civil Code, a property of public dominion retains such character until formally declared
otherwise. The Court ruled that –

"The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically convert
it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use (Cebu Oxygen and
Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part of the public domain, not available for
private appropriation or ownership 'until there is a formal declaration on the part of the government to withdraw it from
being such' (Ignacio v. Director of Lands, 108 Phil. 335 [1960]." (Emphasis supplied)

PD No. 1085, issued on February 4, 1977, authorized the issuance of special land patents for lands reclaimed by PEA from the
foreshore or submerged areas of Manila Bay. On January 19, 1988 then President Corazon C. Aquino issued Special Patent No. 3517
in the name of PEA for the 157.84 hectares comprising the partially reclaimed Freedom Islands. Subsequently, on April 9, 1999 the
Register of Deeds of the Municipality of Paranaque issued TCT Nos. 7309, 7311 and 7312 in the name of PEA pursuant to Section
103 of PD No. 1529 authorizing the issuance of certificates of title corresponding to land patents. To this day, these certificates of title
are still in the name of PEA.

PD No. 1085, coupled with President Aquino's actual issuance of a special patent covering the Freedom Islands, is equivalent to an
official proclamation classifying the Freedom Islands as alienable or disposable lands of the public domain. PD No. 1085 and
President Aquino's issuance of a land patent also constitute a declaration that the Freedom Islands are no longer needed for public
service. The Freedom Islands are thus alienable or disposable lands of the public domain, open to disposition or concession to
qualified parties.

At the time then President Aquino issued Special Patent No. 3517, PEA had already reclaimed the Freedom Islands although
subsequently there were partial erosions on some areas. The government had also completed the necessary surveys on these islands.
Thus, the Freedom Islands were no longer part of Manila Bay but part of the land mass. Section 3, Article XII of the 1987 Constitution
classifies lands of the public domain into "agricultural, forest or timber, mineral lands, and national parks." Being neither timber,
mineral, nor national park lands, the reclaimed Freedom Islands necessarily fall under the classification of agricultural lands of the
public domain. Under the 1987 Constitution, agricultural lands of the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such as the seas or bays, are "waters x x x owned by the State" forming
part of the public domain, and are inalienable pursuant to Section 2, Article XII of the 1987 Constitution.

AMARI claims that the Freedom Islands are private lands because CDCP, then a private corporation, reclaimed the islands under a
contract dated November 20, 1973 with the Commissioner of Public Highways. AMARI, citing Article 5 of the Spanish Law of
Waters of 1866, argues that "if the ownership of reclaimed lands may be given to the party constructing the works, then it cannot be
said that reclaimed lands are lands of the public domain which the State may not alienate." 75 Article 5 of the Spanish Law of Waters
reads as follows:

"Article 5. Lands reclaimed from the sea in consequence of works constructed by the State, or by the provinces, pueblos or
private persons, with proper permission, shall become the property of the party constructing such works, unless otherwise
provided by the terms of the grant of authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties could reclaim from the sea only with "proper permission" from
the State. Private parties could own the reclaimed land only if not "otherwise provided by the terms of the grant of authority." This
clearly meant that no one could reclaim from the sea without permission from the State because the sea is property of public
dominion. It also meant that the State could grant or withhold ownership of the reclaimed land because any reclaimed land, like the
sea from which it emerged, belonged to the State. Thus, a private person reclaiming from the sea without permission from the State
could not acquire ownership of the reclaimed land which would remain property of public dominion like the sea it replaced.76 Article 5
of the Spanish Law of Waters of 1866 adopted the time-honored principle of land ownership that "all lands that were not acquired
from the government, either by purchase or by grant, belong to the public domain."77

Article 5 of the Spanish Law of Waters must be read together with laws subsequently enacted on the disposition of public lands. In
particular, CA No. 141 requires that lands of the public domain must first be classified as alienable or disposable before the
government can alienate them. These lands must not be reserved for public or quasi-public purposes. 78 Moreover, the contract between
CDCP and the government was executed after the effectivity of the 1973 Constitution which barred private corporations from
acquiring any kind of alienable land of the public domain. This contract could not have converted the Freedom Islands into private
lands of a private corporation.

Presidential Decree No. 3-A, issued on January 11, 1973, revoked all laws authorizing the reclamation of areas under water and
revested solely in the National Government the power to reclaim lands. Section 1 of PD No. 3-A declared that –

"The provisions of any law to the contrary notwithstanding, the reclamation of areas under water, whether foreshore or
inland, shall be limited to the National Government or any person authorized by it under a proper contract. (Emphasis
supplied)

x x x."

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866 because reclamation of areas under water could now be
undertaken only by the National Government or by a person contracted by the National Government. Private parties may reclaim from
the sea only under a contract with the National Government, and no longer by grant or permission as provided in Section 5 of the
Spanish Law of Waters of 1866.

Executive Order No. 525, issued on February 14, 1979, designated PEA as the National Government's implementing arm to undertake
"all reclamation projects of the government," which "shall be undertaken by the PEA or through a proper contract executed by it
with any person or entity." Under such contract, a private party receives compensation for reclamation services rendered to PEA.
Payment to the contractor may be in cash, or in kind consisting of portions of the reclaimed land, subject to the constitutional ban on
private corporations from acquiring alienable lands of the public domain. The reclaimed land can be used as payment in kind only if
the reclaimed land is first classified as alienable or disposable land open to disposition, and then declared no longer needed for public
service.

The Amended JVA covers not only the Freedom Islands, but also an additional 592.15 hectares which are still submerged and forming
part of Manila Bay. There is no legislative or Presidential act classifying these submerged areas as alienable or disposable lands of
the public domain open to disposition. These submerged areas are not covered by any patent or certificate of title. There can be no
dispute that these submerged areas form part of the public domain, and in their present state are inalienable and outside the
commerce of man. Until reclaimed from the sea, these submerged areas are, under the Constitution, "waters x x x owned by the
State," forming part of the public domain and consequently inalienable. Only when actually reclaimed from the sea can these
submerged areas be classified as public agricultural lands, which under the Constitution are the only natural resources that the State
may alienate. Once reclaimed and transformed into public agricultural lands, the government may then officially classify these lands
as alienable or disposable lands open to disposition. Thereafter, the government may declare these lands no longer needed for public
service. Only then can these reclaimed lands be considered alienable or disposable lands of the public domain and within the
commerce of man.

The classification of PEA's reclaimed foreshore and submerged lands into alienable or disposable lands open to disposition is
necessary because PEA is tasked under its charter to undertake public services that require the use of lands of the public domain.
Under Section 5 of PD No. 1084, the functions of PEA include the following: "[T]o own or operate railroads, tramways and other
kinds of land transportation, x x x; [T]o construct, maintain and operate such systems of sanitary sewers as may be necessary; [T]o
construct, maintain and operate such storm drains as may be necessary." PEA is empowered to issue "rules and regulations as may be
necessary for the proper use by private parties of any or all of the highways, roads, utilities, buildings and/or any of its
properties and to impose or collect fees or tolls for their use." Thus, part of the reclaimed foreshore and submerged lands held by the
PEA would actually be needed for public use or service since many of the functions imposed on PEA by its charter constitute essential
public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA "shall be primarily responsible for integrating, directing, and
coordinating all reclamation projects for and on behalf of the National Government." The same section also states that "[A]ll
reclamation projects shall be approved by the President upon recommendation of the PEA, and shall be undertaken by the PEA or
through a proper contract executed by it with any person or entity; x x x." Thus, under EO No. 525, in relation to PD No. 3-A and PD
No.1084, PEA became the primary implementing agency of the National Government to reclaim foreshore and submerged lands of the
public domain. EO No. 525 recognized PEA as the government entity "to undertake the reclamation of lands and ensure their
maximum utilization in promoting public welfare and interests."79 Since large portions of these reclaimed lands would obviously be
needed for public service, there must be a formal declaration segregating reclaimed lands no longer needed for public service from
those still needed for public service.1âwphi1.nêt

Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA "shall belong to or be owned by the PEA," could not
automatically operate to classify inalienable lands into alienable or disposable lands of the public domain. Otherwise, reclaimed
foreshore and submerged lands of the public domain would automatically become alienable once reclaimed by PEA, whether or not
classified as alienable or disposable.

The Revised Administrative Code of 1987, a later law than either PD No. 1084 or EO No. 525, vests in the Department of
Environment and Natural Resources ("DENR" for brevity) the following powers and functions:

"Sec. 4. Powers and Functions. The Department shall:

(1) x x x

xxx

(4) Exercise supervision and control over forest lands, alienable and disposable public lands, mineral resources and, in the
process of exercising such control, impose appropriate taxes, fees, charges, rentals and any such form of levy and collect such
revenues for the exploration, development, utilization or gathering of such resources;

xxx

(14) Promulgate rules, regulations and guidelines on the issuance of licenses, permits, concessions, lease agreements and
such other privileges concerning the development, exploration and utilization of the country's marine, freshwater, and
brackish water and over all aquatic resources of the country and shall continue to oversee, supervise and police our
natural resources; cancel or cause to cancel such privileges upon failure, non-compliance or violations of any regulation,
order, and for all other causes which are in furtherance of the conservation of natural resources and supportive of the national
interest;

(15) Exercise exclusive jurisdiction on the management and disposition of all lands of the public domain and serve as the
sole agency responsible for classification, sub-classification, surveying and titling of lands in consultation with appropriate
agencies."80 (Emphasis supplied)

As manager, conservator and overseer of the natural resources of the State, DENR exercises "supervision and control over alienable
and disposable public lands." DENR also exercises "exclusive jurisdiction on the management and disposition of all lands of the
public domain." Thus, DENR decides whether areas under water, like foreshore or submerged areas of Manila Bay, should be
reclaimed or not. This means that PEA needs authorization from DENR before PEA can undertake reclamation projects in Manila
Bay, or in any part of the country.

DENR also exercises exclusive jurisdiction over the disposition of all lands of the public domain. Hence, DENR decides whether
reclaimed lands of PEA should be classified as alienable under Sections 681 and 782 of CA No. 141. Once DENR decides that the
reclaimed lands should be so classified, it then recommends to the President the issuance of a proclamation classifying the lands as
alienable or disposable lands of the public domain open to disposition. We note that then DENR Secretary Fulgencio S. Factoran, Jr.
countersigned Special Patent No. 3517 in compliance with the Revised Administrative Code and Sections 6 and 7 of CA No. 141.

In short, DENR is vested with the power to authorize the reclamation of areas under water, while PEA is vested with the power to
undertake the physical reclamation of areas under water, whether directly or through private contractors. DENR is also empowered to
classify lands of the public domain into alienable or disposable lands subject to the approval of the President. On the other hand, PEA
is tasked to develop, sell or lease the reclaimed alienable lands of the public domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or submerged areas does not make the reclaimed lands alienable or
disposable lands of the public domain, much less patrimonial lands of PEA. Likewise, the mere transfer by the National Government
of lands of the public domain to PEA does not make the lands alienable or disposable lands of the public domain, much less
patrimonial lands of PEA.

Absent two official acts – a classification that these lands are alienable or disposable and open to disposition and a declaration that
these lands are not needed for public service, lands reclaimed by PEA remain inalienable lands of the public domain. Only such an
official classification and formal declaration can convert reclaimed lands into alienable or disposable lands of the public domain, open
to disposition under the Constitution, Title I and Title III83 of CA No. 141 and other applicable laws.84

PEA's Authority to Sell Reclaimed Lands

PEA, like the Legal Task Force, argues that as alienable or disposable lands of the public domain, the reclaimed lands shall be
disposed of in accordance with CA No. 141, the Public Land Act. PEA, citing Section 60 of CA No. 141, admits that reclaimed lands
transferred to a branch or subdivision of the government "shall not be alienated, encumbered, or otherwise disposed of in a manner
affecting its title, except when authorized by Congress: x x x."85 (Emphasis by PEA)

In Laurel vs. Garcia,86 the Court cited Section 48 of the Revised Administrative Code of 1987, which states that –

"Sec. 48. Official Authorized to Convey Real Property. Whenever real property of the Government is authorized by law to
be conveyed, the deed of conveyance shall be executed in behalf of the government by the following: x x x."

Thus, the Court concluded that a law is needed to convey any real property belonging to the Government. The Court declared that -

"It is not for the President to convey real property of the government on his or her own sole will. Any such conveyance must
be authorized and approved by a law enacted by the Congress. It requires executive and legislative concurrence." (Emphasis
supplied)

PEA contends that PD No. 1085 and EO No. 525 constitute the legislative authority allowing PEA to sell its reclaimed lands. PD No.
1085, issued on February 4, 1977, provides that –

"The land reclaimed in the foreshore and offshore area of Manila Bay pursuant to the contract for the reclamation and
construction of the Manila-Cavite Coastal Road Project between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines dated November 20, 1973 and/or any other contract or reclamation covering the
same area is hereby transferred, conveyed and assigned to the ownership and administration of the Public Estates
Authority established pursuant to PD No. 1084; Provided, however, That the rights and interests of the Construction and
Development Corporation of the Philippines pursuant to the aforesaid contract shall be recognized and respected.

Henceforth, the Public Estates Authority shall exercise the rights and assume the obligations of the Republic of the
Philippines (Department of Public Highways) arising from, or incident to, the aforesaid contract between the Republic of the
Philippines and the Construction and Development Corporation of the Philippines.

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.92 No one, however, submitted a bid. On December 23, 1994, the
Government Corporate Counsel advised PEA it could sell the Freedom Islands through negotiation, without need of another public
bidding, because of the failure of the public bidding on December 10, 1991.93

However, the original JVA dated April 25, 1995 covered not only the Freedom Islands and the additional 250 hectares still to be
reclaimed, it also granted an option to AMARI to reclaim another 350 hectares. The original JVA, a negotiated contract, enlarged the
reclamation area to 750 hectares.94 The failure of public bidding on December 10, 1991, involving only 407.84 hectares,95 is not a
valid justification for a negotiated sale of 750 hectares, almost double the area publicly auctioned. Besides, the failure of public
bidding happened on December 10, 1991, more than three years before the signing of the original JVA on April 25, 1995. The
economic situation in the country had greatly improved during the intervening period.

Reclamation under the BOT Law and the Local Government Code

The constitutional prohibition in Section 3, Article XII of the 1987 Constitution is absolute and clear: "Private corporations or
associations may not hold such alienable lands of the public domain except by lease, x x x." Even Republic Act No. 6957 ("BOT
Law," for brevity), cited by PEA and AMARI as legislative authority to sell reclaimed lands to private parties, recognizes the
constitutional ban. Section 6 of RA No. 6957 states –

"Sec. 6. Repayment Scheme. - For the financing, construction, operation and maintenance of any infrastructure projects
undertaken through the build-operate-and-transfer arrangement or any of its variations pursuant to the provisions of this Act,
the project proponent x x x may likewise be repaid in the form of a share in the revenue of the project or other non-monetary
payments, such as, but not limited to, the grant of a portion or percentage of the reclaimed land, subject to the constitutional
requirements with respect to the ownership of the land: x x x." (Emphasis supplied)

A private corporation, even one that undertakes the physical reclamation of a government BOT project, cannot acquire reclaimed
alienable lands of the public domain in view of the constitutional ban.

Section 302 of the Local Government Code, also mentioned by PEA and AMARI, authorizes local governments in land reclamation
projects to pay the contractor or developer in kind consisting of a percentage of the reclaimed land, to wit:

"Section 302. Financing, Construction, Maintenance, Operation, and Management of Infrastructure Projects by the Private
Sector. x x x

xxx

In case of land reclamation or construction of industrial estates, the repayment plan may consist of the grant of a portion or
percentage of the reclaimed land or the industrial estate constructed."

Although Section 302 of the Local Government Code does not contain a proviso similar to that of the BOT Law, the constitutional
restrictions on land ownership automatically apply even though not expressly mentioned in the Local Government Code.

Thus, under either the BOT Law or the Local Government Code, the contractor or developer, if a corporate entity, can only be paid
with leaseholds on portions of the reclaimed land. If the contractor or developer is an individual, portions of the reclaimed land, not
exceeding 12 hectares96 of non-agricultural lands, may be conveyed to him in ownership in view of the legislative authority allowing
such conveyance. This is the only way these provisions of the BOT Law and the Local Government Code can avoid a direct collision
with Section 3, Article XII of the 1987 Constitution.

Registration of lands of the public domain

Finally, PEA theorizes that the "act of conveying the ownership of the reclaimed lands to public respondent PEA transformed such
lands of the public domain to private lands." This theory is echoed by AMARI which maintains that the "issuance of the special patent
leading to the eventual issuance of title takes the subject land away from the land of public domain and converts the property into
patrimonial or private property." In short, PEA and AMARI contend that with the issuance of Special Patent No. 3517 and the
corresponding certificates of titles, the 157.84 hectares comprising the Freedom Islands have become private lands of PEA. In support
of their theory, PEA and AMARI cite the following rulings of the Court:

1. Sumail v. Judge of CFI of Cotabato,97 where the Court held –

 "Once the patent was granted and the corresponding certificate of title was issued, the land ceased to be part of the public
domain and became private property over which the Director of Lands has neither control nor jurisdiction."

2. Lee Hong Hok v. David,98 where the Court declared -

"After the registration and issuance of the certificate and duplicate certificate of title based on a public land patent, the land
covered thereby automatically comes under the operation of Republic Act 496 subject to all the safeguards provided
therein."3. Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas,99 where the Court ruled -

"While the Director of Lands has the power to review homestead patents, he may do so only so long as the land remains part
of the public domain and continues to be under his exclusive control; but once the patent is registered and a certificate of title
is issued, the land ceases to be part of the public domain and becomes private property over which the Director of Lands has
neither control nor jurisdiction."

4. Manalo v. Intermediate Appellate Court,100 where the Court held –

"When the lots in dispute were certified as disposable on May 19, 1971, and free patents were issued covering the same in
favor of the private respondents, the said lots ceased to be part of the public domain and, therefore, the Director of Lands lost
jurisdiction over the same."

5.Republic v. Court of Appeals,101 where the Court stated –

"Proclamation No. 350, dated October 9, 1956, of President Magsaysay legally effected a land grant to the Mindanao Medical
Center, Bureau of Medical Services, Department of Health, of the whole lot, validly sufficient for initial registration under
the Land Registration Act. Such land grant is constitutive of a 'fee simple' title or absolute title in favor of petitioner
Mindanao Medical Center. Thus, Section 122 of the Act, which governs the registration of grants or patents involving public
lands, provides that 'Whenever public lands in the Philippine Islands belonging to the Government of the United States or to
the Government of the Philippines are alienated, granted or conveyed to persons or to public or private corporations, the same
shall be brought forthwith under the operation of this Act (Land Registration Act, Act 496) and shall become registered
lands.'"

The first four cases cited involve petitions to cancel the land patents and the corresponding certificates of titles issued to private
parties. These four cases uniformly hold that the Director of Lands has no jurisdiction over private lands or that upon issuance of the
certificate of title the land automatically comes under the Torrens System. The fifth case cited involves the registration under the
Torrens System of a 12.8-hectare public land granted by the National Government to Mindanao Medical Center, a government unit
under the Department of Health. The National Government transferred the 12.8-hectare public land to serve as the site for the hospital
buildings and other facilities of Mindanao Medical Center, which performed a public service. The Court affirmed the registration of
the 12.8-hectare public land in the name of Mindanao Medical Center under Section 122 of Act No. 496. This fifth case is an example
of a public land being registered under Act No. 496 without the land losing its character as a property of public dominion.

In the instant case, the only patent and certificates of title issued are those in the name of PEA, a wholly government owned
corporation performing public as well as proprietary functions. No patent or certificate of title has been issued to any private party. No
one is asking the Director of Lands to cancel PEA's patent or certificates of title. In fact, the thrust of the instant petition is that PEA's
certificates of title should remain with PEA, and the land covered by these certificates, being alienable lands of the public domain,
should not be sold to a private corporation.

Registration of land under Act No. 496 or PD No. 1529 does not vest in the registrant private or public ownership of the land.
Registration is not a mode of acquiring ownership but is merely evidence of ownership previously conferred by any of the recognized
modes of acquiring ownership. Registration does not give the registrant a better right than what the registrant had prior to the
registration.102 The registration of lands of the public domain under the Torrens system, by itself, cannot convert public lands into
private lands.103

Jurisprudence holding that upon the grant of the patent or issuance of the certificate of title the alienable land of the public domain
automatically becomes private land cannot apply to government units and entities like PEA. The transfer of the Freedom Islands to
PEA was made subject to the provisions of CA No. 141 as expressly stated in Special Patent No. 3517 issued by then President
Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution of the Philippines and in conformity with the
provisions of Presidential Decree No. 1084, supplemented by Commonwealth Act No. 141, as amended, there are hereby
 granted and conveyed unto the Public Estates Authority the aforesaid tracts of land containing a total area of one million nine
hundred fifteen thousand eight hundred ninety four (1,915,894) square meters; the technical description of which are hereto
attached and made an integral part hereof." (Emphasis supplied)

Thus, the provisions of CA No. 141 apply to the Freedom Islands on matters not covered by PD No. 1084. Section 60 of CA No. 141
prohibits, "except when authorized by Congress," the sale of alienable lands of the public domain that are transferred to government
units or entities. Section 60 of CA No. 141 constitutes, under Section 44 of PD No. 1529, a "statutory lien affecting title" of the
registered land even if not annotated on the certificate of title.104 Alienable lands of the public domain held by government entities
under Section 60 of CA No. 141 remain public lands because they cannot be alienated or encumbered unless Congress passes a law
authorizing their disposition. Congress, however, cannot authorize the sale to private corporations of reclaimed alienable lands of the
public domain because of the constitutional ban. Only individuals can benefit from such law.

The grant of legislative authority to sell public lands in accordance with Section 60 of CA No. 141 does not automatically convert
alienable lands of the public domain into private or patrimonial lands. The alienable lands of the public domain must be transferred to
qualified private parties, or to government entities not tasked to dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become illusory if Congress can declare lands of the public domain as private
or patrimonial lands in the hands of a government agency tasked to dispose of public lands. This will allow private corporations to
acquire directly from government agencies limitless areas of lands which, prior to such law, are concededly public lands.

Under EO No. 525, PEA became the central implementing agency of the National Government to reclaim foreshore and submerged
areas of the public domain. Thus, EO No. 525 declares that –

"EXECUTIVE ORDER NO. 525

Designating the Public Estates Authority as the Agency Primarily Responsible for all Reclamation Projects

Whereas, there are several reclamation projects which are ongoing or being proposed to be undertaken in various parts of the
country which need to be evaluated for consistency with national programs;

Whereas, there is a need to give further institutional support to the Government's declared policy to provide for a coordinated,
economical and efficient reclamation of lands;

Whereas, Presidential Decree No. 3-A requires that all reclamation of areas shall be limited to the National Government or
any person authorized by it under proper contract;

Whereas, a central authority is needed to act on behalf of the National Government which shall ensure a coordinated and
integrated approach in the reclamation of lands;

Whereas, Presidential Decree No. 1084 creates the Public Estates Authority as a government corporation to undertake
reclamation of lands and ensure their maximum utilization in promoting public welfare and interests; and

Whereas, Presidential Decree No. 1416 provides the President with continuing authority to reorganize the national
government including the transfer, abolition, or merger of functions and offices.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by
the Constitution and pursuant to Presidential Decree No. 1416, do hereby order and direct the following:

Section 1. The Public Estates Authority (PEA) shall be primarily responsible for integrating, directing, and coordinating
all reclamation projects for and on behalf of the National Government. All reclamation projects shall be approved by the
President upon recommendation of the PEA, and 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 hectares 110 of the Freedom
Islands, such transfer is void for being contrary to Section 3, Article XII of the 1987 Constitution which prohibits private
corporations from acquiring any kind of alienable land of the public domain.

4. Since the Amended JVA also seeks to transfer to AMARI ownership of 290.156 hectares 111 of still submerged areas of
Manila Bay, such transfer is void for being contrary to Section 2, Article XII of the 1987 Constitution which prohibits the
alienation of natural resources other than agricultural lands of the public domain. PEA may reclaim these submerged areas.
Thereafter, the government can classify the reclaimed lands as alienable or disposable, and further declare them no longer
needed for public service. Still, the transfer of such reclaimed alienable lands of the public domain to AMARI will be void in
view of Section 3, Article XII of the 1987 Constitution which prohibits private corporations from acquiring any kind of
alienable land of the public domain.

Clearly, the Amended JVA violates glaringly Sections 2 and 3, Article XII of the 1987 Constitution. Under Article 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.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, and Corona, JJ., concur.

Footnote

1
 Section 4 of PD No. 1084.
2
 PEA's Memorandum dated August 4, 1999, p. 3.
3
 PEA's Memorandum, supra note 2 at 7. PEA's Memorandum quoted extensively, in its Statement of Facts and the Case, the
Statement of Facts in Senate Committee Report No. 560 dated September 16, 1997.
4
 In Opinion No. 330 dated December 23, 1994, the Government Corporate Counsel, citing COA Audit Circular No. 89-296,
advised PEA that PEA could negotiate the sale of the 157.84-hectare Freedom Islands in view of the failure of the public
bidding held on December 10, 1991 where there was not a single bidder. See also Senate Committee Report No. 560, p. 12.
5
 PEA's Memorandum, supra note 2 at 9.
6
 Ibid.
7
 The existence of this report is a matter of judicial notice pursuant to Section 1, Rule 129 of the Rules of Court which
provides, "A court shall take judicial notice, without the introduction of evidence, of x x x the official acts of the legislature x
x x."
8
 Teofisto Guingona, Jr.
9
 Renato Cayetano.
10
 Virgilio C. Abejo.
11
 Report and Recommendation of the Legal Task Force, Annex "C", AMARI's Memorandum dated June 19, 1999.
12
 AMARI's Comment dated June 24, 1998, p. 3; Rollo, p. 68.
13
 AMARI filed three motions for extension of time to file comment (Rollo, pp. 32, 38, 48), while PEA filed nine motions for
extension of time (Rollo, pp. 127, 139).
14
 Petitioner's Memorandum dated July 6, 1999, p. 42.
15
 Represented by the Office of the Solicitor General, with Solicitor General Ricardo P. Galvez, Assistant Solicitor General
Azucena R. Balanon-Corpuz, and Associate Solicitor Raymund I. Rigodon signing PEA's Memorandum.
16
 Represented by Azcuna Yorac Arroyo & Chua Law Offices, and Romulo Mabanta Sayoc & De los Angeles Law Offices.
17
 Salonga v. Paño, 134 SCRA 438 (1985); Gonzales v. Marcos, 65 SCRA 624 (1975 ); Aquino v. Enrile, 59 SCRA 183
(1974 ); Dela Camara v. Enage, 41 SCRA 1 (1971 ).
18
 Section 11, Article XIV.
19
 Manila Electric Co. v. Judge F. Castro-Bartolome, 114 SCRA 799 (1982); Republic v. CA and Iglesia, and Republic v.
Cendana and Iglesia ni Cristo, 119 SCRA 449 (1982); Republic v. Villanueva and Iglesia ni Cristo, 114 SCRA 875 (1982);
Director of Lands v. Lood, 124 SCRA 460 (1983); Republic v. Iglesia ni Cristo, 128 SCRA 44 (1984); Director of Lands v.
Hermanos y Hermanas de Sta. Cruz de Mayo, Inc., 141 SCRA 21 (1986); Director of Lands v. IAC and Acme Plywood &
Veneer Co., 146 SCRA 509 (1986); Republic v. IAC and Roman Catholic Bishop of Lucena, 168 SCRA 165 (1988);
Natividad v. CA, 202 SCRA 493 (1991); Villaflor v. CA and Nasipit Lumber Co., 280 SCRA 297 (1997). In Ayog v. Cusi,
118 SCRA 492 (1982), the Court did not apply the constitutional ban in the 1973 Constitution because the applicant
corporation, Biñan Development Co., Inc., had fully complied with all its obligations and even paid the full purchase price
before the effectivity of the 1973 Constitution, although the sales patent was issued after the 1973 Constitution took effect.
20
 PD No. 1073.
21
 Annex "B", AMARI's Memorandum dated June 19, 1999, Section 5.2 (c) and (e) of the Amended JVA, pp. 16-17.
22
 Chavez v. PCGG, 299 SCRA 744 (1998).
23
 136 SCRA 27 (1985).
24
 Article 2 of the Civil Code (prior to its amendment by EO No. 200) provided as follows: "Laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is provided otherwise, x x x."
25
 Section 1 of CA No. 638 provides as follows: "There shall be published in the Official Gazette all important legislative acts
and resolutions of the Congress of the Philippines; all executive and administrative orders and proclamations, except such as
have no general applicability; x x x."
26
 Section 79 of the Government Auditing Codes provides as follows: "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."
27
 Paat v. Court of Appeals, 266 SCRA 167 (1997); Quisumbing v. Judge Gumban, 193 SCRA 520 (1991); Valmonte v.
Belmonte, Jr., 170 SCRA 256 (1989).
28
 See note 22.
29
 Section 1, Article XI of the 1987 Constitution states as follows: "Public office is a public trust. Public officers and
employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives."
30
 170 SCRA 256 (1989).
31
 See note 22.
32
 Record of the Constitutional Commission, Vol. V, pp. 24-25, (1986).
33
 Supra, Note 22.
34
 Ibid.
35
 Legaspi v. Civil Service Commission, 150 SCRA 530 (1987).
36
 Almonte v. Vasquez, 244 SCRA 286 (1995).
37
 See Note 22.
38
 Chavez v. PCGG, see note 22; Aquino-Sarmiento v. Morato, 203 SCRA 515 (1991).
39
 Almonte v. Vasquez, see note 36.
40
 People's Movement for Press Freedom, et al. v. Hon. Raul Manglapus, G.R. No. 84642, En Banc Resolution dated April
13, 1988; Chavez v. PCGG, see note 22.
41
 Section 270 of the National Internal Revenue Code punishes any officer or employee of the Bureau of Internal Revenue
who divulges to any person, except as allowed by law, information regarding the business, income, or estate of any taxpayer,
the secrets, operation, style of work, or apparatus of any manufacturer or producer, or confidential information regarding the
business of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties. Section 14 of R.A.
No. 8800 (Safeguard Measures Act) prohibits the release to the public of confidential information submitted in evidence to
the Tariff Commission. Section 3 (n) of R.A. No. 8504 (Philippine AIDS Prevention and Control Act) classifies as
confidential the medical records of HIV patients. Section 6 (j) of R.A. No. 8043 (Inter-Country Adoption Act) classifies as
confidential the records of the adopted child, adopting parents, and natural parents. Section 94 (f) of R.A. No. 7942
(Philippine Mining Act) requires the Department of Environment and Natural Resources to maintain the confidentiality of
confidential information supplied by contractors who are parties to mineral agreements or financial and technical assistance
agreements.
42
 The Recopilacion de Leyes de las Indias declared that: "We, having acquired full sovereignty over the Indies, and all lands,
territories, and possessions not heretofore ceded away by our royal predecessors, or by us, or in our name, still pertaining to
the royal crown and patrimony, it is our will that all lands which are held without proper and true deeds of grant be restored
to us according as they belong to us, in order that after reserving before all what to us or to our viceroys, audiencias, and
governors may seem necessary for public squares, ways, pastures, and commons in those places which are peopled, taking
into consideration not only their present condition, but also their future and their probable increase, and after distributing to
the natives what may be necessary for tillage and pasturage, confirming them in what they now have and giving them more if
necessary, all the rest of said lands may remain free and unencumbered for us to dispose of as we may wish." See concurring
opinion of Justice Reynato S. Puno in Republic Real Estate Corporation v. Court of Appeals, 299 SCRA 199 (1998).
43
 Cariño v. Insular Government, 41 Phil. 935 (1909). The exception mentioned in Cariño, referring to lands in the possession
of an occupant and of his predecessors-in-interest, since time immemorial, is actually a species of a grant by the State. The
United States Supreme Court, speaking through Justice Oliver Wendell Holmes, Jr., declared in Cariño: "Prescription is
mentioned again in the royal cedula of October 15, 1754, cited in 3 Philippine, 546; 'Where such possessors shall not be able
to produce title deeds, it shall be sufficient if they shall show that ancient possession, as a valid title by prescription.' It may
be that this means possession from before 1700; but, at all events, the principle is admitted. As prescription, even against the
Crown lands, was recognized by the laws of Spain, we see no sufficient reason for hesitating to admit that it was recognized
in the Philippines in regard to lands over which Spain had only a paper sovereignty." See also Republic v. Lee, 197 SCRA 13
(1991).
44
 Article 1 of the Spanish Law of Waters of 1866.
45
 Ignacio v. Director of Lands, 108 Phil. 335 (1960); Joven v. Director of Lands, 93 Phil. 134 (1953); Laurel v. Garcia, 187
SCRA 797 (1990). See concurring opinion of Justice Reynato S. Puno in Republic Real Estate Corporation v. Court of
Appeals, 299 SCRA 199 (1998).
46
 Act No. 926, enacted on October 7, 1903, was also titled the Public Land Act. This Act, however, did not cover reclaimed
lands. Nevertheless, Section 23 of this Act provided as follows: "x x x In no case may lands leased under the provisions of
this chapter be taken so as to gain control of adjacent land, water, stream, shore line, way, roadstead, or other valuable right
which in the opinion of the Chief of the Bureau of Public Lands would be prejudicial to the interests of the public."
47
 Section 10 of Act No. 2874 provided as follows: "The words "alienation," "disposition," or "concession" as used in this
Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the lands of the public
domain other than timber or mineral lands."
48
 Title II of Act No. 2874 governed alienable lands of the public domain for agricultural purposes, while Title III of the same
Act governed alienable lands of the public domain for non-agricultural purposes.
49
 Section 57 of Act No. 2874 provided as follows: "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 the legislature; x x x."
50
 Krivenko v. Register of Deeds, 79 Phil. 461 (1947).
51
 Section 2 of CA No. 141 states as follows: "The provisions of this Act shall apply to the lands of the public domain; but
timber and mineral lands shall be governed by special laws and nothing in this Act provided shall be understood or construed
to change or modify the administration and disposition of the lands commonly called "friar lands" and those which, being
privately owned, have reverted to or become the property of the Commonwealth of the Philippines, which administration and
disposition shall be governed by the laws at present in force or which may hereafter be enacted."
52
 Like Act No. 2874, Section 10 of CA No. 141 defined the terms "alienation" and "disposition" as follows: "The words
"alienation," "disposition," or "concession" as used in this Act, shall mean any of the methods authorized by this Act for the
acquisition, lease, use, or benefit of the lands of the public domain other than timber or mineral lands."
53
 R.A. No. 6657 has suspended the authority of the President to reclassify forest or mineral lands into agricultural lands.
Section 4 (a) of RA No. 6657 (Comprehensive Agrarian Reform Law of 1988) states, "No reclassification of forest or mineral
lands to agricultural lands shall be undertaken after the approval of this Act until Congress, taking into account ecological,
developmental and equity considerations, shall have delimited by law, the specific limits of the public domain."
54
 Covering Sections 58 to 68 of CA No. 141.
55
 299 SCRA 199 (1998).
56
 Section 1, Article XIII of the 1935 Constitution limited the disposition and utilization of public agricultural lands to
Philippine citizens or to corporations at least sixty percent owned by Philippine citizens. This was, however, subject to the
original Ordinance appended to the 1935 Constitution stating, among others, that until the withdrawal of United States
sovereignty in the Philippines, "Citizens and corporations of the United States shall enjoy in the Commonwealth of the
Philippines all the civil rights of the citizens and corporations, respectively, thereof."
57
 Section 44 of PD No. 1529 (previously Section 39 of Act No. 496) provides that "liens, claims or rights arising or existing
under the laws and the Constitution of the Philippines which are not by law required to appear of record in the Registry of
Deeds in order to be valid against subsequent purchasers or encumbrancers of record" constitute statutory liens affecting the
title.1âwphi1.nêt
58
 RA No. 730, which took effect on June 18, 1952, authorized the private sale of home lots to actual occupants of public
lands not needed for public service. Section 1 of RA No. 730 provided as follows: "Notwithstanding the provisions of
Sections 61 and 67 of Commonwealth Act No. 141, as amended by RA No. 293, any Filipino citizen of legal age who is not
the owner of a home lot in the municipality or city in which he resides and who had in good faith established his residence on
a parcel of land of the Republic of the Philippines which is not needed for public service, shall be given preference to
purchase at a private sale of which reasonable notice shall be given to him, not more than one thousand square meters at a
price to be fixed by the Director of Lands with the approval of the Secretary of Agriculture and Natural Resources. x x x." In
addition, on June 16, 1948, Congress enacted R.A. No. 293 allowing the private sale of marshy alienable or disposable lands
of the public domain to lessees who have improved and utilized the same as farms, fishponds or other similar purposes for at
least five years from the date of the lease contract with the government. R.A. No. 293, however, did not apply to marshy
lands under Section 56 (c), Title III of CA No. 141 which refers to marshy lands leased for residential, commercial, industrial
or other non-agricultural purposes.
59
 See note 49.
60
 See note 60.
61
 Republic Real Estate Corporation v. Court of Appeals, see note 56.
62
 Ibid.
63
 Insular Government v. Aldecoa, 19 Phil. 505 (1911); Government v. Cabangis, 53 Phil. 112 (1929).
64
 118 SCRA 492 (1982).
65
 Annex "B", AMARI's Memorandum, see note 2 at 1 & 2.
66
 PEA's Memorandum, see note 6.
67
 Ibid., p. 44.
68
 See notes 9, 10 & 11.
69
 Annex "C", p. 3, AMARI's Memorandum, see note 12 at 3.
70
 This should read Article XII.
71
 Section 8 of CA No. 141.
72
 Emphasis supplied.
73
 187 SCRA 797 (1990).
74
 Article 422 of the Civil Code states as follows: "Property of public dominion, when no longer needed for public use or
public service, shall form part of the patrimonial property of the State."
75
 AMARI's Comment dated June 24, 1998, p. 20; Rollo, p. 85.
76
 Dizon v. Rodriguez, 13 SCRA 705 (1965); Republic v. Lat Vda. de Castillo, 163 SCRA 286 (1988).
77
 Cariño v. Insular Government, 41 Phil. 935 (1909).
78
 Proclamation No. 41, issued by President Ramon Magsaysay on July 5, 1954, reserved for "National Park purposes" 464.66
hectares of the public domain in Manila Bay "situated in the cities of Manila and Pasay and the municipality of Paranaque,
Province of Rizal, Island of Luzon," which area, as described in detail in the Proclamation, is "B]ounded on the North, by
Manila Bay; on the East, by Dewey Boulevard; and on the south and west, by Manila Bay." See concurring opinion of Justice
Reynato S. Puno in Republic Real Estate Corporation v. Court of Appeals, 299 SCRA 1999 (1998). Under Sections 2 and 3,
Article XII of the 1987 Constitution, "national parks" are inalienable natural resources of the State.
79
 Fifth Whereas clause of EO No. 525.
80
 Section 4, Chapter I, Title XIV, Book IV.
81
 Section 6 of CA No 141 provides as follows: "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, x x x."
82
 Section 7 of CA No. 141 provides as follows: "For 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."
83
 On "Lands for Residential, Commercial, or Industrial and other Similar Purposes."
84
 RA No. 293, enacted on June 16, 1948, authorized the sale of marshy lands under certain conditions. Section 1 of RA No.
293 provided as follows: "The provisions of section sixty-one of Commonwealth Act Numbered One hundred and forty-one
to the contrary notwithstanding, marshy lands and lands under water bordering on shores or banks or navigable lakes or rivers
which are covered by subsisting leases or leases which may hereafter be duly granted under the provisions of the said Act and
are already improved and have been utilized for farming, fishpond, or similar purposes for at least five years from the date of
the contract of lease, may be sold to the lessees thereof under the provisions of Chapter Five of the said Act as soon as the
President, upon recommendation of the Secretary of Agriculture and Natural Resources, shall declare that the same are not
necessary for the public service."
85
 PEA's Memorandum, see note 2 at 45.
86
 See note 73.
87
 Section 4 (b) of PD No. 1084
88
 R.A. No. 730 allows the private sale of home lots to actual occupants of public lands. See note 63.
89
 Issued on February 26, 1981.
90
 While PEA claims there was a failure of public bidding on December 10, 1991, there is no showing that the Commission
on Audit approved the price or consideration stipulated in the negotiated Amended JVA as required by Section 79 of the
Government Auditing Code. Senate Committee Report No. 560 did not discuss this issue.
91
 Paragraph 2 (a) of COA Circular No. 89-296, on "Sale Thru Negotiation," states that disposal through negotiated sale may
be resorted to if "[T]here was a failure of public auction."
 92
 Senate Committee Report No. 560, Statement of Facts, p. 7, citing PEA Board Resolution No. 835, as appearing in the
Minutes of the PEA Board of Directors Meeting held on May 30, 1991, per Certification of Jaime T. De Veyra, Corporate
Secretary, dated June 11, 1991.
93
 Opinion No. 330, citing COA Audit Circular No. 89-296. See note 5.
94
 PEA's Memorandum, see note 2.
95
 Senate Committee Report No. 560, pp. 7-8, citing the Minutes of Meeting of the PEA Board of Directors held on
December 19, 1991.
96
 Section 3, Article XII of the 1987 Constitution provides as follows: "x x x Citizens of the Philippines may x x x acquire not
more than twelve hectares thereof by purchase, homestead or grant." However, Section 6 of R.A. No. 6657 (Comprehensive
Agrarian Reform Law) limits the ownership of "public or private agricultural land" to a maximum of five hectares per person.
97
 96 Phil. 946 (1955).
98
 48 SCRA 372 (1977).
99
 168 SCRA 198 (1988).
100
 172 SCRA 795 (1989).
101
 73 SCRA 146 (1976).
102
 Avila v. Tapucar, 201 SCRA 148 (1991).
103
 Republic v. Ayala Cia, et al., 14 SCRA 259 (1965); Dizon v. Rodriguez, 13 SCRA 705 (1965).
104
 Section 44 of PD No. 1529 states as follows: "Every registered owner receiving a certificate of title in pursuance of a
decree of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good
faith, shall hold the same free from all encumbrances except those noted on said certificate and any of the following
encumbrances which may be subsisting, namely: First. Liens, claims or rights arising or existing under the laws and
Constitution of the Philippines which are not by law required to appear of record in the Registry of Deeds in order to be
valid against subsequent purchasers or encumbrancers of record. x x x." Under Section 103 of PD No. 1529, Section 44
applies to certificates of title issued pursuant to a land patent granted by the government.
105
 Section 2, Article XIII of the 1935 Constitution.
106
 Harty v. Municipality of Victoria, 13 Phil. 152 (1909).
107
 Annex "B", AMARI's Memorandum, see note 21 at 16, Section 5.2 (c) of the Amended JVA.
108
 Section 10 of CA No. 141 provides as follows: "Sec. 10. The words "alienation," "disposition," or "concession" as used in
this Act, shall mean any of the methods authorized by this Act for the acquisition, lease, use, or benefit of the lands of the
public domain other than timber or mineral lands."
109
 Section 79 of the Government Auditing Code, which requires public auction in the sale of government assets, includes all
kinds of disposal or divestment of government assets. Thus, COA Audit Circular No. 86-264 dated October 16, 1986 speaks
of "guidelines (which) shall govern the general procedures on the divestment or disposal of assets of government-owned
and/or controlled corporations and their subsidiaries." Likewise, COA Audit Circular No. 89-296 dated January 27, speaks
of "guidelines (which) shall be observed and adhered to in the divestment or disposal of property and other assets of all
government entities/instrumentalities" and that "divestment shall refer to the manner or scheme of taking away, depriving,
withdrawing of an authority, power or title." These COA Circulars implement Section 79 of the Government Auditing Code.
110
 The share of AMARI in the Freedom Islands is 77.34 hectares, which is 70 percent of the net usable area of 110.49
hectares. The net usable area is the total land area of the Freedom Islands less 30 percent allocated for common areas.
111
 The share of AMARI in the submerged areas for reclamation is 290.129 hectares, which is 70 percent of the net usable
area of 414.47 hectares.
112
 Article 1409 of the Civil Code provides as follows: "The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law; x x x; (4) Those whose object is outside the commerce of men; x
x x."

G.R. No. 177271             May 4, 2007

BANTAY REPUBLIC ACT OR BA-RA 7941, represented by MR. AMEURFINO E. CINCO, Chairman, AND URBAN
POOR FOR LEGAL REFORMS (UP-LR), represented by MRS. MYRNA P. PORCARE, Secretary-General, Petitioners,
vs.
COMMISSION ON ELECTIONS, BIYAHENG PINOY, KAPATIRAN NG MGA NAKAKULONG NA WALANG SALA
(KAKUSA), BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND TRANSPARENCY (BANAT), AHON
PINOY, AGRICULTURAL SECTOR ALLIANCE OF THE PHILIPPINES, INC. (AGAP), PUWERSA NG BAYANING
ATLETA (PBA), ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA PARA SA MAMAMAYAN,
INC. (AGHAM), BABAE PARA SA KAUNLARAN (BABAE KA), AKSYON SAMBAYANAN (AKSA), ALAY SA BAYAN
NG MALAYANG PROPESYUNAL AT REPORMANG KALAKAL (ABAY-PARAK), AGBIAG TIMPUYOG ILOCANO,
INC. (AGBIAG!), ABANTE ILONGGO, INC. (ABA ILONGGO), AANGAT TAYO (AT), AANGAT ANG KABUHAYAN
(ANAK), BAGO NATIONAL CULTURAL SOCIETY OF THE PHILIPPINES (BAGO), ANGAT ANTAS-KABUHAYAN
PILIPINO MOVEMENT (AANGAT KA PILIPINO), ARTS BUSINESS AND SCIENCE PROFESSIONAL (ABS),
ASSOSASYON NG MGA MALILIIT NA NEGOSYANTENG GUMAGANAP INC. (AMANG), SULONG BARANGAY
MOVEMENT, KASOSYO PRODUCERS CONSUMER EXCHANGE ASSOCIATION, INC. (KASOSYO), UNITED
MOVEMENT AGAINST DRUGS (UNI-MAD), PARENTS ENABLING PARENTS (PEP), ALLIANCE OF NEO-
CONSERVATIVES (ANC), FILIPINOS FOR PEACE, JUSTICE AND PROGRESS MOVEMENT (FPJPM), BIGKIS
PINOY MOVEMENT (BIGKIS), 1-UNITED TRANSPORT KOALISYON (1-UNTAK), ALLIANCE FOR BARANGAY
CONCERNS (ABC), BIYAYANG BUKID, INC., ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), AKBAY
PINOY OFW-NATIONAL INC., (APOI), ALLIANCE TRANSPORT SECTOR (ATS), KALAHI SECTORAL PARTY
(ADVOCATES FOR OVERSEAS FILIPINO) AND ASSOCIATION OF ADMINISTRATORS, PROFESSIONALS AND
SENIORS (AAPS), Respondents.

x--------------------------------------------------x

G.R. No. 177314             May 4, 2007

REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY KATARUNGAN

FOUNDATION, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

DECISION

GARCIA, J.:

Before the Court are these two consolidated petitions for certiorari and mandamus to nullify and set aside certain issuances of the
Commission on Elections (Comelec) respecting party-list groups which have manifested their intention to participate in the party-list
elections on May 14, 2007.

In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act (BA-RA 7941, for short) and the Urban Poor for
Legal Reforms (UP-LR, for short) assail the various Comelec resolutions accrediting private respondents Biyaheng Pinoy et al., to
participate in the forthcoming party-list elections on May 14, 2007 without simultaneously determining whether or not their respective
nominees possess the requisite qualifications defined in Republic Act (R.A.) No. 7941, or the "Party-List System Act" and belong to
the marginalized and underrepresented sector each seeks to represent. In the second, docketed as G.R. No. 177314, petitioners Loreta
Ann P. Rosales, Kilosbayan Foundation and Bantay Katarungan Foundation impugn Comelec Resolution 07-0724 dated April 3, 2007
effectively denying their request for the release or disclosure of the names of the nominees of the fourteen (14) accredited participating
party-list groups mentioned in petitioner Rosales’ previous letter-request.

While both petitions commonly seek to compel the Comelec to disclose or publish the names of the nominees of the various party-list
groups named in the petitions,1 the petitioners in G.R. No. 177271 have the following additional prayers: 1) that the 33 private
respondents named therein be "declare[d] as unqualified to participate in the party-list elections as sectoral organizations, parties or
coalition for failure to comply with the guidelines prescribed by the [Court] in [Ang Bagong Bayani v. Comelec 2]" and, 2)
correspondingly, that the Comelec be enjoined from allowing respondent groups from participating in the May 2007 elections.

In separate resolutions both dated April 24, 2007, the Court en banc required the public and private respondents to file their respective
comments on the petitions within a non-extendible period of five (5) days from notice. Apart from respondent Comelec, seven (7)
private respondents3 in G.R. No. 177271 and one party-list group4 mentioned in G.R. No. 177314 submitted their separate comments.
In the main, the separate comments of the private respondents focused on the untenability and prematurity of the plea of petitioners
BA-RA 7941 and UP-LR to nullify their accreditation as party-list groups and thus disqualify them and their respective nominees
from participating in the May 14, 2007 party-list elections.

The facts:

On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern the filing of manifestation
of intent to participate and submission of names of nominees under the party-list system of representation in connection with the May
14, 2007 elections. Pursuant thereto, a number of organized groups filed the necessary manifestations. Among these – and ostensibly
subsequently accredited by the Comelec to participate in the 2007 elections - are 14 party-list groups, namely: (1) BABAE KA;
(2) ANG KASANGGA; (3) AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY;
(9) ANAD; (10) AANGAT ANG KABUHAYAN; (11) AGBIAG; (12) BANAT; (13) BANTAY LIPAD; (14) AGING PINOY. Petitioners
BA-RA 7941 and UP-LR presented a longer, albeit an overlapping, list.
Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify, thereunder seeking to
disqualify the nominees of certain party-list organizations. Both petitioners appear not to have the names of the nominees sought to be
disqualified since they still asked for a copy of the list of nominees. Docketed in the Comelec as SPA Case No 07-026, this urgent
petition has yet to be resolved.

Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned 14 party-list groups do not, as
they should, actually represent the poor and marginalized sectors, petitioner Rosales, in G.R. No. 177314, addressed a letter 5 dated
March 29, 2007 to Director Alioden Dalaig of the Comelec’s Law Department requesting a list of that groups’ nominees. Another
letter6 of the same tenor dated March 31, 2007 followed, this time petitioner Rosales impressing upon Atty. Dalaig the particular
urgency of the subject request.

Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales’ requests. The April 13, 2007 issue of
the Manila Bulletin, however, carried the front-page banner headline "COMELEC WON’T BARE PARTY-LIST NOMINEES", 7 with
the following sub-heading: "Abalos says party-list polls not personality oriented."

On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and as counsels of petitioner
Rosales, forwarded a letter8 to the Comelec formally requesting action and definitive decision on Rosales’ earlier plea for information
regarding the names of several party-list nominees. Invoking their constitutionally-guaranteed right to information, Messrs. Capulong
and Salonga at the same time drew attention to the banner headline adverted to earlier, with a request for the Comelec, "collectively or
individually, to issue a formal clarification, either confirming or denying … the banner headline and the alleged statement of
Chairman Benjamin Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et al., was the issuance of Comelec en
banc Resolution 07-07249 under date April 3, 2007 virtually declaring the nominees’ names confidential and in net effect denying
petitioner Rosales’ basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows:

RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in connection with the May 14,
2007 Elections only after 3:00 p.m. on election day.

Let the Law Department implement this resolution and reply to all letters addressed to the Commission inquiring on the party-list
nominees. (Emphasis added.)

According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007 Resolution only on April 21, 2007. She would later
state the observation that the last part of the "Order empowering the Law Department to ‘implement this resolution and reply to all
letters … inquiring on the party-list nominees’ is apparently a fool-proof bureaucratic way to distort and mangle the truth and give
the impression that the antedated Resolution of April 3, 2007 … is the final answer to the two formal requests … of Petitioners". 10

The herein consolidated petitions are cast against the foregoing factual setting, albeit petitioners BA-RA 7941 and UP-LR appear not
to be aware, when they filed their petition on April 18, 2007, of the April 3, 2007 Comelec Resolution 07-0724.

To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the accreditation accorded by the Comelec to the
respondent party-list groups named in their petition on the ground that these groups and their respective nominees do not appear to be
qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec -

xxx committed grave abuse of discretion … when it granted the assailed accreditations even without simultaneously determining
whether the nominees of herein private respondents are qualified or not, or whether or not the nominees are likewise belonging to the
marginalized and underrepresented sector they claim to represent in Congress, in accordance with No. 7 of the eight-point guidelines
prescribed by the Honorable Supreme in the Ang Bagong Bayani 11 case which states that, "not only the candidate party or organization
must represent marginalized and underrepresented sectors; so also must its nominees." In the case of private respondents, public
respondent Comelec granted accreditations without the required simultaneous determination of the qualification of the nominees as
part of the accreditation process of the party-list organization itself. (Words in bracket added; italization in the original)12

The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of accreditation on the grounds
thus advanced in their petition. For, such course of action would entail going over and evaluating the qualities of the sectoral groups or
parties in question, particularly whether or not they indeed represent marginalized/underrepresented groups. The exercise would
require the Court to make a factual determination, a matter which is outside the office of judicial review by way of special civil action
for certiorari. In certiorari proceedings, the Court is not called upon to decide factual issues and the case must be decided on the
undisputed facts on record.13 The sole function of a writ of certiorari is to address issues of want of jurisdiction or grave abuse of
discretion and does not include a review of the tribunal’s evaluation of the evidence.14

Not lost on the Court of course is the pendency before the Comelec of SPA Case No. 07-026 in which petitioners BA-RA 7941 and
UP-LR themselves seek to disqualify the nominees of the respondent party-list groups named in their petition.
Petitioners BA-RA 7941’s and UP-LR’s posture that the Comelec committed grave abuse of discretion when it granted the assailed
accreditations without simultaneously determining the qualifications of their nominees is without basis. Nowhere in R.A. No. 7941 is
there a requirement that the qualification of a party-list nominee be determined simultaneously with the accreditation of an
organization. And as aptly pointed out by private respondent Babae Para sa Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941
requires a petition for registration of a party-list organization to be filed with the Comelec "not later than ninety (90) days before the
election" whereas the succeeding Section 8 requires the submission "not later than forty-five (45) days before the election" of the list
of names whence party-list representatives shall be chosen.

Now to the other but core issues of the case. The petition in G.R. No. 177314 formulates and captures the main issues tendered by the
petitioners in these consolidated cases and they may be summarized as follows:

1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-list groups, has
violated the right to information and free access to documents as guaranteed by the Constitution; and

2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of said nominees.

While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of subject party-list groups on
Section 7 of R.A. 7941. This provision, while commanding the publication and the posting in polling places of a certified list of party-
list system participating groups, nonetheless tells the Comelec not to show or include the names of the party-list nominees in said
certified list. Thus:

SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before election, prepare a certified
list of national, regional, or sectoral parties, organizations or coalitions which have applied or who have manifested their desire to
participate under the party-list system and distribute copies thereof to all precincts for posting in the polling places on election
day. The names of the party-list nominees shall not be shown on the certified list. (Emphasis added.)

And doubtless part of Comelec’s reason for keeping the names of the party list nominees away from the public is deducible from the
following excerpts of the news report appearing in the adverted April 13, 2007 issue of the Manila Bulletin:

The Commission on Elections (COMELEC) firmed up yesterday its decision not to release the names of nominees of sectoral parties,
organizations, or coalitions accredited to participate in the party-list election which will be held simultaneously with the May 14 mid-
term polls.

COMELEC Chairman Benjamin S. Abalos, Sr. … said he and [the other five COMELEC] Commissioners --- believe that the party
list elections must not be personality oriented.

Abalos said under [R.A.] 7941 …, the people are to vote for sectoral parties, organizations, or coalitions, not for their nominees.

He said there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees. xxx (Words in brackets and
emphasis added)

Insofar as the disclosure issue is concerned, the petitions are impressed with merit.

Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to information enshrined in the
self-executory15 Section 7, Article III of the Constitution, viz:

Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or decisions, as well to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Complementing and going hand in hand with the right to information is another constitutional provision enunciating the policy of full
disclosure and transparency in Government. We refer to Section 28, Article II of the Constitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its
transactions involving public interest.

The right to information is a public right where the real parties in interest are the public, or the citizens to be precise. And for every
right of the people recognized as fundamental lies a corresponding duty on the part of those who govern to respect and protect that
right. This is the essence of the Bill of Rights in a constitutional regime. 16 Without a government’s acceptance of the limitations upon
it by the Constitution in order to uphold individual liberties, without an acknowledgment on its part of those duties exacted by the
rights pertaining to the citizens, the Bill of Rights becomes a sophistry.

By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to information and may seek its
enforcement by mandamus.17 And since every citizen by the simple fact of his citizenship possesses the right to be informed,
objections on ground of 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 people’s right to know is limited to "matters of public concern" and is further subject to
such limitation as may be provided by law. Similarly, the policy of full disclosure is confined to transactions involving "public
interest" and is subject to reasonable conditions prescribed by law. Too, there is also the need of preserving a measure of
confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those affecting national security.19

The terms "public concerns" and "public interest" have eluded precise definition. But both terms embrace, to borrow from Legaspi, a
broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such
matters naturally whet the interest of an ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case basis,
whether or not at issue is of interest or importance to the public.

If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as sanitarians of a health department of
a city are civil service eligibles, surely the identity of candidates for a lofty elective public office should be a matter of highest public
concern and interest.

As may be noted, no national security or like concerns is involved in the disclosure of the names of the nominees of the party-list
groups in question. Doubtless, the Comelec committed grave abuse of discretion in refusing the legitimate demands of the petitioners
for a list of the nominees of the party-list groups subject of their respective petitions. Mandamus, therefore, lies.

The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be shown on the certified list" is
certainly not a justifying card for the Comelec to deny the requested disclosure. To us, the prohibition imposed on the Comelec under
said Section 7 is limited in scope and duration, meaning, that it extends only to the certified list which the same provision requires to
be posted in the polling places on election day. To stretch the coverage of the prohibition to the absolute is to read into the law
something that is not intended. As it were, there is absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or
even publishing through mediums other than the "Certified List" the names of the party-list nominees. The Comelec obviously
misread the limited non-disclosure aspect of the provision as an absolute bar to public disclosure before the May 2007 elections. The
interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the last sentence of Section 7 of R.A. No.
7941.

The Comelec’s reasoning that a party-list election is not an election of personalities is valid to a point. It cannot be taken, however, to
justify its assailed non-disclosure stance which comes, as it were, with a weighty presumption of invalidity, impinging, as it does, on a
fundamental right to information.20 While the vote cast in a party-list elections is a vote for a party, such vote, in the end, would be a
vote for its nominees, who, in appropriate cases, would eventually sit in the House of Representatives.

The Court is very much aware of newspaper reports detailing the purported reasons behind the Comelec’s disinclination to release the
names of party-list nominees. It is to be stressed, however, that the Court is in the business of dispensing justice on the basis of hard
facts and applicable statutory and decisional laws. And lest it be overlooked, the Court always assumes, at the first instance, the
presumptive validity and regularity of official acts of government officials and offices.

It has been repeatedly said in various contexts that the people have the right to elect their representatives on the basis of an informed
judgment. Hence the need for voters to be informed about matters that have a bearing on their choice. The ideal cannot be achieved in
a system of blind voting, as veritably advocated in the assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner
v. Romulo,21 has consistently made it clear that it frowns upon any interpretation of the law or rules that would hinder in any way the
free and intelligent casting of the votes in an election.22 So it must be here for still other reasons articulated earlier.

In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and release the names of the
nominees of the party-list groups named in the herein petitions.

WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to nullify the accreditation of the respondents
named therein. However, insofar as it seeks to compel the Comelec to disclose or publish the names of the nominees of party-list
groups, sectors or organizations accredited to participate in the May 14, 2007 elections, the same petition and the petition in G.R. No.
177314 are GRANTED. Accordingly, the Comelec is hereby ORDERED to immediately disclose and release the names of the
nominees of the party-list groups, sectors or organizations accredited to participate in the May 14, 2007 party-list elections. The
Comelec is further DIRECTED to submit to the Court its compliance herewith within five (5) days from notice hereof.

This Decision is declared immediately executory upon its receipt by the Comelec.

No pronouncement as to cost.

SO ORDERED.

CANCIO C. GARCIA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Asscociate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Asscociate Justice

(on leave) (on leave)

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ADOLFO S. AZCUNA

Associate Justice Asscociate Justice

DANTE O. TINGA MINITA V. CHICO-NAZARIO

Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA

Associate Justice Asscociate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes
1
 At least nine (9) party-list groups subject of the second petition are respondents in the first petition.
2
 G. R. No. 147589, June 26, 2001, 359 SCRA 698.
3
 ABS, Babae Ka, PEP, ANC, FPJPM, AAPS, AANGAT ka Pilipino and KALAHI.
4
 AKSA.
5
 Annex "E," of Petition in G.R. No. 177314.
6
 Annex "F," of Petition in G.R. No. 177314.
7
 Petition (G.R. 177314), p. 8.
 8
 Annex "G," of Petition in G.R. No. 177314.
9
 Annex " B," of Petition in G.R. No. 177314.
10
 Petition in G.R. SP. No.177314, p. 3.
11
 Ang Bagong Bayani-OFW Labor Part v. Commission on Elections, Supra note 2.
12
 Page 5 of the petition in G. R. No. 177271.
13
 Pobre v. Gonong, G. R. No. L-60575, March 16, 1987, 148 SCRA 553.
14
 Sea Power Shipping Enterprises, Inc. v. CA, G.R. No. 138270, June 28, 2001, 360 SCRA 173; Oro v. Diaz, G.R. No.
140974, July 11, 2001, 361 SCRA 108.
15
 Gonzales v. Narvasa, G.R. No. 140835, August 14, 2000, 337 SCRA 733.
16
 Legaspi v. Civil Service Commission, G. R. No. L-72119, May 19, 1987, 150 SCRA 530, citing Cooley.
17
 Tanada v. Tuvera, G. R. No. L-63915, April 24, 1985, 136 SCRA 27.
18
 Bernas, The Constitution of the Philippines: A Commentary, 1996 ed., p. 334.
19
 Chavez v. PCGG, G.R. No. 130716, December 9, 1998, 299 SCRA 744.
20
 Ayer Productions Pty. Ltd. v. Capulong, G.R. No. L- 82380, April 29, 1988, 160 SCRA 861.
21
 G. R. No. L-8921, January 9, 1914, 26 Phil. 521.
22
 Rodriquez v. Commission on Elections, G. R. No. L-61545, December 27, 1982, 119 SCRA 465.

A.C. 1928 December 19, 1980

In the Matter of the IBP Membership Dues Delinquency of Atty. MARCIAL A. EDILLION (IBP Administrative Case No.
MDD-1), petitioner,

FERNANDO, C.J.:

The full and plenary discretion in the exercise of its competence to reinstate a disbarred member of the bar admits of no doubt. All the
relevant factors bearing on the specific case, public interest, the integrity of the profession and the welfare of the recreant who had
purged himself of his guilt are given their due weight. Respondent Marcial A. Edillon was disbarred on August 3, 1978, 1 the vote
being unanimous with the late.

Chief Justice Castro ponente. From June 5, 1979, he had repeatedly pleaded that he be reinstated. The minute resolution dated October
23, 1980, granted such prayer. It was there made clear that it "is without prejudice to issuing an extended opinion." 2

Before doing so, a recital of the background facts that led to the disbarment of respondent may not be amiss. As set forth in the
resolution penned by the late Chief Justice Castro: "On November 29. 1975, the Integrated Bar of the Philippines (IBP for short)
Board of Governors, unanimously adopted Resolution No. 75-65 in Administrative case No. MDD-1 (In the Matter of the
Membership Dues Delinquency of Atty. Marcial A. Edillon) recommending to the Court the removal of the name of the respondent
from its Roll of Attorneys for 'stubborn refusal to pay his membership dues' to the IBP since the latter's constitution notwithstanding
due notice. On January 21, 1976, the IBP, through its then President Liliano B. Neri, submitted the said resolution to the Court for
consideration and approval,. Pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP, which. reads: ... Should the
delinquency further continue until the following June 29, the Board shall promptly inquire into the cause or causes of the continued
delinquency and take whatever action it shall deem appropriate, including a recommendation to the Supreme Court for the removal of
the delinquent member's name from the Roll of Attorneys. Notice of the action taken should be submit by registered mail to the
member and to the Secretary of the Chapter concerned.' On January 27, 1976, the Court required the respondent to comment on the
resolution and letter adverted to above he submitted his comment on February 23, 1976, reiterating his refusal to pay the membership
fees due from him. On March 2, 1976, the Court required the IBP President and the IBP Board of Governors to reply to Edillon's
comment: On March 24, 1976, they submitted a joint reply. Thereafter, the case was set for hearing on June 3, 1976. After the hearing,
the parties were required to submit memoranda in amplification of their oral arguments. The matter was thenceforth submitted for
resolution." 3

Reference was then made to the authority of the IBP Board of Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys as found in Rules of Court: 'Effect of non-payment of dues. — Subject to the
provisions of Section 12 of this Rule, default in the payment of annual dues for six months shall warrant suspension of membership in
the Integrated Bar, and default in such payment for one year shall be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys. 4

The submission of respondent Edillion as summarized in the aforesaid resolution "is that the above provisions constitute an invasion
of his constitutional rights in the sense that he is being compelled, as a pre-condition to maintaining his status as a lawyer in good
standing, to be a member of the IBP and to pay the corresponding dues, and that as a consequence of this compelled financial support
of the said organization to which he is admittedly personally antagonistic, he is being deprived of the rights to liberty and property
guaranteed to him by the Constitution. Hence, the respondent concludes, the above provisions of the Court Rule and of the IBP By-
Laws are void and of no legal force and effect. 5 It was pointed out in the resolution that such issues was raised on a previous case
before the Court, entitled 'Administrative Case No. 526, In the Matter of the Petition for the Integration of the Bar of the Philippines,
Roman Ozaeta, et al., Petitioners.' The Court exhaustively considered all these matters in that case in its Resolution ordaining the
integration of the Bar of the Philippines, promulgated on January 9, 1973. 6 The unanimous conclusion reached by the Court was that
the integration of the Philippine Bar raises no constitutional question and is therefore legally unobjectionable, "and, within the context
of contemporary conditions in the Philippine, has become an imperative means to raise the standards of the legal profession, improve
the administration of justice, and enable the Bar to discharge its public responsibility fully and effectively." 7

As mentioned at the outset, the vote was unanimous. From the time the decision was rendered, there were various pleadings filed by
respondent for reinstatement starting with a motion for reconsideration dated August 19, 1978. Characterized as it was by persistence
in his adamantine refusal to admit the full competence of the Court on the matter, it was not unexpected that it would be denied. So it
turned out. 8 It was the consensus that he continued to be oblivious to certain balic juridical concepts, the appreciation of which does
not even require great depth of intellect. Since respondent could not be said to be that deficient in legal knowledge and since his
pleadings in other cases coming before this Tribunal were quite literate, even if rather generously sprinkled with invective for which
he had been duly taken to task, there was the impression that his recalcitrance arose from and sheer obstinacy. Necessary, the extreme
penalty of disbarment visited on him was more than justified.

Since then, however, there were other communications to this Court where a different attitude on his part was discernible. 9 The tone
of defiance was gone and circumstances of a mitigating character invoked — the state of his health and his advanced age. He likewise
spoke of the welfare of former clients who still rely on him for counsel, their confidence apparently undiminished. For he had in his
career been a valiant, if at times unreasonable, defender of the causes entrusted to him.

This Court, in the light of the above, felt that reinstatement could be ordered and so it did in the resolution of October 23, 1980. It
made certain that there was full acceptance on his part of the competence of this Tribunal in the exercise of its plenary power to
regulate the legal profession and can integrate the bar and that the dues were duly paid. Moreover, the fact that more than two years
had elapsed during which he war. barred from exercising his profession was likewise taken into account. It may likewise be said that
as in the case of the inherent power to punish for contempt and paraphrasing the dictum of Justice Malcolm in Villavicencio v.
Lukban, 10 the power to discipline, especially if amounting to disbarment, should be exercised on the preservative and not on the
vindictive principle. 11

One last word. It has been pertinently observed that there is no irretrievable finality as far as admission to the bar is concerned. So it is
likewise as to loss of membership. What must ever be borne in mind is that membership in the bar, to follow Cardozo, is a privilege
burdened with conditions. Failure to abide by any of them entails the loss of such privilege if the gravity thereof warrant such drastic
move. Thereafter a sufficient time having elapsed and after actuations evidencing that there was due contrition on the part of the
transgressor, he may once again be considered for the restoration of such a privilege. Hence, our resolution of October 23, 1980.

The Court restores to membership to the bar Marcial A. Edillon.

Teehankee, Barredo, Makasiar, Concepcion, Jr., Fernandez, Guerrero, Abad Santos, De Castro and Melencio-Herrera, JJ., concur.

Aquino, J., concurs in the result.

Footnotes

1 In re Atty, Marcial A. Edillon, AC-1928, August 3, 1978, 84 SCRA 554.

2 The minute resolution reads in full:- "Acting on the petition of Mr. Marcial Edillon for reinstatement to the Roll of
Attorneys and it appearing that he had fully paid his delinquant membership fees due the Integrated Bar of the
Philippines and submitted to the IBP Board of Governors a verified application for reinstatement together with an
undertaking to abide by all By-laws and resolutions by said Board in the event of reinstatement, the Court Resolved
to GRANT the petition of Mr. Marcial A. Edillon for as member of the Philippine Bar. He is hereby allowed to take
anew the lawyer's oath and sign the Roll of Attorneys after payment of the required fees. This resolution is without
prejudice to is an extended opinion.
3 84 SCRA 559.
4 Section 10, Rule of Court 139-A.
5 84 SCRA 561.
6 Ibid, 561. The reference is to Administrative Case No. 526. In ,he Matter of the Petition for the Integration of the
Bar of the Philippines, January 9, 1973, 49 SCRA 22.
7 In re Integration of the Bar of the Philippines, January 9, 1973, 49 SCRA 22, 33.
8 The resolution denying the motion was issued on November 13, 1978.
 9 Letters dated June 5, 1979, August 7, 1979, November 13, 1979, April 12, 1980.
10 39 Phil. 778 (1919).
11 People v. Estenzo. L-24522, May 29, 1975, 64 SCRA 211; Fontelera v. Amores, L-41361. March 8, 1976, 70
SCRA 37; Royeca v., Animas, L-39584, May 3, 1976, 71 SCRA 1; Blancaflor v. Laya, L-31399, March 17, 1978,
82 SCRA 148; Calo v. Tapucar, L-47244, January 16, 1979, 88 SCRA 78.

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."1 Pursuant to this policy, P.D. No. 269 aims to "promote, encourage and assist all public service entities
engaged in supplying electric service, particularly electric cooperatives" by "giving every tenable support and assistance" to the
electric cooperatives coming within the purview of the law.2 Accordingly, Section 39 of P.D. No. 269 provides for the following tax
incentives to electric cooperatives:

SECTION 39. Assistance to Cooperatives; Exemption from Taxes, Imposts, Duties, Fees; Assistance from the National Power
Corporation. — Pursuant to the national policy declared in Section 2, the Congress hereby finds and declares that the following
assistance to cooperative is necessary and appropriate:

(a) Provided that it operates in conformity with the purposes and provisions of this Decree, cooperatives (1) shall be permanently
exempt from paying income taxes, and (2) for a period ending on December 31 of the thirtieth full calendar year after the date of a
cooperative's organization or conversion hereunder, or until it shall become completely free of indebtedness incurred by borrowing,
whichever event first occurs, shall be exempt from the payment (a) of all National Government, local government and municipal
taxes and fees, including franchise, filing, recordation, license or permit fees or taxes and any fees, charges, or costs involved in
any court or administrative proceeding in which it may be a party, and (b) of all duties or imposts on foreign goods acquired
for its operations, the period of such exemption for a new cooperative formed by consolidation, as provided for in Section 29, to
begin from as of the date of the beginning of such period for the constituent consolidating cooperative which was most recently
organized or converted under this Decree: Provided, That the Board of Administrators shall, after consultation with the Bureau of
Internal Revenue, promulgate rules and regulations for the proper implementation of the tax exemptions provided for in this Decree.

….3

From 1971 to 1978, in order to finance the electrification projects envisioned by P.D. No. 269, as amended, the Philippine
Government, acting through the National Economic Council (now National Economic Development Authority) and the NEA, entered
into six (6) loan agreements with the government of the United States of America through the United States Agency for International
Development (USAID) with electric cooperatives, including petitioners ANECO, ILECO I and ISELCO I, as beneficiaries. The six (6)
loan agreements involved a total amount of approximately US$86,000,000.00. These loan agreements are existing until today.
The loan agreements contain similarly worded provisions on the tax application of the loan and any property or commodity acquired
through the proceeds of the loan. Thus, Section 6.5 of A.I.D. Loan No. 492-H-027 dated November 15, 1971 provides:

Section 6.5. Taxes and Duties. The Borrower covenants and agrees that this Loan Agreement and the Loan provided for herein shall
be free from, and the Principal and interest shall be paid to A.I.D. without deduction for and free from, any taxation or fees imposed
under any laws or decrees in effect within the Republic of the Philippines or any such taxes or fees so imposed or payable shall be
reimbursed by the Borrower with funds other than those provided under the Loan. To the extent that (a) any contractor, including any
consulting firm, any personnel of such contractor financed hereunder, and any property or transactions relating to such contracts and
(b) any commodity procurement transactions financed hereunder, are not exempt from identifiable taxes, tariffs, duties and other
levies imposed under laws in effect in the country of the Borrower, the Borrower and/or Beneficiary shall pay or reimburse the same
with funds other than those provided under the Loan.4

Petitioners contend that pursuant to the provisions of P.D. No. 269, as amended, and the above-mentioned provision in the loan
agreements, they are exempt from payment of local taxes, including payment of real property tax. With the passage of the Local
Government Code, however, they allege that their tax exemptions have been invalidly withdrawn. In particular, petitioners assail
Sections 193 and 234 of the Local Government Code on the ground that the said provisions discriminate against them, in violation of
the equal protection clause. Further, they submit that the said provisions are unconstitutional because they impair the obligation of
contracts between the Philippine Government and the United States Government.

On July 25, 2000 we issued a Temporary Restraining Order.5

We note that the instant action was filed directly to this Court, in disregard of the rule on hierarchy of courts. However, we opt to take
primary jurisdiction over the present petition and decide the same on its merits in view of the significant constitutional issues raised by
the parties dealing with the tax treatment of cooperatives under existing laws and in the interest of speedy justice and prompt
disposition of the matter.

There is No Violation of the Equal Protection Clause

The pertinent parts of Sections 193 and 234 of the Local Government Code provide:

Section 193. Withdrawal of Tax Exemption Privileges.—Unless otherwise provided in this Code, tax exemptions or incentives granted
to, or presently enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except
local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational
institutions, are hereby withdrawn upon the effectivity of this Code.

….

Section 234. Exemptions from real property tax.—The following are exempted from payment of the real property tax:

….

(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and

….

Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all
persons whether natural or juridical, including all government-owned and controlled corporations are hereby withdrawn upon
effectivity of this Code.6

Petitioners argue that the above provisions of the Local Government Code are unconstitutional for violating the equal protection
clause. Allegedly, said provisions unduly discriminate against petitioners who are duly registered cooperatives under P.D. No. 269, as
amended, and not under R.A. No. 6938 or the Cooperative Code of the Philippines. They stress that cooperatives registered under
R.A. No. 6938 are singled out for tax exemption privileges under the Local Government Code. They maintain that electric
cooperatives registered with the NEA under P.D. No. 269, as amended, and electric cooperatives registered with the Cooperative
Development Authority (CDA) under R.A. No. 6938 are similarly situated for the following reasons: a) petitioners are registered with
the NEA which is a government agency like the CDA; b) petitioners, like CDA-registered cooperatives, operate for service to their
member-consumers; and c) prior to the enactment of the Local Government Code, petitioners, like CDA-registered cooperatives, were
already tax-exempt.7 Thus, petitioners contend that to grant tax exemptions from local government taxes, including real property tax
under Sections 193 and 234 of the Local Government Code only to registered cooperatives under R.A. No. 6938 is a violation of the
equal protection clause.

We are not persuaded. The equal protection clause under the Constitution means that "no person or class of persons shall be deprived
of the same protection of laws which is enjoyed by other persons or other classes in the same place and in like circumstances." 8 Thus,
the guaranty of the equal protection of the laws is not violated by a law based on reasonable classification. Classification, to be
reasonable, must (1) rest on substantial distinctions; (2) be germane to the purposes of the law; (3) not be limited to existing conditions
only; and (4) apply equally to all members of the same class.9

We hold that there is reasonable classification under the Local Government Code to justify the different tax treatment between electric
cooperatives covered by P.D. No. 269, as amended, and electric cooperatives under R.A. No. 6938.

First, substantial distinctions exist between cooperatives under P.D. No. 269, as amended, and cooperatives under R.A. No. 6938.
These distinctions are manifest in at least two material respects which go into the nature of cooperatives envisioned by R.A. No. 6938
and which characteristics are not present in the type of cooperative associations created under P.D. No. 269, as amended.

a. Capital Contributions by Members

A cooperative under R.A. No. 6938 is defined as:

[A] duly registered association of persons with a common bond of interest, who have voluntarily joined together to achieve a lawful
common or social economic end, making equitable contributions to the capital required and accepting a fair share of the risks and
benefits of the undertaking in accordance with universally accepted cooperative principles.10

The above definition provides for the following elements of a cooperative: a) association of persons; b) common bond of interest; c)
voluntary association; d) lawful common social or economic end; e) capital contributions; f) fair share of risks and benefits; g)
adherence to cooperative values; and g) registration with the appropriate government authority.11

The importance of capital contributions by members of a cooperative under R.A. No. 6938 was emphasized during the Senate
deliberations as one of the key factors which distinguished electric cooperatives under P.D. No. 269, as amended, from electric
cooperatives under the Cooperative Code. Thus:

Senator Osmeña. Will this Code, Mr. President, cover electric cooperatives as they exist in the country today and are administered by
the National Electrification Administration?

Senator Aquino. That cannot be answered with a simple yes or no, Mr. President. The answer will depend on what provisions we will
eventually come up with. Electric cooperatives as they exist today would not fall under the term "cooperative" as used in this bill
because the concept of a cooperative is that which adheres and practices certain cooperative principles. ….

….

Senator Aquino. To begin with, one of the most important requirements, Mr. President, is the principle where members bind
themselves to help themselves. It is because of their collectivity that they can have some economic benefits. In this particular case
[cooperatives under P.D. No. 269], the government is the one that funds these so-called electric cooperatives. …

….

Senator Aquino. … That is why in Article III we have the following definition:

A cooperative is an association of persons with a common bond of interest who have voluntarily joined together to achieve a common
social or economic end, making equitable contributions to the capital required.

In this particular case [cooperatives under P.D. No. 269], Mr. President, the members do not make substantial contribution to
the capital required. It is the government that puts in the capital, in most cases.

….
Senator Osmeña. Under line 6, Mr. President, making equitable contributions to the capital required would exclude electric
cooperatives [under P.D. No. 269]. Because the membership does not make equitable contributions.

Senator Aquino. Yes, Mr. President. This is precisely what I mean, that electric cooperatives [under P.D. No. 269] do not qualify in
the spirit of cooperatives. That is the reason why they should be eventually assessed whether they intend to comply with the
cooperatives or not. Because, if after giving them a second time, they do not comply, then, they should not be classified as
cooperatives.

Senator Osmeña. Mr. President, the measure of their qualifying as a cooperative would be the requirement that a member of
the electric cooperative must contribute a pro rata share of the capital of the cooperative in cash to be a cooperative.12

Nowhere in P.D. No. 269, as amended, does it require cooperatives to make equitable contributions to capital. Petitioners themselves
admit that to qualify as a member of an electric cooperative under P.D. No. 269, only the payment of a ₱5.00 membership fee is
required which is even refundable the moment the member is no longer interested in getting electric service from the cooperative or
will transfer to another place outside the area covered by the cooperative. 13 However, under the Cooperative Code, the articles of
cooperation of a cooperative applying for registration must be accompanied with the bonds of the accountable officers and a sworn
statement of the treasurer elected by the subscribers showing that at least twenty-five per cent (25%) of the authorized share capital
has been subscribed and at least twenty-five per cent (25%) of the total subscription has been paid and in no case shall the paid-up
share capital be less than Two thousand pesos (P2,000.00).14

b. Extent of Government Control over Cooperatives

Another principle adhered to by the Cooperative Code is the principle of subsidiarity. Pursuant to this principle, the government may
only engage in development activities where cooperatives do not posses the capability nor the resources to do so and only upon the
request of such cooperatives.15 Thus, Article 2 of the Cooperative Code provides:

Art. 2. Declaration of Policy. — It is the declared policy of the State to foster the creation and growth of cooperatives as a practical
vehicle for prompting self-reliance and harnessing people power towards the attainment of economic development and social justice.
The State shall encourage the private sector to undertake the actual formation and organization to cooperatives and shall create an
atmosphere that is conducive to the growth and development of these cooperatives.

Towards this end, the Government and all its branches, subdivisions, instrumentalities and agencies shall ensure the provision of
technical guidance, financial assistance and other services to enable said cooperatives to develop into viable and responsive economic
enterprises and thereby bring about a strong cooperative movement that is free from any conditions that might infringe upon the
autonomy or organizational integrity of cooperatives.

Further, the State recognizes the principle of subsidiarity under which the cooperative sector will initiate and regulate within
its own ranks the promotion and organization, training and research, audit and support services relating to cooperatives with
government assistance where necessary.16

Accordingly, under the charter of the CDA, or the primary government agency tasked to promote and regulate the institutional
development of cooperatives, it is the declared policy of the State that:

[g]overnment assistance to cooperatives shall be free from any restriction and conditionality that may in any manner infringe
upon the objectives and character of cooperatives as provided in this Act. The State shall, except as provided in this Act, maintain the
policy of noninterference in the management and operation of cooperatives.17

In contrast, P.D. No. 269, as amended by P.D. No. 1645, is replete with provisions which grant the NEA, upon the happening of
certain events, the power to control and take over the management and operations of cooperatives registered under it. Thus:

a) the NEA Administrator has the power to designate, subject to the confirmation of the Board of Administrators, an Acting
General Manager and/or Project Supervisor for a cooperative where vacancies in the said positions occur and/or when the
interest of the cooperative or the program so requires, and to prescribe the functions of the said Acting General Manager
and/or Project Supervisor, which powers shall not be nullified, altered or diminished by any policy or resolution of the Board
of Directors of the cooperative concerned;18

b) the NEA is given the power of supervision and control over electric cooperatives and pursuant to such powers, NEA may
issue orders, rules and regulations motu propio or upon petition of third parties to conduct referenda and other similar actions
in all matters affecting electric cooperatives;19
 c) No cooperative shall borrow money from any source without the approval of the Board of Administrators of the
NEA;20 and

d) The management of a cooperative shall be vested in its Board, subject to the supervision and control of NEA which shall
have the right to be represented and to participate in all Board meetings and deliberations and to approve all policies and
resolutions.21

The extent of government control over electric cooperatives covered by P.D. No. 269, as amended, is largely a function of the role of
the NEA as a primary source of funds of these electric cooperatives. It is crystal clear that NEA incurred loans from various sources to
finance the development and operations of the electric cooperatives. Consequently, amendments to P.D. No. 269 were primarily
geared to expand the powers of the NEA over the electric cooperatives to ensure that loans granted to them would be repaid to the
government. In contrast, cooperatives under R.A. No. 6938 are envisioned to be self-sufficient and independent organizations with
minimal government intervention or regulation.

To be sure, the transitory provisions of R.A. No. 6938 are indicative of the recognition by Congress of the fundamental distinctions
between electric cooperatives organized under P.D No. 269, as amended, and cooperatives under the new Cooperative Code. Article
128 of the Cooperative Code provides that all cooperatives registered under previous laws shall be deemed registered with the CDA
upon submission of certain requirements within one year. However, cooperatives created under P.D. No. 269, as amended, are given
three years within which to qualify and register with the CDA, after which, provisions of P.D. No. 1645 which expand the powers of
the NEA over electric cooperatives, would no longer apply.22

Second, the classification of tax-exempt entities in the Local Government Code is germane to the purpose of the law. The
Constitutional mandate that every local government unit shall enjoy local autonomy, does not mean that the exercise of power by local
governments is beyond regulation by Congress. Thus, while each government unit is granted the power to create its own sources of
revenue, Congress, in light of its broad power to tax, has the discretion to determine the extent of the taxing powers of local
government units consistent with the policy of local autonomy.23

Section 193 of the Local Government Code is indicative of the legislative intent to vest broad taxing powers upon local government
units and to limit exemptions from local taxation to entities specifically provided therein. Section 193 provides:

Section 193. Withdrawal of Tax Exemption Privileges.—Unless otherwise provided in this Code, tax exemptions or incentives granted
to, or presently enjoyed by all persons, whether natural or juridical, including government-owned and controlled corporations, except
local water districts, cooperatives duly registered under R.A. No. 6938, non-stock and non-profit hospitals and educational
institutions, are hereby withdrawn upon the effectivity of this Code.24

The above provision effectively withdraws exemptions from local taxation enjoyed by various entities and organizations upon
effectivity of the Local Government Code except for a) local water districts; b) cooperatives duly registered under R.A. No.
6938; and c) non-stock and non-profit hospitals and educational institutions. Further, with respect to real property taxes, the
Local Government Code again specifically enumerates entities which are exempt therefrom and withdraws exemptions enjoyed by all
other entities upon the effectivity of the code. Thus, Section 234 provides:

SEC. 234. Exemptions from Real Property Tax. — The following are exempted from payment of the real property tax:

(a) Real property owned by the Republic of the Philippines or any of its political subdivisions except when the beneficial use
thereof had been granted for consideration or otherwise, to a taxable person;

(b) Charitable institutions, churches, parsonages or convents appurtenant thereto, mosques, nonprofit or religious cemeteries
and all lands, buildings and improvements actually, directly, and exclusively used for religious, charitable or educational
purposes;

(c) All machineries and equipment that are actually, directly and exclusively used by local water districts and government-
owned or controlled corporations engaged in the supply and distribution of water and/or generation and transmission of
electric power;

(d) All real property owned by duly registered cooperatives as provided for under R.A. No. 6938; and

(e) Machinery and equipment used for pollution control and environmental protection.
Except as provided herein, any exemption from payment of real property tax previously granted to, or presently enjoyed by, all
persons, whether natural or juridical, including all government-owned or controlled corporations are hereby withdrawn upon the
effectivity of this Code.25

In Mactan Cebu International Airport Authority v. Marcos, 26 this Court held that the limited and restrictive nature of the tax
exemption privileges under the Local Government Code is consistent with the State policy to ensure autonomy of local governments
and the objective of the Local Government Code to grant genuine and meaningful autonomy to enable local government units to attain
their fullest development as self-reliant communities and make them effective partners in the attainment of national goals. The
obvious intention of the law is to broaden the tax base of local government units to assure them of substantial sources of revenue.

While we understand petitioners’ predicament brought about by the withdrawal of their local tax exemption privileges under the Local
Government Code, it is not the province of this Court to go into the wisdom of legislative enactments. Courts can only interpret laws.
The principle of separation of powers prevents them from re-inventing the laws.

Finally, Sections 193 and 234 of the Local Government Code permit reasonable classification as these exemptions are not limited to
existing conditions and apply equally to all members of the same class. Exemptions from local taxation, including real property tax,
are granted to all cooperatives covered by R.A. No. 6938 and such exemptions exist for as long as the Local Government Code and the
provisions therein on local taxation remain good law.

II

There is No Violation of the Non-Impairment Clause

It is ingrained in jurisprudence that the constitutional prohibition on the impairment of the obligation of contracts does not prohibit
every change in existing laws. To fall within the prohibition, the change must not only impair the obligation of the existing contract,
but the impairment must be substantial.27 What constitutes substantial impairment was explained by this Court in Clemons v.
Nolting:28

A law which changes the terms of a legal contract between parties, either in the time or mode of performance, or imposes new
conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms, is
law which impairs the obligation of a contract and is therefore null and void.

Moreover, to constitute impairment, the law must affect a change in the rights of the parties with reference to each other and not with
respect to non-parties.29

Petitioners insist that Sections 193 and 234 of the Local Government Code impair the obligations imposed under the six (6) loan
agreements executed by the NEA as borrower and USAID as lender.1âwphi1 All six agreements contain similarly worded provisions
on the tax treatment of the proceeds of the loan and properties and commodities acquired through the loan. Thus:

Section 6.5. Taxes and Duties. The Borrower covenants and agrees that this Loan Agreement and the Loan provided for herein shall
be free from, and the Principal and interest shall be paid to A.I.D. without deduction for and free from, any taxation or fees
imposed under any laws or decrees in effect within the Republic of the Philippines or any such taxes or fees so imposed or payable
shall be reimbursed by the Borrower with funds other than those provided under the Loan. To the extent that (a) any contractor,
including any consulting firm, any personnel of such contractor financed hereunder, and any property or transactions relating
to such contracts and (b) any commodity procurement transactions financed hereunder, are not exempt from identifiable
taxes, tariffs, duties and other levies imposed under laws in effect in the country of the Borrower, the Borrower and/or
Beneficiary shall pay or reimburse the same with funds other than those provided under the Loan.30

Petitioners contend that the withdrawal by the Local Government Code of the tax exemptions of cooperatives under P.D. No. 269, as
amended, is an impairment of the tax exemptions provided under the loan agreements. Petitioners argue that as beneficiaries of the
loan proceeds, pursuant to the above provision, "[a]ll the assets of petitioners, such as lands, buildings, distribution lines acquired
through the proceeds of the Loan Agreements … are tax exempt."31

We hold otherwise.

A plain reading of the provision quoted above readily shows that it does not grant any tax exemption in favor of the borrower or the
beneficiary either on the proceeds of the loan itself or the properties acquired through the said loan. It simply states that the loan
proceeds and the principal and interest of the loan, upon repayment by the borrower, shall be without deduction of any tax or fee that
may be payable under Philippine law as such tax or fee will be absorbed by the borrower with funds other than the loan proceeds.
Further, the provision states that with respect to any payment made by the borrower to (1) any contractor or any personnel of such
contractor or any property transaction and (2) any commodity transaction using the proceeds of the loan, the tax to be paid, if any, on
such transactions shall be absorbed by the borrower and/or beneficiary through funds other than the loan proceeds.

Beyond doubt, the import of the tax provision in the loan agreements cited by petitioners is twofold: (1) the borrower is entitled to
receive from and is obliged to pay the lender the principal amount of the loan and the interest thereon in full, without any deduction of
the tax component thereof imposed under applicable Philippine law and any tax imposed shall be paid by the borrower with funds
other than the loan proceeds and (2) with respect to payments made to any contractor, its personnel or any property or commodity
transaction entered into pursuant to the loan agreement and with the use of the proceeds thereof, taxes payable under the said
transactions shall be paid by the borrower and/or beneficiary with the use of funds other than the loan proceeds. The quoted provision
does not purport to grant any tax exemption in favor of any party to the contract, including the beneficiaries thereof. The provisions
simply shift the tax burden, if any, on the transactions under the loan agreements to the borrower and/or beneficiary of the loan. Thus,
the withdrawal by the Local Government Code under Sections 193 and 234 of the tax exemptions previously enjoyed by petitioners
does not impair the obligation of the borrower, the lender or the beneficiary under the loan agreements as in fact, no tax exemption is
granted therein.

III

Conclusion

Petitioners lament the difficulties they face in complying with the implementing rules and regulations issued by the CDA for the
conversion of electric cooperatives under P.D. No. 269, as amended, to cooperatives under R.A. No. 6938. They allege that because of
the cumbersome legal and technical requirements imposed by the Omnibus Rules and Regulations on the Registration of Electric
Cooperatives under R.A. No. 6938, petitioners cannot register and convert as stock cooperatives under the Cooperative Code.32

The Court understands the plight of the petitioners. Their remedy, however, is not judicial. Striking down Sections 193 and 234 of the
Local Government Code as unconstitutional or declaring them inapplicable to petitioners is not the proper course of action for them to
obtain their previous tax exemptions. The language of the law and the intention of its framers are clear and unequivocal and courts
have no other duty except to uphold the law. The task to re-examine the rules and guidelines on the conversion of electric cooperatives
to cooperatives under R.A. No. 6938 and provide every assistance available to them should be addressed by the proper authorities of
government. This is necessary to encourage the growth and viability of cooperatives as instruments of social justice and economic
development.

WHEREFORE, the instant petition is DENIED and the temporary restraining order heretofore issued is LIFTED.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

Footnotes

1 
Section 2, P.D. No. 269.
2 
Id.
3 
Emphasis supplied.
4 
Rollo, p. 38.
5 
Id. at 262.
6 
Emphasis supplied.
7 
Rollo, p. 11.
8 
Tolentino v. Board of Accountancy, G.R. No. L-3062, September 28, 1951, 90 Phil 83, 90.
9 
People v. Cayat, G.R. No. 45987, May 5, 1939, 68 Phil 12, 18.
10 
Art. 3, R.A. No. 6938. Emphasis supplied.
11 
M. F. Verzosa, The Philippine Cooperative Law, Annotated: 28-30 (1991).
12 
Record of the Senate, Third Regular Session 1989, Vol. 1, No. 13, pp. 378-379.
13 
Rollo, p. 377.
14 
Art. 14 (5), R.A. No. 6938.
 15 
Supra, note 11 at 27.
16 
Emphasis supplied.
17 
Art. 2, R.A. No. 6939 or "An Act Creating the Cooperative Development Authority to Promote the Viability and Growth of
Cooperatives as Instruments of Equity, Social Justice and Economic Development, defining its Powers, Functions and
Responsibilities, Rationalizing Government Policies and Agencies with Cooperative Functions, Supporting Cooperative
Development, Transferring the Registration and Regulation Functions of Existing Government Agencies on Cooperatives as
such and Consolidating the same with the Authority, Appropriating Funds Therefor, and for other Purposes." Emphasis
supplied.
18 
Section 5 (a) (6), P.D. No. 269, as amended by P.D. No. 1645.
19 
Section 10, P.D. No. 269, as amended by P.D. No. 1645.
20 
Id.
21 
Section 24, P.D. No. 269, as amended by P.D. No. 1645.
22 
Art. 128. Transitory Provisions. — All cooperatives registered under Presidential Decree Nos. 175 and 775 and Executive
Order No. 898, and all other laws shall be deemed registered with the Cooperative Development Authority: Provided,
however, That they shall submit to the nearest Cooperative Development Authority office their certificate of registration,
copies of the articles of cooperation and bylaws and their latest duly audited financial statements within one (1) year from the
effectivity of this Act, otherwise their registration shall be cancelled: Provided, further, That cooperatives created under
Presidential Decree No. 269, as amended by Presidential Decree No. 1645, shall be given three (3) years within which to
qualify and register with the Authority: Provided, finally, That after these cooperatives shall have qualified and registered, the
provisions of Sections 3 and 5 of Presidential Decree No. 1645 shall no longer be applicable to said cooperatives.
23 
Art. X, Sections 2, 3 and 5, 1987 Constitution.
24 
Emphasis supplied.
25 
Emphasis supplied.
26 
G.R. No. 120082, September 11, 1996, 261 SCRA 667, 690.
27 
Gaspar v. Molina, G.R. No. 2206, November 2, 1905, 5 Phil 197, 202-203.
28 
G.R. No. 17959, January 24, 1922, 42 Phil 702, 717.
29 
Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary 390 (1996).
30 
A.I.D. Loan No. 492-H-027 dated November 15, 1971. Rollo, p. 38. Emphasis supplied.
31 
Rollo, p. 12.
32 
Id. at 375-376.

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 PICOP’s application, however, PICOP refused
to attend further meetings with the DENR. Instead, on 2 September 2002, PICOP filed before the Regional Trial Court (RTC) of
Quezon City a Petition for Mandamus1 against then DENR Secretary Heherson T. Alvarez. PICOP seeks the issuance of a privileged
writ of mandamus to compel the DENR Secretary to sign, execute and deliver an IFMA to PICOP, as well as to –

[I]ssue the corresponding IFMA assignment number on the area covered by the IFMA, formerly TLA No. 43, as amended; b) to issue
the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No. 43, sufficient to meet the raw
material requirements of petitioner’s pulp and paper mills in accordance with the warranty and agreement of July 29, 1969 between
the government and PICOP’s predecessor-in-interest; and c) to honor and respect the Government Warranties and contractual
obligations to PICOP strictly in accordance with the warranty and agreement dated July 29, [1969] between the government and
PICOP’s predecessor-in-interest. x x x.2

On 11 October 2002, the RTC rendered a Decision granting PICOP’s Petition for Mandamus, thus:

WHEREFORE, premises considered, the Petition for Mandamus is hereby GRANTED.

The Respondent DENR Secretary Hon. Heherson Alvarez is hereby ordered:

1. to sign, execute and deliver the IFMA contract and/or documents to PICOP and issue the corresponding IFMA assignment
number on the area covered by the IFMA, formerly TLA No. 43, as amended;

2. to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No. 43, sufficient to
meet the raw material requirements of petitioner’s pulp and paper mills in accordance with the warranty and agreement of
July 29, 1969 between the government and PICOP’s predecessor-in-interest; and

3. to honor and respect the Government Warranties and contractual obligations to PICOP strictly in accordance with the
warranty and agreement dated July 29, 1999 (sic) between the government and PICOP’s predecessor-in-interest (Exhibits
"H", "H-1" to "H-5", particularly the following:

a) the area coverage of TLA No. 43, which forms part and parcel of the government warranties;

b) PICOP tenure over the said area of TLA No. 43 and exclusive right to cut, collect and remove sawtimber and
pulpwood for the period ending on April 26, 1977; and said period to be renewable for [an]other 25 years subject to
compliance with constitutional and statutory requirements as well as with existing policy on timber concessions; and

c) The peaceful and adequate enjoyment by PICOP of the area as described and specified in the aforesaid amended
Timber License Agreement No. 43.

The Respondent Secretary Alvarez is likewise ordered to pay petitioner the sum of ₱10 million a month beginning May 2002 until the
conversion of TLA No. 43, as amended, to IFMA is formally effected and the harvesting from the said area is granted.3

On 25 October 2002, the DENR Secretary filed a Motion for Reconsideration. 4 In a 10 February 2003 Order, the RTC denied the
DENR Secretary’s Motion for Reconsideration and granted PICOP’s Motion for the Issuance of Writ of Mandamus and/or Writ of
Mandatory Injunction.5 The fallo of the 11 October 2002 Decision was practically copied in the 10 February 2003 Order, although
there was no mention of the damages imposed against then DENR Secretary Alvarez. 6 The DENR Secretary filed a Notice of
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 affirmed8 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 PICOP’S MANAGEMENT OF THE TLA 43 NATURAL FOREST CLEARLY SHOWED
SATISFACTORY PERFORMANCE FOR KEEPING THE NATURAL FOREST GENERALLY INTACT AFTER 50 YEARS OF
FOREST OPERATIONS. THIS COMPLETES THE REQUIREMENT FOR AUTOMATIC CONVERSION UNDER SECTION 9
OF DAO 99-53.

III.

WITH DUE RESPECT, THE HONORABLE COURT, IN REVERSING THE FINDINGS OF FACTS OF THE TRIAL COURT
AND THE COURT OF APPEALS, MISAPPRECIATED THE EVIDENCE, TESTIMONIAL AND DOCUMENTARY, WHEN IT
RULED THAT:

i.

PICOP FAILED TO SUBMIT A FIVE-YEAR FOREST PROTECTION PLAN AND A SEVEN-YEAR REFORESTATION PLAN
FOR THE YEARS UNDER REVIEW.

ii.

PICOP FAILED TO COMPLY WITH THE PAYMENT OF FOREST CHARGES.

iii.

PICOP DID NOT COMPLY WITH THE REQUIREMENT FOR A CERTIFICATION FROM THE NCIP THAT THE AREA OF
TLA 43 DOES NOT OVERLAP WITH ANY ANCESTRAL DOMAIN.

iv.
PICOP FAILED TO HAVE PRIOR CONSULTATION WITH AND APPROVAL FROM THE SANGUNIAN CONCERNED, AS
REQUIRED BY SECTION 27 OF THE REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT
CODE OF 1991.

v.

PCIOP FAILED TO SECURE SOCIAL ACCEPTABILITY UNDER PRESIDENTIAL DECREE NO. 1586.

IV

THE MOTIVATION OF ALVAREZ IN RECALLING THE CLEARANCE FOR AUTOMATIC CONVERSION HE ISSUED ON
25 OCTOBER 2001 WAS NOT DUE TO ANY SHORTCOMING FROM PICOP BUT DUE TO HIS DETERMINATION TO
EXCLUDE 28,125 HECTARES FROM THE CONVERSION AND OTHER THINGS.

On 15 December 2008, on Motion by PICOP, the Third Division of this Court resolved to refer the consolidated cases at bar to the
Court en banc. On 16 December 2008, this Court sitting en banc resolved to accept the said cases and set them for oral arguments.
Oral arguments were conducted on 10 February 2009.

PICOP’s Cause of Action: Matters PICOP Should Have Proven to Be Entitled to a Writ of Mandamus

In seeking a writ of mandamus to compel the issuance of an IFMA in its favor, PICOP relied on a 29 July 1969 Document, the so-
called Presidential Warranty approved by then President Ferdinand E. Marcos in favor of PICOP’s predecessor-in-interest, Bislig Bay
Lumber Company, Inc. (BBLCI). PICOP’s cause of action is summarized in paragraphs 1.6 and 4.19 of its Petition for Mandamus:

1.6 Respondent Secretary impaired the obligation of contract under the said Warranty and Agreement of 29 July 1969 by refusing to
respect the tenure; and its renewal for another twenty five (25) years, of PICOP over the area covered by the said Agreement which
consists of permanent forest lands with an aggregate area of 121,587 hectares and alienable and disposable lands with an aggregate
area of approximately 21,580 hectares, and petitioner’s exclusive right to cut, collect and remove sawtimber and pulpwood therein and
the peaceful and adequate enjoyment of the said area as described and specified in petitioner’s Timber License Agreement (TLA) No.
43 guaranteed by the Government, under the Warranty and Agreement of 29 July 1969.13

4.19 Respondent is in violation of the Constitution and has impaired the obligation of contract by his refusal to respect: a) the tenurial
rights of PICOP over the forest area covered by TLA No. 43, as amended and its renewal for another twenty five (25) years; b) the
exclusive right of PICOP to cut, collect and remove sawtimber and pulpwood therein; and c) PICOP’s peaceful and adequate
enjoyment of the said area which the government guaranteed under the Warranty and Agreement of 29 July 1969.14

The grounds submitted by PICOP in its Petition for Mandamus are as follows:

Respondent secretary has unlawfully refused and/or neglected to sign and execute the IFMA contract of PICOP even as the latter has
complied with all the legal requirements for the automatic conversion of TLA No. 43, as amended, into an IFMA.

II

Respondent Secretary acted with grave abuse of discretion and/or in excess of jurisdiction in refusing to sign and execute PICOP’s
IFMA contract, notwithstanding that PICOP had complied with all the requirements for Automatic Conversion under DAO 99-53, as
in fact Automatic Conversion was already cleared in October, 2001, and was a completed process.

III

Respondent Secretary has impaired the obligation of contract under a valid and binding warranty and agreement of 29 July 1969
between the government and PICOP’s predecessor-in-interest, by refusing to respect: a) the tenure of PICOP, and its renewal for
another twenty five (25) years, over the TLA No.43 area covered by said agreement; b) the exclusive right to cut, collect and remove
sawtimber and pulpwood timber; and c) the peaceful and adequate enjoyment of the said area.

IV
As a result of respondent Secretary’s unlawful refusal and/or neglect to sign and deliver the IFMA contract, and violation of the
constitutional rights of PICOP against non-impairment of the obligation of contract (Sec. 10, Art. III, 1997 [sic] Constitution), PICOP
suffered grave and irreparable damages.15

Petitions for Mandamus are governed by Rule 65 of the Rules of Court, Section 3 of which provides:

SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty
and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to
do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the
wrongful acts of the respondent. (Emphasis supplied.)

PICOP is thus asking this Court to conclude that the DENR Secretary is specifically enjoined by law to issue an IFMA in its favor. An
IFMA, as defined by DENR Administrative Order (DAO) No. 99-53,16 is -

[A] production-sharing contract entered into by and between the DENR and a qualified applicant wherein the DENR grants to the
latter the exclusive right to develop, manage, protect and utilize a specified area of forestland and forest resource therein for a period
of 25 years and may be renewed for another 25-year period, consistent with the principle of sustainable development and in
accordance with an approved CDMP, and under which both parties share in its produce.17

PICOP stresses the word "automatic" in Section 9 of this DAO No. 99-53:

Sec. 9. Qualifications of Applicants. – The applicants for IFMA shall be:

(a) A Filipino citizen of legal age; or,

(b) Partnership, cooperative or corporation whether public or private, duly registered under Philippine laws.

However, in the case of application for conversion of TLA into IFMA, an automatic conversion after proper evaluation shall be
allowed, provided the TLA holder shall have signified such intention prior to the expiry of the TLA, PROVIDED further, that the
TLA holder has showed satisfactory performance and have complied in the terms of condition of the TLA and pertinent rules and
regulations. (Emphasis supplied.)18

This administrative regulation provision allowing automatic conversion after proper evaluation can hardly qualify as a law, much less
a law specifically enjoining the execution of a contract. To enjoin is "to order or direct with urgency; to instruct with authority; to
command."19 "‘Enjoin’ is a mandatory word, in legal parlance, always; in common parlance, usually."20 The word "allow," on the other
hand, is not equivalent to the word "must," and is in no sense a command.21

As an extraordinary writ, the remedy of mandamus lies only to compel an officer to perform a ministerial duty, not a discretionary
one; mandamus will not issue to control the exercise of discretion of a public officer where the law imposes upon him the duty to
exercise his judgment in reference to any manner in which he is required to act, because it is his judgment that is to be exercised and
not that of the court.22

The execution of agreements, in itself, involves the exercise of discretion. Agreements are products of negotiations and mutual
concessions, necessitating evaluation of their provisions on the part of both parties. In the case of the IFMA, the evaluation on the part
of the government is specifically mandated in the afore-quoted Section 3 of DAO No. 99-53. This evaluation necessarily involves the
exercise of discretion and judgment on the part of the DENR Secretary, who is tasked not only to negotiate the sharing of the profit
arising from the IFMA, but also to evaluate the compliance with the requirements on the part of the applicant.

Furthermore, as shall be discussed later, the period of an IFMA that was merely automatically converted from a TLA in accordance
with Section 9, paragraph 2 of DAO No. 99-53 would only be for the remaining period of the TLA. Since the TLA of PICOP expired
on 26 April 2002, the IFMA that could have been granted to PICOP via the automatic conversion provision in DAO No. 99-53 would
have expired on the same date, 26 April 2002, and the PICOP’s Petition for Mandamus would have become moot.

This is where the 1969 Document, the purported Presidential Warranty, comes into play. When PICOP’s application was brought to a
standstill upon the evaluation that PICOP had yet to comply with the requirements for such conversion, PICOP refused to attend
further meetings with the DENR and instead filed a Petition for Mandamus, insisting that the DENR Secretary had impaired the
obligation of contract by his refusal to respect: a) the tenurial rights of PICOP over the forest area covered by TLA No. 43, as
amended, and its renewal for another twenty-five (25) years; b) the exclusive right of PICOP to cut, collect and remove sawtimber and
pulpwood therein; and c) PICOP’s peaceful and adequate enjoyment of the said area which the government guaranteed under the
Warranty and Agreement of 29 July 1969. 23

PICOP is, thus, insisting that the government is obligated by contract to issue an IFMA in its favor because of the 1969 Document.

A contract, being the law between the parties, can indeed, with respect to the State when it is a party to such contract, qualify as a law
specifically enjoining the performance of an act. Hence, it is possible that a writ of mandamus may be issued to PICOP, but only if it
proves both of the following:

1) That the 1969 Document is a contract recognized under the non-impairment clause; and

2) That the 1969 Document specifically enjoins the government to issue the IFMA.

If PICOP fails to prove any of these two matters, the grant of a privileged writ of mandamus is not warranted. This was why we
pronounced in the assailed Decision that the overriding controversy involved in the Petition was one of law.24 If PICOP fails to prove
any of these two matters, more significantly its assertion that the 1969 Document is a contract, PICOP fails to prove its cause of
action.25 Not even the satisfactory compliance with all legal and administrative requirements for an IFMA would save PICOP’s
Petition for Mandamus.

The reverse, however, is not true. The 1969 Document expressly states that the warranty as to the tenure of PICOP is "subject to
compliance with constitutional and statutory requirements as well as with existing policy on timber concessions." Thus, if PICOP
proves the two above-mentioned matters, it still has to prove compliance with statutory and administrative requirements for the
conversion of its TLA into an IFMA.

Exhaustion of Administrative Remedies

PICOP uses the same argument –– that the government is bound by contract to issue the IFMA –– in its refusal to exhaust all
administrative remedies by not appealing the alleged illegal non-issuance of the IFMA to the Office of the President. PICOP claimed
in its Petition for Mandamus with the trial court that:

1.10 This petition falls as an exception to the exhaustion of administrative remedies. The acts of respondent DENR Secretary
complained of in this petition are patently illegal; in derogation of the constitutional rights of petitioner against non-impairment of the
obligation of contracts; without jurisdiction, or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion
amounting to excess or lack of jurisdiction; and moreover, the failure or refusal of a high government official such as a Department
head from whom relief is brought to act on the matter was considered equivalent to exhaustion of administrative remedies (Sanoy v.
Tantuico, 50 SCRA 455 [1973]), and there are compelling and urgent reasons for judicial intervention (Bagatsing v. Ramirez, 74
SCRA 306 [1976]).

Thus, if there has been no impairment of the obligation of contracts in the DENR Secretary’s non-issuance of the IFMA, the proper
remedy of PICOP in claiming that it has complied with all statutory and administrative requirements for the issuance of the IFMA
should have been with the Office of the President. This makes the issue of the enforceability of the 1969 Document as a contract even
more significant.

The Nature and Effects of the Purported 29 July 1969 Presidential Warranty

Base Metals Case

PICOP challenges our ruling that the 1969 Document is not a contract. Before we review this finding, however, it must be pointed out
that one week after the assailed Decision, another division of this Court promulgated a Decision concerning the very same 1969
Document. Thus, in PICOP Resources, Inc. v. Base Metals Mineral Resources Corporation, 26 five other Justices who were still
unaware of this Division’s Decision,27 came up with the same conclusion as regards the same issue of whether former President
Marcos’s Presidential Warranty is a contract:

Finally, we do not subscribe to PICOP’s argument that the Presidential Warranty dated September 25, 1968 is a contract protected by
the non-impairment clause of the 1987 Constitution.
An examination of the Presidential Warranty at once reveals that it simply reassures PICOP of the government’s commitment to
uphold the terms and conditions of its timber license and guarantees PICOP’s peaceful and adequate possession and enjoyment of the
areas which are the basic sources of raw materials for its wood processing complex. The warranty covers only the right to cut, collect,
and remove timber in its concession area, and does not extend to the utilization of other resources, such as mineral resources,
occurring within the concession.

The Presidential Warranty cannot be considered a contract distinct from PTLA No. 47 and FMA No. 35. We agree with the OSG’s
position that it is merely a collateral undertaking which cannot amplify PICOP’s rights under its timber license. Our definitive ruling
in Oposa v. Factoran that a timber license is not a contract within the purview of the non-impairment clause is edifying. We declared:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract, property or a property right
protected by the due process clause of the Constitution. In Tan vs. Director of Forestry, this Court held:

"x x x A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that
public welfare is promoted. A timber license is not a contract within the purview of the due process clause; it is only a license or a
privilege, which can be validly withdrawn whenever dictated by public interest or public welfare as in this case.

‘A license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract between the authority, federal,
state, or municipal, granting it and the person to whom it is granted; neither is it a property or a property right, nor does it create a
vested right; nor is it taxation' (C.J. 168). Thus, this Court held that the granting of license does not create irrevocable rights, neither is
it property or property rights (People vs. Ong Tin, 54 O.G. 7576). x x x"

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive Secretary:

"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
PICOP’s operational sources of funds and other financial arrangements made by him. In order that your company may provide such
support effectively, it is understood that you will call upon your stockholders to take such steps as may be necessary to effect a
unification of managerial, technical, economic and manpower resources between your company and PICOP.

It is in the public interest to promote industries that will enhance the proper conservation of our forest resources as well as insure the
maximum utilization thereof to the benefit of the national economy. The administration feels that the PICOP project is one such
industry which should enjoy priority over the usual logging operations hitherto practiced by ordinary timber licensees: For this reason,
we are pleased to consider favorably the request.

We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex "A" hereof which shall
form part and parcel of this warranty) definitely establishes the boundary lines of your concession area which consists of permanent
forest lands with an aggregate area of 121,587 hectares and alienable or disposable lands with an aggregate area of approximately
21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for
the period ending on April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended Timber License
Agreement No. 43 is hereby warranted provided that pertinent laws, regulations and the terms and conditions of your license
agreement are observed.

Very truly yours,

(Sgd.) FERNANDO LOPEZ

Secretary of Agriculture
and Natural Resources

Encl.:

RECOMMENDED BY:

(Sgd.) JOSE VIADO

Acting Director of Forestry

APPROVED:

(Sgd.) FERDINAND E. MARCOS

President of the Philippines
ACCEPTED:

BISLIG BAY LBR. CO., INC.

By:

(Sgd.) JOSE E. SORIANO

President

PICOP interprets this document in the following manner:

6.1 It is clear that the thrust of the government warranty is to establish a particular area defined by boundary lines of TLA No. 43 for
the PICOP Project. In consideration for PICOP’s commitment to pursue and establish the project requiring huge investment/funding
from stockholders and lending institutions, the government provided a warranty that ensures the continued and exclusive right of
PICOP to source its raw materials needs from the forest and renewable trees within the areas established.

6.2 As a long-term support, the warranty covers the initial twenty five (25) year period and is renewable for periods of twenty five
(25) years provided the project continues to exist and operate. Very notably, the wording of the Presidential Warranty connotes that
for as long as the holder complies with all the legal requirements, the term of the warranty is not limited to fifty (50) years but other
twenty five (25) years.

6.3 Note must be made that the government warranted that PICOP’s tenure over the area and exclusive right to cut, collect and remove
saw timber and pulpwood shall be for the period ending on 26 April 1977 and said period to be renewable for other 25 years subject to
"compliance with constitutional and statutory requirements as well as existing policy on timber requirements". It is clear that the
renewal for other 25 years, not necessarily for another 25 years is guaranteed. This explains why on 07 October 1977, TLA No. 43, as
amended, was automatically renewed for another period of twenty five (25) years to expire on 26 April 2002.30

PICOP’s interpretation of the 1969 Document cannot be sustained. PICOP’s claim that the term of the warranty is not limited to fifty
years, but that it extends to other fifty years, perpetually, violates Section 2, Article XII of the Constitution which provides:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and
limit of the grant.

Mr. Justice Dante O. Tinga’s interpretation of the 1969 Document is much more in accord with the laws and the Constitution. What
one cannot do directly, he cannot do indirectly. Forest lands cannot be alienated in favor of private entities. Granting to private
entities, via a contract, a permanent, irrevocable, and exclusive possession of and right over forest lands is tantamount to granting
ownership thereof. PICOP, it should be noted, claims nothing less than having exclusive, continuous and uninterrupted possession of
its concession areas,31 where all other entrants are illegal,32 and where so-called "illegal settlers and squatters" are apprehended.33

IFMAs are production-sharing agreements concerning the development and utilization of natural resources. As such, these agreements
"may be for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms and
conditions as may be provided by law." Any superior "contract" requiring the State to issue TLAs and IFMAs whenever they expire
clearly circumvents Section 2, Article XII of the Constitution, which provides for the only permissible schemes wherein the full
control and supervision of the State are not derogated: co-production, joint venture, or production-sharing agreements within the time
limit of twenty-five years, renewable for another twenty-five years.

On its face, the 1969 Document was meant to expire on 26 April 2002, upon the expiration of the expected extension of the original
TLA period ending on 26 April 1977:

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for
the period ending on April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions.1avvphi1
Any interpretation extending the application of the 1969 Document beyond 26 April 2002 and any concession that may be granted to
PICOP beyond the said date would violate the Constitution, and no amount of legal hermeneutics can change that. Attempts of PICOP
to explain its way out of this Constitutional provision only led to absurdities, as exemplified in the following excerpt from the oral
arguments:

JUSTICE CARPIO:

The maximum trend of agreement to develop and utilize natural resources like forest products is 25 years plus another 25 years or a
total of 50 years correct?

ATTY. AGABIN

Yes, Your Honor.

JUSTICE CARPIO:

That is true for the 1987, 1973, 1935 Constitution, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

The TLA here, TLA 43, expired, the first 25 years expired in 1977, correct?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

And it was renewed for another 25 years until 2002, the 50th year?

ATTY. AGABIN:

Yes, Your Honor.

JUSTICE CARPIO:

Now, could PICOP before the end of the 50th year let’s say in 2001, one year before the expiration, could it have asked for an
extension of another 25 years of its TLA agreement[?]

ATTY. AGABIN:

I believe so, Your Honor.

JUSTICE CARPIO:

But the Constitution says, maximum of fifty years. How could you ask for another 25 years of its TLA.

ATTY. AGABIN:

Well, your Honor, we believe on a question like this, this Honorable Court should balance the interest.

JUSTICE CARPIO:
The Constitution is very clear, you have only a maximum of 50 years, 25 plus another 25. PICOP could never have applied for an
extension, for a third 25-year term whether under the 1935 Constitution, the 1973 Constitution and the 1987 Constitution, correct?

ATTY. AGABIN:

Your Honor, except that we are invoking the warranty, the terms of the warranty….

JUSTICE CARPIO:

Can the warranty prevail over the Constitution?

ATTY. AGABIN:

Well, it is a vested right, your Honor.

JUSTICE CARPIO:

Yes, but whatever it is, can it prevail over the Constitution?

ATTY. AGABIN:

The Constitution itself provides that vested rights should be ….

JUSTICE CARPIO:

If it is not in violation of specific provision of the Constitution. The Constitution says, 25 years plus another 25 years, that’s the end of
it. You mean to say that a President of the Philippines can give somebody 1,000 years license?

ATTY. AGABIN:

Well, that is not our position, Your Honor. Because our position is that ….

JUSTICE CARPIO:

My question is, what is the maximum term, you said 50 years. So, my next question is, can PICOP apply for an extension of another
25 years after 2002, the 50th year?

ATTY. AGABIN:

Yes, based on the contract of warranty, Your Honor, because the contract of warranty….

JUSTICE CARPIO:

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:

Don’t you think that will, in effect, be invidious discrimination with respect to other applicants if you are granted a fresh period of
twenty-five years extendible to another twenty-five years?

DEAN AGABIN:

I don’t think it would be, Your Honor, considering that the IFMA is different regime from the TLA. And not only that, there are
considerations of public health and ecology which should come into play in this case, and which we had explained in our opening
statement and, therefore the provision of the Constitution on the twenty-five limits for renewal of co-production, joint venture and
production sharing agreements, should be balanced with other values stated in the Constitution, like the value of balanced ecology,
which should be in harmony with the rhythm of nature, or the policy of forest preservation in Article XII, Section 14 of the
Constitution. These are all important policy considerations which should be balanced against the term limits in Article II of the
Constitution.

ASSOCIATE JUSTICE DE CASTRO:

The provision of this Administrative Order regarding automatic conversion may be reasonable, if, I want to know if you agree with
me, if we limit this automatic conversion to the remaining period of the TLA, because in that case there will be a valid ground to make
a distinction between those with existing TLA and those who are applying for the first time for IFMA?

DEAN AGABIN:

Well, Your Honor, we beg to disagree, because as I said TLA’s are completely different from IFMA. The TLA has no production
sharing or co-production agreement or condition. All that the licensee has to do is, to pay forest charges, taxes and other impositions
from the local and national government. On the other hand, the IFMAs contained terms and conditions which are completely different,
and that they either impose co-production, production sharing or joint venture terms. So it’s a completely different regime, Your
Honor.

ASSOCIATE JUSTICE DE CASTRO:

Precisely, that is the reason why there should be an evaluation of what you mentioned earlier of the development plan.

DEAN AGABIN:

Yes, Your Honor.

ASSOCIATE JUSTICE DE CASTRO:

So it will be reasonable to convert a TLA into an IFMA without considering the development plan submitted by other applicants or the
development plan itself of one seeking conversion into IFMA if it will only be limited to the period, the original period of the TLA.
But once you go beyond the period of the TLA, then you will be, the DENR is I think should evaluate the different proposals of the
applicants if we are thinking of a fresh period of twenty-five years, and which is renewable under the Constitution by another twenty-
five years. So the development plan will be important in this case, the submission of the development plan of the different applicants
must be considered. So I don’t understand why you mentioned earlier that the development plan will later on be a subject matter of
negotiation between the IFMA grantee and the government. So it seems that it will be too late in the day to discuss that if you have
already converted the TLA into IFMA or if the government has already granted the IFMA, and then it will later on study the
development plan, whether it is viable or not, or it is sustainable or not, and whether the development plan of the different applicants
are, are, which of the development plan of the different applicants is better or more advantageous to the government.37

PICOP insists that the alleged Presidential Warranty, having been signed on 29 July 1969, could not have possibly considered the
limitations yet to be imposed by future issuances, such as the 1987 Constitution. However, Section 3, Article XVIII of said
Constitution, provides:

Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not
inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.
In the recent case Sabio v. Gordon,38 we ruled that "(t)he clear import of this provision is that all existing laws, executive orders,
proclamations, letters of instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed."

When a provision is susceptible of two interpretations, "the one that will render them operative and effective and harmonious with
other provisions of law"39 should be adopted. As the interpretations in the assailed Decision and in Mr. Justice Tinga’s ponencia are
the ones that would not make the subject Presidential Warranty unconstitutional, these are what we shall adopt.

Purpose of the 1969 Document: Assurance That the Boundaries of Its Concession Area Would Not Be Altered Despite the Provision
in the TLA that the DENR Secretary Can Amend Said Boundaries

In the assailed Decision, we ruled that the 1969 Document cannot be considered a contract that would bind the government regardless
of changes in policy and the demands of public interest and social welfare. PICOP claims this conclusion "did not take into
consideration that PICOP already had a valid and current TLA before the contract with warranty was signed in 1969."40 PICOP goes
on: "The TLA is a license that equips any TLA holder in the country for harvesting of timber. A TLA is signed by the Secretary of the
DANR now DENR. The Court ignored the significance of the need for another contract with the Secretary of the DANR but this time
with the approval of the President of the Republic."41 PICOP then asks us: "If PICOP/BBLCI was only an ordinary TLA holder, why
will it go through the extra step of securing another contract just to harvest timber when the same can be served by the TLA signed
only by the Secretary and not requiring the approval of the President of the Republic(?)"42

The answer to this query is found in TLA No. 43 itself wherein, immediately after the boundary lines of TLA No. 43 were established,
the following conditions were given:

This license is granted to the said party of the second part upon the following express conditions:

I. That authority is granted hereunder to the party of the second part 43 to cut, collect or remove firewood or other minor forest
products from the area embraced in this license agreement except as hereinafter provided.

II. That the party of the first part 44 may amend or alter the description of the boundaries of the area covered by this license
agreement to conform with official surveys and that the decision of the party of the first part as to the exact location of the
said boundaries shall be final.

III. That if the party of the first part deems it necessary to establish on the ground the boundary lines of the area granted
under this license agreement, the party of the second part shall furnish to the party of the first part or its representatives as
many laborers as it needs and all the expenses to be incurred on the work including the wages of such laborers shall be paid
by the party of the second part.45

Thus, BBLCI needed an assurance that the boundaries of its concession area, as established in TLA No. 43, as amended, would not be
altered despite this provision. Hence, BBLCI endeavored to obtain the 1969 Document, which provides:

We confirm that your Timber License Agreement No. 43, as amended (copy of which is attached as Annex "A" hereof which shall
form part and parcel of this warranty) definitely establishes the boundary lines of your concession area which consists of permanent
forest lands with an aggregate area of 121,587 hectares and alienable or disposable lands with an aggregate area of approximately
21,580 hectares.

We further confirm that your tenure over the area and exclusive right to cut, collect and remove sawtimber and pulpwood shall be for
the period ending on April 26, 1977; said period to be renewable for other 25 years subject to compliance with constitutional and
statutory requirements as well as with existing policy on timber concessions.

The peaceful and adequate enjoyment by you of your area as described and specified in your aforesaid amended Timber License
Agreement No. 43 is hereby warranted provided that pertinent laws, regulations and the terms and conditions of your license
agreement are observed.46

In Koa v. Court of Appeals, 47 we ruled that a warranty is a collateral undertaking and is merely part of a contract. As a collateral
undertaking, it follows the principal wherever it goes. When this was pointed out by the Solicitor General, PICOP changed its
designation of the 1969 Document from "Presidential Warranty" or "government warranty" in all its pleadings prior to our Decision,
to "contract with warranty" in its Motion for Reconsideration. This, however, is belied by the statements in the 29 July 1969
Document, which refers to itself as "this warranty."

Re: Allegation That There Were Mutual Contract Considerations

Had the 29 July 1969 Document been intended as a contract, it could have easily said so. More importantly, it could have clearly
defined the mutual considerations of the parties thereto. It could have also easily provided for the sanctions for the breach of the
mutual considerations specified therein. PICOP had vigorously argued that the 1969 Document was a contract because of these mutual
considerations, apparently referring to the following paragraph of the 1969 Document:

We are made to understand that your company is committed to support the first large scale integrated wood processing complex
hereinafter called: "The Project") and that such support will be provided not only in the form of the supply of pulpwood and other
wood materials from your concession but also by making available funds generated out of your own operations, to supplement
PICOP’s operational surces (sic) of funds and other financial arrangements made by him. In order that your company may provide
such support effectively, it is understood that you will call upon your stockholders to take such steps as may be necessary to effect a
unification of managerial, technical, economic and manpower resources between your company and PICOP.1avvphi1

This provision hardly evinces a contract consideration (which, in PICOP’s interpretation, is in exchange for the exclusive and
perpetual tenure over 121,587 hectares of forest land and 21,580 hectares of alienable and disposable lands). As elucidated by PICOP
itself in bringing up the Investment Incentives Act which we shall discuss later, and as shown by the tenor of the 1969 Document, the
latter document was more of a conferment of an incentive for BBLCI’s investment rather than a contract creating mutual obligations
on the part of the government, on one hand, and BBLCI, on the other. There was no stipulation providing for sanctions for breach if
BBLCI’s being "committed to support the first large scale integrated wood processing complex" remains a commitment. Neither did
the 1969 Document give BBLCI a period within which to pursue this commitment.

According to Article 1350 of the Civil Code, "(i)n onerous contracts the cause is understood to be, for each contracting party, the
prestation or promise of a thing or service by the other." 48 Private investments for one’s businesses, while indeed eventually beneficial
to the country and deserving to be given incentives, are still principally and predominantly for the benefit of the investors. Thus, the
"mutual" contract considerations by both parties to this alleged contract would be both for the benefit of one of the parties thereto,
BBLCI, which is not obligated by the 1969 Document to surrender a share in its proceeds any more than it is already required by its
TLA and by the tax laws.

PICOP’s argument that its investments can be considered as contract consideration derogates the rule that "a license or a permit is not
a contract between the sovereignty and the licensee or permittee, and is not a property in the constitutional sense, as to which the
constitutional proscription against the impairment of contracts may extend." All licensees obviously put up investments, whether they
are as small as a tricycle unit or as big as those put up by multi-billion-peso corporations. To construe these investments as contract
considerations would be to abandon the foregoing rule, which would mean that the State would be bound to all licensees, and lose its
power to revoke or amend these licenses when public interest so dictates.

The power to issue licenses springs from the State’s police power, known as "the most essential, insistent and least limitable of
powers, extending as it does to all the great public needs." 49 Businesses affecting the public interest, such as the operation of public
utilities and those involving the exploitation of natural resources, are mandated by law to acquire licenses. This is so in order that the
State can regulate their operations and thereby protect the public interest. Thus, while these licenses come in the form of "agreements,"
e.g., "Timber License Agreements," they cannot be considered contracts under the non-impairment clause.50

PICOP found this argument "lame," arguing, thus:

43. It is respectfully submitted that the aforesaid pronouncement in the Decision is an egregious and monumental error.

44. The Decision could not dismiss as "preposterous" the mutual covenants in the Presidential Warranty which calls for a huge
investment of Php500 million at that time in 1969 out of which Php268,440,000 raised from domestic foreign lending institution to
establish the first large scale integrated wood processing complex in the Philippines.

45. The Decision puts up a lame explanation that "all licensees put up investments in pursuing their business"

46. Now there are about a hundred timber licenses issued by the Government thru the DENR, but these are ordinary timber licenses
which involve the mere cutting of timber in the concession area, and nothing else. Records in the DENR shows that no timber licensee
has put up an integrated large wood processing complex in the Philippines except PICOP.51

PICOP thus argues on the basis of quantity, and wants us to distinguish between the investment of the tricycle driver and that of the
multi-billion corporation. However, not even billions of pesos in investment can change the fact that natural resources and, therefore,
public interest are involved in PICOP’s venture, consequently necessitating the full control and supervision by the State as mandated
by the Constitution. Not even billions of pesos in investment can buy forest lands, which is practically what PICOP is asking for by
interpreting the 1969 Document as a contract giving it perpetual and exclusive possession over such lands. Among all TLA holders in
the Philippines, PICOP has, by far, the largest concession area at 143,167 hectares, a land area more than the size of two Metro
Manilas.52 How can it not expect to also have the largest investment?

Investment Incentives Act

PICOP then claims that the contractual nature of the 1969 Document was brought about by its issuance in accordance with and
pursuant to the Investment Incentives Act. According to PICOP:

The conclusion in the Decision that to construe PICOP’s investments as a consideration in a contract would be to stealthily render
ineffective the principle that a license is not a contract between the sovereignty and the licensee is so flawed since the contract with
the warranty dated 29 July 1969 was issued by the Government in accordance with and pursuant to Republic Act No. 5186, otherwise
known as "The Investment Incentives Act."53

PICOP then proceeds to cite Sections 2 and 4(d) and (e) of said act:

Section 2. Declaration of Policy – To accelerate the sound development of the national economy in consonance with the principles and
objectives of economic nationalism, and in pursuance of a planned, economically feasible and practicable dispersal of industries,
under conditions which will encourage competition and discharge monopolies, it is hereby declared to be the policy of the state to
encourage Filipino and foreign investments, as hereinafter set out, in projects to develop agricultural, mining and manufacturing
industries which increase national income most at the least cost, increase exports, bring about greater economic stability, provide more
opportunities for employment, raise the standards of living of the people, and provide for an equitable distribution of wealth. It is
further declared to be the policy of the state to welcome and encourage foreign capital to establish pioneer enterprises that are capital
intensive and would utilize a substantial amount of domestic raw materials, in joint venture with substantial Filipino capital, whenever
available.

Section 4. Basic Rights and Guarantees. – All investors and enterprises are entitled to the basic rights and guarantees provided in the
constitution. Among other rights recognized by the Government of the Philippines are the following:

xxxx

d) Freedom from Expropriation. – There shall be no expropriation by the government of the property represented by investments or of
the property of enterprises except for public use or in the interest of national welfare and defense and upon payment of just
compensation. x x x.

e) Requisition of Investment. – There shall be no requisition of the property represented by the investment or of the property of
enterprises, except in the event of war or national emergency and only for the duration thereof. Just compensation shall be determined
and paid either at the time of requisition or immediately after cessation of the state of war or national emergency. Payments received
as compensation for the requisitioned property may be remitted in the currency in which the investment was originally made and at the
exchange rate prevailing at the time of remittance, subject to the provisions of Section seventy-four of republic Act Numbered Two
hundred sixty-five.

Section 2 speaks of the policy of the State to encourage Filipino and foreign investments. It does not speak of how this policy can be
implemented. Implementation of this policy is tackled in Sections 5 to 12 of the same law, 54 which PICOP failed to mention, and for a
good reason. None of the 24 incentives enumerated therein relates to, or even remotely suggests that, PICOP’s proposition that the
1969 Document is a contract.

PICOP could indeed argue that the enumeration is not exclusive. Certainly, granting incentives to investors, whether included in the
enumeration or not, would be an implementation of this policy. However, it is presumed that whatever incentives may be given to
investors should be within the bounds of the laws and the Constitution. The declaration of policy in Section 2 cannot, by any stretch of
the imagination, be read to provide an exception to either the laws or, heaven forbid, the Constitution. Exceptions are never presumed
and should be convincingly proven. Section 2 of the Investment Incentives Act cannot be read as exempting investors from the
Constitutional provisions (1) prohibiting private ownership of forest lands; (2) providing for the complete control and supervision by
the State of exploitation activities; or (3) limiting exploitation agreements to twenty-five years, renewable for another twenty-five
years.

Section 4(d) and (e), on the other hand, is a recognition of rights already guaranteed under the Constitution. Freedom from
expropriation is granted under Section 9 of Article III55 of the Constitution, while the provision on requisition is a negative restatement
of Section 6, Article XII.56
Refusal to grant perpetual and exclusive possession to PICOP of its concession area would not result in the expropriation or
requisition of PICOP’s property, as these forest lands belong to the State, and not to PICOP. This is not changed by PICOP’s
allegation that:

Since it takes 35 years before the company can go back and harvest their residuals in a logged-over area, it must be assured of tenure
in order to provide an inducement for the company to manage and preserve the residuals during their growth period. This is a
commitment of resources over a span of 35 years for each plot for each cycle. No company will undertake the responsibility and cost
involved in policing, preserving and managing residual forest areas until it were sure that it had firm title to the timber.57

The requirement for logging companies to preserve and maintain forest areas, including the reforestation thereof, is one of the prices a
logging company must pay for the exploitation thereof. Forest lands are meant to be enjoyed by countless future generations of
Filipinos, and not just by one logging company. The requirements of reforestation and preservation of the concession areas are meant
to protect them, the future generations, and not PICOP. Reforestation and preservation of the concession areas are not required of
logging companies so that they would have something to cut again, but so that the forest would remain intact after their
operations. That PICOP would not accept the responsibility to preserve its concession area if it is not assured of tenure thereto does
not speak well of its corporate policies.

Conclusion

In sum, PICOP was not able to prove either of the two things it needed to prove to be entitled to a Writ of Mandamus against the
DENR Secretary. The 1969 Document is not a contract recognized under the non-impairment clause and, even if we assume for the
sake of argument that it is, it did not enjoin the government to issue an IFMA in 2002 either. These are the essential elements in
PICOP’s cause of action, and the failure to prove the same warrants a dismissal of PICOP’s Petition for Mandamus, as not even
PICOP’s compliance with all the administrative and statutory requirements can save its Petition now.

Whether PICOP Has Complied with the Statutory and Administrative Requirements for the Conversion of the TLA to an IFMA

In the assailed Decision, our ruling was based on two distinct grounds, each one being sufficient in itself for us to rule that PICOP was
not entitled to a Writ of Mandamus: (1) the 1969 Document, on which PICOP hinges its right to compel the issuance of an IFMA, is
not a contract; and (2) PICOP has not complied with all administrative and statutory requirements for the issuance of an IFMA.

When a court bases its decision on two or more grounds, each is as authoritative as the other and neither is obiter dictum.58 Thus, both
grounds on which we based our ruling in the assailed Decision would become judicial dictum, and would affect the rights and interests
of the parties to this case unless corrected in this Resolution on PICOP’s Motion for Reconsideration. Therefore, although PICOP
would not be entitled to a Writ of Mandamus even if the second issue is resolved in its favor, we should nonetheless resolve the same
and determine whether PICOP has indeed complied with all administrative and statutory requirements for the issuance of an IFMA.

While the first issue (on the nature of the 1969 Document) is entirely legal, this second issue (on PICOP’s compliance with
administrative and statutory requirements for the issuance of an IFMA) has both legal and factual sub-issues. Legal sub-issues include
whether PICOP is legally required to (1) consult with and acquire an approval from the Sanggunian concerned under Sections 26 and
27 of the Local Government Code; and (2) acquire a Certification from the National Commission on Indigenous Peoples (NCIP) that
the concession area does not overlap with any ancestral domain. Factual sub-issues include whether, at the time it filed its Petition for
Mandamus, PICOP had submitted the required Five-Year Forest Protection Plan and Seven-Year Reforestation Plan and whether
PICOP had paid all forest charges.

For the factual sub-issues, PICOP invokes the doctrine that factual findings of the trial court, especially when upheld by the Court of
Appeals, deserve great weight. However, deserving of even greater weight are the factual findings of administrative agencies that have
the expertise in the area of concern. The contentious facts in this case relate to the licensing, regulation and management of forest
resources, the determination of which belongs exclusively to the DENR:

SECTION 4. Mandate. – The Department shall be the primary government agency responsible for the conservation, management,
development and proper use of the country’s environment and natural resources, specifically forest and grazing lands, mineral
resources, including those in reservation and watershed areas, and lands of the public domain, as well as the licensing and regulation
of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos.59

When parties file a Petition for Certiorari against judgments of administrative agencies tasked with overseeing the implementation of
laws, the findings of such administrative agencies are entitled to great weight. In the case at bar, PICOP could not have filed a Petition
for Certiorari, as the DENR Secretary had not yet even determined whether PICOP should be issued an IFMA. As previously
mentioned, when PICOP’s application was brought to a standstill upon the evaluation that PICOP had yet to comply with the
requirements for the issuance of an IFMA, PICOP refused to attend further meetings with the DENR and instead filed a Petition for
Mandamus against the latter. By jumping the gun, PICOP did not diminish the weight of the DENR Secretary’s initial determination.

Forest Protection and Reforestation Plans

The Performance Evaluation Team tasked to appraise PICOP’s performance on its TLA No. 43 found that PICOP had not submitted
its Five-Year Forest Protection Plan and its Seven-Year Reforestation Plan.60

In its Motion for Reconsideration, PICOP asserts that, in its Letter of Intent dated 28 August 2000 and marked as Exhibit L in the trial
court, there was a reference to a Ten-Year Sustainable Forest Management Plan (SFMP), in which a Five-Year Forest Protection Plan
and a Seven-Year Reforestation Plan were allegedly incorporated. PICOP submitted a machine copy of a certified photocopy of pages
50-67 and 104-110 of this SFMP in its Motion for Reconsideration. PICOP claims that the existence of this SFMP was repeatedly
asserted during the IFMA application process.61

Upon examination of the portions of the SFMP submitted to us, we cannot help but notice that PICOP’s concept of forest protection is
the security of the area against "illegal" entrants and settlers. There is no mention of the protection of the wildlife therein, as the focus
of the discussion of the silvicultural treatments and the SFMP itself is on the protection and generation of future timber harvests. We
are particularly disturbed by the portions stating that trees of undesirable quality shall be removed.

However, when we required the DENR Secretary to comment on PICOP’s Motion for Reconsideration, the DENR Secretary did not
dispute the existence of this SFMP, or question PICOP’s assertion that a Ten-Year Forest Protection Plan and a Ten-Year
Reforestation Plan are already incorporated therein. Hence, since the agency tasked to determine compliance with IFMA
administrative requirements chose to remain silent in the face of allegations of compliance, we are constrained to withdraw our
pronouncement in the assailed Decision that PICOP had not submitted a Five-Year Forest Protection Plan and a Seven-Year
Reforestation Plan for its TLA No. 43. As previously mentioned, the licensing, regulation and management of forest resources are the
primary responsibilities of the DENR.62

The compliance discussed above is, of course, only for the purpose of determining PICOP’s satisfactory performance as a TLA holder,
and covers a period within the subsistence of PICOP’s TLA No. 43. This determination, therefore, cannot prohibit the DENR from
requiring PICOP, in the future, to submit proper forest protection and reforestation plans covering the period of the proposed IFMA.

Forest Charges

In determining that PICOP did not have unpaid forest charges, the Court of Appeals relied on the assumption that if it were true that
PICOP had unpaid forest charges, it should not have been issued an approved Integrated Annual Operation Plan (IAOP) for the year
2001-2002 by Secretary Alvarez himself.63

In the assailed Decision, we held that the Court of Appeals had been selective in its evaluation of the IAOP, as it disregarded the part
thereof that shows that the IAOP was approved subject to several conditions, not the least of which was the submission of proof of the
updated payment of forest charges from April 2001 to June 2001.64 We also held that even if we considered for the sake of argument
that the IAOP should not have been issued if PICOP had existing forestry accounts, the issuance of the IAOP could not be considered
proof that PICOP had paid the same. Firstly, the best evidence of payment is the receipt thereof. PICOP has not presented any
evidence that such receipts were lost or destroyed or could not be produced in court. 65 Secondly, the government cannot be estopped
by the acts of its officers. If PICOP has been issued an IAOP in violation of the law, allegedly because it may not be issued if PICOP
had existing forestry accounts, the government cannot be estopped from collecting such amounts and providing the necessary
sanctions therefor, including the withholding of the IFMA until such amounts are paid.

We therefore found that, as opposed to the Court of Appeals’ findings, which were based merely on estoppel of government officers,
the positive and categorical evidence presented by the DENR Secretary was more convincing with respect to the issue of payment of
forestry charges:

1. Forest Management Bureau (FMB) Senior Forest Management Specialist (SFMS) Ignacio M. Evangelista testified that
PICOP had failed to pay its regular forest charges covering the period from 22 September 2001 to 26 April 2002 in the total
amount of ₱15,056,054.0566 PICOP also allegedly paid late most of its forest charges from 1996 onwards, by reason of
which, PICOP is liable for a surcharge of 25% per annum on the tax due and interest of 20% per annum which now amounts
to ₱150,169,485.02.67 Likewise, PICOP allegedly had overdue and unpaid silvicultural fees in the amount of ₱2,366,901.00
as of 30 August 2002.68 Summing up the testimony, therefore, it was alleged that PICOP had unpaid and overdue forest
charges in the sum of ₱167,592,440.90 as of 10 August 2002.69
 2. Collection letters were sent to PICOP, but no official receipts are extant in the DENR record in Bislig City evidencing
payment of the overdue amount stated in the said collection letters. 70 There were no official receipts for the period covering
22 September 2001 to 26 April 2002.

We also considered these pieces of evidence more convincing than the other ones presented by PICOP:

1. PICOP presented the certification of Community Environment and Natural Resources Office (CENRO) Officer Philip A.
Calunsag, which refers only to PICOP’s alleged payment of regular forest charges covering the period from 14 September
2001 to 15 May 2002.71 We noted that it does not mention similar payment of the penalties, surcharges and interests that
PICOP incurred in paying late several forest charges, which fact was not rebutted by PICOP.

2. The 27 May 2002 Certification by CENRO Calunsag specified only the period covering 14 September 2001 to 15 May
2002 and the amount of P53,603,719.85 paid by PICOP without indicating the corresponding volume and date of production
of the logs. This is in contrast to the findings of SFMS Evangelista, which cover the period from CY 1996 to 30 August 2002
and includes penalties, interests, and surcharges for late payment pursuant to DAO 80, series of 1987.

3. The 21 August 2002 PICOP-requested certification issued by Bill Collector Amelia D. Arayan, and attested to by CENRO
Calunsag himself, shows that PICOP paid only regular forest charges for its log production covering 1 July 2001 to 21
September 2001. However, there were log productions after 21 September 2001, the regular forest charges for which have
not been paid, amounting to ₱15,056,054.05.72 The same certification shows delayed payment of forest charges, thereby
corroborating the testimony of SFMS Evangelista and substantiating the imposition of penalties and surcharges.

In its Motion for Reconsideration, PICOP claims that SFMS Evangelista is assigned to an office that has nothing to do with the
collection of forest charges, and that he based his testimony on the Memoranda of Forest Management Specialist II (FMS II) Teofila
Orlanes and DENR, Bislig City Bill Collector Amelia D. Arayan, neither of whom was presented to testify on his or her
Memorandum. PICOP also submitted an Addendum to Motion for Reconsideration, wherein it appended certified true copies of
CENRO Summaries with attached Official Receipts tending to show that PICOP had paid a total of ₱81,184,747.70 in forest charges
for 10 January 2001 to 20 December 2002, including the period during which SFMS Evangelista claims PICOP did not pay forest
charges (22 September 2001 to 26 April 2002).

Before proceeding any further, it is necessary for us to point out that, as with our ruling on the forest protection and reforestation
plans, this determination of compliance with the payment of forest charges is exclusively for the purpose of determining PICOP’s
satisfactory performance on its TLA No. 43. This cannot bind either party in a possible collection case that may ensue.

An evaluation of the DENR Secretary’s position on this matter shows a heavy reliance on the testimony of SFMS Evangelista, making
it imperative for us to strictly scrutinize the same with respect to its contents and admissibility.

PICOP claims that SFMS Evangelista’s office has nothing to do with the collection of forest charges. According to PICOP, the entity
having administrative jurisdiction over it is CENRO, Bislig City by virtue of DENR Administrative Order No. 96-36, dated 20
November 1996, which states:

1. In order for the DENR to be able to exercise closer and more effective supervision, management and control over the forest
resources within the areas covered by TLA No. 43, PTLA No. 47 and IFMA No. 35 of the PICOP Resources, Inc., (PRI) and, at the
same time, provide greater facility in the delivery of DENR services to various publics, the aforesaid forest holdings of PRI are hereby
placed under the exclusive jurisdiction of DENR Region No. XIII with the CENR Office at Bislig, Surigao del Sur, as directly
responsible thereto. x x x.

We disagree. Evangelista is an SFMS assigned at the Natural Forest Management Division of the FMB, DENR. In Evangelista’s
aforementioned affidavit submitted as part of his direct examination, Evangelista enumerated his duties and functions as SFMS:

1. As SFMS, I have the following duties and functions:

a) To evaluate and act on cases pertaining to forest management referred to in the Natural forest Management
Division;

b) To monitor, verify and validate forest management and related activities by timber licences as to their compliance
to approved plans and programs;
 c) To conduct investigation and verification of compliance by timber licenses/permittees to existing DENR rules and
regulations;

d) To gather field data and information to be used in the formulation of forest policies and regulations; and

e) To perform other duties and responsibilities as may be directed by superiors.73

PICOP also alleges that the testimony of SFMS Evangelista was based on the aforementioned Memoranda of Orlanes and
Arayan and that, since neither Orlanes nor Arayan was presented as a witness, SFMS Evangelista’s testimony should be
deemed hearsay. SFMS Evangelista’s 1 October 2002 Affidavit,74 which was offered as part of his testimony, provides:

2. Sometime in September, 2001 the DENR Secretary was furnished a copy of forest Management Specialist II (FMS II)
Teofila L. Orlanes’ Memorandum dated September 24, 2001 concerning unopaid forest charges of PICOP. Attached to the
said Memorandum was a Memorandum dated September 19, 2001 of Amelia D. Arayan, Bill collector of the DENR R13-14,
Bislig City. Copies of the said Memoranda are attached as Annexes 1 and 2, respectively.

3. The said Memoranda were referred to the FMB Director for appropriate action.

4. Thus, on August 5, 2002, I was directed by the FMB Director to proceed to Region 13 to gather forestry-related data and
validate the report contained in the Memoranda of Ms. Orlanes and Arayan.

5. On August 6, 2002, I proceeded to DENR Region 13 in Bislig City. A copy of my Travel Order is attached as Annex 3.

6. Upon my arrival at CENRO, Bislig, surigao del Sur, I coordinated with CENRO Officer Philip A. Calunsag and requested
him to make available to me the records regarding the forest products assessments of PICOP.

7. After I was provided with the requested records, I evaluated and collected the data.

8. After the evaluation, I found that the unpaid forest charges adverted to in the Memoranda of Mr. Orlanes and Arayan
covering the period from May 8, 2001 to July 7, 2001 had already been paid but late. I further found out that PICOP had not
paid its forest charges covering the period from September 22, 2001 to April 26, 2002 in the total amount of ₱15,056,054.05.

9. I also discovered that from 1996 up to august 30, 2002, PICOP paid late some of its forest charges in 1996 and consistently
failed to pay late its forest charges from 1997 up to the present time.

10. Under Section 7.4 of DAO No. 80 Series of 197\87 and Paragraph (4a), Section 10 of BIR revenue Regulations No. 2-81
dated November 18, 1980, PICOP is mandated to pay a surcharge of 25% per annum of the tax due and interest of 20% per
annum for late payment of forest charges.

11. The overdue unpaid forest charges of PICOP as shown in the attached tabulation marked as Annex 4 hereof is
₱150,169,485.02. Likewise, PICOP has overdue and unpaid silvicultural fees in the amount of ₱2,366,901.00 from 1996 to
the present.

12. In all, PICOP has an outstanding and overdue total obligation of ₱167,592,440.90 as of August 30, 2002 based on the
attached tabulation which is marked as Annex 5 hereof.75

Clearly, SFMS Evangelista had not relied on the Memoranda of Orlanes and Arayan. On the contrary, he traveled to Surigao del Sur
in order to verify the contents of these Memoranda. SFMS Evangelista, in fact, revised the findings therein, as he discovered that
certain forest charges adverted to as unpaid had already been paid.

This does not mean, however, that SFMS Evangelista’s testimony was not hearsay. A witness may testify only on facts of which he
has personal knowledge; that is, those derived from his perception, except in certain circumstances allowed by the Rules. 76 Otherwise,
such testimony is considered hearsay and, hence, inadmissible in evidence.77

SFMS Evangelista, while not relying on the Memoranda of Orlanes and Arayan, nevertheless relied on records, the preparation of
which he did not participate in.78 These records and the persons who prepared them were not presented in court, either. As such, SFMS
Evangelista’s testimony, insofar as he relied on these records, was on matters not derived from his own perception, and was, therefore,
hearsay.
Section 44, Rule 130 of the Rules of Court, which speaks of entries in official records as an exception to the hearsay rule, cannot
excuse the testimony of SFMS Evangelista. Section 44 provides:

SEC. 44. Entries in official records. – Entries in official records made in the performance of his duty by a public officer of the
Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated.

In Africa v. Caltex,79 we enumerated the following requisites for the admission of entries in official records as an exception to the
hearsay rule: (1) the entries were made by a public officer or a private person in the performance of a duty; (2) the performance of the
duty is especially enjoined by law; (3) the public officer or the private person had sufficient knowledge of the facts stated by him,
which must have been acquired by him personally or through official information.

The presentation of the records themselves would, therefore, have been admissible as an exception to the hearsay rule even if the
public officer/s who prepared them was/were not presented in court, provided the above requisites could be adequately proven. In the
case at bar, however, neither the records nor the persons who prepared them were presented in court. Thus, the above requisites cannot
be sufficiently proven. Also, since SFMS Evangelista merely testified based on what those records contained, his testimony was
hearsay evidence twice removed, which was one step too many to be covered by the official-records exception to the hearsay rule.

SFMS Evangelista’s testimony of nonpayment of forest charges was, furthermore, based on his failure to find official receipts
corresponding to billings sent to PICOP. As stated above, PICOP attached official receipts in its Addendum to Motion for
Reconsideration to this Court. While this course of action is normally irregular in judicial proceedings, we merely stated in the
assailed Decision that "the DENR Secretary has adequately proven that PICOP has, at this time, failed to comply with administrative
and statutory requirements for the conversion of TLA No. 43 into an IFMA," 80 and that "this disposition confers another chance to
comply with the foregoing requirements."81

In view of the foregoing, we withdraw our pronouncement that PICOP has unpaid forestry charges, at least for the purpose of
determining compliance with the IFMA requirements.

NCIP Certification

The Court of Appeals held that PICOP need not comply with Section 59 of Republic Act No. 8371, which requires prior certification
from the NCIP that the areas affected do not overlap with any ancestral domain before any IFMA can be entered into by the
government. According to the Court of Appeals, Section 59 should be interpreted to refer to ancestral domains that have been duly
established as such by the continuous possession and occupation of the area concerned by indigenous peoples since time immemorial
up to the present. The Court of Appeals held that PICOP had acquired property rights over TLA No. 43 areas, being in exclusive,
continuous and uninterrupted possession and occupation of these areas since 1952 up to the present.

In the assailed Decision, we reversed the findings of the Court of Appeals. Firstly, the Court of Appeals ruling defies the settled
jurisprudence we have mentioned earlier, that a TLA is neither a property nor a property right, and that it does not create a vested
right.82

Secondly, the Court of Appeals’ resort to statutory construction is misplaced, as Section 59 of Republic Act No. 8379 is clear and
unambiguous:

SEC. 59. Certification Precondition. – All departments and other governmental agencies shall henceforth be strictly enjoined from
issuing, renewing or granting any concession, license or lease, or entering into any production-sharing agreement, without prior
certification from the NCIP that the area affected does not overlap with any ancestral domain. Such certification shall only be issued
after a field-based investigation is conducted by the Ancestral Domains Office of the area concerned: Provided, That no certification
shall be issued by the NCIP without the free and prior informed and written consent of the ICCs/IPs concerned: Provided, further,
That no department, government agency or government-owned or controlled corporation may issue new concession, license, lease, or
production sharing agreement while there is a pending application for a CADT: Provided, finally, That the ICCs/IPs shall have the
right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.

PICOP had tried to put a cloud of ambiguity over Section 59 of Republic Act No. 8371 by invoking the definition of Ancestral
Domains in Section 3(a) thereof, wherein the possesssion by Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs) must
have been continuous to the present. However, we noted the exception found in the very same sentence invoked by PICOP:

a) Ancestral domains – Subject to Section 56 hereof, refers to all areas generally belonging to ICCs/IPs comprising lands, inland
waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by
themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when
interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other
voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic,
social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually
owned whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and
other natural resources, and lands which may no longer be exclusively occupied by ICCs/IPs but from which they traditionally had
access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting
cultivators;

Ancestral domains, therefore, remain as such even when possession or occupation of these areas has been interrupted by causes
provided under the law, such as voluntary dealings entered into by the government and private individuals/corporations.
Consequently, the issuance of TLA No. 43 in 1952 did not cause the ICCs/IPs to lose their possession or occupation over the area
covered by TLA No. 43.

Thirdly, we held that it was manifestly absurd to claim that the subject lands must first be proven to be part of ancestral domains
before a certification that the lands are not part of ancestral domains can be required, and invoked the separate opinion of now Chief
Justice Reynato Puno in Cruz v. Secretary of DENR83:

As its subtitle suggests, [Section 59 of R.A. No. 8371] requires as a precondition for the issuance of any concession, license or
agreement over natural resources, that a certification be issued by the NCIP that the area subject of the agreement does not lie within
any ancestral domain. The provision does not vest the NCIP with power over the other agencies of the State as to determine whether to
grant or deny any concession or license or agreement. It merely gives the NCIP the authority to ensure that the ICCs/IPs have been
informed of the agreement and that their consent thereto has been obtained. Note that the certification applies to agreements over
natural resources that do not necessarily lie within the ancestral domains. For those that are found within the said domains, Sections
7(b) and 57 of the IPRA apply.

PICOP rejects the entire disposition of this Court on the matter, relying on the following theory:

84. It is quite clear that Section 59 of R.A. 8371 does not apply to the automatic conversion of TLA 43 to IFMA.

First, the automatic conversion of TLA 43 to an IFMA is not a new project. It is a mere continuation of the harvesting process in an
area that PICOP had been managing, conserving and reforesting for the last 50 years since 1952. Hence any pending application for a
CADT within the area, cannot affect much less hold back the automatic conversion. That the government now wishes to change the
tenurial system to an IFMA could not change the PICOP project, in existence and operating for the last 30 (sic) years, into a new
one.84

PICOP’s position is anything but clear. What is clearly provided for in Section 59 is that it covers "issuing, renewing or granting (of)
any concession, license or lease, or entering into any production sharing agreement." PICOP is implying that, when the government
changed the tenurial system to an IFMA, PICOP’s existing TLA would just be upgraded or modified, but would be the very same
agreement, hence, dodging the inclusion in the word "renewing." However, PICOP is conveniently leaving out the fact that its TLA
expired in 2002. If PICOP really intends to pursue the argument that the conversion of the TLA into an IFMA would not create a new
agreement, but would only be a modification of the old one, then it should be willing to concede that the IFMA expired as well in
2002. An automatic modification would not alter the terms and conditions of the TLA except when they are inconsistent with the
terms and conditions of an IFMA. Consequently, PICOP’s concession period under the renewed TLA No. 43, which is from the year
1977 to 2002, would remain the same.

PICOP cannot rely on a theory of the case whenever such theory is beneficial to it, but refute the same whenever the theory is
damaging to it. In the same way, PICOP cannot claim that the alleged Presidential Warranty is "renewable for other 25 years" and
later on claim that what it is asking for is not a renewal. Extensions of agreements must necessarily be included in the term renewal.
Otherwise, the inclusion of "renewing" in Section 59 would be rendered inoperative.

PICOP further claims:

85. Verily, in interpreting the term "held under claim of ownership," the Supreme Court could not have meant to include claims that
had just been filed and not yet recognized under the provisions of DENR Administrative Order No. 2 Series of 1993, nor to any other
community / ancestral domain program prior to R.A. 8371.

xxxx
87. One can not imagine the terrible damage and chaos to the country, its economy, its people and its future if a mere claim filed for
the issuance of a CADC or CADT will already provide those who filed the application, the authority or right to stop the renewal or
issuance of any concession, license or lease or any production-sharing agreement. The same interpretation will give such applicants
through a mere application the right to stop or suspend any project that they can cite for not satisfying the requirements of the
consultation process of R.A. 8371. If such interpretation gets enshrined in the statures of the land, the unscrupulous and the
extortionists can put any ongoing or future project or activity to a stop in any part of the country citing their right from having filed an
application for issuance of a CADC or CADT claim and the legal doctrine established by the Supreme Court in this PICOP case.85

We are not sure whether PICOP’s counsels are deliberately trying to mislead us, or are just plainly ignorant of basic precepts of law.
The term "claim" in the phrase "claim of ownership" is not a document of any sort. It is an attitude towards something. The phrase
"claim of ownership" means "the possession of a piece of property with the intention of claiming it in hostility to the true owner." 86 It
is also defined as "a party’s manifest intention to take over land, regardless of title or right." 87 Other than in Republic Act No. 8371,
the phrase "claim of ownership" is thoroughly discussed in issues relating to acquisitive prescription in Civil Law.

Before PICOP’s counsels could attribute to us an assertion that a mere attitude or intention would stop the renewal or issuance of any
concession, license or lease or any production-sharing agreement, we should stress beforehand that this attitude or intention must be
clearly shown by overt acts and, as required by Section 3(a), should have been in existence "since time immemorial, continuously to
the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government
projects or any other voluntary dealings entered into by government and private individuals/corporations."

Another argument of PICOP involves the claim itself that there was no overlapping:

Second, there could be no overlapping with any Ancestral Domain as proven by the evidence presented and testimonies rendered
during the hearings in the Regional Trial Court. x x x.

x x x x.

88. The DENR issued a total of 73 CADCs as of December 11, 1996. The DENR Undersecretary for Field Operations had
recommended another 11 applications for issuance of CADCs. None of the CADCs overlap the TLA 43 area.

89. However former DENR Secretary Alvarez, in a memorandum dated 13 September, 2002 addressed to PGMA, insisted that PICOP
had to comply with the requirement to secure a Free and Prior Informed Concent because CADC 095 was issued covering 17,112
hectares of TLA 43.

90. This CADC 095 is a fake CADC and was not validly released by the DENR. While the Legal Department of the DENR was still in
the process of receiving the filings for applicants and the oppositors to the CADC application, PICOP came across filed copies of a
CADC 095 with the PENRO of Davao Oriental as part of their application for a Community Based Forest Management Agreement
(CBFMA). Further research came across the same group filing copies of the alleged CADC 095 with the Mines and Geosciences
Bureau in Davao City for a mining agreement application. The two applications had two different versions of the CADCs second
page. One had Mr. Romeo T. Acosta signing as the Social reform Agenda Technical Action Officer, while the other had him signing
as the Head, Community-Based Forest Management Office. One had the word "Eight" crossed out and "Seven" written to make it
appear that the CADC was issued on September 25, 1997, the other made it appear that there were no alterations and the date was
supposed to be originally 25 September 1997.

What is required in Section 59 of Republic Act No. 8379 is a Certification from the NCIP that there was no overlapping with any
Ancestral Domain. PICOP cannot claim that the DENR gravely abused its discretion for requiring this Certification, on the ground
that there was no overlapping. We reiterate that it is manifestly absurd to claim that the subject lands must first be proven to be part of
ancestral domains before a certification that they are not can be required. As discussed in the assailed Decision, PICOP did not even
seek any certification from the NCIP that the area covered by TLA No. 43, subject of its IFMA conversion, did not overlap with any
ancestral domain.88

Sanggunian Consultation and Approval

While PICOP did not seek any certification from the NCIP that the former’s concession area did not overlap with any ancestral
domain, PICOP initially sought to comply with the requirement under Sections 26 and 27 of the Local Government Code to procure
prior approval of the Sanggunians concerned. 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 resolution 89 of the Province of Surigao del Sur
indorsing the approval of PICOP’s application for IFMA conversion, apparently hoping either that the disapproval of the other
provinces would go unnoticed, or that the Surigao del Sur approval would be treated as sufficient compliance.
Surprisingly, the disapproval by the other provinces did go unnoticed before the RTC and the Court of Appeals, despite the repeated
assertions thereof by the Solicitor General. When we pointed out in the assailed Decision that the approval must be by all the
Sanggunians concerned and not by only one of them, PICOP changed its theory of the case in its Motion for Reconsideration, this time
claiming that they are not required at all to procure Sanggunian approval.

Sections 2(c), 26 and 27 of the Local Government Code provide:

SEC. 2. x x x.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate
local government units, nongovernmental and people’s organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions.

SEC. 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. – It shall be the duty of every national
agency or government-owned or controlled corporation authorizing or involved in the planning and implementation of any project or
program that may cause pollution, climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover,
and extinction of animal or plant species, to consult with the local government units, nongovernmental organizations, and other sectors
concerned and explain the goals and objectives of the project or program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.

SEC. 27. Prior Consultations Required. – No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of the sanggunian concerned is obtained:
Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless appropriate relocation sites
have been provided, in accordance with the provisions of the Constitution.

As stated in the assailed Decision, the common evidence of the DENR Secretary and PICOP, namely, the 31 July 2001 Memorandum
of Regional Executive Director (RED) Elias D. Seraspi, Jr., enumerated the local government units and other groups which had
expressed their opposition to PICOP’s application for IFMA conversion:

7. During the conduct of the performance evaluation of TLA No. 43 issues complaints against PRI were submitted thru Resolutions
and letters. It is important that these are included in this report for assessment of what are their worth, viz:

xxxx

7.2 Joint Resolution (unnumbered), dated March 19, 2001 of the Barangay Council and Barangay Tribal Council of Simulao, Boston,
Davao Oriental (ANNEX F) opposing the conversion of TLA No. 43 into IFMA over the 17,112 hectares allegedly covered with
CADC No. 095.

7.3 Resolution Nos. 10, s-2001 and 05, s-2001 (ANNEXES G & H) of the Bunawan Tribal Council of Elders (BBMTCE) strongly
demanding none renewal of PICOP TLA. They claim to be the rightful owner of the area it being their alleged ancestral land.

7.4 Resolution No. 4, S-2001 of Sitio Linao, San Jose, Bislig City (ANNEX I) requesting not to renew TLA 43 over the 900 hectares
occupied by them.

7.5 Resolution No. 22, S-2001 (ANNEX J) of the Sanguniang Bayan, Lingig, Surigao del Sur not to grant the conversion of TLA 43
citing the plight of former employees of PRI who were forced to enter and farm portion of TLA No. 43, after they were laid off.

7.6 SP Resolution No. 2001-113 and CDC Resolution Nos. 09-2001 of the Sanguniang Panglungsod of Bislig City (ANNEXES K &
L) requesting to exclude the area of TLA No. 43 for watershed purposes.

7.7 Resolution No. 2001-164, dated June 01, 2001 (ANNEX M) Sanguniang Panglungsod of Bislig City opposing the conversion of
TLA 43 to IFMA for the reason that IFMA do not give revenue benefits to the City.90

PICOP had claimed that it complied with the Local Government Code requirement of obtaining prior approval of the Sanggunian
concerned by submitting a purported resolution91 of the Province of Surigao del Sur indorsing the approval of PICOP’s application for
IFMA conversion. We ruled that this cannot be deemed sufficient compliance with the foregoing provision. Surigao del Sur is not the
only province affected by the area covered by the proposed IFMA. As even the Court of Appeals found, PICOP’s TLA No. 43
traverses the length and breadth not only of Surigao del Sur but also of Agusan del Sur, Compostela Valley and Davao Oriental.92

On Motion for Reconsideration, PICOP now argues that the requirement under Sections 26 and 27 does not apply to it:

97. PICOP is not a national agency. Neither is PICOP government owned or controlled. Thus Section 26 does not apply to PICOP.

98. It is very clear that Section 27 refers to projects or programs to be implemented by government authorities or government-owned
and controlled corporations. PICOP’s project or the automatic conversion is a purely private endevour. First the PICOP project has
been implemented since 1969. Second, the project was being implemented by private investors and financial institutions.

99. The primary government participation is to warrant and ensure that the PICOP project shall have peaceful tenure in the permanent
forest allocated to provide raw materials for the project. To rule now that a project whose foundations were commenced as early as
1969 shall now be subjected to a 1991 law is to apply the law retrospectively in violation of Article 4 of the Civil Code that laws shall
not be applied retroactively.

100. In addition, under DAO 30, Series of 1992, TLA and IFMA operations were not among those devolved function from the
National Government / DENR to the local government unit. Under its Section 03, the devolved function cover only:

a) Community Based forestry projects.

b) Communal forests of less than 5000 hectares

c) Small watershed areas which are sources of local water supply.93

We have to remind PICOP again of the contents of Section 2, Article XII of the Constitution:

Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State. With the exception of
agricultural lands, all other natural resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least sixty per
centum of whose capital is owned by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by law. In cases of water rights for
irrigation, water supply, fisheries, or industrial uses other than the development of water power, beneficial use may be the measure and
limit of the grant.

All projects relating to the exploration, development and utilization of natural resources are projects of the State. While the State may
enter into co-production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or associations at least
sixty per centum of whose capital is owned by these citizens, such as PICOP, the projects nevertheless remain as State projects and
can never be purely private endeavors.

Also, despite entering into co-production, joint venture, or production-sharing agreements, the State remains in full control and
supervision over such projects. PICOP, thus, cannot limit government participation in the project to being merely its bouncer, whose
primary participation is only to "warrant and ensure that the PICOP project shall have peaceful tenure in the permanent forest
allocated to provide raw materials for the project."

PICOP is indeed neither a national agency nor a government-owned or controlled corporation. The DENR, however, is a national
agency and is the national agency prohibited by Section 27 from issuing an IFMA without the prior approval of the Sanggunian
concerned. As previously discussed, PICOP’s Petition for Mandamus can only be granted if the DENR Secretary is required by law to
issue an IFMA. We, however, see here the exact opposite: the DENR Secretary was actually prohibited by law from issuing an IFMA,
as there had been no prior approval by all the other Sanggunians concerned.

As regards PICOP’s assertion that the application to them of a 1991 law is in violation of the prohibition against the non-retroactivity
provision in Article 4 of the Civil Code, we have to remind PICOP that it is applying for an IFMA with a term of 2002 to 2027.
Section 2, Article XII of the Constitution allows exploitation agreements to last only "for a period not exceeding twenty-five years,
renewable for not more than twenty-five years." PICOP, thus, cannot legally claim that the project’s term started in 1952 and extends
all the way to the present.
Finally, the devolution of the project to local government units is not required before Sections 26 and 27 would be applicable. Neither
Section 26 nor 27 mentions such a requirement. Moreover, it is not only the letter, but more importantly the spirit of Sections 26 and
27, that shows that the devolution of the project is not required. The approval of the Sanggunian concerned is required by law, not
because the local government has control over such project, but because the local government has the duty to protect its constituents
and their stake in the implementation of the project. Again, Section 26 states that it applies to projects that "may cause pollution,
climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and extinction of animal or plant
species." The local government should thus represent the communities in such area, the very people who will be affected by flooding,
landslides or even climatic change if the project is not properly regulated, and who likewise have a stake in the resources in the area,
and deserve to be adequately compensated when these resources are exploited.

Indeed, it would be absurd to claim that the project must first be devolved to the local government before the requirement of the
national government seeking approval from the local government can be applied. If a project has been devolved to the local
government, the local government itself would be implementing the project. That the local government would need its own approval
before implementing its own project is patently silly.

EPILOGUE AND DISPOSITION

PICOP’c cause of action consists in the allegation that the DENR Secretary, in not issuing an IFMA, violated its constitutional right
against non-impairment of contracts. We have ruled, however, that the 1969 Document is not a contract recognized under the non-
impairment clause, much less a contract specifically enjoining the DENR Secretary to issue the IFMA. The conclusion that the 1969
Document is not a contract recognized under the non-impairment clause has even been disposed of in another case decided by another
division of this Court, PICOP Resources, Inc. v. Base Metals Mineral Resources Corporation, 94 the Decision in which case has
become final and executory. PICOP’s Petition for Mandamus should, therefore, fail.

Furthermore, even if we assume for the sake of argument that the 1969 Document is a contract recognized under the non-impairment
clause, and even if we assume for the sake of argument that the same is a contract specifically enjoining the DENR Secretary to issue
an IFMA, PICOP’s Petition for Mandamus must still fail. The 1969 Document expressly states that the warranty as to the tenure of
PICOP is "subject to compliance with constitutional and statutory requirements as well as with existing policy on timber concessions."
Thus, if PICOP proves the two above-mentioned matters, it still has to prove compliance with statutory and administrative
requirements for the conversion of its TLA into an IFMA.

While we have withdrawn our pronouncements in the assailed Decision that (1) PICOP had not submitted the required forest
protection and reforestation plans, and that (2) PICOP had unpaid forestry charges, thus effectively ruling in favor of PICOP on all
factual issues in this case, PICOP still insists that the requirements of an NCIP certification and Sanggunian consultation and approval
do not apply to it. To affirm PICOP’s position on these matters would entail nothing less than rewriting the Indigenous Peoples’
Rights Act and the Local Government Code, an act simply beyond our jurisdiction.

WHEREFORE, the Motion for Reconsideration of PICOP Resources, Inc. is DENIED.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.

Associate Justice Associate Justice

No part
TERESITA J. LEONARDO-DE CASTRO
ANTONIO EDUARDO B. NACHURA*
Associate Justice
Associate Justice
 ARTURO D. BRION DIOSDADO M. PERALTA
Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Resolution were
reached in consultation before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice

Footnotes
* No part.
1
 Records, pp. 1-38.
2
 Id. at 36.
3
 Rollo (G.R. No. 162243), pp. 221-222.
4
 Records, Vol. 2, pp. 393-456.
5
 Records, Vol. 4, pp. 1349-1575.
6
 The dispositive portion of the 10 February 2003 Order reads:
WHEREFORE, premises considered, the Motion for Reconsideration dated October 25, 2002 is hereby DENIED for
utter lack of merit while the Motion for the Issuance of Writ of Mandamus and/or Writ of Mandatory Injunction is
GRANTED. Accordingly, respondent DENR Secretary Heherson Alvarez, now substituted by Secretary Elisea
Gozun, 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 IFMA, formerly TLA No. 43, as amended;
2. to issue the necessary permit allowing petitioner to act and harvest timber from the said area of TLA No. 43,
sufficient to meet the raw material requirements of petitioner’s pulp and paper mills in accordance with the warranty
and agreement of July 29, 1969 between the government and PICOP’s predecessor-in-interest; and
3. to honor and respect the Government Warranties and contractual obligations to PICOP strictly in accordance with
the warranty and agreement dated July 29, 1999 (sic) between the government and PICOP’s predecessor-in-interest
(Exhibits "H", "H-1" to "H-5", particularly the following:
a) The area coverage of TLA No. 43, which forms part and parcel of the government warranties;
b) PICOP tenure over the said area of TLA No. 43 and exclusive right to cut, collect and remove sawtimber
and pulpwood for the period ending on April 26, 1977; and said period to be renewable for another 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. (Records, Vol. 4, pp. 1374-1375)
7
 Records, Vol. 2, p. 611.
8
 Rollo (G.R. No. 162243), pp. 229-258. Penned by Associate Justice Ruben T. Reyes, with Associate Justices Edgardo P.
Cruz and Noel G. Tijam concurring; rollo (G.R. No. 162243), pp. 229-258.
9
 Rollo (G.R. No. 162243), p. 257.
10
 Rollo (G.R. No. 164516), pp. 107-119.
11
 Id. at 121-122.
12
 Id. at 814.
13
 PICOP’s Petition for Mandamus; records, p. 5.
14
 Id.; records, p. 20.
15
 Id. at 20-21.
16
 Regulations Governing the Integrated Forest Management Program (IFMP); records, pp. 41-55.
17
 Records, p. 43.
18
 Id. at 46.
19
 14A Words and Phrases, West Publishing Co., p. 290 (1952), citing Lawrence v. Cooke, N.Y., 32 Hun 126, 134.
20
 Id., citing Clifford v. Stewart, 49 A. 52, 55, 95 Me. 38.
21
 3 Words and Phrases, West Publishing Co., p. 344 (1953), citing Giffin v. Petree, 46 S.W. 2d 609, 618, 226 Mo. App. 718.
22
 Akbayan-Youth v. Commission on Elections, 407 Phil. 618, 646 (2001).
23
 PICOP’s Petition for Mandamus; records, p. 20.
24
 Decision, p. 26.
25
 The nature of PICOP’s Petition for Mandamus reads in full:
NATURE OF THE PETITION/COMPLAINT
1. This is a Special Civil Action for Mandamus, with prayer for issuance of Writ of Preliminary Prohibitory and
Mandatory Injunction with Damages under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
1.1 Petitioner invokes the jurisdiction of this Honorable Court conferred by Batas Pambansa Blg. 129, The Judiciary
Reorganization Act of 1980, under Sections 21 thereof:
"Sec. 21. Original Jurisdiction in other cases. Regional Trial Court shall exercise original jurisdiction:
(1) In the issuance of writs of certiorari, prohibition mandamus, quo warranto, habeas corpus and injunction which
may be enforced in any part of their respective regions; xxx (underscoring supplied).
1.2 Petitioner brings the instant petition for the grant of the privileged writ of mandamus, with prayer for the
issuance of provisional remedies of preliminary prohibitory and mandatory injunction pendente lite against
respondent Secretary for illegal acts which impinge on and violate the constitutional rights of petitioner, and
respondent Secretary has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an
abuse of discretion amounting to excess of jurisdiction.
1.3 Appropriateness of Recourse to Mandamus. The 1997 Rules of Civil Procedure, as amended, under Rule 65,
Sec. 3 thereof provides relief against official acts by public officers which are illegal and traduces fundamental
rights of a party aggrieved, or acts done without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction. Thus:
"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 person 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 damages sustained by the petitioner by reason
of the wrongful acts of the respondent." (Emphasis supplied)
1.4 The jurisdiction of this Honorable Court to adjudicate the matters raised in this petition and to issue the
privileged writ of mandamus is a settled matter. In Tañada v. Angara, 272 SCRA 18 [1997], the Supreme Court
held:
The jurisdiction of this Court to adjudicate the matters raised in the petition is clearly set out in the 1987
Constitution, as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government.
The foregoing text emphasizes the judicial department’s duty and power to strike down grave abuse of discretion on
the part of any branch or instrumentality of government including Congress. It is innovation in our political law. As
explained by former Chief Justice Roberto Concepcion, the judiciary is the final arbiter on the question of whether
or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so
capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not a judicial power
but a duty to pass judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases, it will not shirk, digress from or abandon its
sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before
it in appropriate cases, committed by any officer, agency, instrumentality or department of the government.
As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate remedy in the
ordinary course of law, we have no hesitation at all in holding that this petition should be given due course and the
vital questions raised therein ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari, prohibition and
mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper,
acts of legislative and executive officials. On this, we have no equivocation.
1.5 By this privileged writ of mandamus, petitioner seeks to:
1.5.1 Compel respondent Department of Environment and Natural Resources (DENR) Secretary Heherson T.
Alvarez to execute and deliver the Integrated Forestry Management Agreement (IFMA for short), and issue the
corresponding IFMA number assignment to petitioner and to which it has a clear legal right and respondent has the
legal duty to perform.
Respondent DENR Secretary has unlawfully refused and neglected and continue to unlawfully refuse and neglect, to
issue the IFMA and corresponding IFMA number assignment to PICOP, the performance of which the law
specifically enjoins as a duty resulting from his office. Respondent Secretary Alvarez in refusing to sign, execute
and deliver the IFMA and corresponding IFMA assignment number to PICOP has acted without jurisdiction or in
excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess or lack of
jurisdiction.
1.5.2 Compel respondent DENR Secretary to abide by and respect the obligation of contract embodied under a letter
warranty and agreement entered into by and between the Government and PICOP’s predecessor-in-interest dated 29
July 1969, with the following covenants:
"This has reference to the request of the Board of Investment through its Chairman in a letter dated July 16, 1969 for
a warranty on the boundaries of your concession area under Timber License Agreement No. 43, as amended.
We are made to understand that your company is committed to support the first large scale integrated wood
processing complex (hereinafter called "The Project") and that such support will be provided not only in the form of
the supply of pulpwood and other wood materials from your concession but also by making available funds
generated out of your own operations, to supplement PICOP’s operational sources of funds and other financial
arrangements made by him. In order that your company may provide such support effectively, it is understood that
you will call upon your stockholders to take such steps as may be necessary to effect in unification of managerial,
technical, economical 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 licenses 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 attached to 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, 1997; 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."
Copy of which is attached as Annex "A".
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 other twenty five (25) years, of PICOP over the area
covered by said Agreement 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, and petitioner’s exclusive
right to cut, collect and remove sawtimber and pulpwood therein and the peaceful and adequate enjoyment of the
said area as described and specified in petitioner’s Timber License Agreement (TLA) No. 43 guaranteed by the
Government, under the Warranty and Agreement of 29 July 1969.
1.7 The Bill of Rights of the 1987 Constitution guarantees the non-impairment of the obligation of contract,
providing in Sec. 10, Art. III thereof that:
"Sec. 10. No law impairing the obligation of contracts shall be passed."
1.8 The obligation of a contract is the law or duty which binds the parties to perform their agreement according to its
terms or intent (Sturgess v. Crownshields, 4 Wheat 122). The treaties on the Constitution state the scope of terms
"law" and "contract", to mean:
(1) The law, the enactment of which is prohibited, includes executive and administrative orders issued by
heads of departments, and ordinances enacted by local governments. (citing Lim v. Secretary of
Agriculture, 34 SCRA 751 [1970]).
(2) The contract, the obligation of which is secured against impairment by the Constitution, includes
contracts entered into by the Government (citing Maddumba v. GSIS, 182 SCRA 281 [1990]). An example
of impairment by law is when a tax exemption based on a contract entered into by the government is
revoked by a letter taxing statute (citing Casanova v. Hord, 8 Phil. 125 [1907]).
(3) The State when contracting does so upon the same terms as a private individual or corporation and may
not plead its sovereignty as justification in impairing a contractual obligation which it has assumed (citing
Willoughby, op. Cit. p. 1224).
(4) In a Contract, a party acquires a right and the other assumed an obligation arising from the same (Art.
1305, New Civil Code). A contract is the law between the contracting parties, their assigns, and their heirs
(Arts. 1159, 1311 par. 1, Civil Code) (De Leon, Philippine Constitutional Law, Principles and Cases, 1999
Ed., pp. 682, 283).
As used in the Constitution, the word "Contracts" includes other arrangement not normally considered to be
contracts such as a legislative grant of a public land to particular individuals, such that a subsequent attempt by the
State to annul the title of purchasers in good faith from the grantee would be unconstitutional (citing Fletcher v.
Peck, 10 US 87). (ibid., p. 6).
1.9 There is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law except the
privileged writ of mandamus prayed for in this petition.
 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]). (PICOP’s Petition for Mandamus, Records pp. 1-6.)
26
 G.R. No. 163509, 6 December 2006, 510 SCRA 400, penned by Associate Justice Dante O. Tinga with Associate Justices
Leo A. Quisumbing, Antonio T. Carpio, Conchita Carpio Morales, and Presbitero J. Velasco, Jr., concurring.
27
 That the erstwhile Third Division of this Court was still unaware of this Division’s Decision is shown by the following
excerpts in its Decision:
PICOP brings to the Court’s attention the case of PICOP Resources, Inc. v. Hon. Heherson T. Alvarez, wherein the
Court of Appeals ruled that the Presidential Warranty issued to PICOP for its TLA No. 43 dated July 29, 1969, a
TLA distinct from PTLA No. 47 involved in this case, is a valid contract involving mutual prestations on the part of
the Government and PICOP.
xxxx
The case of PICOP Resources, Inc. v. Hon. Heherson T. Alvarez, supra, cited by PICOP cannot be relied upon to
buttress the latter’s claim that a presidential warranty is a valid and subsisting contract between PICOP and the
Government because the decision of the appellate court in that case is still pending review before the Court’s Second
Division. (Id. at 411-415.)
28
 Id. at 426-428.
29
 TSN, Oral Arguments, pp. 174-181.
30
 PICOP’s Petition for Mandamus; records, pp. 26-27.
31
 PICOP’s Memorandum, p. 101; rollo, p. 1262.
32
 PICOP’s Motion for Reconsideration, p. 50; rollo, p. 1391a; TSN, 19 September 2002, pp. 27-35; 41-45.
33
 Id. at 51; rollo, p. 1391b.
34
 Oral Arguments, 10 February 2009; TSN, pp. 158-167.
35
 RULES OF COURT, Section 3(m), Rule 131.
36
 Article XIV, Section 8, 1973 Constitution provides:
Section 8. All lands of 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, or resettlement lands of the public domain, natural resources shall
not be alienated, and no license, concession, or lease for the exploration, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, except as to water rights for irrigation, water supply,
fisheries, or industrial uses other than development of water power, in which cases, beneficial use may by the
measure and the limit of the grant.
37
 Oral Arguments, 10 February 2009, TSN, pp. 230-236.
38
 G.R. No. 174340, 17 October 2006, 504 SCRA 704, 730.
39
 Javellana v. Tayo, 116 Phil. 1342, 1351 (1962).
40
 PICOP’s Motion for Reconsideration, p. 16; rollo, p. 1385.
41
 Id.
42
 Id.
43
 PICOP (CA rollo, p. 176).
44
 Secretary of Agriculture and Natural Resources (id.).
45
 Timber License Agreement No. 43; CA rollo, p. 177.
46
 CA rollo, pp. 323-324.
47
 G.R. No. 84847, 5 March 1993, 219 SCRA 541.
48
 Quirino v. Palarca, 139 Phil. 488, 492 (1969).
49
 Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 127 Phil. 306, 318 (1967).
50
 The definition in DAO No. 99-53 that an IFMA is a "production sharing contract" has not been assailed as unconstitutional,
thus prohibiting us from determining its constitutionality. Nonetheless, a mere designation in an administrative rule cannot
alter the legal nature thereof.
51
 PICOP’s Motion for Reconsideration, p. 21; rollo, p. 1386.
52
 The land area of Metro Manila is 63,600 hectares, or 636 square kilometers. Metro Manila includes within its boundaries
the following cities and municipalities: Quezon City, Manila, Caloocan, Makati, Pasig, Marikina, Mandaluyong, Pasay City,
Muntinlupa, Parañaque, Las Piñas, Valenzuela, Taguig, Malabon, Navotas, San Juan and Pateros.
53
 PICOP’s Motion for Reconsideration, pp. 22-23; rollo, pp. 1386a-1386b.
54
 SECTION 5. Incentives to Investors in a Registered Enterprise. — An investor, with respect to his investment in a
registered enterprise, shall be granted the following incentive benefits:
(a) Protection of Patents and Other Proprietary Rights. — The right to be protected from infringement of
patents, trademarks, copyright, trade names, and other proprietary rights, where such patents, trade marks,
 copyright, trade names, and other proprietary rights have been registered with the Board and the
appropriate agencies of the Government of the Philippines.
(b) Capital Gains Tax Exemption. — Exemption from income tax on that portion of the gains realized from
the sale, disposition, or transfer of capital assets, as defined in Section thirty-four of the National Internal
Revenue Code, that corresponds to the portion of the proceeds of the sale that is invested in new issues of
capital stock of a registered enterprise within six months from the date the gains were realized: Provided,
(1) that the said sale, disposition or transfer and the investment of the proceeds thereof have been registered
with the Board and the Bureau of Internal Revenue; and (2) that the shares of stock representing the
investment are not disposed of, transferred, assigned, or conveyed for a period of five years from the date
the investment was made. If such shares of stock are disposed of within the said period of five (5) years, all
taxes due on the gains realized from the original transfer, sale or disposition of the capital assets shall
immediately become due and payable.
SECTION 6. Incentives to Philippine Nationals Investing in Pioneer Enterprises. — In addition to the incentives
provided in the preceding sections, Philippine Nationals investing in a pioneer enterprise shall be granted the
following incentives benefits:
(a) Tax Allowance for Investments. — An investment allowance to the extent of his actual investment, paid
in cash or property shall be allowed as a deduction from his taxable income but not to exceed ten per cent
thereof: Provided, (1) That the investment is made in a subscription of shares in the original and/or
increased capital stock of a pioneer enterprise within seven years from the date of registration; (2) that the
shares are held for a period of not less than three years and; (3) that the investment is registered with the
Board. If the shares are disposed of within the said three year period, the tax payer shall lose the benefit of
this deduction, his income tax liability shall be recomputed, and he shall pay whatever additional sum be
due plus interest thereon, within thirty days from the date of disposition.
(b) Capital Gains Tax Exemption. — Exemption from income tax on the portion of the gains realized from
the sale, disposition, or transfer of capital assets, as defined in Section thirty-four of the National Internal
Revenue Code, that corresponds to the portion of the proceeds of the sale that is invested in new issues of
capital stock of, or in the purchase of stock owned by foreigners in, pioneer enterprises, within six months
from the date the gains were realized: Provided, (1) That such sale, disposition or transfer and the
investment of the proceeds thereof are registered with the Board and the Bureau of Internal Revenue; and
(2) that the shares of stock representing the investment are not disposed of, transferred, assigned or
conveyed for a period of three (3) years from the date the investment was made. If said shares of stock are
disposed of within the said period of three (3) years, all taxes due on the gains realized from the original
transfer, sale or disposition of the capital assets shall immediately become due and payable.
(c) Tax Exemption on Sale of Stock Dividends. — Exemption from income tax on all gains realized from
the sale, disposition, or transfer of stock dividends received from a pioneer enterprise: Provided, That the
sale, disposition or transfer occurs within seven years from the date of registration of the enterprise.
SECTION 7. Incentives to a Registered Enterprise. — A registered enterprise, to the extent engaged in a preferred
area of investment, shall be granted the following incentive benefits:
(a) Deduction of Organizational and Pre-Operating Expenses. — All capitalized organizational and pre-
operating expenses attributable to the establishment of a registered enterprise may be deducted from its
taxable income over a period of not more than ten years beginning with the month the enterprise begins
operations, provided the taxpayer indicates the desired amortization period at the time of the filing of the
income tax returns for the first taxable year. For the purpose of this provision, organizational and pre-
operating expenses shall include expenses for pre-investment studies, start up costs, costs of initial
recruitment and training, and similar expenses.
(b) Accelerated Depreciation. — At the option of the taxpayer and in accordance with the procedure
established by the Bureau of Internal Revenue, fixed assets may be (1) depreciated to the extent of not more
than twice as fast as normal rate of depreciation or depreciated at normal rate of depreciation if expected
life is ten years or less; or (2) depreciated over any number of years between five years and expected life if
the latter is more than ten (10) years; and the depreciation thereon allowed as a deduction from taxable
income: Provided, That the taxpayer notifies the Bureau of Internal Revenue at the beginning of the
depreciation period which depreciation rate allowed by this section will be used by it.
(c) Net Operating Loss Carry-over. — A net operating loss incurred in any of the first ten years of
operations may be carried over as a deduction from taxable income for the six years immediately following
the year of such loss. The entire amount of the loss shall be carried over to the first of the six taxable years
following the loss, and any portion of such loss which exceeds the taxable income of such first year shall be
deducted in like manner from the taxable income of the next remaining five years. The net operating loss
shall be computed in accordance with the provisions of the National Internal Revenue Code, any provision
of this Act to the contrary notwithstanding, except that income not taxable either in whole or in part under
this or other laws shall be included in gross income.
(d) Tax Exemption on Imported Capital Equipment. — Within seven years from the date of registration of
the enterprise, importation of machinery and equipment, and spare parts shipped with such machinery and
equipment, shall not be subject to tariff duties and compensating tax: Provided, That said machinery,
equipment and spare parts: (1) are not manufactured domestically in reasonable quantity and quality at
reasonable prices; (2) are directly and actually needed and will be used exclusively by the registered
enterprise in the manufacture of its products; (3) are covered by shipping documents in the name of the
registered enterprise to whom the shipment will be delivered direct by customs authorities; (4) the prior
approval of the Board was obtained by the registered enterprise before the importation of such machinery,
equipment and spare parts; and (5) the registered enterprise chooses not to avail of the privileges granted by
Republic Act Numbered Thirty-one hundred twenty-seven, as amended. If the registered enterprise sells,
transfers, or disposes of these machinery, equipment and spare parts without the prior approval of the
Board within five (5) years from the date of acquisition, the registered enterprise shall pay twice the
amount of the tax exemption given it. However, the Board shall allow and approve the sale, transfer, or
disposition of the said items within the said period of five (5) years if made: (1) to another registered
enterprise; (2) for reasons of proven technical obsolescence; or (3) for purposes of replacement to improve
and/or expand the operations of the enterprise.
(e) Tax Credit on Domestic Capital Equipment. — A tax credit equivalent to one hundred per cent (100%)
of the value of the compensating tax and customs duties that would have been paid on the machinery,
equipment and spare parts had these items been imported shall be given to the registered enterprise who
purchases machinery, equipment and spare parts from a domestic manufacturer, and another tax credit
equivalent to fifty per cent (50%) thereof shall be given to the said manufacturer: Provided, (1) That the
said machinery, equipment and spare parts are directly and actually needed and will be used exclusively by
the registered enterprise in the manufacture of its products; (2) that the prior approval of the Board was
obtained by the local manufacturer concerned; and (3) that the sale is made within seven years from the
date of registration of the registered enterprise. If the registered enterprise sells, transfers or disposes of
these machinery, equipment and spare parts without the prior approval of the Board within five years from
the date of acquisition, then it shall pay twice the amount of the tax credit given it. However, the Board
shall allow and approve the sale, transfer, or disposition of the said items within the said period of five
years if made (1) to another registered enterprise; (2) for reasons of proven technical obsolescence; or (3)
for purposes of replacement to improve and/or expand the operations of the enterprise
(f) Tax Credit for Withholding Tax on Interest. — A tax credit for taxes withheld on interest payments on
foreign loans shall be given a registered enterprise when (1) no such credit is enjoyed by the lender-
remittee in his country and (2) the registered enterprise has assumed the liability for payment of the tax due
from the lender-remittee.
(g) Employment of Foreign Nationals. — Subject to the provisions of Section twenty-nine of
Commonwealth Act Numbered Six hundred thirteen, as amended, an enterprise may, within five years from
registration, employ foreign nationals in supervisory, technical or advisory positions not in excess of five
per centum of its total personnel in each such category: Provided, That in no case shall each employment
exceed five years. The employment of foreign nationals after five years from registration, or within such
five years but in excess of the proportion herein provided, shall be governed by Section twenty of
Commonwealth Act Numbered Six hundred thirteen, as amended.
Foreign nationals under employment contract within the purview of this Act, their spouse and unmarried
children under twenty-one years of age, who are not excluded by Section twenty-nine of Commonwealth
Act Numbered Six hundred thirteen, shall be permitted to enter and reside in the Philippines during the
period of employment of such foreign nationals.
A registered enterprise shall train Filipinos in administrative, supervisory, and technical skills and shall
submit annual reports on such training to the Board of Investments.
(h) Deduction for Expansion Reinvestment. — When a registered enterprise reinvests its undistributed
profit or surplus by actual transfer thereof to the capital stock of the corporation for procurement of
machinery, equipment and spare parts previously approved by the Board under Subsections "d" and "e"
hereof or for the expansion of machinery and equipment used in production or for the construction of the
buildings, improvements or other facilities for the installation of the said machinery and equipment, the
amount so reinvested shall be allowed as a deduction from its taxable income in the year in which such
reinvestment was made: Provided, (1) That prior approval by the Board of such reinvestment was obtained
by the registered enterprise planning such reinvestment, and (2) that the registered enterprise does not
reduce its capital stock represented by the reinvestment within seven years from the date such reinvestment
was made. In the event the registered enterprise does not order the machinery and equipment within two (2)
years from the date the reinvestment was made or reduces its capital stock represented by the reinvestment
within a period of seven years from the date of reinvestment, a recomputation of the income tax liability
therefor shall be made for the period when the deduction was made, and the proper taxes shall be assessed
and paid with interest.
(i) Anti-Dumping Protection. — Upon recommendation of the Board, made after notice and hearing, the
President shall issue a directive banning for a limited period the importation of goods or commodities
which, as provided in Section three hundred one (a) of the Tariff and Customs Code of the Philippines,
 unfairly or unnecessarily complete with those produced by registered enterprises: Provided, (1) That the
Board certifies to the satisfactory quality of the goods or commodities produced or manufactured by the
registered enterprises; and (2) that the enterprises agree not to increase the price of these goods or
commodities during this period, unless for good cause, the Board allows such an increase.
(j) Protection from Government Competition. — No agency or instrumentality of the government shall
import, or allow the importation tax and duty free of products or items that are being produced or
manufactured by registered enterprises, except when the President determines that the national interest so
requires or when international commitments require international competitive bidding.
SECTION 8. Incentives to a Pioneer Enterprise. — In addition to the incentives provided in the preceding section,
pioneer enterprises shall be granted the following incentives benefits:
(a) Tax Exemptions. — Exemptions from all taxes under the National Internal Revenue Code, except
income tax, to the following extent:
(1) One hundred per cent up to December 31, 1972;
(2) Seventy-five per cent up to December 31, 1975;
(3) Fifty per cent up to December 31, 1977;
(4) Twenty per cent up to December 31, 1979;
(5) Ten per cent up to December 31, 1981;
(b) Employment of Foreign Nationals. — Subject to the provisions of Section twenty nine of
Commonwealth Act Numbered Six hundred thirteen, as amended, to employ and bring into the Philippines
foreign nationals under the following conditions:
(1) That all such foreign nationals shall register with the Board;
(2) That the employment of all foreign nationals shall cease and they shall be repatriated five years
after the registered enterprise has begun operating: Provided, That when the majority of the capital
stock of the pioneer enterprise is owned by foreign investors, the positions of president, treasurer
and general manager, or their equivalents, may be retained by foreign nationals. In exceptional
cases, the Board may allow employment of foreign nationals in other positions that cannot be
filled by the Philippine nationals, but in such cases the limitations of Section seven paragraph (g)
of this Act shall apply.
Foreign nationals under employment contract within the purview of this Act, their spouse and unmarried
children under twenty-one years of age, who are not excluded by Section twenty-nine of Commonwealth
Act Numbered Six hundred thirteen, shall be permitted to enter and reside in the Philippines during the
period of employment of such foreign nationals.
(c) Post-Operative Tariff Protection. — Upon recommendation of the Board, the President, with or without
the recommendation of the Tariff Commission or the National Economic Council, shall issue a certification
that a pioneer industry shall be entitled to post-operative tariff protection to an extent not exceeding fifty
per cent of the dutiable value of imported items similar to those being manufactured or produced by a
pioneer enterprise, unless a higher rate or amount is provided for in the Tariff Code or pertinent laws. Said
tariff shall take effect automatically upon certification by the Board that the pioneer enterprise is operating
on a commercial scale: Provided, That said tariff, once operative, may be modified in accordance with
Section four hundred one of the Tariff and Customs Code.
SECTION 9. Special Export Incentives for Registered Enterprises. — Registered enterprises shall be entitled to the
following special incentives for exports of their completely finished products and commodities:
(a) Double Deduction of Promotional Expenses. — To deduct from taxable income twice the amount of the
ordinary and necessary expenses incurred for the purpose of promoting the sale of their products abroad;
(b) Double Deduction of Shipping Costs. — To deduct from taxable income twice the amount of shipping
freight incurred in connection with the export of their products, if the shipments are made in vessels of
Philippine registry to their regular ports of call; and to deduct one hundred fifty per cent (150%) of the
freight when shipments are made in vessels of foreign registry to a port which is not a regular port of call of
Philippine vessels;
(c) Special Tax Credit on Raw Materials. — A tax credit equivalent to seven per cent (7%) of the total cost
of the raw materials and supplies purchased by registered enterprises or an amount equivalent to the taxes
actually paid by registered enterprises on said raw materials, whichever is higher, to the extent used in
manufacturing exported products and commodities.
Before registered enterprises may avail themselves of the foregoing exports incentives benefits, the shall apply first
with the Board, which shall approve the application upon proof: (1) that the enterprise proposes to engage in good
faith in creating a market for its products abroad; (2) that the product to be exported is one included in the
government priorities plan as suitable for export, or if not so included that its export will not adversely affect the
needs of the domestic market for the finished product to be exported or for the domestic raw materials used in its
manufacture; (3) that the enterprise has or will set up an adequate accounting system to segregate revenues,
purchases and expenses of its export market operations from those of its domestic market operations; and (4) that the
exported products and commodities meet the standards of quality established by the Bureau of Standards or, in
default thereof, by the Board.
 SECTION 10. Preference in Grant of Government Loans. — Government financial institutions such as the
Development Bank of the Philippines, Philippine National Bank, Government Service Insurance System, Social
Security System, Land Bank, and such other government institutions as are now engaged or may hereafter engage in
financing or investment operations shall, in accordance with and to the extent allowed by the enabling provisions of
their respective charters or applicable laws, accord high priority to applications for financial assistance submitted by
pioneer and other registered enterprises, whether such financial assistance be in the form of equity participation in
preferred, common, or preferred convertible shares of stock, or in loans and guarantees, and shall facilitate the
processing thereof and the release of the funds therefor. However, no financial assistance shall be extended under
this section to any investor or enterprise that is not a Philippine National.
The above-mentioned financial institutions, to the extent allowed by their respective charters or applicable laws,
shall contribute to the capital of a registered enterprise whenever the said contribution would enable the formation of
pioneer or other registered enterprise with at least sixty per cent control by Philippine Nationals: Provided, That the
capital contribution of the said financial institutions shall be limited to the amount that cannot be contributed by
private Filipino investors, and shall in no case exceed thirty per cent of the total capitalization of the pioneer or other
registered enterprises. The shares representing the contribution of the said financial institutions shall be offered for
public sale to Philippine Nationals through all the members of a registered Philippine stock exchange.
To facilitate the implementation of the provisions of this Section, all the said financial institutions shall coordinate
their financial assistance programs with each other, exchange relevant information about applicants and applications,
and submit a monthly report to the Board showing the amount of funds available for financial assistance to pioneer
or other registered enterprises. The Board shall recommend to the Board of Directors of each such financial
institution what order of priority shall be given the applications of pioneer and other registered enterprises, or of
applicants that propose to seek registration as such.
SECTION 11. Private Financial Assistance. — Any provision of existing laws to the contrary notwithstanding, the
Insurance Commissioner is hereby authorized to allow insurance companies, under such rules and regulations as he
may issue, to invest in new issues of stock of registered enterprises, notwithstanding that said enterprises may not
have paid regular dividends, to the extent set out in section two hundred, paragraphs (c) and (f) of the Insurance Act,
as amended: Provided, that said investments are diversified.
SECTION 12. Loans for Investment. — The Government Service Insurance System and the Social Security System
shall extend to their respective members five-year loans at a rate of interest not to exceed six per cent per annum for
the purchase of shares of stock in any registered enterprise: Provided, That (1) the shares so purchased shall be
deposited in escrow with the lending institution for the full five-year term of the loan; partial releases of the shares
shall, however, be allowed to the extent of the payment of amortization made therefor; (2) such loans shall be
amortized in sixty equal monthly installments which shall be withheld by the employer from the monthly salary of
the employee concerned and remitted to the lending institution by the employer; but any and all dividends earned by
shares of stock while they are held in escrow shall be delivered to the employee; and (3) the maximum loan
available to each employee in any one calendar year shall not exceed fifty per centum of the employee's annual
gross income: Provided, further, That the total investment of the government financial institution concerned,
consisting of its direct investment in the registered enterprise and the loans it has extended to its respective members
which have been invested by the members in a registered enterprise, shall not be more than forty-nine per cent
(49%) of the total capitalization of the registered enterprise in which the investments have been made.
55
 Section 9. Private property shall not be taken for public use without just compensation.
56
 Section 18. The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon
payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the
Government.
57
 PICOP’s Motion for Reconsideration, pp. 17-18. rollo pp. 1386a-1386b.
58
 Riss & Co. v. Wallace, 195 S.W. 2d 881, 885, 239 Mo.App. 979, cited in Words and Phrases, Permanent Edition, Vol. 29,
p. 13.
59
 E.O. No. 192, otherwise known as the "Reorganization Act of the Department of Environment and Natural Resources,"
Section 4.
60
 Exhibit 7-g-2, Folder of Exhibits, Vol. 3, pp. 480-482.
61
 Motion for Reconsideration, p. 30.
62
 E.O. No. 192, otherwise known as the "Reorganization Act of the Department of Environment and Natural Resources,"
Section 4.
63
 Rollo (G.R. No. 162243), p. 252.
64
 Folder of Exhibits, Vol. 2, pp. 398-399.
65
 See Rules of Court, Rule 130, Section 3(a).
66
 Folder of Exhibits, Vol. 3, pp. 433-434.
67
 Exhibit 6, p. 440; Folder of Exhibits, Vol. 3.
68
 Id.
69
 Id.
70
 TSN, 1 October 2002, pp. 13-14.
71
 Exhibit NN, p. 349; Folder of Exhibits, Vol. 2.
 72
 Records, Vol. 2, pp. 457-458.
73
 Folder of Exhibits, Volume 3, p. 423.
74
 Folder of Exhibits, Volume 3, pp. 423-425.
75
 Id.
76
 Section 36, Rule 130 of the Rules of Court.
77
 People v. Parungao, 332 Phil. 917, 924 (1996).
78
 TSN, Volume 2, 1 October 2002, p. 32.
79
 123 Phil. 272, 277 (1966).
80
 Alvarez v. PICOP Resources, Inc., G.R. No. 162243, 29 November 2006, 508 SCRA 498, 553.
81
 Id.
82
 Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 812; Tan v. Director of Forestry, 210 Phil. 244
(1983).
83
 400 Phil. 904, 1012-1013 (2000), Separate Opinion of Justice Reynato Puno.
84
 PICOP’s Motion for Reconsideration, p. 41; rollo, pp. 1390a-1390b.
85
 PICOP’s Motion for Reconsideration, pp. 43-44; rollo, pp. 1390a-1390b.
86
 Black’s Law Dictionary (Eighth Edition), p. 265.
87
 Id.
88
 Rollo (G.R. No. 162243), pp. 470-472.
89
 Folder of Exhibits, Vol. 2, Exhibit OO, p. 351.
90
 Folder of Exhibits, Vol. 2, Exhibit O-1, p. 176; Folder of Exhibits, Vol. 3, Exhibit 7-g, p. 475.
91
 Folder of Exhibits, Vol. 2, Exhibit OO, p. 351.
92
 Rollo (G.R. No. 162243), p. 230.
93
 PICOP’s Motion for Reconsideration, pp. 48-49, rollo, pp. 1391a-1391b.
94
 Supra note 26.

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.1âwphi1.nêt

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.1awphil.net First, the hearings are of historic significance. They are an
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 célèbres 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.

Davide, Jr., C.J., Melo, Puno, Panganiban, and Gonzaga-Reyes, JJ., concur.

Bellosillo, J. I am for full live coverage hence I maintain my original view; nonetheless. I concur.

Kapunan, J. I maintain my original view prohibiting live T.V. and radio coverage and concur with the separate opinion of Justice
Vitug.

Quisumbing, J. Although earlier I respectfully Dissented as I favor live TV coverage, I now concur in the result.

Pardo, J. I concur with the denial of the motion for reconsideration only. The conditions are inadequate. I join J. Vitug's opinion.

Buena, J. I concur with the Separate Opinion of Justice Vitug.

Ynares-Santiago, J. I concur with the separate opinion of J. Jose Vitug.

De Leon, Jr., J. I concur with Separate Opinion of Justice Vitug.

Sandoval-Gutierrez, J. I concur but only in the denial with finality of the MR.

Footnote

1 Nine (9) members of the Court, namely, JUSTICES VITUG, KAPUNAN, MENDOZA, PARDO, BUENA, GONZAGA-
REYES, YNARES-SANTIAGO, DE LEON, and SANDOVAL-GUTIERREZ, vote to deny reconsideration, while six (6),
namely, CHIEF JUSTICE DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO, PANGANIBAN, and
QUISUMBING, vote to grant a reconsideration.
2 CHIEF JUSTICE DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO, MENDOZA, PANGANIBAN,
QUISUMBING, and GONZAGA-REYES.
3 JUSTICES VITUG, KAPUNAN, PARDO, BUENA, YNARES-SANTIAGO, DE LEON, and SANDOVAL-GUTIERREZ.
4 R.A. No. 8492 provides in pertinent parts:
SEC. 7. Duties and Function. - The [National] Museum shall have the following duties and functions:
7.1. Acquire documents, collect, preserve, maintain, administer and exhibit to the public, cultural materials, objects of art,
archaeological artifacts, ecofacts, relics and other materials embodying the cultural and natural heritage of the Filipino
national, as well as those of foreign origin. Materials relevant to the recent history of the country shall be likewise acquired,
collected, preserved, maintained, advertised and exhibited by the Museum. (Emphasis added)
DEPARTMENT ORDER NO. 13-A, dated May, 9, 1985, of the Department of Education Culture and Sports provides:
Rule 7. Transfer of Records to Archives. -
7.5 Preservation of Archival Records.
7.5.1 Archival records shall be stored under one roof and authorize their accessibility to the public, subject to certain security
and safety measures to preserve the integrity of the records.
7.5.2 It shall be the responsibility of the Archives Division to protect archival documents in its custody and undertake
corrective measures to rehabilitate weakened or brittled documents in accordance with modern techniques.
5 160 SCRA 861 (1988). Cf. Lagunzad v. Soto Vda. De Gonzales, 92 SCRA 476 (1979), involving the novelized film on the
life of Mioses Padilla, a majoralty candidate of Magallon, Negros Occidental, who was murdered for political reasons at the
instance of then Governor Rafael Lacson.
6 Id. At 870.
7 Paul A. Freund, Contempt Power: Prevention, Not Retribution, TRIAL, January-February 1971 at 13.
Separate Opinion
VITUG, J.:
Due Process is timeless. It is a precious fundamental right that secures and protects, under a rule of law, the life, and liberty
of a person from the oppression of power. A cherished fixture in our bill of rights, its encompassing guarantee will not be
diminished by advances in science and technology. I fail to perceive it to be otherwise.
Precisely, in its 29th June 2001 decision, the Court did not consider it propitous to allow live television and radio coverage of
the trial in order to help ensure a just and fair trial. The Court felt it judicious to insulate not only the Sandiganbayan but also
the trial participants, the lawyers and witnesses, from being unduly influenced by possible adverse effects that such a
coverage could bring. Petitioner filed a motion for reconsideration of the above ruling and countered that, if one must be
pitted against the other, the right to public information of grave national interest should be held more paramount than the
right of the accused to a "fair and public trial," the former being appurtenant to the sovereign and latter being merely a
privilege bestowed to an individual.
I am not ready to accept such a notion. I see it as being an implicit retreat, unwisely, from an age-old struggle of the
individual against the tyranny of the sovereign.1 The right of the public to information, in any event, is not here really being
sacrified. The right to know can very well be achieved via other media coverage; the windows of information through which
the public might observe and learn are not closed.
In addressing the present motion for reconsideration, colleagues on the Court opine that there should be an audio-visual
recording of the proceedings for documentary purposes because, first, the hearings are of historic significance, second, the
Estrada cases involve matters of vital concern to our people who have a fundamental right to know how their government
works; third, the audio-visual presentation is essential for education and civil training of the people; and fourth, such
recording can be used by appellate courts in the event that the review of the proceedings, ruling, or decisions of the
Sandiganbayan is sought or becomes necessary.lawphil.net2
The proposition has novel features, regrettably, I still find it hard to believe that the presence of the cameras inside the
courtroom will not have an untoward impact on the court proceedings. No empirical data has been shown to suggest
otherwise. To the contrary, experience attests to the intimidating effect of cameras and electronic devices in courtrooms on
the litigants, witnesses and jurors.3 In addition, the natural reticence of witnesses at the stand can even easily be exacerbated
by placing them on camera in contravention of normal experience.4 The demeanor of the witnesses can also have an abstruse
effect on the ability of the judge to accurately assess the credibility of such witnesses.5 The presence of cameras, for
whatever reason, may not adequately address the dangers mentioned in the Court's decision of 29 June 2001. There are just
too many imponderables.
Most importantly, it does not seem right to single out and make a spectacle of the cases against Mr. Estrada. Dignity is a
precious part of personability innate in ever human being, and there can be no cogent excuse for impinging it even to the
slightest degree. It is not the problem of privacy that can cause concern more than the erosion of reality that cameras tend to
cast.
In the petition, albeit entitled an administrative matter, the only issue raised is whether the case of a former President pending
before the Sandiganbayan can be covered by live television and radio broadcast. The matter now being sought to be
addressed by my esteemed colleagues is not even an issue. If it has to be considered at all, the rule must be of general
application and promulgated after a thorough study and deliberation, certainly far more than what have been said and done in
this case. Hearings, where expert opinion is sought and given, should prove to be helpful and of value.1âwphi1.nêt
WHEREFORE, I concur but only in the denial with finality of the motion for reconsideration.
Footnote
 1 See Frankfurter, J. in Bridges v. California, 314 US 252.
2 Resolution, pp. 3-4.
3 Picturing Justice: Images of Law and Lawyers in the Visual Media, Gerard uelmen, University of San Francisco law
review, Summer 1996.
4 "The Continuing debate Over Cameras in the Courtroom," Federal Lawyers, July 1995.
5 Supra.

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.1âwphi1.nêt

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.1awphil.net First, the hearings are of historic significance. They are an
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 célèbres 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.

Davide, Jr., C.J., Melo, Puno, Panganiban, and Gonzaga-Reyes, JJ., concur.

Bellosillo, J. I am for full live coverage hence I maintain my original view; nonetheless. I concur.

Kapunan, J. I maintain my original view prohibiting live T.V. and radio coverage and concur with the separate opinion of Justice
Vitug.

Quisumbing, J. Although earlier I respectfully Dissented as I favor live TV coverage, I now concur in the result.

Pardo, J. I concur with the denial of the motion for reconsideration only. The conditions are inadequate. I join J. Vitug's opinion.

Buena, J. I concur with the Separate Opinion of Justice Vitug.

Ynares-Santiago, J. I concur with the separate opinion of J. Jose Vitug.

De Leon, Jr., J. I concur with Separate Opinion of Justice Vitug.

Sandoval-Gutierrez, J. I concur but only in the denial with finality of the MR.

Footnote

1 Nine (9) members of the Court, namely, JUSTICES VITUG, KAPUNAN, MENDOZA, PARDO, BUENA, GONZAGA-
REYES, YNARES-SANTIAGO, DE LEON, and SANDOVAL-GUTIERREZ, vote to deny reconsideration, while six (6),
namely, CHIEF JUSTICE DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO, PANGANIBAN, and
QUISUMBING, vote to grant a reconsideration.
2 CHIEF JUSTICE DAVIDE, JR. and JUSTICES BELLOSILLO, MELO, PUNO, MENDOZA, PANGANIBAN,
QUISUMBING, and GONZAGA-REYES.
3 JUSTICES VITUG, KAPUNAN, PARDO, BUENA, YNARES-SANTIAGO, DE LEON, and SANDOVAL-GUTIERREZ.
4 R.A. No. 8492 provides in pertinent parts:
SEC. 7. Duties and Function. - The [National] Museum shall have the following duties and functions:
7.1. Acquire documents, collect, preserve, maintain, administer and exhibit to the public, cultural materials, objects of art,
archaeological artifacts, ecofacts, relics and other materials embodying the cultural and natural heritage of the Filipino
national, as well as those of foreign origin. Materials relevant to the recent history of the country shall be likewise acquired,
collected, preserved, maintained, advertised and exhibited by the Museum. (Emphasis added)
DEPARTMENT ORDER NO. 13-A, dated May, 9, 1985, of the Department of Education Culture and Sports provides:
Rule 7. Transfer of Records to Archives. -
7.5 Preservation of Archival Records.
7.5.1 Archival records shall be stored under one roof and authorize their accessibility to the public, subject to certain security
and safety measures to preserve the integrity of the records.
7.5.2 It shall be the responsibility of the Archives Division to protect archival documents in its custody and undertake
corrective measures to rehabilitate weakened or brittled documents in accordance with modern techniques.
5 160 SCRA 861 (1988). Cf. Lagunzad v. Soto Vda. De Gonzales, 92 SCRA 476 (1979), involving the novelized film on the
life of Mioses Padilla, a majoralty candidate of Magallon, Negros Occidental, who was murdered for political reasons at the
instance of then Governor Rafael Lacson.
6 Id. At 870.
7 Paul A. Freund, Contempt Power: Prevention, Not Retribution, TRIAL, January-February 1971 at 13.
Separate Opinion
VITUG, J.:
Due Process is timeless. It is a precious fundamental right that secures and protects, under a rule of law, the life, and liberty
of a person from the oppression of power. A cherished fixture in our bill of rights, its encompassing guarantee will not be
diminished by advances in science and technology. I fail to perceive it to be otherwise.
Precisely, in its 29th June 2001 decision, the Court did not consider it propitous to allow live television and radio coverage of
the trial in order to help ensure a just and fair trial. The Court felt it judicious to insulate not only the Sandiganbayan but also
the trial participants, the lawyers and witnesses, from being unduly influenced by possible adverse effects that such a
coverage could bring. Petitioner filed a motion for reconsideration of the above ruling and countered that, if one must be
pitted against the other, the right to public information of grave national interest should be held more paramount than the
right of the accused to a "fair and public trial," the former being appurtenant to the sovereign and latter being merely a
privilege bestowed to an individual.
I am not ready to accept such a notion. I see it as being an implicit retreat, unwisely, from an age-old struggle of the
individual against the tyranny of the sovereign.1 The right of the public to information, in any event, is not here really being
sacrified. The right to know can very well be achieved via other media coverage; the windows of information through which
the public might observe and learn are not closed.
In addressing the present motion for reconsideration, colleagues on the Court opine that there should be an audio-visual
recording of the proceedings for documentary purposes because, first, the hearings are of historic significance, second, the
Estrada cases involve matters of vital concern to our people who have a fundamental right to know how their government
works; third, the audio-visual presentation is essential for education and civil training of the people; and fourth, such
recording can be used by appellate courts in the event that the review of the proceedings, ruling, or decisions of the
Sandiganbayan is sought or becomes necessary.lawphil.net2
The proposition has novel features, regrettably, I still find it hard to believe that the presence of the cameras inside the
courtroom will not have an untoward impact on the court proceedings. No empirical data has been shown to suggest
otherwise. To the contrary, experience attests to the intimidating effect of cameras and electronic devices in courtrooms on
the litigants, witnesses and jurors.3 In addition, the natural reticence of witnesses at the stand can even easily be exacerbated
by placing them on camera in contravention of normal experience.4 The demeanor of the witnesses can also have an abstruse
effect on the ability of the judge to accurately assess the credibility of such witnesses.5 The presence of cameras, for
whatever reason, may not adequately address the dangers mentioned in the Court's decision of 29 June 2001. There are just
too many imponderables.
Most importantly, it does not seem right to single out and make a spectacle of the cases against Mr. Estrada. Dignity is a
precious part of personability innate in ever human being, and there can be no cogent excuse for impinging it even to the
slightest degree. It is not the problem of privacy that can cause concern more than the erosion of reality that cameras tend to
cast.
In the petition, albeit entitled an administrative matter, the only issue raised is whether the case of a former President pending
before the Sandiganbayan can be covered by live television and radio broadcast. The matter now being sought to be
addressed by my esteemed colleagues is not even an issue. If it has to be considered at all, the rule must be of general
application and promulgated after a thorough study and deliberation, certainly far more than what have been said and done in
this case. Hearings, where expert opinion is sought and given, should prove to be helpful and of value.1âwphi1.nêt
WHEREFORE, I concur but only in the denial with finality of the motion for reconsideration.
Footnote
1 See Frankfurter, J. in Bridges v. California, 314 US 252.
2 Resolution, pp. 3-4.
3 Picturing Justice: Images of Law and Lawyers in the Visual Media, Gerard uelmen, University of San Francisco law
review, Summer 1996.
4 "The Continuing debate Over Cameras in the Courtroom," Federal Lawyers, July 1995.
5 Supra.