[G.R. NO. 142030.

April 21, 2005]

ARTURO GALLARDO v. PEOPLE OF THE PHILIPPINES

This is an appeal by certiorari under Rule 45 of the Rules of Court assailing the Resolution of the Sandiganbayan
1
(Second
Division) in Criminal Case No. 25092 denying petitioners' Motion To Quash.
The records show that the above-numbered case originated from a sworn letter-complaint filed with the Office of the
Ombudsman-Mindanao by Atty. Victor dela Serna, for and in behalf of the Public Health Workers (PHWs) of Bansalan, Davao
del Sur, charging herein petitioners Mayor Arturo A. Gallardo, Vice-Mayor Peter Melchor J. Arches, Sangguniang Bayan
members Allan B. Ampoloquio, Cirilo N. Bacquiano, Josue M. Rodaje, Benjamin R. Macasaet, Jr., Victorina delos Cientos-
Miral, Rodolfo M. Cartin, Quirina T. Sarte, Norberto E. Gomez, Genefredo P. Espina, Noel Guinita and Budget Officer Ofelia
Nacional, all public officers of the Municipality of Bansalan, Davao del Sur, with violation of Section 3(e) of Republic Act No.
3019 for their alleged refusal to appropriate in the municipal budget the amount representing payment of the mandatory
statutory obligations of the Municipality of Bansalan accruing to the complaining PHWs in the nature of unpaid salary
differential and magna carta benefits.
2

On 08 January 1999, herein public respondent Ombudsman Aniano A. Desierto approved the Resolution dated 26 November
1998 of Graft Investigation Officer II Jovito A. Coresis, Jr., of the Office of the Ombudsman-Mindanao, finding probable
cause to indict petitioners of the crime alleged.
3

On 13 January 1999, the Information was filed with the Sandiganbayan which reads:
That sometime in or about January, 1998, or shortly prior or subsequent thereto, in Davao del Sur, Philippines and within
the jurisdiction of this Honorable Court, the accused Mayor Arturo A. Gallardo with salary grade 27, Vice-mayor Peter
Melchor J. Arches with salary grade 25, Sangguniang Bayan Members with salary grade 24 Allan B. Ampoloquio, Cirilo N.
Bacquiano, Josue M. Rodaje, Benjamin R. Macasaet, Jr., Victorina delos Cientos-Miral, Rodolfo M. Cartin, Quirina T. Sarte,
Norberto E. Gomez, Genefredo P. Espina, Noel Guinita and Budget Officer Ofelia Nacional all public officers of the Local
Government Unit of Bansalan, Davao del Sur, committing the offense while in the performance of their official duties and
taking advantage of their public position, conspiring, confederating and mutually aiding each other, did there and then,
willfully, unlawfully, and criminally, cause undue injury to the Public Health Workers (PHWs) of the Municipality of Bansalan,
to wit: by illegally and unjustifiably refusing to perform their duties to include an appropriation in the municipal budget for
the payment of the mandatory statutory obligations of the Municipality of Bansalan due to the complaining PHWs in the
nature of unpaid salary differential and magna carta benefits in the aggregate amount of P3,833,798.10 Philippine currency,
thus causing undue damage and injury to the complaining PHWs thru evident bad faith in the performance of their official
duties.
4

On 24 February 1999, petitioners filed a Motion for Reinvestigation.
5
The Sandiganbayan granted the motion in a resolution
dated 27 April 1999 and ordered the prosecution to conduct a reinvestigation.
6
In a resolution dated 26 July 1999, Special
Prosecutor II Jose O. Montero, Jr., recommended the dismissal of the case, which recommendation was approved by
Prosecution Bureau Director Victorio U. Tabanguil, Deputy Special Prosecutor Robert E. Kallos and concurred in by Special
Prosecutor Leonardo P. Tamayo.
7
This recommendation, however, was disapproved by Ombudsman Aniano A. Desierto who
stated in his own handwriting "[l]et the court determine if indeed the evidence cannot stand the judicial scrutiny."
8

On 15 November 1999, petitioners filed a motion to quash the information anchored on the following grounds: 1) the facts
charged do not constitute an offense; 2) the accused are denied due process; and 3) the accused are not accorded the equal
protection of laws.
9

On 06 January 2000, the Sandiganbayan denied petitioners' motion. It ruled that the averments in the Information
sufficiently charged the offense, and that the mere fact that cases similar to this case were dismissed by the Ombudsman
does not mean due process or equal protection of the law clause was denied the petitioners. Hence, this petition.
Petitioners contend that the reinvestigation conducted by Ombudsman Special Prosecutor II Jose O. Montero, Jr., showed
that insufficient funds were the reason for petitioners' failure to appropriate the money to meet the magna carta benefits of
PHWs and that petitioners acted in good faith when they failed to enact the required appropriation ordinance. The
Sandiganbayan should have duly considered such findings and the evidence adduced supporting the same, irrespective of
the opinion of Ombudsman Aniano A. Desierto. They conclude that the Sandiganbayan erred when it totally failed to
consider the findings and recommendations of the Office of the Special Prosecutor.
Petitioners likewise argue that the one-sentence disapproval by Ombudsman Aniano A. Desierto of the recommendations of
the Office of the Special Prosecutor was arbitrary, whimsical and capricious for he failed to explain how such action was
arrived at, thereby depriving petitioners of their rights to be informed of the facts and the law on which the denial was
based.
At the outset, it must be emphasized that petitioners' choice of remedy is clearly erroneous.
It is basic that Rule 45 of the Rules of Court governs appeals from judgment or final orders.
10
A final order is one which
disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to
enforce by execution what has been determined.
11
The resolution of the Sandiganbayan sought to be reviewed or set aside is
not in any sense judgment or a final order, but an interlocutory order.
12
An order is interlocutory if it does not dispose of a
case completely, but leaves something more to be done on its merits.
13
The order of the Sandiganbayan denying the motion
to quash filed by petitioners is interlocutory in nature because it leaves something more to be done by the Sandiganbayan,
by way of resolving the case on the merits. The denial of petitioners' motion to quash allows the same petitioners to enter a
plea, go to trial without prejudice on their part to present the special defenses they invoked in their motion and if, after trial
on the merits, an adverse decision is rendered, to appeal therefrom via appeal by certiorari.
14

Even if we consider the petition as one for certiorari under Rule 65 of the Rules of Court, we find that the Sandiganbayan did
not commit grave abuse of discretion in denying the petitioners' motion to quash.
Petitioners fault the Sandiganbayan for not taking into account the findings and recommendations of the Office of the
Special Prosecutor which found no probable cause to charge them. Allied to this assignment of error is petitioners' allegation
that the Ombudsman failed to accord them due process of law and equal protection of the law. They claimed they were
denied due process because Ombudsman Aniano A. Desierto disapproved the recommendation of Special Prosecutor II Jose
O. Montero, Jr., by simply writing a one-line note. The disapproval allegedly deprived them of their right to be informed of
the facts and law on which the said disapproval was based. It is further asseverated that they were deprived the equal
protection of law since the Ombudsman, in sixteen (16) previous cases which were similar to the case at bar, dismissed the
same.
These arguments are specious. Petitioners' submission that they were deprived of due process hinges on the erroneous
assumption that respondent Ombudsman failed to assess and consider the evidence presented by petitioners when he
disapproved the recommendation by the investigating prosecutor to dismiss the case, and that his ruling was not supported
by evidence on record.
The truth of the matter is that petitioners were not denied due process of law. The order of the Ombudsman for the filing of
the necessary information is not a case of a total absence of factual and legal bases nor a failure to appreciate the evidence
presented. It may appear that the Ombudsman's one-line note lacks any factual or evidentiary grounds as it did not set
forth the same. The state of affairs, however, is that the Ombudsman's note stems from his review of the findings of fact
reached by the investigating prosecutor.
15
The Ombudsman, contrary to the investigating prosecutor's conclusion, was of the
conviction that petitioners are probably guilty of the offense charged, and for this, he is not required to conduct an
investigation anew.
16
He is merely determining the propriety and correctness of the recommendation by the investigating
prosecutor, i.e., whether probable cause actually exists or not, on the basis of the findings of fact of the latter. He may
agree, fully or partly, or disagree completely with the investigating prosecutor. Whatever course of action that the
Ombudsman may take, whether to approve or to disapprove the recommendation of the investigating prosecutor, is but an
exercise of his discretionary powers based upon constitutional mandate.
17
Generally, courts should not interfere in such
exercise. It is beyond the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or
dismissing a complaint filed before it, save in cases where there is clear showing of grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the Ombudsman which is absent in the case at hand.
18
Such initiative and
independence are inherent in the Ombudsman who, beholden to no one, acts as the champion of the people and preserver
of the integrity of the public service.
19

The fact that the Ombudsman merely wrote his recommendation for the filing of the information against petitioners in a one-
line note is not a sufficient basis for this Court to attribute arbitrariness or caprice on the part of respondent. As held in
Olivarez v. Sandiganbayan:
20

The mere fact that the order to file the information against petitioner was contained in a marginal note is not sufficient to
impute arbitrariness or caprice on the part of the respondent special prosecutors, absent a clear showing that they gravely
abused their discretion in disapproving the recommendation of the investigating prosecutors to dismiss or withdraw the case
against petitioner. Neither are these notes tainted with or indicative of vindictiveness or arbitrariness as imputed by
petitioner. Public respondents disapproved the recommendation of the investigating prosecutors because they sincerely
believed that there is sufficient evidence to indict the accused.
The contention that petitioners' right to equal protection of the law has been transgressed is equally untenable. The equal
protection clause requires that the law operates uniformly on all persons under similar circumstances or that all persons are
treated in the same manner, the conditions not being different, both in privileges conferred and the liabilities imposed.
21
It
allows reasonable classification. If the classification is characterized by real and substantial differences, one class may be
treated differently from another.
22
Simply because the respondent Ombudsman dismissed some cases allegedly similar to
the case at bar is not sufficient to impute arbitrariness or caprice on his part, absent a clear showing that he gravely abused
his discretion in pursuing the instant case. The Ombudsman dismissed those cases because he believed there were no
sufficient grounds for the accused therein to undergo trial. On the other hand, he recommended the filing of appropriate
information against petitioners because there are ample grounds to hold them for trial. He was only exercising his power and
discharging his duty based upon the constitutional mandate of his office. Stated otherwise, the circumstances obtaining in
the numerous cases previously dismissed by the Ombudsman are entirely divergent from those here existing.
In the same vein, respondent Sandiganbayan could not be blamed for not considering the findings of the special prosecutor
because the rule is that in case of conflict in the conclusions of the Ombudsman and the special prosecutor, it is the former's
decision that shall prevail since the Office of the Special Prosecutor is under the supervision and control of the
Ombudsman.
23
Moreover, once a case has been filed with the court, it is that court, no longer the prosecution, which has full
control of the case, so much so that the information may grant or deny it, in the faithful exercise of judicial discretion.
24
The
court is the best and sole judge on what to do with the case before it.
25
In the instant case, respondent court is convinced
that there is adequate evidence against the petitioners. Absence of proof that it gravely abused its discretion, the conclusion
arrived at by the Sandiganbayan in its assailed resolution, will not be disturbed.
Besides, petitioners' argument that they could not be indicted for violation of Section 3(e) of Rep. Act No. 3019 as they
acted in good faith when they failed to appropriate funds for the unpaid salary differential and magna carta benefits due the
private complainants, is evidentiary in nature and is a matter of defense, which could be raised in a full-blown trial on the
merits.
26
As aptly held in Deloso v. Desierto:
27

Public prosecutors do not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged. They
merely determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and
that the accused is probably guilty thereof, and should be held for trial. A finding of probable cause does not require an
inquiry as to whether there is sufficient evidence to secure a conviction. It is enough that prosecutors believe that the act or
omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the
prosecution in support of the charges.
WHEREFORE, premises considered, the petition is DISMISSED for lack of merit.























[G.R. NO. 133640 November 25, 2005]
RODOLFO S. BELTRAN v. THE SECRETARY OF HEALTH, Respondent.

Before this Court are petitions assailing primarily the constitutionality of Section 7 of Republic Act No. 7719, otherwise
known as the "National Blood Services Act of 1994," and the validity of Administrative Order (A.O.) No. 9, series of 1995 or
the Rules and Regulations Implementing Republic Act No. 7719.
G.R. No. 133640,
1
entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank, et
al., v. The Secretary of Health" and G.R. No. 133661,
2
entitled "Doctors Blood Bank Center v. Department of Health" are
petitions for certiorari and mandamus, respectively, seeking the annulment of the following: (1) Section 7 of Republic Act
No. 7719; and, (2) Administrative Order (A.O.) No. 9, series of 1995. Both petitions likewise pray for the issuance of a writ
of prohibitory injunction enjoining the Secretary of Health from implementing and enforcing the aforementioned law and its
Implementing Rules and Regulations; and, for a mandatory injunction ordering and commanding the Secretary of Health to
grant, issue or renew petitioners' license to operate free standing blood banks (FSBB).
The above cases were consolidated in a resolution of the Court En Banc dated June 2, 1998.
3

G.R. No. 139147,
4
entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank, et
al., v. The Secretary of Health," on the other hand, is a petition to show cause why respondent Secretary of Health should
not be held in contempt of court.
This case was originally assigned to the Third Division of this Court and later consolidated with G.R. NOS. 133640 and
133661 in a resolution dated August 4, 1999.
5

Petitioners comprise the majority of the Board of Directors of the Philippine Association of Blood Banks, a duly registered
non-stock and non-profit association composed of free standing blood banks.
Public respondent Secretary of Health is being sued in his capacity as the public official directly involved and charged with
the enforcement and implementation of the law in question.
The facts of the case are as follows:
Republic Act No. 7719 or the National Blood Services Act of 1994 was enacted into law on April 2, 1994. The Act seeks to
provide

an adequate supply of safe blood by promoting voluntary blood donation and by regulating blood banks in the country. It
was approved by then President Fidel V. Ramos on May 15, 1994 and was subsequently published in the Official Gazette on
August 18, 1994. The law took effect on August 23, 1994.
On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said
law was promulgated by respondent Secretary of the Department of Health (DOH).
6

Section 7 of R.A. 7719
7
provides:
"Section 7. Phase-out of Commercial Blood Banks - All commercial blood banks shall be phased-out over a period of
two (2) years after the effectivity of this Act, extendable to a maximum period of two (2) years by the Secretary."
Section 23 of Administrative Order No. 9 provides:
"Section 23. Process of Phasing Out. - - The Department shall effect the phasing-out of all commercial blood banks over
a period of two (2) years, extendible for a maximum period of two (2) years after the effectivity of R.A. 7719. The decision
to extend shall be based on the result of a careful study and review of the blood supply and demand and public safety."
8

Blood banking and blood transfusion services in the country have been arranged in four (4) categories: blood centers run by
the Philippine National Red Cross (PNRC), government-run blood services, private hospital blood banks, and commercial
blood services.
Years prior to the passage of the National Blood Services Act of 1994, petitioners have already been operating commercial
blood banks under Republic Act No. 1517, entitled "An Act Regulating the Collection, Processing and Sale of Human Blood,
and the Establishment and Operation of Blood Banks and Blood Processing Laboratories." The law, which was enacted on
June 16, 1956, allowed the establishment and operation by licensed physicians of blood banks and blood processing
laboratories. The Bureau of Research and Laboratories (BRL) was created in 1958 and was given the power to regulate
clinical laboratories in 1966 under Republic Act No. 4688. In 1971, the Licensure Section was created within the BRL. It was
given the duty to enforce the licensure requirements for blood banks as well as clinical laboratories. Due to this
development, Administrative Order No. 156, Series of 1971, was issued. The new rules and regulations triggered a stricter
enforcement of the Blood Banking Law, which was characterized by frequent spot checks, immediate suspension and
communication of such suspensions to hospitals, a more systematic record-keeping and frequent communication with blood
banks through monthly information bulletins. Unfortunately, by the 1980's, financial difficulties constrained the BRL to
reduce the frequency of its supervisory visits to the blood banks.
9

Meanwhile, in the international scene, concern for the safety of blood and blood products intensified when the dreaded
disease Acute Immune Deficiency Syndrome (AIDS) was first described in 1979. In 1980, the International Society of Blood
Transfusion (ISBT) formulated the Code of Ethics for Blood Donation and Transfusion. In 1982, the first case of transfusion-
associated AIDS was described in an infant. Hence, the ISBT drafted in 1984, a model for a national blood policy outlining
certain principles that should be taken into consideration. By 1985, the ISBT had disseminated guidelines requiring AIDS
testing of blood and blood products for transfusion.
10

In 1989, another revision of the Blood Banking Guidelines was made. The DOH issued Administrative Order No. 57, Series of
1989, which classified banks into primary, secondary and tertiary depending on the services they provided. The standards
were adjusted according to this classification. For instance, floor area requirements varied according to classification level.
The new guidelines likewise required Hepatitis B and HIV testing, and that the blood bank be headed by a pathologist or a
hematologist.
11

In 1992, the DOH issued Administrative Order No. 118-A institutionalizing the National Blood Services Program (NBSP). The
BRL was designated as the central office primarily responsible for the NBSP. The program paved the way for the creation of
a committee that will implement the policies of the program and the formation of the Regional Blood Councils.
In August 1992, Senate Bill No. 1011, entitled "An Act Promoting Voluntary Blood Donation, Providing for an Adequate
Supply of Safe Blood, Regulating Blood Banks and Providing Penalties for Violations Thereof, and for other Purposes" was
introduced in the Senate.
12

Meanwhile, in the House of Representatives, House Bills No. 384, 546, 780 and 1978 were being deliberated to address the
issue of safety of the Philippine blood bank system. Subsequently, the Senate and House Bills were referred to the
appropriate committees and subsequently consolidated.
13

In January of 1994, the New Tropical Medicine Foundation, with the assistance of the U.S. Agency for International
Development (USAID) released its final report of a study on the Philippine blood banking system entitled "Project to Evaluate
the Safety of the Philippine Blood Banking System." It was revealed that of the blood units collected in 1992, 64.4 % were
supplied by commercial blood banks, 14.5% by the PNRC, 13.7% by government hospital-based blood banks, and 7.4% by
private hospital-based blood banks. During the time the study was made, there were only twenty-four (24) registered or
licensed free-standing or commercial blood banks in the country. Hence, with these numbers in mind, the study deduced
that each commercial blood bank produces five times more blood than the Red Cross and fifteen times more than the
government-run blood banks. The study, therefore, showed that the Philippines heavily relied on commercial sources of
blood. The study likewise revealed that 99.6% of the donors of commercial blood banks and 77.0% of the donors of private-
hospital based blood banks are paid donors. Paid donors are those who receive remuneration for donating their blood. Blood
donors of the PNRC and government-run hospitals, on the other hand, are mostly voluntary.
14

It was further found, among other things, that blood sold by persons to blood commercial banks are three times more likely
to have any of the four (4) tested infections or blood transfusion transmissible diseases, namely, malaria, syphilis, Hepatitis
B and Acquired Immune Deficiency Syndrome (AIDS) than those donated to PNRC.
15

Commercial blood banks give paid donors varying rates around P50 to P150, and because of this arrangement, many of
these donors are poor, and often they are students, who need cash immediately. Since they need the money, these donors
are not usually honest about their medical or social history. Thus, blood from healthy, voluntary donors who give their true
medical and social history are about three times much safer than blood from paid donors.
16

What the study also found alarming is that many Filipino doctors are not yet fully trained on the specific indications for blood
component transfusion. They are not aware of the lack of blood supply and do not feel the need to adjust their practices and
use of blood and blood products. It also does not matter to them where the blood comes from.
17

On August 23, 1994, the National Blood Services Act providing for the phase out of commercial blood banks took effect. On
April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the Implementing Rules and Regulations of said law
was promulgated by DOH.
The phase-out period was extended for two years by the DOH pursuant to Section 7 of Republic Act No. 7719 and Section 23
of its Implementing Rules and Regulations. Pursuant to said Act, all commercial blood banks should have been phased out
by May 28, 1998. Hence, petitioners were granted by the Secretary of Health their licenses to open and operate a blood
bank only until May 27, 1998.
On May 20, 1998, prior to the expiration of the licenses granted to petitioners, they filed a petition for certiorari with
application for the issuance of a writ of preliminary injunction or temporary restraining order under Rule 65 of the Rules of
Court assailing the constitutionality and validity of the aforementioned Act and its Implementing Rules and Regulations. The
case was entitled "Rodolfo S. Beltran, doing business under the name and style, Our Lady of Fatima Blood Bank," docketed
as G.R. No. 133640.
On June 1, 1998, petitioners filed an Amended Petition for Certiorari with Prayer for Issuance of a Temporary Restraining
Order, writ of preliminary mandatory injunction and/or status quo ante order.
18

In the aforementioned petition, petitioners assail the constitutionality of the questioned legal provisions, namely, Section 7
of Republic Act No. 7719 and Section 23 of Administrative Order No. 9, Series of 1995, on the following grounds:
19

1. The questioned legal provisions of the National Blood Services Act and its Implementing Rules violate the equal protection
clause for irrationally discriminating against free standing blood banks in a manner which is not germane to the purpose of
the law;
2. The questioned provisions of the National Blood Services Act and its Implementing Rules represent undue delegation if
not outright abdication of the police power of the state; and,
3. The questioned provisions of the National Blood Services Act and its Implementing Rules are unwarranted deprivation of
personal liberty.
On May 22, 1998, the Doctors Blood Center filed a similar petition for mandamus with a prayer for the issuance of a
temporary restraining order, preliminary prohibitory and mandatory injunction before this Court entitled "Doctors Blood
Center v. Department of Health," docketed as G.R. No. 133661.
20
This was consolidated with G.R. No. 133640.
21

Similarly, the petition attacked the constitutionality of Republic Act No. 7719 and its implementing rules and regulations,
thus, praying for the issuance of a license to operate commercial blood banks beyond May 27, 1998. Specifically, with
regard to Republic Act No. 7719, the petition submitted the following questions
22
for resolution:
1. Was it passed in the exercise of police power, and was it a valid exercise of such power?cralawlibrary
2. Does it not amount to deprivation of property without due process?cralawlibrary
3. Does it not unlawfully impair the obligation of contracts?cralawlibrary
4. With the commercial blood banks being abolished and with no ready machinery to deliver the same supply and services,
does R.A. 7719 truly serve the public welfare?cralawlibrary
On June 2, 1998, this Court issued a Resolution directing respondent DOH to file a consolidated comment. In the same
Resolution, the Court issued a temporary restraining order (TRO) for respondent to cease and desist from implementing and
enforcing Section 7 of Republic Act No. 7719 and its implementing rules and regulations until further orders from the Court.
23

On August 26, 1998, respondent Secretary of Health filed a Consolidated Comment on the petitions for certiorari and
mandamus in G.R. NOS. 133640 and 133661, with opposition to the issuance of a temporary restraining order.
24

In the Consolidated Comment, respondent Secretary of Health submitted that blood from commercial blood banks is unsafe
and therefore the State, in the exercise of its police power, can close down commercial blood banks to protect the public. He
cited the record of deliberations on Senate Bill No. 1101 which later became Republic Act No. 7719, and the sponsorship
speech of Senator Orlando Mercado.
The rationale for the closure of these commercial blood banks can be found in the deliberations of Senate Bill No. 1011,
excerpts of which are quoted below:
Senator Mercado: I am providing over a period of two years to phase out all commercial blood banks. So that in the end,
the new section would have a provision that states:
"ALL COMMERCIAL BLOOD BANKS SHALL BE PHASED OUT OVER A PERIOD OF TWO YEARS AFTER THE EFFECTIVITY OF
THIS ACT. BLOOD SHALL BE COLLECTED FROM VOLUNTARY DONORS ONLY AND THE SERVICE FEE TO BE CHARGED FOR
EVERY BLOOD PRODUCT ISSUED SHALL BE LIMITED TO THE NECESSARY EXPENSES ENTAILED IN COLLECTING AND
PROCESSING OF BLOOD. THE SERVICE FEE SHALL BE MADE UNIFORM THROUGH GUIDELINES TO BE SET BY THE
DEPARTMENTOF HEALTH."
I am supporting Mr. President, the finding of a study called "Project to Evaluate the Safety of the Philippine Blood Banking
System." This has been taken note of. This is a study done with the assistance of the USAID by doctors under the New
Tropical Medicine Foundation in Alabang.
Part of the long-term measures proposed by this particular study is to improve laws, outlaw buying and selling of blood and
legally define good manufacturing processes for blood. This goes to the very heart of my amendment which seeks to put into
law the principle that blood should not be subject of commerce of man.
The Presiding Officer [Senator Aquino]: What does the sponsor say?cralawlibrary
Senator Webb: Mr. President, just for clarity, I would like to find out how the Gentleman defines a commercial blood bank.
I am at a loss at times what a commercial blood bank really is.
Senator Mercado: We have a definition, I believe, in the measure, Mr. President.
The Presiding Officer [Senator Aquino]: It is a business where profit is considered.
Senator Mercado: If the Chairman of the Committee would accept it, we can put a provision on Section 3, a definition of a
commercial blood bank, which, as defined in this law, exists for profit and engages in the buying and selling of blood or its
components.
Senator Webb: That is a good description, Mr. President.
Senator Mercado: I refer, Mr. President, to a letter written by Dr. Jaime Galvez-Tan, the Chief of Staff, Undersecretary of
Health, to the good Chairperson of the Committee on Health.
In recommendation No. 4, he says:
"The need to phase out all commercial blood banks within a two-year period will give the Department of Health enough time
to build up government's capability to provide an adequate supply of blood for the needs of the nation...the use of blood for
transfusion is a medical service and not a sale of commodity."
Taking into consideration the experience of the National Kidney Institute, which has succeeded in making the hospital 100
percent dependent on voluntary blood donation, here is a success story of a hospital that does not buy blood. All those who
are operated on and need blood have to convince their relatives or have to get volunteers who would donate blood -
If we give the responsibility of the testing of blood to those commercial blood banks, they will cut corners because it will
protect their profit.
In the first place, the people who sell their blood are the people who are normally in the high-risk category. So we should
stop the system of selling and buying blood so that we can go into a national voluntary blood program.
It has been said here in this report, and I quote:
"Why is buying and selling of blood not safe? This is not safe because a donor who expects payment for his blood will not tell
the truth about his illnesses and will deny any risky social behavior such as sexual promiscuity which increases the risk of
having syphilis or AIDS or abuse of intravenous addictive drugs. Laboratory tests are of limited value and will not detect
early infections. Laboratory tests are required only for four diseases in the Philippines. There are other blood transmissible
diseases we do not yet screen for and there could be others where there are no tests available yet.
A blood bank owner expecting to gain profit from selling blood will also try his best to limit his expenses. Usually he tries to
increase his profit by buying cheaper reagents or test kits, hiring cheaper manpower or skipping some tests altogether. He
may also try to sell blood even though these have infections in them. Because there is no existing system of
counterchecking these, the blood bank owner can usually get away with many unethical practices.
The experience of Germany, Mr. President is illustrative of this issue. The reason why contaminated blood was sold was that
there were corners cut by commercial blood banks in the testing process. They were protecting their profits.
25

The sponsorship speech of Senator Mercado further elucidated his stand on the issue:
Senator Mercado: Today, across the country, hundreds of poverty-stricken, sickly and weak Filipinos, who, unemployed,
without hope and without money to buy the next meal, will walk into a commercial blood bank, extend their arms and plead
that their blood be bought. They will lie about their age, their medical history. They will lie about when they last sold their
blood. For doing this, they will receive close to a hundred pesos. This may tide them over for the next few days. Of course,
until the next bloodletting.
This same blood will travel to the posh city hospitals and urbane medical centers. This same blood will now be bought by the
rich at a price over 500% of the value for which it was sold. Between this buying and selling, obviously, someone has made
a very fast buck.
Every doctor has handled at least one transfusion-related disease in an otherwise normal patient. Patients come in for minor
surgery of the hand or whatever and they leave with hepatitis B. A patient comes in for an appendectomy and he leaves
with malaria. The worst nightmare: A patient comes in for a Caesarian section and leaves with AIDS.
We do not expect good blood from donors who sell their blood because of poverty. The humane dimension of blood
transfusion is not in the act of receiving blood, but in the act of giving it'
For years, our people have been at the mercy of commercial blood banks that lobby their interests among medical
technologists, hospital administrators and sometimes even physicians so that a proactive system for collection of blood from
healthy donors becomes difficult, tedious and unrewarding.
The Department of Health has never institutionalized a comprehensive national program for safe blood and for voluntary
blood donation even if this is a serious public health concern and has fallen for the linen of commercial blood bankers, hook,
line and sinker because it is more convenient to tell the patient to buy blood.
Commercial blood banks hold us hostage to their threat that if we are to close them down, there will be no blood supply.
This is true if the Government does not step in to ensure that safe supply of blood. We cannot allow commercial interest
groups to dictate policy on what is and what should be a humanitarian effort. This cannot and will never work because their
interest in blood donation is merely monetary. We cannot expect commercial blood banks to take the lead in voluntary blood
donation. Only the Government can do it, and the Government must do it."
26

On May 5, 1999, petitioners filed a Motion for Issuance of Expanded Temporary Restraining Order for the Court to order
respondent Secretary of Health to cease and desist from announcing the closure of commercial blood banks, compelling the
public to source the needed blood from voluntary donors only, and committing similar acts "that will ultimately cause the
shutdown of petitioners' blood banks."
27

On July 8, 1999, respondent Secretary filed his Comment and/or Opposition to the above motion stating that he has not
ordered the closure of commercial blood banks on account of the Temporary Restraining Order (TRO) issued on June 2,
1998 by the Court. In compliance with the TRO, DOH had likewise ceased to distribute the health advisory leaflets, posters
and flyers to the public which state that "blood banks are closed or will be closed." According to respondent Secretary, the
same were printed and circulated in anticipation of the closure of the commercial blood banks in accordance with R.A. No.
7719, and were printed and circulated prior to the issuance of the TRO.
28

On July 15, 1999, petitioners in G.R. No. 133640 filed a Petition to Show Cause Why Public Respondent Should Not be Held
in Contempt of Court, docketed as G.R. No. 139147, citing public respondent's willful disobedience of or resistance to the
restraining order issued by the Court in the said case. Petitioners alleged that respondent's act constitutes circumvention of
the temporary restraining order and a mockery of the authority of the Court and the orderly administration of justice.
29

Petitioners added that despite the issuance of the temporary restraining order in G.R. No. 133640, respondent, in his effort
to strike down the existence of commercial blood banks, disseminated misleading information under the guise of health
advisories, press releases, leaflets, brochures and flyers stating, among others, that "this year [1998] all commercial blood
banks will be closed by 27 May. Those who need blood will have to rely on government blood banks."
30
Petitioners further
claimed that respondent Secretary of Health announced in a press conference during the Blood Donor's Week that
commercial blood banks are "illegal and dangerous" and that they "are at the moment protected by a restraining order on
the basis that their commercial interest is more important than the lives of the people." These were all posted in bulletin
boards and other conspicuous places in all government hospitals as well as other medical and health centers.
31

In respondent Secretary's Comment to the Petition to Show Cause Why Public Respondent Should Not Be Held in Contempt
of Court, dated January 3, 2000, it was explained that nothing was issued by the department ordering the closure of
commercial blood banks. The subject health advisory leaflets pertaining to said closure pursuant to Republic Act No. 7719
were printed and circulated prior to the Court's issuance of a temporary restraining order on June 21, 1998.
32

Public respondent further claimed that the primary purpose of the information campaign was "to promote the importance
and safety of voluntary blood donation and to educate the public about the hazards of patronizing blood supplies from
commercial blood banks."
33
In doing so, he was merely performing his regular functions and duties as the Secretary of
Health to protect the health and welfare of the public. Moreover, the DOH is the main proponent of the voluntary blood
donation program espoused by Republic Act No. 7719, particularly Section 4 thereof which provides that, in order to ensure
the adequate supply of human blood, voluntary blood donation shall be promoted through public education, promotion in
schools, professional education, establishment of blood services network, and walking blood donors.
Hence, by authority of the law, respondent Secretary contends that he has the duty to promote the program of voluntary
blood donation. Certainly, his act of encouraging the public to donate blood voluntarily and educating the people on the risks
associated with blood coming from a paid donor promotes general health and welfare and which should be given more
importance than the commercial businesses of petitioners.
34

On July 29, 1999, interposing personal and substantial interest in the case as taxpayers and citizens, a Petition-in-
Intervention was filed interjecting the same arguments and issues as laid down by petitioners in G.R. No. 133640 and
133661, namely, the unconstitutionality of the Acts, and, the issuance of a writ of prohibitory injunction. The intervenors are
the immediate relatives of individuals who had died allegedly because of shortage of blood supply at a critical time.
35

The intervenors contended that Republic Act No. 7719 constitutes undue delegation of legislative powers and unwarranted
deprivation of personal liberty.
36

In a resolution, dated September 7, 1999, and without giving due course to the aforementioned petition, the Court granted
the Motion for Intervention that was filed by the above intervenors on August 9, 1999.
In his Comment to the petition-in-intervention, respondent Secretary of Health stated that the sale of blood is contrary to
the spirit and letter of the Act that "blood donation is a humanitarian act" and "blood transfusion is a professional medical
service and not a sale of commodity (Section 2[a] and [b] of Republic Act No. 7719). The act of selling blood or charging
fees other than those allowed by law is even penalized under Section 12."
37

Thus, in view of these, the Court is now tasked to pass upon the constitutionality of Section 7 of Republic Act No. 7719 or
the National Blood Services Act of 1994 and its Implementing Rules and Regulations.
In resolving the controversy, this Court deems it necessary to address the issues and/or questions raised by petitioners
concerning the constitutionality of the aforesaid Act in G.R. No. 133640 and 133661 as summarized hereunder:
I
WHETHER OR NOT SECTION 7 OF R.A. 7719 CONSTITUTES UNDUE DELEGATION OF LEGISLATIVE POWER;
II
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE EQUAL
PROTECTION CLAUSE;
III
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS VIOLATE THE NON-
IMPAIRMENT CLAUSE;
IV
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS CONSTITUTE
DEPRIVATION OF PERSONAL LIBERTY AND PROPERTY;
V
WHETHER OR NOT R.A. 7719 IS A VALID EXERCISE OF POLICE POWER; and,
VI
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS IMPLEMENTING RULES AND REGULATIONS TRULY SERVE PUBLIC
WELFARE.

As to the first ground upon which the constitutionality of the Act is being challenged, it is the contention of petitioners that
the phase out of commercial or free standing blood banks is unconstitutional because it is an improper and unwarranted
delegation of legislative power. According to petitioners, the Act was incomplete when it was passed by the Legislature, and
the latter failed to fix a standard to which the Secretary of Health must conform in the performance of his functions.
Petitioners also contend that the two-year extension period that may be granted by the Secretary of Health for the phasing
out of commercial blood banks pursuant to Section 7 of the Act constrained the Secretary to legislate, thus constituting
undue delegation of legislative power.
In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it left the hands of the Legislature so that nothing was left to the
judgment of the administrative body or any other appointee or delegate of the Legislature.
38
Except as to matters of detail
that may be left to be filled in by rules and regulations to be adopted or promulgated by executive officers and
administrative boards, an act of the Legislature, as a general rule, is incomplete and hence invalid if it does not lay down
any rule or definite standard by which the administrative board may be guided in the exercise of the discretionary powers
delegated to it.
39

Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in itself. It is clear from the provisions of the
Act that the Legislature intended primarily to safeguard the health of the people and has mandated several measures to
attain this objective. One of these is the phase out of commercial blood banks in the country. The law has sufficiently
provided a definite standard for the guidance of the Secretary of Health in carrying out its provisions, that is, the promotion
of public health by providing a safe and adequate supply of blood through voluntary blood donation. By its provisions, it has
conferred the power and authority to the Secretary of Health as to its execution, to be exercised under and in pursuance of
the law.
Congress may validly delegate to administrative agencies the authority to promulgate rules and regulations to implement a
given legislation and effectuate its policies.
40
The Secretary of Health has been given, under Republic Act No. 7719, broad
powers to execute the provisions of said Act. Section 11 of the Act states:
"SEC. 11. Rules and Regulations. 'The implementation of the provisions of the Act shall be in accordance with the rules and
regulations to be promulgated by the Secretary, within sixty (60) days from the approval hereof' "
This is what respondent Secretary exactly did when DOH, by virtue of the administrative body's authority and expertise in
the matter, came out with Administrative Order No.9, series of 1995 or the Rules and Regulations Implementing Republic
Act No. 7719. Administrative Order. No. 9 effectively filled in the details of the law for its proper implementation.
Specifically, Section 23 of Administrative Order No. 9 provides that the phase-out period for commercial blood banks shall be
extended for another two years until May 28, 1998 "based on the result of a careful study and review of the blood supply
and demand and public safety." This power to ascertain the existence of facts and conditions upon which the Secretary may
effect a period of extension for said phase-out can be delegated by Congress. The true distinction between the power to
make laws and discretion as to its execution is illustrated by the fact that the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.
41

In this regard, the Secretary did not go beyond the powers granted to him by the Act when said phase-out period was
extended in accordance with the Act as laid out in Section 2 thereof:
"SECTION 2. Declaration of Policy - In order to promote public health, it is hereby declared the policy of the state:
a) to promote and encourage voluntary blood donation by the citizenry and to instill public consciousness of the principle
that blood donation is a humanitarian act;
b) to lay down the legal principle that the provision of blood for transfusion is a medical service and not a sale of
commodity;
c) to provide for adequate, safe, affordable and equitable distribution of blood supply and blood products;
d) to inform the public of the need for voluntary blood donation to curb the hazards caused by the commercial sale of blood;
e) to teach the benefits and rationale of voluntary blood donation in the existing health subjects of the formal education
system in all public and private schools as well as the non-formal system;
f) to mobilize all sectors of the community to participate in mechanisms for voluntary and non-profit collection of blood;
g) to mandate the Department of Health to establish and organize a National Blood Transfusion Service Network in order to
rationalize and improve the provision of adequate and safe supply of blood;
h) to provide for adequate assistance to institutions promoting voluntary blood donation and providing non-profit blood
services, either through a system of reimbursement for costs from patients who can afford to pay, or donations from
governmental and non-governmental entities;
i) to require all blood collection units and blood banks/centers to operate on a non-profit basis;
j) to establish scientific and professional standards for the operation of blood collection units and blood banks/centers in the
Philippines;
k) to regulate and ensure the safety of all activities related to the collection, storage and banking of blood; and,
l) to require upgrading of blood banks/centers to include preventive services and education to control spread of blood
transfusion transmissible diseases."
Petitioners also assert that the law and its implementing rules and regulations violate the equal protection clause enshrined
in the Constitution because it unduly discriminates against commercial or free standing blood banks in a manner that is not
germane to the purpose of the law.
42

What may be regarded as a denial of the equal protection of the laws is a question not always easily determined. No rule
that will cover every case can be formulated. Class legislation, discriminating against some and favoring others is prohibited
but classification on a reasonable basis and not made arbitrarily or capriciously is permitted. The classification, however, to
be reasonable: (a) must be based on substantial distinctions which make real differences; (b) must be germane to the
purpose of the law; (c) must not be limited to existing conditions only; and, (d) must apply equally to each member of the
class.
43

Republic Act No. 7719 or The National Blood Services Act of 1994, was enacted for the promotion of public health and
welfare. In the aforementioned study conducted by the New Tropical Medicine Foundation, it was revealed that the Philippine
blood banking system is disturbingly primitive and unsafe, and with its current condition, the spread of infectious diseases
such as malaria, AIDS, Hepatitis B and syphilis chiefly from blood transfusion is unavoidable. The situation becomes more
distressing as the study showed that almost 70% of the blood supply in the country is sourced from paid blood donors who
are three times riskier than voluntary blood donors because they are unlikely to disclose their medical or social history
during the blood screening.
44

The above study led to the passage of Republic Act No. 7719, to instill public consciousness of the importance and benefits
of voluntary blood donation, safe blood supply and proper blood collection from healthy donors. To do this, the Legislature
decided to order the phase out of commercial blood banks to improve the Philippine blood banking system, to regulate the
supply and proper collection of safe blood, and so as not to derail the implementation of the voluntary blood donation
program of the government. In lieu of commercial blood banks, non-profit blood banks or blood centers, in strict adherence
to professional and scientific standards to be established by the DOH, shall be set in place.
45

Based on the foregoing, the Legislature never intended for the law to create a situation in which unjustifiable discrimination
and inequality shall be allowed. To effectuate its policy, a classification was made between nonprofit blood banks/centers
and commercial blood banks.
We deem the classification to be valid and reasonable for the following reasons:
One, it was based on substantial distinctions. The former operates for purely humanitarian reasons and as a medical service
while the latter is motivated by profit. Also, while the former wholly encourages voluntary blood donation, the latter treats
blood as a sale of commodity.
Two, the classification, and the consequent phase out of commercial blood banks is germane to the purpose of the law, that
is, to provide the nation with an adequate supply of safe blood by promoting voluntary blood donation and treating blood
transfusion as a humanitarian or medical service rather than a commodity. This necessarily involves the phase out of
commercial blood banks based on the fact that they operate as a business enterprise, and they source their blood supply
from paid blood donors who are considered unsafe compared to voluntary blood donors as shown by the USAID-sponsored
study on the Philippine blood banking system.
Three, the Legislature intended for the general application of the law. Its enactment was not solely to address the peculiar
circumstances of the situation nor was it intended to apply only to the existing conditions.
Lastly, the law applies equally to all commercial blood banks without exception.
Having said that, this Court comes to the inquiry as to whether or not Republic Act No. 7719 constitutes a valid exercise of
police power.
The promotion of public health is a fundamental obligation of the State. The health of the people is a primordial
governmental concern. Basically, the National Blood Services Act was enacted in the exercise of the State's police power in
order to promote and preserve public health and safety.
Police power of the state is validly exercised if (a) the interest of the public generally, as distinguished from those of a
particular class, requires the interference of the State; and, (b) the means employed are reasonably necessary to the
attainment of the objective sought to be accomplished and not unduly oppressive upon individuals.
46

In the earlier discussion, the Court has mentioned of the avowed policy of the law for the protection of public health by
ensuring an adequate supply of safe blood in the country through voluntary blood donation. Attaining this objective requires
the interference of the State given the disturbing condition of the Philippine blood banking system.
In serving the interest of the public, and to give meaning to the purpose of the law, the Legislature deemed it necessary to
phase out commercial blood banks. This action may seriously affect the owners and operators, as well as the employees, of
commercial blood banks but their interests must give way to serve a higher end for the interest of the public.
The Court finds that the National Blood Services Act is a valid exercise of the State's police power. Therefore, the
Legislature, under the circumstances, adopted a course of action that is both necessary and reasonable for the common
good. Police power is the State authority to enact legislation that may interfere with personal liberty or property in order to
promote the general welfare.
47

It is in this regard that the Court finds the related grounds and/or issues raised by petitioners, namely, deprivation of
personal liberty and property, and violation of the non-impairment clause, to be unmeritorious.
Petitioners are of the opinion that the Act is unconstitutional and void because it infringes on the freedom of choice of an
individual in connection to what he wants to do with his blood which should be outside the domain of State intervention.
Additionally, and in relation to the issue of classification, petitioners asseverate that, indeed, under the Civil Code, the
human body and its organs like the heart, the kidney and the liver are outside the commerce of man but this cannot be
made to apply to human blood because the latter can be replenished by the body. To treat human blood equally as the
human organs would constitute invalid classification.
48

Petitioners likewise claim that the phase out of the commercial blood banks will be disadvantageous to them as it will affect
their businesses and existing contracts with hospitals and other health institutions, hence Section 7 of the Act should be
struck down because it violates the non-impairment clause provided by the Constitution.
As stated above, the State, in order to promote the general welfare, may interfere with personal liberty, with property, and
with business and occupations. Thus, persons may be subjected to certain kinds of restraints and burdens in order to secure
the general welfare of the State and to this fundamental aim of government, the rights of the individual may be
subordinated.
49

Moreover, in the case of Philippine Association of Service Exporters, Inc. v. Drilon,
50
settled is the rule that the non-
impairment clause of the Constitution must yield to the loftier purposes targeted by the government. The right granted by
this provision must submit to the demands and necessities of the State's power of regulation. While the Court understands
the grave implications of Section 7 of the law in question, the concern of the Government in this case, however, is not
necessarily to maintain profits of business firms. In the ordinary sequence of events, it is profits that suffer as a result of
government regulation.
Furthermore, the freedom to contract is not absolute; all contracts and all rights are subject to the police power of the State
and not only may regulations which affect them be established by the State, but all such regulations must be subject to
change from time to time, as the general well-being of the community may require, or as the circumstances may change, or
as experience may demonstrate the necessity.
51
This doctrine was reiterated in the case of Vda. de Genuino v. Court of
Agrarian Relations
52
where the Court held that individual rights to contract and to property have to give way to police power
exercised for public welfare.
As for determining whether or not the shutdown of commercial blood banks will truly serve the general public considering
the shortage of blood supply in the country as proffered by petitioners, we maintain that the wisdom of the Legislature in
the lawful exercise of its power to enact laws cannot be inquired into by the Court. Doing so would be in derogation of the
principle of separation of powers.
53

That, under the circumstances, proper regulation of all blood banks without distinction in order to achieve the objective of
the law as contended by petitioners is, of course, possible; but, this would be arguing on what the law may be or should be
and not what the law is. Between is and ought there is a far cry. The wisdom and propriety of legislation is not for this Court
to pass upon.
54

Finally, with regard to the petition for contempt in G.R. No. 139147, on the other hand, the Court finds respondent
Secretary of Health's explanation satisfactory. The statements in the flyers and posters were not aimed at influencing or
threatening the Court in deciding in favor of the constitutionality of the law.
Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence in defiance of the court.
55
There
is nothing contemptuous about the statements and information contained in the health advisory that were distributed by
DOH before the TRO was issued by this Court ordering the former to cease and desist from distributing the same.
In sum, the Court has been unable to find any constitutional infirmity in the questioned provisions of the National Blood
Services Act of 1994 and its Implementing Rules and Regulations.
The fundamental criterion is that all reasonable doubts should be resolved in favor of the constitutionality of a statute. Every
law has in its favor the presumption of constitutionality. For a law to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution. The ground for nullity must be clear and beyond reasonable doubt.
56
Those who
petition this Court to declare a law, or parts thereof, unconstitutional must clearly establish the basis therefor. Otherwise,
the petition must fail.
Based on the grounds raised by petitioners to challenge the constitutionality of the National Blood Services Act of 1994 and
its Implementing Rules and Regulations, the Court finds that petitioners have failed to overcome the presumption of
constitutionality of the law. As to whether the Act constitutes a wise legislation, considering the issues being raised by
petitioners, is for Congress to determine.
57

WHEREFORE, premises considered, the Court renders judgment as follows:
1. In G.R. NOS. 133640 and 133661, the Court UPHOLDS THE VALIDITY of Section 7 of Republic Act No. 7719, otherwise
known as the National Blood Services Act of 1994, and Administrative Order No. 9, Series of 1995 or the Rules and
Regulations Implementing Republic Act No. 7719. The petitions are DISMISSED. Consequently, the Temporary Restraining
Order issued by this Court on June 2, 1998, is LIFTED.
2. In G.R. No. 139147, the petition seeking to cite the Secretary of Health in contempt of court is DENIED for lack of merit.



















[G.R. NO. 143372 December 13, 2005]
PHILIPPINE JOURNALISTS, INC. (PEOPLE'S JOURNAL) v. FRANCIS THOENEN
For almost a century, this Court has sought that elusive equilibrium between the law on defamation on one hand, and the
constitutionally guaranteed freedoms of speech and press on the other. This case revisits that search.
On 30 September 1990, the following news item appeared in the People's Journal, a tabloid of general circulation:
Swiss Shoots Neighbors' Pets
RESIDENTS of a subdivision in Paraaque have asked the Bureau of Immigration to deport a Swiss who allegedly shoots
wayward neighbors' pets that he finds in his domain.
The BF Homes residents through lawyer Atty. Efren Angara complained that the deportation of Francis Thoenen, of 10
Calcutta BF Homes Phase III, could help "prevent the recurrence of such incident in the future."
Angara explained that house owners could not control their dogs and cats when they slip out of their dwellings unnoticed.
An alleged confrontation between Thoenen and the owner of a pet he shot recently threatens to exacerbate the problem,
Angara said.
Cristina Lee
1

The subject of this article, Francis Thoenen, is a retired engineer permanently residing in this country with his Filipina wife
and their children. Claiming that the report was false and defamatory, and that the petitioners acted irresponsibly in failing
to verify the truth of the same prior to publication, he filed a civil case for damages against herein petitioners Philippine
Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter Cristina Lee.
Thoenen claimed that the article destroyed the respect and admiration he enjoyed in the community, and that since it had
been published, he and his wife received several queries and angry calls from friends, neighbors and relatives. For the
impairment of his reputation and standing in the community, and his mental anguish, Thoenen sought P200,000.00 in moral
damages, P100,000.00 in exemplary damages, and P50,000.00 in attorney's fees.
The petitioners admitted publication of the news item, ostensibly out of a "social and moral duty to inform the public on
matters of general interest, promote the public good and protect the moral public (sic) of the people," and that the story
was published in good faith and without malice.
2

The principal source of the article was a letter
3
by a certain Atty. Efren Angara addressed to Commissioner Andrea Domingo
of the Commission on Immigration and Deportation (CID, now Bureau of Immigration), which states:
Dear Madame:
We would like to request your office to verify the true status/authenticity of the residency in the Philippines of a foreign
national (a Swiss) by the name of Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut Street, BF Homes
(PH. III), Paraaque, Metro Manila. I received (sic) complaint from my clients residing around his vicinity that this
foreigner had (sic) been causing troubles ever since he showed up. He is too meticulous and had (sic) been shooting dogs
and cats passing his house wall everytime.
Such act which (sic) is unacceptable to the owners especially if inspite (sic) of control their pets slips (sic) out unnoticed. A
confrontation between him and the owner of the dog he shoot, (sic) already occurred last time. In some instances this guy
had been always driving his car barbarously inside the subdivision with children playing around (sic) the street. Before my
clients petitioned themselves with the endorsement of the Homeowners Association and filed to your office for deportation
we re respectfully seeking your assistance to investigate this alien to prevent further incident occurrence (sic) in the future.
He should not be allowed to dominate the citizens of this country.
Very truly yours,
Atty. Efren B. Angara
The petitioners claim that Lee, as the reporter assigned to cover news events in the CID, acquired a copy of the above letter
from a trusted source in the CID's Intelligence Division. They claimed to "have reasonable grounds to believe in the truth
and veracity of the information derived (from their) sources."
4

It was proven at trial that the news article contained several inaccuracies. The headline, which categorically stated that the
subject of the article engaged in the practice of shooting pets, was untrue.
5
Moreover, it is immediately apparent from a
comparison between the above letter and the news item in question that while the letter is a mere request for verification of
Thoenen's status, Lee wrote that residents of BF Homes had "asked the Bureau of Immigration to deport a Swiss who
allegedly shoots neighbors' pets." No complaints had in fact been lodged against him by any of the BF Homeowners,
6
nor
had any pending deportation proceedings been initiated against him in the Bureau of Immigration.
7

Thoenen also submitted a Certification
8
from the Office of the Bar Confidant that there was no lawyer in its rolls by the name
of Efren Angara, earlier cited by petitioner Lee as the author of the letter on which she based her article. Finally, the trial
also showed that despite the fact that respondent's address was indicated in the letter, Cristina Lee made no efforts to
contact either him or the purported letter-writer, Atty. Angara.
9

The petitioners claim that Lee sought confirmation of the story from the newspaper's correspondent in Paraaque, who
told her that a woman who refused to identify herself confirmed that there had indeed been an incident of pet-shooting in
the neighborhood involving the respondent.
10
However, the correspondent in question was never presented in court to verify
the truth of this allegation. Neither was the alleged CID source presented to verify that the above letter had indeed come
from the Department, nor even that the same was a certified true copy of a letter on file in their office.
On 31 August 1994, the Regional Trial Court, Branch 62, Makati City, rendered a Decision
11
in favor of the petitioners, which
reads in part:
There is no malice on the part of the defendants in publishing the news item done in the exercise of their profession as
journalists reporting to the people on matters of public interest. The news report was based on an official communication
filed with the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez v. Alanao, CA-G.R No. 27086, September 30, 1991, which is similar to the
present case:
While indeed, the news item subject of the present case might have ruffled the sensitivities of plaintiff, this Court however
believes that the alleged defamatory articles falls within the purview of a qualifiedly privileged matter, and that therefore, it
cannot be presumed to be malicious. The onus of proving malice is accordingly shifted to the plaintiff, that is, that he must
prove that the defendants were actuated by ill-will in what they caused to be printed and published, with a design to
carelessly or wantonly injure the plaintiff. (US v. Bustos, et al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT PRONOUNCEMENT AS TO COSTS.
12

On appeal, the court a quo reversed
13
the trial court. It held that although freedom of expression and the right of speech and
of the press are among the most zealously guarded in the Constitution, still, in the exercise of these rights, Article 19 of the
Civil Code requires everyone to "act with justice, give everyone his due, and observe honesty and good faith." The appellate
court emphasized that Thoenen was neither a public official nor a public figure, and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item published in the 30 September 1990 edition
of People's Journal had been done in violation of the principle of abuse of right under Article 19 of the Civil Code, in the
absence of a bona fide effort to ascertain the truth thereof, i.e., "to observe honesty and good faith," which makes their act
a wrongful omission. Neither did they "act with justice and give everyone his due," because without ascertaining the veracity
of the information given them by the Intelligence Bureau of the Bureau of Immigration, they published a news article which
they were aware would bring the person specifically named therein, viz, Francis Thoenen, the plaintiff-appellant in this case,
into disrepute.
WHEREFORE, the foregoing considered, the Decision appealed from is hereby REVERSED and SET ASIDE. In its stead, We
find for the appellant and award him moral damages of P200,000.00; exemplary damages of P50,000.00, and legal fees to
P30,000.00; all of which shall be borne jointly and severally by appellees.
14

Petitioners' motion for reconsideration having been denied,
15
this Petition for Certiorari under Rule 45 of the 1997 Rules of
Civil Procedure was filed on the following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid and PJI liable under Article 19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel even if the article was based on a letter released by the
Bureau of Immigration, hence a qualified privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain the truth of the subject news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the same was excessive unconscionable and devoid
of any basis.
The petitioners argue that this case is one for damages arising from libel, and not one for abuse of rights under the New
Civil Code. They further claim the constitutional protections extended by the freedom of speech and of the press clause of
the 1987 Constitution against liability for libel, claiming that the article was published in fulfillment of its social and moral
duty to inform the public "on matters of general interest, promote the public good and protect the moral [fabric] of the
people."
16
They insist that the news article was based on a letter released by the Bureau of Immigration, and is thus a
qualifiedly privileged communication. To recover damages, the respondent must prove its publication was attended by actual
malice - that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
17

For the reasons stated below, we hold that the constitutional privilege granted under the freedom of speech and the press
against liability for damages does not extend to the petitioners in this case.
The freedom of speech and of the press is not absolute. The freedom of speech and press and assembly, first laid down by
President McKinley in the Instruction to the Second Philippine Commission of 07 April 1900, is an almost verbatim
restatement of the first amendment of the Constitution of the United States.
18
Enshrined in Section 4, Article III of the Bill of
Rights of the 1987 Constitution, it states, "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."
But not all speech is protected. "The right of free speech is not absolute at all times and under all circumstances. There are
certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or
'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has
been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and
morality."
19

Libel is not protected speech. Article 353 of the Revised Penal Code defines libel as "a public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead."
For an imputation to be libelous, the following requisites must be met: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person defamed; and (d) existence of malice.
20
In
Vasquez v. Court of Appeals,
21
we had occasion to further explain. Thus:
An allegation is considered defamatory if it ascribes to a person the commission of a crime, the possession of a vice or
defect, real or imaginary, or any act, omission, condition, status or circumstance which tends to dishonor or discredit or put
him in contempt, or which tends to blacken the memory of one who is dead.
There is publication if the material is communicated to a third person. It is not required that the person defamed has read or
heard about the libelous remark. What is material is that a third person has read or heard the libelous statement, for "a
man's reputation is the estimate in which others hold him, not the good opinion which he has of himself."
On the other hand, to satisfy the element of identifiability, it must be shown that at least a third person or a stranger was
able to identify him as the object of the defamatory statement.
Finally, malice or ill will must be present. Art. 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 security duty; andcralawli brary
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. (citations omitted, emphasis supplied)rll brr
In this case, there is no controversy as to the existence of the three elements. The respondent's name and address were
clearly indicated in the article ascribing to him the questionable practice of shooting the wayward pets of his neighbors. The
backlash caused by the publication of the article was in fact such that stones had been thrown at their house, breaking
several flower pots, and daily and nightly calls compelled him to request a change of their telephone number.
22
These facts
are not contested by the petitioners. What the petitioners claim is the absence of proof of the fourth element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code states:
ART. 354. Requirement of Publicity. - 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; andcralawli brary
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.
The article is not a privileged communication. We first discussed the freedom of speech and press and assembly vis-a-vis the
laws on libel and slander in the groundbreaking case of US v. Bustos,
23
where we applied the prevailing English and
American jurisprudence to the effect 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. Of course, criticism does not authorize
defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good?
Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary - to any or all the
agencies of Government - public opinion should be the constant source of liberty and democracy. (citations omitted)
The demand to protect public opinion for the welfare of society and the orderly administration of government inevitably lead
to the adoption of the doctrine of privileged communication. "A privileged communication may be either absolutely
privileged or qualifiedly privileged. Absolutely privileged communications are those which are not actionable even if the
author has acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress or in any Committee thereof. Upon the other hand,
qualifiedly privileged communications containing defamatory imputations are not actionable unless found to have been made
without good intention or justifiable motive. To this genre belong 'private communications' and 'fair and true report without
any comments or remarks. '"
24

The appellate court correctly ruled that the petitioners' story is not privileged in character, for it is neither "private
communication" nor a fair and true report without any comments or remarks.
US v. Bustos defined the concept of private communication thus: "A communication made bona fide upon any subject-
matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a
person having a corresponding interest or duty, although it contained criminatory matter which without this privilege would
be slanderous and actionable. A pertinent illustration of the application of qualified privilege is a complaint made in good
faith and without malice in regard to the character or conduct of a public official when addressed to an officer or a board
having some interest or duty in the matter."
25

This defense is unavailing to petitioners. In Daez v. Court of Appeals
26
we held that:
As a rule, it is the right and duty of a citizen to make a complaint of any misconduct on the part of public officials, which
comes to his notice, to those charged with supervision over them. Such a communication is qualifiedly privileged and the
author is not guilty of libel. The rule on privilege, however, imposes an additional requirement. Such complaints should be
addressed solely to some official having jurisdiction to inquire into the charges, or power to redress the grievance or has
some duty to perform or interest in connection therewith. (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious Atty. Angara is privileged communication, it
lost its character as such when the matter was published in the newspaper and circulated among the general population. A
written letter containing libelous matter cannot be classified as privileged when it is published and circulated in public,
27

which was what the petitioners did in this case.
Neither is the news item a fair and true report without any comments or remarks of any judicial, legislative or other official
proceedings; there is in fact no proceeding to speak of. Nor is the article related to any act performed by public officers in
the exercise of their functions, for it concerns only false imputations against Thoenen, a private individual seeking a quiet
life.
The petitioners also claim to have made the report out of a "social and moral duty to inform the public on matters of general
interest."
In Borjal v. Court of Appeals, we stated that "the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged
communications since fair commentaries on matters of public interest are likewise privileged. We stated that the
doctrine of fair commentaries means "that while in general every discreditable imputation publicly made is deemed false,
because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious,
nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily
actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false
allegation of fact or a comment based on a false supposition."
28

Again, this argument is unavailing to the petitioners. As we said, the respondent is a private individual, and not a public
official or public figure. We are persuaded by the reasoning of the United States Supreme Court in Gertz v. Robert Welch,
Inc.,
29
that a newspaper or broaster publishing defamatory falsehoods about an individual who is neither a public official
nor a public figure may not claim a constitutional privilege against liability, for injury inflicted, even if the falsehood
arose in a discussion of public interest.
30

Having established that the article cannot be considered as privileged communication, malice is therefore presumed, and the
fourth requisite for the imputation of libel to attach to the petitioners in this case is met. The news article is therefore
defamatory and is not within the realm of protected speech. There is no longer a need to discuss the other assignment of
errors, save for the amount of damages to which respondent is entitled.
In Policarpio v. Manila Times Publishing Co., Inc.,
31
we awarded damages where the defendants deliberately presented a
private individual in a worse light that what she actually was, and where other factual errors were not prevented although
defendants had the means to ascertain the veracity of their report. Such are the facts obtaining here.
We must point out that Lee's brief news item contained falsehoods on two levels. On its face, her statement that residents of
BF Homes had "asked the Bureau of Immigration to deport a Swiss who allegedly shoots neighbors' pets" is patently untrue
since the letter of the spurious Atty. Angara was a mere request for verification of Thoenen's status as a foreign resident.
Lee's article, moreover, is also untrue, in that the events she reported never happened. The respondent had never shot any
of his neighbors' pets, no complaints had been lodged against him by his neighbors, and no deportation proceedings had
been initiated against him. Worse, the author of Lee's main source of information, Atty. Efren Angara, apparently either does
not exist, or is not a lawyer. Petitioner Lee would have been enlightened on substantially all these matters had she but tried
to contact either Angara or Thoenen.
Although it has been stressed that a newspaper "should not be held to account to a point of suppression for honest
mistakes, or imperfection in the choice of words,"
32
even the most liberal view of free speech has never countenanced the
publication of falsehoods, especially the persistent and unmitigated dissemination of patent lies.
33
"There is no constitutional
value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in
'uninhibited, robust, and wide-open' debate."
34
The use of the known lie as a tool is at once at odds with the premises of
democratic government and with the orderly manner in which economic, social, or political change is to be effected.
Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality' The knowingly false statement and the false statement made with reckless disregard of the
truth, do not enjoy constitutional protection" (citations omitted).
35

The legitimate state interest underlying the law of libel is the compensation of the individuals for the harm inflicted upon
them by defamatory falsehood. After all, the individual's right to protection of his own good name "reflects no more than our
basic concept of the essential dignity and worth of every human being - a concept at the root of any decent system of
ordered liberty."
36

The appellate court awarded Thoenen moral damages of P200,000.00, exemplary damages of P50,000.00 and legal fees of
P30,000.00, to be borne jointly and severally by the herein petitioners. In Guevarra v. Almario,
37
we noted that the damages
in a libel case must depend upon the facts of the particular case and the sound discretion of the court, although appellate
courts were "more likely to reduce damages for libel than to increase them."
38
So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000 reversing the Decision of the Regional Trial Court,
Branch 62, Makati City, of 31 August 1994 is hereby AFFIRMED, subject to the modification that petitioners are ordered to
pay, jointly and severally, moral damages in the sum of P100,000.00, exemplary damages of P30,000.00, and legal fees of
P20,000.00. No costs.





















[G.R. NO. 155282 : January 17, 2005]
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB) v. ABS-CBN BROADCASTING
CORPORATION and LOREN LEGARDA, Respondents.
For our resolution is the Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Court, as amended, filed by
petitioner Movie and Television Review and Classification Board (MTRCB) against ABS-CBN Broasting Corporation (ABS-CBN)
and former Senator Loren Legarda, respondents, assailing the (a) Decision dated November 18, 1997,
1
and (b) Order dated
August 26, 2002
2
of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an episode of the television (TV)
program "The Inside Story" produced and hosted by respondent Legarda. It depicted female students moonlighting as
prostitutes to enable them to pay for their tuition fees. In the course of the program, student prostitutes, pimps, customers,
and some faculty members were interviewed. The Philippine Women's University (PWU) was named as the school of some of
the students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the
episode.
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman, Chancellor and Trustee
of the PWU, and the PWU Parents and Teachers Association filed letter-complaints
3
with petitioner MTRCB. Both
complainants alleged that the episode besmirched the name of the PWU and resulted in the harassment of some of its
female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB Investigating
Committee, alleging among others, that respondents (1) did not submit "The Inside Story" to petitioner for its review and
(2) exhibited the same without its permission, thus, violating Section 7
4
of Presidential Decree (P.D.) No. 1986
5
and Section
3,
6
Chapter III and Section 7,
7
Chapter IV of the MTRCB Rules and Regulations.
8

In their answer,
9
respondents explained that the "The Inside Story" is a "public affairs program, news documentary and
socio-political editorial," the airing of which is protected by the constitutional provision on freedom of expression
and of the press. Accordingly, petitioner has no power, authority and jurisdiction to impose any form of prior restraint
upon respondents.
On February 5, 1993, after hearing and submission of the parties' memoranda, the MTRCB Investigating Committee
rendered a Decision, the decretal portion of which reads:
"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND
PESOS (P20,000.00) for non-submission of the program, subject of this case for review and approval of the MTRCB.
Heretofore, all subsequent programs of the 'The Inside Story' and all other programs of the ABS-CBN Channel 2 of the same
category shall be submitted to the Board of Review and Approval before showing; otherwise the Board will act accordingly."
10

rbl r l l l brr
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated March 12, 1993
affirming the above ruling of its Investigating Committee.
11
Respondents filed a motion for reconsideration but was denied in
a Resolution dated April 14, 1993.
12

Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77, Quezon City. It
seeks to: (1) declare as unconstitutional Sections 3(b),
13
3(c),
14
3(d),
15
4,
16
7,
17
and 11
18
of P. D. No. 1986 and Sections 3,
19

7,
20
and 28
21
(a) of the MTRCB Rules and Regulations;
22
(2) (in the alternative) exclude the "The Inside Story" from the
coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993 and
Resolution dated April 14, 1993. Respondents averred that the above-cited provisions constitute "prior restraint" on
respondents' exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the above
cited provisions do not apply to the "The Inside Story" because it falls under the category of "public affairs program, news
documentary, or socio-political editorials" governed by standards similar to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision
23
in favor of respondents, the dispositive portion of which reads:
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a)
of its Implementing Rules do not cover the TV Program "The Inside Story" and other similar programs, they being public
affairs programs which can be equated to newspapers; andcralawli brary
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf.
SO ORDERED."
Petitioner filed a motion for reconsideration but was denied.
24

Hence, this Petition for Review on Certiorari .
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including "public affairs
programs, news documentaries, or socio-political editorials," are subject to petitioner's power of review under Section 3 (b)
of P.D. No. 1986 and pursuant to this Court's ruling in Iglesia ni Cristo v. Court of Appeals;
25
second, television programs are
more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third,
petitioner's power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to "prior restraint;"
and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents' constitutional freedom of expression and of the
press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside Story" prior to its
exhibition or broast by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows:
"SEC. 3. Powers and Functions. - The BOARD shall have the following functions, powers and duties:
b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials
such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution, for television broast or for general viewing, imported or produced in the Philippines, and in the latter
case, whether they be for local viewing or for export.rbl r l l l brr
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production,
copying, distribution, sale, lease exhibition and/or television broast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural
values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime, such as but not limited to:
d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying,
distribution, sale, lease, exhibition, and/or television broast of all motion pictures, television programs and publicity
materials, to the end and that no such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced,
distributed, sold, leased, exhibited and/or broast by television;
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television
program "The Inside Story." The task is not Herculean because it merely resurrects this Court En Banc's ruling in Iglesia ni
Cristo v. Court of Appeals.
26
There, the Iglesia ni Cristo sought exception from petitioner's review power contending that the
term "television programs" under Sec. 3 (b) does not include "religious programs" which are protected under Section 5,
Article III of the Constitution.
27
This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives
petitioner "the power to screen, review and examine "all television programs," emphasizing the phrase "all television
programs," thus:
"The law gives the Board the power to screen, review and examine all 'television programs. - By the clear terms
of the law, the Board has the power to 'approve, delete x x x and/or prohibit the x x x exhibition and/or television broast of
x x x television programs x x x. 'The law also directs the Board to apply 'contemporary Filipino cultural values as standard'
to determine those which are objectionable for being 'immoral, indecent, contrary to law and/or good customs, injurious to
the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime. '"
Settled is the rule in statutory construction that where the law does not make any exception, courts may not except
something therefrom, unless there is compelling reason apparent in the law to justify it.
28
Ubi lex non distinguit nec
distinguere debemos. Thus, when the law says "all television programs," the word "all" covers all television programs,
whether religious, public affairs, news documentary, etc.
29
The principle assumes that the legislative body made no
qualification in the use of general word or expression.
30

It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the MTRCB over which it
has power of review.
Here, respondents sought exemption from the coverage of the term "television programs" on the ground that the "The
Inside Story" is a "public affairs program, news documentary and socio-political editorial" protected under Section 4,
31
Article
III of the Constitution. Albeit, respondent's basis is not freedom of religion, as in Iglesia ni Cristo,
32
but freedom of
expression and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in
Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present, "designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs x x x." Yet despite the fact that freedom of religion has been accorded a preferred status,
still this Court, did not exempt the Iglesia ni Cristo's religious program from petitioner's review power.
Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on freedom of speech
and of the press. However, there has been no declaration at all by the framers of the Constitution that freedom of
expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner
MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, according to respondents,
is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred
status.
The only exceptions from the MTRCB's power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such
as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and
(2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. - It shall be unlawful for any person or entity to exhibit or cause to be
exhibited in any moviehouse, theatre, or public place or by television within the Philippines any motion picture, television
program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly
authorized by the owner or his assignee and passed by the BOARD; or to print or cause to be printed on any motion picture
to be exhibited in any theater or public place or by television a label or notice showing the same to have been officially
passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs
or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies,
and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under the category of
newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Webster's dictionary defines newsreels as short motion picture films portraying
or dealing with current events.
33
A glance at actual samples of newsreels shows that they are mostly reenactments of events
that had already happened. Some concrete examples are those of Dziga Vertov's Russian Kino-Pravda newsreel series (Kino-
Pravda means literally "film-truth," a term that was later translated literally into the French cinema verite) and Frank Capra's
Why We Fight series.
34
Apparently, newsreels are straight presentation of events. They are depiction of
"actualities." Correspondingly, the MTRCB Rules and Regulations
35
implementing P. D. No. 1986 define newsreels as
"straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a
given issue are not considered newsreels."
36
Clearly, the "The Inside Story" cannot be considered a newsreel. It is more
of a public affairs program which is described as a variety of news treatment; a cross between pure television news and
news-related commentaries, analysis and/or exchange of opinions.
37
Certainly, such kind of program is within
petitioner's review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The Inside Story." Clearly,
we are not called upon to determine whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution
providing that no law shall be passed abridging the freedom of speech, of oppression or the press. Petitioner did not
disapprove or ban the showing of the program. Neither did it cancel respondents' permit. Respondents were merely
penalized for their failure to submit to petitioner "The Inside Story" for its review and approval. Therefore, we need not
resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents
contravene the Constitution.
Consequently, we cannot sustain the RTC's ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7
and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no question involving the
constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance
with the legal requisites for judicial inquiry, namely: (1) that the question must be raised by the proper party; (2) that
there must be an actual case or controversy; (3) that the question must be raised at the earliest possible opportunity; and,
(4) that the decision on the constitutional or legal question must be necessary to the determination of the case
itself.
38

WHEREFORE, the instant petition is GRANTED. rbl r l l lbrr
The assailed RTC Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision
dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents.
BAYAN v. EDUARDO ERMITA [G.R. NO. 169848 : April 25, 2006]
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,
1
allege that they are citizens and taxpayers of the Philippines and
that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was
violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,
2
who allege that they
were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and
violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to
Malacaang to protest issuances of the Palace which, they claim, put the country under an "undeclared" martial rule, and
the protest was likewise dispersed violently and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,
3
allege that they conduct peaceful
mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to
peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being
followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their
members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to
proceed along Espaa Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers
blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing
injuries on one of them.
4
Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a),
as well as the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR
policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And]
For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. - This Act shall be known as "The Public Assembly Act of 1985."
Sec. 2. Declaration of policy. - The constitutional right of the people peaceably to assemble and petition the government for
redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the
free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. - For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on
any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed
by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully
observed.
The definition herein contained shall not include picketing and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the
Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza,
square, and/or any open space of public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade
or street march, the volume of loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. - A written permit shall be required for any person or persons to
organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be
done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent
of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated
educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or
rallies held during any election campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements. - All applications for a permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public
assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable
number of persons participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended
activity is to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor
shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. - (a) It shall be the duty of the mayor or any official acting in his behalf to
issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official
acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the
premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within
forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. - Should the proposed public assembly involve the use, for an appreciable length of
time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent
grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular
traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. - It shall be the duty and responsibility of the leaders and organizers of a public assembly
to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;rbl r l l l brr
(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of
the public assembly;
(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held
peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; andcralawlibrary
(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of
other persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. - Law enforcement agencies shall not interfere with the holding of
a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of
activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. - It shall be imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this
end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or
riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is
attended by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. - No public assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of
the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or
at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during
the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the
Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for
dispersal.
Sec. 12. Dispersal of public assembly without permit. - When the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. - The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that
written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any
place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable
for participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any
other official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any
official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public
assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly
or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns
and loud sound systems.
Sec. 14. Penalties. - Any person found guilty and convicted of any of the prohibited acts defined in the immediately
preceding section shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six
months and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without
prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days.
Sec. 15. Freedom parks. - Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
Sec. 16. Constitutionality. - Should any provision of this Act be declared invalid or unconstitutional, the validity or
constitutionality of the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. - All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which
are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.
Sec. 18. Effectivity. - This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by Malacaang dated September 21, 2005, shown in Annex
"A" to the Petition in G.R. No. 169848, thus:
Malacaang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow
disorder and incite people against the duly constituted authorities, we have instructed the PNP as well as the local
government units to strictly enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest
all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside
while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to
public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and
proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.
The President's call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the
International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.
5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or
absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of
expression clause as the time and place of a public assembly form part of the message for which the expression is sought.
Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words "lawful
cause," "opinion," "protesting or influencing" suggest the exposition of some cause not espoused by the government. Also,
the phrase "maximum tolerance" shows that the law applies to assemblies against the government because they are being
tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to
peacefully assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It
also characterizes public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its
provisions are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in
B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No.
880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this
right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of
a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as
certain events require instant public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can
perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the
maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the
people of the right to peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of
the Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj.
Gen. Vidal Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes,
as Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro
Bulaong, as Chief, MPD, and all other public officers and private individuals acting under their control, supervision and
instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained
because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other
offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner
regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-
neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech
interests; and (c) B.P. No. 880 leaves open alternative channels for communication of the information.
6

3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5 requires the statement of the public
assembly's time, place and manner of conduct. It entails traffic re-routing to prevent grave public inconvenience and serious
or undue interference in the free flow of commerce and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of
a permit on the basis of a rally's program content or the statements of the speakers therein, except under the constitutional
precept of the "clear and present danger test." The status of B.P. No. 880 as a content-neutral regulation has been
recognized in Osmea v. Comelec.
7

4. Adiong v. Comelec
8
held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public
assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental
interest to support them.
5. Sangalang v. Intermediate Appellate Court
9
held that a local chief executive has the authority to exercise police power to
meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the
discretion given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will
create a clear and present danger to public order, public safety, public convenience, public morals or public health" and
"imminent and grave danger of a substantive evil" both express the meaning of the "clear and present danger test."
10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public
interest and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic
enforcement of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of
maximum tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be
dismissed on the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880;
that his denials of permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt
the economy and to protect the lives of other people; that J. B. L. Reyes v. Bagatsing,
11
Primicias v. Fugoso,
12
and Jacinto v.
CA,
13
have affirmed the constitutionality of requiring a permit; that the permit is for the use of a public place and not for the
exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the
cases for oral arguments on April 4, 2006,
14
stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and
Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?cralawlibrary
(b) Are they void on grounds of overbreadth or vagueness?cralawli brary
(c) Do they constitute prior restraint?cralawlibrary
(d) Are they undue delegations of powers to Mayors?cralawlibrary
(e) Do they violate international human rights treaties and the Universal Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?cralawlibrary
(b) Is it void for lack of publication?cralawlibrary
(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took place and were approved and/or noted by the
Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual
issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September
20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term
inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a
misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum
tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking into account the foregoing developments.
Petitioners' standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the
right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who
would publicly assemble in the nation's streets and parks. They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such permit can be validly required without violating the
Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the
public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. 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.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with
freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For
these rights constitute the very basis of a functional democratic polity, without which all the other rights would be
meaningless and unprotected. As stated in Jacinto v. CA,
15
the Court, as early as the onset of this century, in U.S. v.
Apurado,
16
already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners' rights to peaceful assembly to petition the government for a redress of grievances
and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful
concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of
Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements
defending and promoting the people's exercise of these rights. As early as the onset of this century, this Court in U.S. v.
Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement,
and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of
the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become
a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner
would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they
sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be
exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and
a tumultuous uprising."
Again, in Primicias v. Fugoso,
17
the Court likewise sustained the primacy of freedom of speech and to assembly and petition
over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are
fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a
settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the
rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the
sovereign "police power," which is the power to prescribe regulations, to promote the health, morals, peace, education, good
order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be
delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called
municipal and city councils to enact ordinances for the purpose.
18

Reyes v. Bagatsing
19
further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or punishment. There is to be then 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 a substantive evil that [the State] has a right to prevent."
Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on
a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a
right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the
people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical,
are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is
called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the
exercise of this right, so fundamental to the maintenance of democratic institutions, is the 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.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of
the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes
of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can
lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or
printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is
this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels
aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth
hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is
guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under
the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out
and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case,
penned in 1907 to be precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less
perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." It bears repeating that for
the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give
free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by
intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on national questions may be regulated in the
interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but must not, in the guise of regulation, be abridged or
denied." The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in
Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was
made to such plaza "being a promenade for public use," which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a
public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away
at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor
Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically
declared: "Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569.
In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any
ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of
the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United
States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that
'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the
local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where,
as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience
and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse
license, * * *. "Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil
liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without
which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations
in order to assure the safety and convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately
depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where
a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it
cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to
protection."
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question,
if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering
were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether
or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption - especially so where the assembly is scheduled for a specific public place - is that the permit must be for the
assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."
8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the
one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard
for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and
peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It
cannot be too strongly stressed that on the judiciary, - - even more so than on the other departments - rests the grave and
delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative
of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights,
enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a
permit to hold an assembly should inform the
licensing authority of the date, the public place
where and the time when it will take place. If it
were a private place, only the consent of the
owner or the one entitled to its legal possession is
required. Such application should be filed well
ahead in time to enable the public official
concerned to appraise whether there may be valid
objections to the grant of the permit or to its
grant but at another public place. It is an
indispensable condition to such refusal or
modification that the clear and present danger
test be the standard for the decision reached. If
he is of the view that there is such an imminent
and grave danger of a substantive evil, the
applicants must be heard on the matter.
Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority.
B.P. No. 880
Sec. 4. Permit when required and when not
required. - - A written permit shall be required for
any person or persons to organize and hold a
public assembly in a public place. However, no
permit shall be required if the public assembly
shall be done or made in a freedom park duly
established by law or ordinance or in private
property, in which case only the consent of the
owner or the one entitled to its legal possession is
required, or in the campus of a government-
owned and operated educational institution which
shall be subject to the rules and regulations of
said educational institution. Political meetings or
rallies held during any election campaign period as
provided for by law are not covered by this Act.
Sec. 5. Application requirements. - - All
applications for a permit shall comply with the
following guidelines:
(a) The applications shall be in writing and shall include
the names of the leaders or organizers; the purpose of
such public assembly; the date, time and duration thereof,
and place or streets to be used for the intended activity;
and the probable number of persons participating, the
transport and the public address systems to be used.
(b) The application shall incorporate the duty and
responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of the
mayor of the city or municipality in whose jurisdiction the
intended activity is to be held, at least five (5) working
days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal
mayor shall cause the same to immediately be posted at a
conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. -
(a) It shall be the duty of the mayor or any official acting
in his behalf to issue or grant a permit unless there is clear
and convincing evidence that the public assembly will
create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act
on the application within two (2) working days from the
date the application was filed, failing which, the permit
shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by
the applicant on the premises of the office of the mayor
and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and
grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served
on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies
the application or modifies the terms thereof in his permit,
the applicant may contest the decision in an appropriate
court of law.
(f) In case suit is brought before the Metropolitan Trial
Court, the Municipal Trial Court, the Municipal Circuit Trial
Court, the Regional Trial Court, or the Intermediate
Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after
receipt of the same. No appeal bond and record on appeal
shall be required. A decision granting such permit or
modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be
decided within twenty-four (24) hours from date of filing.
Cases filed hereunder shall be immediately endorsed to
the executive judge for disposition or, in his absence, to
the next in rank.
(h) In all cases, any decision may be appealed to the
Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals
are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply
regulates the time, place and manner of the assemblies. This was adverted to in Osmea v. Comelec,
20
where the Court
referred to it as a "content-neutral" regulation of the time, place, and manner of holding public assemblies.
21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies
22
that would use
public places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for
lawful causes, otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion,"
"protesting" and "influencing" in the definition of public assembly content based, since they can refer to any subject. The
words "petitioning the government for redress of grievances" come from the wording of the Constitution, so its use cannot
be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of
the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the
Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20 1. Everyone has the right to freedom of peaceful assembly and association.
Article 29 1. Everyone has duties to the community in which alone the free and full development of his personality is
possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law
solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19. 1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through
any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It
may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
Contrary to petitioner's claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be
defined. Its ordinary meaning is well-known. Webster's Dictionary defines it, thus:
23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or
characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or
any other form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent
needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard - the clear and present
danger test stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially
means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power
independently under Republic Act No. 7160
24
is thus not necessary to resolve in these proceedings, and was not pursued by
the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom
parks where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. - Every city and municipality in the country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as
practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time
without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park -
Fuente Osmea.
That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.
If this is so, the degree of observance of B.P. No. 880's mandate that every city and municipality set aside a freedom park
within six months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to
have been taken for granted amidst the swell of freedom that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of the law's system of regulation of the people's
exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from
the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a
city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative
forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities
to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the
term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P.
No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of
"maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police
and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately,
however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean
inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that
they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular
connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic
assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances
when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no
rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of
tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their
response based on the circumstances on the ground with the view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was
not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to
disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace
even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in
enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local
government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . .
unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg.
880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.
25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose
if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be
followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the
following:
Sec. 3. Definition of terms. - For purposes of this Act:
(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of the same.
Sec. 9. Non-interference by law enforcement authorities. - Law enforcement agencies shall not interfere with the holding of
a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a
responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of
activity ready to maintain peace and order at all times.
Sec. 10. Police assistance when requested. - It shall be imperative for law enforcement agencies, when their assistance is
requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper
protection to those exercising their right peaceably to assemble and the freedom of expression is primordial.rbl r l l lbrr
Towards this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or
riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is
attended by actual violence or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. - No public assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of
the leaders of the public assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or
at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during
the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the
Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for
dispersal.
Sec. 12. Dispersal of public assembly without permit. - When the public assembly is held without a permit where a permit is
required, the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. - The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public
assembly;
(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly
or on the occasion thereof:
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns
and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a
permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In
such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an
application duly filed on a given date can, after two days from said date, rally in accordance with their application without
the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the
authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed
following the procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of
expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed
to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of
justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected to heightened scrutiny."
26

For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck
down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify
abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being
insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the
power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30
days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks
are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned
shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The
only requirement will be written notices to the police and the mayor's office to allow proper coordination and orderly
activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and
Local Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas
Pambansa No. 880 through the establishment or designation of at least one suitable freedom park or plaza in every city and
municipality of the country. After thirty (30) days from the finality of this Decision, subject to the giving of advance notices,
no prior permit shall be required to exercise the right to peaceably assemble and petition in the public parks or plazas of a
city or municipality that has not yet complied with Section 15 of the law. Furthermore, Calibrated Preemptive Response
(CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents
are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance. The
petitions are DISMISSED in all other respects, and the constitutionality of Batas Pambansa No. 880 is SUSTAINED.




















G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY vs. COMMISSION ON ELECTIONS Respondent.
... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test
of its substance is the right to differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette
1

One unavoidable consequence of everyone having the freedom to choose is that others may make different choices
choices we would not make for ourselves, choices we may disapprove of, even choices that may shock or offend or anger
us. However, choices are not to be legally prohibited merely because they are different, and the right to disagree and
debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is
built on genuine recognition of, and respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In
many cases, where moral convictions are concerned, harmony among those theoretically opposed is an insurmountable
goal. Yet herein lies the paradox philosophical justifications about what is moral are indispensable and yet at the same
time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of
diverse viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory
injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections
(COMELEC) dated November 11, 2009
2
(the First Assailed Resolution) and December 16, 2009
3
(the Second Assailed
Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs
refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the
Party-List System Act.
4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or
trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in
2006. The application for accreditation was denied on the ground that the organization had no substantial membership
base. On August 17, 2009, Ang Ladlad again filed a Petition
5
for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion,
discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual
orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-
OFW Labor Party v. Commission on Elections.
6
Ang Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of governance.
7

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition
on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender
(LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation
and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual
relations with, individuals of a different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs.
In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the natural use into that which is
against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another;
men with men working that which is unseemly, and receiving in themselves that recompense of their error which was
meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond bounds." (7.81)
"And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in sin and
crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual partnerships
or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the Petition which waves
for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is
the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions
of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission, establishment,
business, condition of property, or anything else which x x x (3) shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses, terms
and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or
public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is contrary to law,
morals, good customs, public order or public policy are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral
doctrines, obscene publications and exhibitions and indecent shows as follows:
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, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being
truthful when it said that it "or any of its nominees/party-list representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not
conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article
that "older practicing homosexuals are a threat to the youth." As an agency of the government, ours too is the States
avowed duty under Section 13, Article II of the Constitution to protect our youth from moral and spiritual degradation.
8

When Ang Ladlad sought reconsideration,
9
three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the
First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven
its under-representation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would
benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all
representative organizations would have found themselves into the party-list race. But that is not the intention of the
framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or
groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose
interests are also the nations only that their interests have not been brought to the attention of the nation because of
their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just
that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians,
gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of homosexual relations," as in the case of race or
religion or belief.
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that
Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of
Rights that applies to all citizens alike.
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any
attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and
precepts are generally accepted public morals. They are possibly religious-based, but as a society, the Philippines cannot
ignore its more than 500 years of Muslim and Christian upbringing, such that some moral precepts espoused by said
religions have sipped [sic] into society and these are not publicly accepted moral norms.


V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code
imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim doctrines openly contrary to
public morals." It penalizes "immoral doctrines, obscene publications and exhibition and indecent shows." "Ang Ladlad"
apparently falls under these legal provisions. This is clear from its Petitions paragraph 6F: "Consensual partnerships or
relationships by gays and lesbians who are already of age It is further indicated in par. 24 of the Petition which waves for
the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article
694 of the Civil Code defines "nuisance" as any act, omission x x x or anything else x x x which shocks, defies or
disregards decency or morality x x x." These are all unlawful.
10

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the
COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a
preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the
final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not
later than 12:00 noon of January 11, 2010.
11
Instead of filing a Comment, however, the OSG filed a Motion for Extension,
requesting that it be given until January 16, 2010 to Comment.
12
Somewhat surprisingly, the OSG later filed a Comment in
support of petitioners application.
13
Thus, in order to give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment.
14
The COMELEC, through its Law Department, filed its Comment on February 2,
2010.
15

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.
16

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus
Curiae, attaching thereto its Comment-in-Intervention.
17
The CHR opined that the denial of Ang Ladlads petition on moral
grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and
the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to
intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene
18
which motion was granted on February 2,
2010.
19

The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated
the constitutional guarantees against the establishment of religion. Petitioner also claimed that the Assailed Resolutions
contravened its constitutional rights to privacy, freedom of speech and assembly, and equal protection of laws, as well as
constituted violations of the Philippines international obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for
registration since there was no basis for COMELECs allegations of immorality. It also opined that LGBTs have their own
special interests and concerns which should have been recognized by the COMELEC as a separate classification.
However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned,
the OSG maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to
benefit the nation and that the petition was validly dismissed on moral grounds. It also argued for the first time that the
LGBT sector is not among the sectors enumerated by the Constitution and RA 7941, and that petitioner made untruthful
statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs field
personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated
in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors
specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered
under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,
20

"the enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is not whether a
sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution
and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide
existence through its members and affiliate organizations. The COMELEC claims that upon verification by its field
personnel, it was shown that "save for a few isolated places in the country, petitioner does not exist in almost all provinces
in the country."
21

This argument that "petitioner made untruthful statements in its petition when it alleged its national existence" is a new
one; previously, the COMELEC claimed that petitioner was "not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the
elections." Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already
available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular procedure; at
worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to procedural
due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows
that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the
Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the
country, and 4,044 members in its electronic discussion group.
22
Ang Ladlad also represented itself to be "a national LGBT
umbrella organization with affiliates around the Philippines composed of the following LGBT networks:"
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they
found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner
does not even exist in Quezon City, which is registered as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization under
any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies in
Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in
religious matters."
24
Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality."
25

We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the
Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the
COMELEC is able to advance some justification for its rulings beyond mere conformity to religious doctrine. Otherwise
stated, government must act for secular purposes and in ways that have primarily secular effects. As we held in Estrada v.
Escritor:
26

x x x 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." 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.1avvphi1
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. 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. x x x 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 strive 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.
27

Public Morals as a Ground to Deny Ang Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-
based, it has long been transplanted into generally accepted public morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it
poses to the people especially the youth. Once it is recognized by the government, a sector which believes that there is
nothing wrong in having sexual relations with individuals of the same gender is a bad example. It will bring down the
standard of morals we cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its
own existence.
28

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have
borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs,
convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize
homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly
transplanted into the realm of law.
29

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG
agrees that "there should have been a finding by the COMELEC that the groups members have committed or are
committing immoral acts."
30
The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender,
but mere attraction does not translate to immoral acts. There is a great divide between thought and action. Reduction ad
absurdum. If immoral thoughts could be penalized, COMELEC would have its hands full of disqualification cases against
both the "straights" and the gays." Certainly this is not the intendment of the law.
31

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the
youth. Neither has the COMELEC condescended to justify its position that petitioners admission into the party-list system
would be so harmful as to irreparably damage the moral fabric of society. We, of course, do not suggest that the state is
wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate morality on one end of an argument or
another, without bothering to go through the rigors of legal reasoning and explanation. In this, the notion of morality is
robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.
We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at
worst. Article 694 of the Civil Code defines a nuisance as "any act, omission, establishment, condition of property, or
anything else which shocks, defies, or disregards decency or morality," the remedies for which are a prosecution under the
Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings.
32
A violation of Article
201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or criminal proceedings and a judicial determination of
liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of
homosexuals from participation in the party-list system. The denial of Ang Ladlads registration on purely moral grounds
amounts more to a statement of dislike and disapproval of homosexuals, rather than a tool to further any substantial public
interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates
our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any person be denied equal
protection of the laws," courts have never interpreted the provision as an absolute prohibition on classification. "Equality,"
said Aristotle, "consists in the same treatment of similar persons."
33
The equal protection clause guarantees 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.
34

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will
uphold the classification as long as it bears a rational relationship to some legitimate government end.
35
In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas,
36
we declared that "[i]n our jurisdiction, the standard of analysis
of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution."
37

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and
unacceptable, and this constitutes sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the
Philippine electorate has expressed no such belief. No law exists to criminalize homosexual behavior or expressions or
parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes
it, the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest
that is sufficient to satisfy rational basis review under the equal protection clause. The COMELECs differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that would benefit the nation,
furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in
participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this
case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve
to participate in the party-list system on the same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the OSGs position that homosexuals are a class in
themselves for the purposes of the equal protection clause.
38
We are not prepared to single out homosexuals as a
separate class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is
simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be recognized under the
same basis as all other groups similarly situated, and that the COMELEC made "an unwarranted and impermissible
classification not justified by the circumstances of the case."

Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity
of its position through normal democratic means.
39
It is in the public square that deeply held convictions and differing
opinions should be distilled and deliberated upon. As we held in Estrada v. Escritor:
40

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. 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.

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.
Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this
sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the
COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to
interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that
both expressions concerning ones homosexuality and the activity of forming a political association that supports LGBT
individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual
conduct violates public morality does not justify criminalizing same-sex conduct.
41
European and United Nations judicial
decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts.
42
To the extent that there is much to learn from other jurisdictions
that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while
not formally binding on Philippine courts, may nevertheless have persuasive influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines
protect gay and lesbian rights to expressive conduct. In order to justify the prohibition of a particular expression of opinion,
public institutions must show that their actions were caused by "something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular viewpoint."
43

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights
tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it uses legal and democratic means and the changes it
proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the
existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression
through the exercise of the right of association, even if such ideas may seem shocking or unacceptable to the authorities
or the majority of the population.
44
A political group should not be hindered solely because it seeks to publicly debate
controversial political issues in order to find solutions capable of satisfying everyone concerned.
45
Only if a political party
incites violence or puts forward policies that are incompatible with democracy does it fall outside the protection of the
freedom of association guarantee.
46

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even
defiant. They are entitled to hold and express that view. On the other hand, LGBTs and their supporters, in all likelihood,
believe with equal fervor that relationships between individuals of the same sex are morally equivalent to heterosexual
relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our
democracy precludes using the religious or moral views of one part of the community to exclude from consideration the
values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this
Decision will only serve to highlight the discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal, reflect a clear-cut
strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of
homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad,
and its members have not been deprived of their right to voluntarily associate, then there has been no restriction on their
freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its
authority to review and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list
system. This lawful exercise of duty cannot be said to be a transgression of Section 4, Article III of the Constitution.
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the
conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-
guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has
the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally
participate in public life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law.
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and
as advanced by the OSG itself the moral objection offered by the COMELEC was not a limitation imposed by law. To the
extent, therefore, that the petitioner has been precluded, because of COMELECs action, from publicly expressing its
views as a political party and participating on an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in
particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and
groups struggling with inadequate structural and governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather
than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular,
we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in
the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this
respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied
equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a
status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to "sex" in Article 26 should be construed to include "sexual orientation."
48
Additionally, a variety of United
Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international
agreements.
49

The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without
unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the
Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs,
the right to vote and to be elected and the right to have access to public service. Whatever form of constitution or
government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary
to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic
government based on the consent of the people and in conformity with the principles of the Covenant.
15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to
vote have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be
justifiable on objective and reasonable criteria. Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of
political affiliation. No person should suffer discrimination or disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions which exclude any group or category of persons from
elective office.
50

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines
international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now
to the petitioners invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to
Sexual Orientation and Gender Identity),
51
which petitioner declares to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the
Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state
of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the
Statute of the International Court of Justice.
52
Petitioner has not undertaken any objective and rigorous analysis of these
alleged principles of international law to ascertain their true status.
We also hasten to add that not everything that society or a certain segment of society wants or demands is
automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It
is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many
social desires as rights in order to further claims that international law obliges states to sanction these innovations. This
has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language,
then they are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various
international law professors, are at best de lege ferenda and do not constitute binding obligations on the Philippines.
Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is
full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to
no more than well-meaning desires, without the support of either State practice or opinio juris.
53

As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal
attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Courts role is not to
impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced
by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11,
2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed
to GRANT petitioners application for party-list accreditation.






















EBRALINAG VS DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU
The State moves for a reconsideration of our decision dated March 1, 1993 granting private respondents' petition for
certiorari and prohibition and annulling the expulsion orders issued by the public respondents therein on the ground that
the said decision created an exemption in favor of the members of the religious sect, the Jehovah's Witnesses, in violation
of the "Establishment Clause" of the Constitution. The Solicitor General, on behalf of the public respondent, furthermore
contends that:
The accommodation by this Honorable Court to a demand for special treatment in favor of a minority sect even on
the basis of a claim of religious freedom may be criticized as granting preference to the religious beliefs of said
sect in violation of the "non-establishment guarantee" provision of the Constitution. Surely, the decision of the
Court constitutes a special favor which immunizes religious believers such as Jehovah's Witnesses to the law and
the DECS rules and regulations by interposing the claim that the conduct required by law and the rules and
regulation (sic) are violative of their religious beliefs. The decision therefore is susceptible to the very criticism that
the grant of exemption is a violation of the "non-establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority poses a risk of collision course with the "equal
protection of the laws" clause in respect of the non-exempt, and, in public schools, a collision course with the "non-
establishment guarantee."
Additionally the public respondent insists that this Court adopt a "neutral stance" by reverting to its holding in Gerona
declaring the flag as being devoid of any religious significance. He stresses that the issue here is not curtailment of
religious belief but regulation of the exercise of religious belief. Finally, he maintains that the State's interests in the case at
bench are constitutional and legal obligations to implement the law and the constitutional mandate to inculcate in the youth
patriotism and nationalism and to encourage their involvement in public and civic affairs, referring to the test devised by
the United States Supreme Court in U.S. vs. O'Brien.
1

II
All the petitioners in the original case
2
were minor school children, and members of the sect, Jehovah's Witnesses (assisted by
their parents) who were expelled from their classes by various public school authorities in Cebu for refusing to salute the flag,
sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955 and by
Department Order No. 8, dated July 21, 1955 issued by the Department of Education. Aimed primarily at private educational
institutions which did not observe the flag ceremony exercises, Republic Act No. 1265 penalizes all educational institutions for
failure or refusal to observe the flag ceremony with public censure on first offense and cancellation of the recognition or permit
on second offense.
The implementing regulations issued by the Department of Education thereafter detailed the manner of observance of the
same. Immediately pursuant to these orders, school officials in Masbate expelled children belonging to the sect of the
Jehovah's Witnesses from school for failing or refusing to comply with the flag ceremony requirement. Sustaining these
expulsion orders, this Court in the 1959 case of Gerona vs. Secretary of Education
3
held that:
The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty, of
national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and protect.
Considering the complete separation of church and state in our system of government, the flag is utterly devoid of
any religious significance. Saluting the flag consequently does not involve any religious ceremony. . . .
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 meanings to be given to a certain
ritual or ceremony as there are religious groups or sects or followers.
Upholding religious freedom as a fundamental right deserving the "highest priority and amplest protection among human
rights," this Court, in Ebralinag vs. Division Superintendent of Schools of Cebu
4
re-examined our over two decades-old
decision in Gerona and reversed expulsion orders made by the public respondents therein as violative of both the free exercise
of religion clause and the right of citizens to education under the 1987 Constitution.
5

From our decision of March 1, 1993, the public respondents filed a motion for reconsideration on grounds hereinabove
stated. After a careful study of the grounds adduced in the government's Motion For Reconsideration of our original
decision, however, we find no cogent reason to disturb our earlier ruling.
The religious convictions and beliefs of the members of the religious sect, the Jehovah's Witnesses are widely known and
are equally widely disseminated in numerous books, magazines, brochures and leaflets distributed by their members in
their house to house distribution efforts and in many public places. Their refusal to render obeisance to any form or symbol
which smacks of idolatry is based on their sincere belief in the biblical injunction found in Exodus 20:4,5, against
worshipping forms or idols other than God himself. The basic assumption in their universal refusal to salute the flags of the
countries in which they are found is that such a salute constitutes an act of religious devotion forbidden by God's law. This
assumption, while "bizarre" to others is firmly anchored in several biblical passages.
6

And yet, while members of Jehovah's Witnesses, on the basis of religious convictions, refuse to perform an act (or acts)
which they consider proscribed by the Bible, they contend that such refusal should not be taken to indicate disrespect for
the symbols of the country or evidence that they are wanting in patriotism and nationalism. They point out that as citizens,
they have an excellent record as law abiding members of society even if they do not demonstrate their refusal to conform
to the assailed orders by overt acts of conformity. On the contrary, they aver that they show their respect through less
demonstrative methods manifesting their allegiance, by their simple obedience to the country's laws,
7
by not engaging in
antigovernment activities of any kind,
8
and by paying their taxes and dues to society as self-sufficient members of the
community.
9
While they refuse to salute the flag, they are willing to stand quietly and peacefully at attention, hands on their side,
in order not to disrupt the ceremony or disturb those who believe differently.
10

The religious beliefs, practices and convictions of the members of the sect as a minority are bound to be seen by others as
odd and different and at divergence with the complex requirements of contemporary societies, particularly those societies
which require certain practices as manifestations of loyalty and patriotic behavior. Against those who believe that coerced
loyalty and unity are mere shadows of patriotism, the tendency to exact "a hydraulic insistence on conformity to
majoritarian standards,"
11
is seductive to the bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes as the responsibility "to inculcate in the minds of the
youth the values of patriotism and nationalism and to encourage their involvement in public and civic affairs." The teaching
of these values ranks at the very apex of education's "high responsibility" of shaping up the minds of the youth in those
principles which would mold them into responsible and productive members of our society. However, the government's
interest in molding the young into patriotic and civic spirited citizens is "not totally free from a balancing process"
12
when it
intrudes into other fundamental rights such as those specifically protected by the Free Exercise Clause, the constitutional right to
education and the unassailable interest of parents to guide the religious upbringing of their children in accordance with the
dictates of their conscience and their sincere religious beliefs.
13
Recognizing these values, Justice Carolina Grino-Aquino, the
writer of the original opinion, underscored that a generation of Filipinos which cuts its teeth on the Bill of Rights would find
abhorrent the idea that one may be compelled, on pain of expulsion, to salute the flag sing the national anthem and recite the
patriotic pledge during a flag ceremony.
14
"This coercion of conscience has no place in a free society".
15

The State's contentions are therefore, unacceptable, for no less fundamental than the right to take part is the right to stand
apart.
16
In the context of the instant case, the freedom of religion enshrined in the Constitution should be seen as the rule, not
the exception. To view the constitutional guarantee in the manner suggested by the petitioners would be to denigrate the status
of a preferred freedom and to relegate it to the level of an abstract principle devoid of any substance and meaning in the lives of
those for whom the protection is addressed. As to the contention that the exemption accorded by our decision benefits a
privileged few, it is enough to re-emphasize that "the constitutional protection of religious freedom terminated disabilities, it did
not create new privileges. It gave religious equality, not civil immunity."
17
The essence of the free exercise clause is freedom
from conformity to religious dogma, not freedom from conformity to law because of religious dogma.
18
Moreover, the suggestion
implicit in the State's pleadings to the effect that the flag ceremony requirement would be equally and evenly applied to all
citizens regardless of sect or religion and does not thereby discriminate against any particular sect or denomination escapes the
fact that "[a] regulation, neutral on its face, may in its application, nonetheless offend the constitutional requirement for
governmental neutrality if it unduly burdens the free exercise of religion."
19

III
The ostensible interest shown by petitioners in preserving the flag as the symbol of the nation appears to be integrally
related to petitioner's disagreement with the message conveyed by the refusal of members of the Jehovah's Witness sect
to salute the flag or participate actively in flag ceremonies on religious grounds.
20
Where the governmental interest clearly
appears to be unrelated to the suppression of an idea, a religious doctrine or practice or an expression or form of expression,
this Court will not find it difficult to sustain a regulation. However, regulations involving this area are generally held against the
most exacting standards, and the zone of protection accorded by the Constitution cannot be violated, except upon a showing of
a clear and present danger of a substantive evil which the state has a right to protect.
21
Stated differently, in the case of a
regulation which appears to abridge a right to which the fundamental law accords high significance it is the regulation, not the act
(or refusal to act), which is the exception and which requires the court's strictest scrutiny. In the case at bench, the government
has not shown that refusal to do the acts of conformity exacted by the assailed orders, which respondents point out attained
legislative cachet in the Administrative Code of 1987, would pose a clear and present danger of a danger so serious and
imminent, that it would prompt legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S. Supreme Court held that the "State's asserted interest in
preserving the fag as a symbol of nationhood and national unity was an interest related to the suppression of free
expression . . . because the State's concern with protecting the flag's symbolic meaning is implicated only when a person's
treatment of the flag communicates some message.
22
While the very concept of ordered liberty precludes this Court from
allowing every individual to subjectively define his own standards on matters of conformity in which society, as a whole has
important interests, the records of the case and the long history of flag salute cases abundantly supports the religious quality of
the claims adduced by the members of the sect Jehovah's Witnesses. Their treatment of flag as a religious symbol is well-
founded and well-documented and is based on grounds religious principle. The message conveyed by their refusal to participate
in the flag ceremony is religious, shared by the entire community of Jehovah's Witnesses and is intimately related to their
theocratic beliefs and convictions. The subsequent expulsion of members of the sect on the basis of the regulations assailed in
the original petitions was therefore clearly directed against religious practice. It is obvious that the assailed orders and
memoranda would gravely endanger the free exercise of the religious beliefs of the members of the sect and their minor
children.
Furthermore, the view that the flag is not a religious but a neutral, secular symbol expresses a majoritarian view intended
to stifle the expression of
the belief that an act of saluting the flag might sometimes be to some individuals so offensive as to be worth their
giving up another constitutional right the right to education. Individuals or groups of individuals get from a symbol the
meaning they put to it.
23
Compelling members of a religious sect to believe otherwise on the pain of denying minor children the
right to an education is a futile and unconscionable detour towards instilling virtues of loyalty and patriotism which are best
instilled and communicated by painstaking and non-coercive methods. Coerced loyalties, after all, only serve to inspire the
opposite. The methods utilized to impose them breed resentment and dissent. Those who attempt to coerce uniformity of
sentiment soon find out that the only path towards achieving unity is by way of suppressing dissent.
24
In the end, such attempts
only find the "unanimity of the graveyard."
25

To the extent to which members of the Jehovah's Witnesses sect assiduously pursue their belief in the flag's religious
symbolic meaning, the State cannot, without thereby transgressing constitutionally protected boundaries, impose the
contrary view on the pretext of sustaining a policy designed to foster the supposedly far-reaching goal of instilling
patriotism among the youth. While conceding to the idea adverted to by the Solicitor General that certain methods of
religious expression may be prohibited
26
to serve legitimate societal purposes, refusal to participate in the flag ceremony
hardly constitutes a form of religious expression so offensive and noxious as to prompt legitimate State intervention. It is worth
repeating that the absence of a demonstrable danger of a kind which the State is empowered to protect militates against the
extreme disciplinary methods undertaken by school authorities in trying to enforce regulations designed to compel attendance in
flag ceremonies. Refusal of the children to participate in the flag salute ceremony would not interfere with or deny the rights of
other school children to do so. It bears repeating that their absence from the ceremony hardly constitutes a danger so grave and
imminent as to warrant the state's intervention.
Finally, the respondents' insistence on the validity of the actions taken by the government on the basis of their averment
that "a government regulation of expressive conduct is sufficiently justified if it is within the constitutional power of the
government (and) furthers an important and substantial government interest"
27
misses the whole point of the test devised by
the United States Supreme Court in O'Brien, cited by respondent, because the Court therein was emphatic in stating that "the
government interest (should be) unrelated to the suppression of free expression." We have already stated that the interest in
regulation in the case at bench was clearly related to the suppression of an expression directly connected with the freedom of
religion and that respondents have not shown to our satisfaction that the restriction was prompted by a compelling interest in
public order which the state has a right to protect. Moreover, if we were to refer (as respondents did by referring to the test in
O'Brien) to the standards devised by the US Supreme Court in determining the validity or extent of restrictive regulations
impinging on the freedoms of the mind, then the O'Brien standard is hardly appropriate because the standard devised in O'Brien
only applies if the State's regulation is not related to communicative conduct. If a relationship exists, a more demanding standard
is applied.
28

The responsibility of inculcating the values of patriotism, nationalism, good citizenship, and moral uprightness is a
responsibility shared by the State with parents and other societal institutions such as religious sects and denominations.
The manner in which such values are demonstrated in a plural society occurs in ways so variable that government cannot
make claims to the exclusivity of its methods of inculcating patriotism so all-encompassing in scope as to leave no room
for appropriate parental or religious influences. Provided that those influences do not pose a clear and present danger of a
substantive evil to society and its institutions, expressions of diverse beliefs, no matter how upsetting they may seem to
the majority, are the price we pay for the freedoms we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby DENIED.
FACTS:
Two special civil actions for certiorari, Mandamus and Prohibition were filed and consolidated raising the same issue
whether school children who are members or a religious sect known as Jehovahs Witnesses may be expelled from
school (both public and private), for refusing, on account of their religious beliefs, to take part in the flag ceremony
which includes playing (by a band) or singing the Philippine national anthem, saluting the Philippine flag and reciting
the patriotic pledge.
All of the petitioners in both (consolidated) cases were expelled from their classes by the public school authorities in
Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic
Act No. 1265 (An Act making flagceremony compulsory in all educational institutions) of July 11, 1955 , and by
Department Order No. 8 (Rules and Regulations for Conducting the Flag Ceremony in All Educational
Institutions)dated July 21, 1955 of the Department of Education, Culture and Sports (DECS) making the flag
ceremony compulsory in all educational institutions.
Petitioners are Jehovahs Witnesses believing that by doing these is religious worship/devotion akin to idolatry
against their teachings. They contend that to compel transcends constitutional limits and invades protection against
official control and religious freedom. The respondents relied on the precedence of Gerona et al v. Secretary of
Education where the Court upheld the explulsions. Gerona doctrine provides that we are a system of separation of the
church and state and the flag is devoid of religious significance and it doesnt involve any religious ceremony. The
children of Jehovahs Witnesses cannot be exempted from participation in the flag ceremony. They have no valid
right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and demoralize the
rest of the school population which by far constitutes the great majority. The freedom of religious belief guaranteed
by the Constitution does not and cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent authority.
ISSUE: Whether or not the expulsion of petitioners violated their freedom of religion?
HELD: YES. The Court held that the expulsion of the petitioners from the school was not justified.
Religious freedom is a fundamental right of highest priority and the amplest protection among human rights,
for it involves the relationship of man to his Creator. The right to religious profession and worship has a two-
fold aspect, vis., freedom to believe and freedom to act on ones belief. The first is absolute as long as the belief
is confined within the realm of thought. The second is subject to regulation where the belief is translated into
external acts that affect the public welfare. The only limitation to religious freedom is the existence of grave
and present danger to public safety, morals, health and interests where State has right to prevent.
Petitioners stress that while they do not take part in the compulsory flag ceremony, they do not engage in external
acts or behavior that would offend their countrymen who believe in expressing their love of country through the
observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show their respect for
the right of those who choose to participate in the solemn proceedings. Since they do not engage in disruptive
behavior, there is no warrant for their expulsion.


A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant, vs.SOLEDAD S. ESCRITOR, Respondent.
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again stands before the
Court invoking her religious freedom and her Jehovah God in a bid to save her family united without the benefit of legal
marriage - and livelihood. The State, on the other hand, seeks to wield its power to regulate her behavior and protect its
interest in marriage and family and the integrity of the courts where respondent is an employee. How the Court will tilt the
scales of justice in the case at bar will decide not only the fate of respondent Escritor but of other believers coming to
Court bearing grievances on their free exercise of religion. This case comes to us from our remand to the Office of the
Court Administrator on August 4, 2003.
1

I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada requested Judge Jose F. Caoibes, Jr.,
presiding judge of Branch 253, Regional Trial Court of Las Pias City, for an investigation of respondent Soledad Escritor,
court interpreter in said court, for living with a man not her husband, and having borne a child within this live-in
arrangement. Estrada believes that Escritor is committing an immoral act that tarnishes the image of the court, thus she
should not be allowed to remain employed therein as it might appear that the court condones her act.
2
Consequently,
respondent was charged with committing "disgraceful and immoral conduct" under Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code.
3

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband having
died in 1998.
4
She admitted that she started living with Luciano Quilapio, Jr. without the benefit of marriage more than
twenty years ago when her husband was still alive but living with another woman. She also admitted that she and Quilapio
have a son.
5
But as a member of the religious sect known as the Jehovahs Witnesses and the Watch Tower and Bible
Tract Society, respondent asserted that their conjugal arrangement is in conformity with their religious beliefs and has the
approval of her congregation.
6
In fact, after ten years of living together, she executed on July 28, 1991, a "Declaration of
Pledging Faithfulness."
7

For Jehovahs Witnesses, the Declaration allows members of the congregation who have been abandoned by their
spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the
congregation all over the world except in countries where divorce is allowed. As laid out by the tenets of their faith, the
Jehovahs congregation requires that at the time the declarations are executed, the couple cannot secure the civil
authorities approval of the marital relationship because of legal impediments. Only couples who have been baptized and
in good standing may execute the Declaration, which requires the approval of the elders of the congregation. As a matter
of practice, the marital status of the declarants and their respective spouses commission of adultery are investigated
before the declarations are executed.
8
Escritor and Quilapios declarations were executed in the usual and approved form
prescribed by the Jehovahs Witnesses,
9
approved by elders of the congregation where the declarations were executed,
10

and recorded in the Watch Tower Central Office.
11

Moreover, the Jehovahs congregation believes that once all legal impediments for the couple are lifted, the validity of the
declarations ceases, and the couple should legalize their union. In Escritors case, although she was widowed in 1998,
thereby lifting the legal impediment to marry on her part, her mate was still not capacitated to remarry. Thus, their
declarations remained valid.
12
In sum, therefore, insofar as the congregation is concerned, there is nothing immoral about
the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that her conjugal
arrangement does not constitute disgraceful and immoral conduct for which she should be held administratively liable,
13

the Court had to determine the contours of religious freedom under Article III, Section 5 of the Constitution, which
provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and development of the religion
clauses in the United States (U.S.) and the Philippines, we held that in resolving claims involving religious freedom (1)
benevolent neutrality or accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying
the religion clauses in our Constitution; and (2) in deciding respondents plea of exemption based on the Free Exercise
Clause (from the law with which she is administratively charged), it is the compelling state interest test, the strictest test,
which must be applied.
14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate issue of whether
respondent was to be held administratively liable for there was need to give the State the opportunity to adduce evidence
that it has a more "compelling interest" to defeat the claim of the respondent to religious freedom. Thus, in the decision
dated August 4, 2003, we remanded the complaint to the Office of the Court Administrator (OCA), and ordered the Office
of the Solicitor General (OSG) to intervene in the case so it can:
(a) examine the sincerity and centrality of respondents claimed religious belief and practice;
(b) present evidence on the states "compelling interest" to override respondents religious belief and
practice; and
(c) show that the means the state adopts in pursuing its interest is the least restrictive to respondents
religious freedom.
15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT APPROACH THIS COURT
SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already been ruled
upon prior to the remand, and constitute "the law of the case" insofar as they resolved the issues of which framework and
test are to be applied in this case, and no motion for its reconsideration having been filed.
16
The only task that the Court is
left to do is to determine whether the evidence adduced by the State proves its more compelling interest. This issue
involves a pure question of fact.
B. Law of the case
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case interpreting the religious clauses of the
Constitution, made more than two years ago, is misplaced to say the least. Since neither the complainant, respondent nor
the government has filed a motion for reconsideration assailing this ruling, the same has attained finality and constitutes
the law of the case. Any attempt to reopen this final ruling constitutes a crass contravention of elementary rules of
procedure. Worse, insofar as it would overturn the parties right to rely upon our interpretation which has long attained
finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr. Justice Carpios belated
attempts to disturb settled issues, and that he had timely presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the religion clauses, because
"one cannot understand, much less intelligently criticize the approaches of the courts and the political branches to religious
freedom in the recent past in the United States without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience."
17
We delved into the conception of religion from primitive
times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.
18
Then, religion developed on its own and became
superior to the state,
19
its subordinate,
20
and even becoming an engine of state policy.
21

We ascertained two salient features in the review of religious history: First, with minor exceptions, the history of church-
state relationships was characterized by persecution, oppression, hatred, bloodshed, and war, all in the name of the God
of Love and of the Prince of Peace. Second, likewise with minor exceptions, this history witnessed the unscrupulous use
of religion by secular powers to promote secular purposes and policies, and the willing acceptance of that role by the
vanguards of religion in exchange for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religions invaluable service. This was the context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American constitutional democracy and in human history.
22

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

The omission of an express guaranty of religious freedom and other natural rights, however, nearly prevented the
ratification of the Constitution. The restriction had to be made explicit with the adoption of the religion clauses in the First
Amendment as they are worded to this day. Thus, the First Amendment did not take away or abridge any power of the
national government; its intent was to make express the absence of power.
24
It commands, in two parts (with the first part
usually referred to as the Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
25

The Establishment and Free Exercise Clauses, it should be noted, were not designed to serve contradictory purposes.
They have a single goalto promote freedom of individual religious beliefs and practices. In simplest terms, the Free
Exercise Clause prohibits government from inhibiting religious beliefs with penalties for religious beliefs and practice, while
the Establishment Clause prohibits government from inhibiting religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were intended to deny government the power to use either the carrot or
the stick to influence individual religious beliefs and practices.
26

In sum, a review of the Old World antecedents of religion shows the movement of establishment of religion as an engine to
promote state interests, to the principle of non-establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses interpretation and construction in the United States, not because we are
bound by their interpretation, but because the U.S. religion clauses are the precursors to the Philippine religion clauses,
although we have significantly departed from the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught with inconsistencies
whether within a Court decision or across decisions. For while there is widespread agreement regarding the value of the
First Amendment religion clauses, there is an equally broad disagreement as to what these clauses specifically require,
permit and forbid. No agreement has been reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in the U.S. Congress renders it difficult to ascertain its meaning.
27

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the religion clauses. First is
the standard of separation, which may take the form of either (a) strict separation or (b) the tamer version of strict
neutrality or separation, or what Mr. Justice Carpio refers to as the second theory of governmental neutrality. Although the
latter form is not as hostile to religion as the former, both are anchored on the Jeffersonian premise that a "wall of
separation" must exist between the state and the Church to protect the state from the church.
28
Both protect the principle
of church-state separation with a rigid reading of the principle. On the other hand, the second standard, the benevolent
neutrality or accommodation, is buttressed by the view that the wall of separation is meant to protect the church from the
state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the state from the church, and the
states hostility towards religion allows no interaction between the two. According to this Jeffersonian view, an absolute
barrier to formal interdependence of religion and state needs to be erected. Religious institutions could not receive aid,
whether direct or indirect, from the state. Nor could the state adjust its secular programs to alleviate burdens the programs
placed on believers.
29
Only the complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views, thus a strict "wall of separation" is necessary.
30

Strict separation faces difficulties, however, as it is deeply embedded in American history and contemporary practice that
enormous amounts of aid, both direct and indirect, flow to religion from government in return for huge amounts of mostly
indirect aid from religion.
31
For example, less than twenty-four hours after Congress adopted the First Amendments
prohibition on laws respecting an establishment of religion, Congress decided to express its thanks to God Almighty for the
many blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer.
32
Thus, strict separationists are caught in an awkward position of claiming a constitutional
principle that has never existed and is never likely to.
33

The tamer version of the strict separationist view, the strict neutrality or separationist view, (or, the governmental neutrality
theory) finds basis in Everson v. Board of Education,
34
where the Court declared that Jeffersons "wall of separation"
encapsulated the meaning of the First Amendment. However, unlike the strict separationists, the strict neutrality view
believes that the "wall of separation" does not require the state to be their adversary. Rather, the state must be neutral in
its relations with groups of religious believers and non-believers. "State power is no more to be used so as to handicap
religions than it is to favor them."
35
The strict neutrality approach is not hostile to religion, but it is strict in holding that
religion may not be used as a basis for classification for purposes of governmental action, whether the action confers
rights or privileges or imposes duties or obligations. Only secular criteria may be the basis of government action. It does
not permit, much less require, accommodation of secular programs to religious belief.
36

The problem with the strict neutrality approach, however, is if applied in interpreting the Establishment Clause, it could
lead to a de facto voiding of religious expression in the Free Exercise Clause. As pointed out by Justice Goldberg in his
concurring opinion in Abington School District v. Schempp,
37
strict neutrality could lead to "a brooding and pervasive
devotion to the secular and a passive, or even active, hostility to the religious" which is prohibited by the Constitution.
38

Professor Laurence Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a free exercise clause. The Framers,
whatever specific applications they may have intended, clearly envisioned religion as something special; they enacted that
vision into law by guaranteeing the free exercise of religion but not, say, of philosophy or science. The strict neutrality
approach all but erases this distinction. Thus it is not surprising that the [U.S.] Supreme Court has rejected strict neutrality,
permitting and sometimes mandating religious classifications.
39

Thus, the dilemma of the separationist approach, whether in the form of strict separation or strict neutrality, is that while
the Jeffersonian wall of separation "captures the spirit of the American ideal of church-state separation," in real life, church
and state are not and cannot be totally separate. This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of involvement and activity, resulting in the intersection
of government and religion at many points.
40

b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of separation,"
associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect the
state from the church, the wall is meant to protect the church from the state.
41
This doctrine was expressed in Zorach v.
Clauson,
42
which held, viz:
The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and
State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter. Otherwise, the state and religion would be aliens to
each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes.
Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me
God" in our courtroom oaths- these and all other references to the Almighty that run through our laws, our public rituals,
our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: "God save the United States and this Honorable Court."
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one
chooses. . . When the state encourages religious instruction or cooperates with religious authorities by adjusting the
schedule of public events, it follows the best of our traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups. . . But we find no constitutional
requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to
widen their effective scope of religious influence.
43

Benevolent neutrality recognizes that religion plays an important role in the public life of the United States as shown by
many traditional government practices which, to strict neutrality, pose Establishment Clause questions. Among these are
the inscription of "In God We Trust" on American currency; the recognition of America as "one nation under God" in the
official pledge of allegiance to the flag; the Supreme Courts time-honored practice of opening oral argument with the
invocation "God save the United States and this Honorable Court"; and the practice of Congress and every state
legislature of paying a chaplain, usually of a particular Protestant denomination, to lead representatives in prayer. These
practices clearly show the preference for one theological viewpointthe existence of and potential for intervention by a
godover the contrary theological viewpoint of atheism. Church and government agencies also cooperate in the building
of low-cost housing and in other forms of poor relief, in the treatment of alcoholism and drug addiction, in foreign aid and
other government activities with strong moral dimension.
44

Examples of accommodations in American jurisprudence also abound, including, but not limited to the U.S. Court
declaring the following acts as constitutional: a state hiring a Presbyterian minister to lead the legislature in daily prayers,
45

or requiring employers to pay workers compensation when the resulting inconsistency between work and Sabbath leads to
discharge;
46
for government to give money to religiously-affiliated organizations to teach adolescents about proper sexual
behavior;
47
or to provide religious school pupils with books;
48
or bus rides to religious schools;
49
or with cash to pay for
state-mandated standardized tests.
50

(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion clauses are invoked in relation to
governmental action, almost invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as unconstitutional, either
because it violates the Free Exercise Clause or the Establishment Clause or both. This is true whether one subscribes to
the separationist approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and general applicability, but
may incidentally or inadvertently aid or burden religious exercise. Though the government action is not religiously
motivated, these laws have a "burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may
be allowed, not to promote the governments favored form of religion, but to allow individuals and groups to exercise their
religion without hindrance. The purpose of accommodations is to remove a burden on, or facilitate the exercise of, a
persons or institutions religion. As Justice Brennan explained, the "government [may] take religion into accountto
exempt, when possible, from generally applicable governmental regulation individuals whose religious beliefs and
practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."
51
In the ideal world, the legislature would recognize the religions and their practices and
would consider them, when practical, in enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened may turn to the courts for protection.
52

Thus, what is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law,
but an exemption from its application or its "burdensome effect," whether by the legislature or the courts.
53
Most of the free
exercise claims brought to the U.S. Court are for exemption, not invalidation of the facially neutral law that has a
"burdensome" effect.
54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in the case of Sherbert v.
Verner,
55
which ruled that state regulation that indirectly restrains or punishes religious belief or conduct must be subjected
to strict scrutiny under the Free Exercise Clause.
56
According to Sherbert, when a law of general application infringes
religious exercise, albeit incidentally, the state interest sought to be promoted must be so paramount and compelling as to
override the free exercise claim. Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the law as her employment
was terminated for refusal to work on Saturdays on religious grounds. Her claim was denied. She sought recourse in the
Supreme Court. In laying down the standard for determining whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religious
principles of a kind within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is
to withstand appellants constitutional challenge, it must be either because her disqualification as a beneficiary represents
no infringement by the State of her constitutional right of free exercise, or because any incidental burden on the free
exercise of appellants religion may be justified by a "compelling state interest in the regulation of a subject within the
States constitutional power to regulate. . . ."
57
(emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely show a rational
relationship of the substantial infringement to the religious right and a colorable state interest. "(I)n this highly sensitive
constitutional area, [o]nly the gravest abuses, endangering paramount interests, give occasion for permissible
limitation."
58
The Court found that there was no such compelling state interest to override Sherberts religious liberty. It
added that even if the state could show that Sherberts exemption would pose serious detrimental effects to the
unemployment compensation fund and scheduling of work, it was incumbent upon the state to show 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
Sherberts benefits would force her to choose between receiving benefits and following her religion. This choice placed
"the same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her Saturday
worship." This germinal case of Sherbert firmly established the exemption doctrine,
59
viz:
It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict
with scruples of conscience, exemptions ought to be granted unless some "compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even inadvertently, a sincerely held
religious belief or practice, the state must justify the burden by demonstrating that the law embodies a compelling interest,
that no less restrictive alternative exists, and that a religious exemption would impair the states ability to effectuate its
compelling interest. As in other instances of state action affecting fundamental rights, negative impacts on those rights
demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test resulted in court-mandated
religious exemptions from facially-neutral laws of general application whenever unjustified burdens were found.
60

Then, in the 1972 case of Wisconsin v. Yoder,
61
the U.S. Court again ruled that religious exemption was in order,
notwithstanding that the law of general application had a criminal penalty. Using heightened scrutiny, the Court overturned
the conviction of Amish parents for violating Wisconsin compulsory school-attendance laws. The Court, in effect, granted
exemption from a neutral, criminal statute that punished religiously motivated conduct. Chief Justice Burger, writing for the
majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a claim that such
attendance interferes with the practice of a legitimate religious belief, it must appear either that the State does not deny
the free exercise of religious belief by its requirement, or that there is a state interest of sufficient magnitude to override the
interest claiming protection under the Free Exercise Clause. Long before there was general acknowledgement of the need
for universal education, the Religion Clauses had specially and firmly fixed the right of free exercise of religious beliefs,
and buttressing this fundamental right was an equally firm, even if less explicit, prohibition against the establishment of
any religion. The values underlying these two provisions relating to religion have been zealously protected, sometimes
even at the expense of other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those interests of the highest order and those
not otherwise served can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free
Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject to regulation by the
States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that religiously grounded conduct must often be
subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise
Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general
applicability. . . .This case, therefore, does not become easier because respondents were convicted for their "actions" in
refusing to send their children to the public high school; in this context belief and action cannot be neatly confined in logic-
tight compartments. . .
62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims were subject to
heightened scrutiny or compelling interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny or compelling interest test governed cases where the burden was direct, i.e., the exercise of religion
triggered a criminal or civil penalty, as well as cases where the burden was indirect, i.e., the exercise of religion resulted in
the forfeiture of a government benefit;
63
and (c) the Court could carve out accommodations or exemptions from a facially
neutral law of general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protectedconduct beyond speech, press, or
worship was included in the shelter of freedom of religion. Neither Sherberts refusal to work on the Sabbath nor the Amish
parents refusal to let their children attend ninth and tenth grades can be classified as conduct protected by the other
clauses of the First Amendment. Second, indirect impositions on religious conduct, such as the denial of twenty-six weeks
of unemployment insurance benefits to Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue
in Yoder, were prohibited. Third, as the language in the two cases indicate, the protection granted was extensive. Only
extremely strong governmental interests justified impingement on religious conduct, as the absolute language of the test of
the Free Exercise Clause suggests.
64

Fourth, the strong language was backed by a requirement that the government provide proof of the important interest at
stake and of the dangers to that interest presented by the religious conduct at issue. Fifth, in determining the injury to the
governments interest, a court was required to focus on the effect that exempting religious claimants from the regulation
would have, rather than on the value of the regulation in general. Thus, injury to governmental interest had to be
measured at the margin: assuming the law still applied to all others, what would be the effect of exempting the religious
claimant in this case and other similarly situated religious claimants in the future? Together, the fourth and fifth elements
required that facts, rather than speculation, had to be presented concerning how the governments interest would be
harmed by excepting religious conduct from the law being challenged.
65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which would impose a discipline to prevent
manipulation in the balancing of interests. The fourth and the fifth elements prevented the likelihood of exaggeration of the
weight on the governmental interest side of the balance, by not allowing speculation about the effects of a decision
adverse to those interests nor accepting that those interests would be defined at a higher level of generality than the
constitutional interests on the other side of the balance.
66

Thus, the strict scrutiny and compelling state interest test significantly increased the degree of protection afforded to
religiously motivated conduct. While not affording absolute immunity to religious activity, a compelling secular justification
was necessary to uphold public policies that collided with religious practices. Although the members of the U.S. Court
often disagreed over which governmental interests should be considered compelling, thereby producing dissenting and
separate opinions in religious conduct cases, this general test established a strong presumption in favor of the free
exercise of religion.
67
Most scholars and courts agreed that under Sherbert and Yoder, the Free Exercise Clause provided
individuals some form of heightened scrutiny protection, if not always a compelling interest one.
68
The 1990 case of
Employment Division, Oregon Department of Human Resources v. Smith,
69
drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of peyote, a hallucinogenic substance.
Specifically, individuals challenged the states determination that their religious use of peyote, which resulted in their
dismissal from employment, was misconduct disqualifying them from receipt of unemployment compensation benefits.
70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion required an exemption from an
otherwise valid law. Scalia said that "[w]e have never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of
more than a century of our free exercise jurisprudence contradicts that proposition."
71
Scalia thus declared "that the right
of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general
applicability of the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."
72

Justice Scalias opinion then reviewed the cases where free exercise challenges had been upheldsuch as Cantwell,
Murdock, Follet, Pierce, and Yoderand said that none involved the free exercise clause claims alone. All involved "the
Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or
the right of parents to direct the education of their children."
73
The Court said that Smith was distinguishable because it did
not involve such a "hybrid situation," but was a free exercise claim "unconnected with any communicative activity or
parental right."
74

Moreover, the Court said that the Sherbert line of cases applied only in the context of the denial of unemployment benefits;
it did not create a basis for an exemption from criminal laws. Scalia wrote that "[e]ven if we were inclined to breathe into
Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a
generally applicable criminal law."
75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of general applicability that burden
religion. Justice Scalia said that "[p]recisely because we are a cosmopolitan nation made up of people of almost
conceivable religious preference, and precisely because we value and protect that religious divergence, we cannot afford
the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not
protect an interest of the highest order." The Court said that those seeking religious exemptions from laws should look to
the democratic process for protection, not the courts.
76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny and the compelling justification
approach were abandoned for evaluating laws burdening religion; neutral laws of general applicability only have to meet
the rational basis test, no matter how much they burden religion.
77

Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the compelling state interest test, asserting
that "(t)he compelling state interest test effectuates the First Amendments command that religious liberty is an
independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this
liberty, whether direct or indirect, unless required by clear and compelling government interest of the highest order."
78
She
said that strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the First
Amendments mandate of preserving religious liberty to the fullest extent possible in a pluralistic society."
79

Justice OConnor also disagreed with the majoritys description of prior cases and especially its leaving the protection of
minority religions to the political process. She said that, "First Amendment was enacted precisely to protect the rights of
those whose religious practice are not shared by the majority and may be viewed with hostility."
80

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and Marshall. The dissenting Justices
agreed with Justice OConnor that the majority had mischaracterized precedents, such as in describing Yoder as a
"hybrid" case rather than as one under the free exercise clause. The dissent also argued that strict scrutiny should be
used in evaluating government laws burdening religion.
81

Criticism of Smith was intense and widespread.
82
Academics, Justices, and a bipartisan majority of Congress noisily
denounced the decision.
83
Smith has the rather unusual distinction of being one case that is almost universally despised
(and this is not too strong a word) by both the liberals and conservatives.
84
Liberals chasten the Court for its hostility to
minority faiths which, in light of Smiths general applicability rule, will allegedly suffer at the hands of the majority faith
whether through outright hostility or neglect. Conservatives bemoan the decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an ever more secular nation that is increasingly hostile to religious belief
as an oppressive and archaic anachronism.
85

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

At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining and limiting the term
"religion" in todays pluralistic society, and (2) the belief that courts have no business determining the significance of an
individuals religious beliefs. For the Smith Court, these two concerns appear to lead to the conclusion that the Free
Exercise Clause must protect everything or it must protect virtually nothing. As a result, the Court perceives its only viable
options are to leave free exercise protection to the political process or to allow a "system in which each conscience is a
law unto itself."
96
The Courts characterization of its choices have been soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two viable options, then admittedly, the Court has a stronger
argument. But the Free Exercise Clause cannot be summarily dismissed as too difficult to apply and this should not be
applied at all. The Constitution does not give the judiciary the option of simply refusing to interpret its provisions. The First
Amendment dictates that free exercise of "religion" must be protected. Accordingly, the Constitution compels the Court to
struggle with the contours of what constitutes "religion." There is no constitutional opt-out provision for constitutional words
that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A large area of middle
ground exists between the Courts two opposing alternatives for free exercise jurisprudence. Unfortunately, this middle
ground requires the Court to tackle difficult issues such as defining religion and possibly evaluating the significance of a
religious belief against the importance of a specific law. The Court describes the results of this middle ground where
"federal judges will regularly balance against the importance of general laws the significance of religious practice," and
then dismisses it as a "parade of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not religious individuals; they
would undoubtedly prefer their religious beliefs to be probed for sincerity and significance rather than acquiesce to the
Courts approach of simply refusing to grant any constitutional significance to their beliefs at all. If the Court is concerned
about requiring lawmakers at times constitutionally to exempt religious individuals from statutory provisions, its concern is
misplaced. It is the lawmakers who have sought to prevent the Court from dismantling the Free Exercise Clause through
such legislation as the [Religious Freedom Restoration Act of 1993], and in any case, the Court should not be overly
concerned about hurting legislatures feelings by requiring their laws to conform to constitutional dictates. Perhaps the
Court is concerned about putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge should be expected
to fulfill.
97

Parenthetically, Smiths characterization that the U.S. Court has "never held that an individuals religious beliefs excuse
him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate"an assertion which
Mr. Justice Carpio adopted unequivocally in his dissenthas been sharply criticized even implicitly by its supporters, as
blatantly untrue. Scholars who supported Smith frequently did not do so by opposing the arguments that the Court was
wrong as a matter of original meaning [of the religion clauses] or that the decision conflicted with precedent [i.e. the Smith
decision made shocking use of precedent]those points were often conceded.
98

To justify its perversion of precedent, the Smith Court attempted to distinguish the exemption made in Yoder, by asserting
that these were premised on two constitutional rights combinedthe right of parents to direct the education of their
children and the right of free exercise of religion. Under the Courts opinion in Smith, the right of free exercise of religion
standing alone would not allow Amish parents to disregard the compulsory school attendance law, and under the Courts
opinion in Yoder, parents whose objection to the law was not religious would also have to obey it. The fatal flaw in this
argument, however, is that if two constitutional claims will fail on its own, how would it prevail if combined?
99
As for
Sherbert, the Smith Court attempted to limit its doctrine as applicable only to denials of unemployment compensation
benefits where the religiously-compelled conduct that leads to job loss is not a violation of criminal law. And yet, this is
precisely why the rejection of Sherbert was so damaging in its effect: the religious person was more likely to be entitled to
constitutional protection when forced to choose between religious conscience and going to jail than when forced to choose
between religious conscience and financial loss.
100

Thus, the Smith decision elicited much negative public reaction especially from the religious community, and
commentaries insisted that the Court was allowing the Free Exercise Clause to disappear.
101
So much was the uproar that
a majority in Congress was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.
102
The RFRA was
adopted to negate the Smith test and require strict scrutiny for free exercise claims. Indeed, the findings section of the Act
notes that Smith "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by
laws neutral toward religion."
103
The Act declares that its purpose is to restore the compelling interest test as set forth in
Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee its application in all cases where free exercise of religion is
substantially burdened; and to provide a claim of defense to a person whose religious exercise is substantially burdened
by government.
104
The RFRA thus sought to overrule Smith and make strict scrutiny the test for all free exercise clause
claims.
105

In the City of Boerne v. Flores,
106
the U.S. Supreme Court declared the RFRA unconstitutional, ruling that Congress had
exceeded its power under the Fourteenth Amendment in enacting the law. The Court ruled that Congress is empowered to
enact laws "to enforce the amendment," but Congress is not "enforcing" when it creates new constitutional rights or
expands the scope of rights.
107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial respect for the
constitutional decision-making by a coordinate branch of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through enshrinement in the Bill of Rights are not thereby
banished from the political process. Just as society believes in the negative protection accorded to the press by the First
Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that
believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its
legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous Congress. Contrary
to the Courts characterization of the RFRA as a kind of usurpation of the judicial power to say what the Constitution
means, the law offered no definition of Free Exercise, and on its face appeared to be a procedural measure establishing a
standard of proof and allocating the duty of meeting it. In effect, the Court ruled that Congress had no power in the area of
religion. And yet, Free Exercise exists in the First Amendment as a negative on Congress. The power of Congress to act
towards the states in matters of religion arises from the Fourteenth Amendment.
108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the benevolent neutrality or accommodation approach. Moreover, if we consider
the history of the incorporation of the religion clauses in the U.S., the decision in Smith is grossly inconsistent with the
importance placed by the framers on religious faith. Smith is dangerous precedent because it subordinates fundamental
rights of religious belief and practice to all neutral, general legislation. Sherbert recognized the need to protect religious
exercise in light of the massive increase in the size of government, the concerns within its reach, and the number of laws
administered by it. However, Smith abandons the protection of religious exercise at a time when the scope and reach of
government has never been greater. It has been pointed out that Smith creates the legal framework for persecution:
through general, neutral laws, legislatures are now able to force conformity on religious minorities whose practice irritate or
frighten an intolerant majority.
109

The effect of Smith is to erase entirely the concept of mandatory accommodations, thereby emasculating the Free
Exercise Clause. Smith left religious freedom for many in the hands of the political process, exactly where it would be if the
religion clauses did not exist in the Bill of Rights. Like most protections found in the Bill of Rights, the religion clauses of
the First Amendment are most important to those who cannot prevail in the political process. The Court in Smith ignores
the fact that the protections found in the Bill of Rights were deemed too important to leave to the political process.
Because mainstream religions generally have been successful in protecting their interests through the political process, it
is the non-mainstream religions that are adversely affected by Smith. In short, the U.S. Supreme Court has made it clear
to such religions that they should not look to the First Amendment for religious freedom.
110

(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are found to be constitutionally
compelled, i.e., required by the Free Exercise Clause; (b) those which are discretionary or legislative, i.e., not required by
the Free Exercise Clause but nonetheless permitted by the Establishment Clause; and (c) those which the religion clauses
prohibit.
111

Mandatory accommodation results when the Court finds that accommodation is required by the Free Exercise Clause, i.e,
when the Court itself carves out an exemption. This accommodation occurs when all three conditions of the compelling
interest test are met, i.e, a statute or government action has burdened claimants free exercise of religion, and there is no
doubt as to the sincerity of the religious belief; the state has failed to demonstrate a particularly important or compelling
governmental goal in preventing an exemption; and that the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious conscience is so great and the advancement of public
purposes is incomparable that only indifference or hostility could explain a refusal to make exemptions. Thus, if the states
objective could be served as well or almost as well by granting an exemption to those whose religious beliefs are
burdened by the regulation, the Court must grant the exemption. The Yoder case is an example where the Court held that
the state must accommodate the religious beliefs of the Amish who objected to enrolling their children in high school as
required by law. The Sherbert case is another example where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert.
112

In permissive accommodation, the Court finds that the State may, but is not required to, accommodate religious interests.
The U.S. Walz case illustrates this situation where the U.S. Supreme Court upheld the constitutionality of tax exemption
given by New York to church properties, but did not rule that the state was required to provide tax exemptions. The Court
declared that "(t)he limits of permissible state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause."
113
Other examples are Zorach v. Clauson,
114
allowing released
time in public schools and Marsh v. Chambers,
115
allowing payment of legislative chaplains from public funds.
Parenthetically, the Court in Smith has ruled that this is the only accommodation allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or the free exercise clause, it results to a prohibited accommodation. In
this case, the Court finds that establishment concerns prevail over potential accommodation interests. To say that there
are valid exemptions buttressed by the Free Exercise Clause does not mean that all claims for free exercise exemptions
are valid.
116
An example where accommodation was prohibited is McCollum v. Board of Education,
117
where the Court
ruled against optional religious instruction in the public school premises.
118

Given that a free exercise claim could lead to three different results, the question now remains as to how the Court should
determine which action to take. In this regard, it is the strict scrutiny-compelling state interest test which is most in line with
the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom to carry out ones
duties to a Supreme Being is an inalienable right, not one dependent on the grace of legislature. Religious freedom is
seen as a substantive right and not merely a privilege against discriminatory legislation. With religion looked upon with
benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice, free exercise
disputes arise commonly when a law that is religiously neutral and generally applicable on its face is argued to prevent or
burden what someones religious faith requires, or alternatively, requires someone to undertake an act that faith would
preclude. In essence, then, free exercise arguments contemplate religious exemptions from otherwise general laws.
119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test reflects the First
Amendments mandate of preserving religious liberty to the fullest extent possible in a pluralistic society.
120
Underlying the
compelling state interest test is the notion that free exercise is a fundamental right and that laws burdening it should be
subject to strict scrutiny.
121

In its application, the compelling state interest test follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his religious beliefs, the burden shifts
to the government to demonstrate that the law or practice is necessary to the accomplishment of some important (or
compelling) secular objective and that it is the least restrictive means of achieving that objective. If the plaintiff meets this
burden and the government does not, the plaintiff is entitled to exemption from the law or practice at issue. In order to be
protected, the claimants beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious denomination. Only beliefs rooted in religion are protected
by the Free Exercise Clause; secular beliefs, however sincere and conscientious, do not suffice.
122

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the separationist
approach, or the benevolent neutrality approach. The benevolent neutrality approach has also further been split by the
view that the First Amendment requires accommodation, or that it only allows permissible legislative accommodations.
The current prevailing view as pronounced in Smith, however, is that that there are no required accommodation under the
First Amendment, although it permits of legislative accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is immediately clear that one
cannot simply conclude that we have adoptedlock, stock and barrelthe religion clauses as embodied in the First
Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in the U.S. where legislative exemptions of
religion had to be upheld by the U.S. Supreme Court as constituting permissive accommodations, similar exemptions for
religion are mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and 1987 Constitutions
contain provisions on tax exemption of church property,
123
salary of religious officers in government institutions,
124
and
optional religious instruction.
125
Our own preamble also invokes the aid of a divine being.
126
These constitutional provisions
are wholly ours and have no counterpart in the U.S. Constitution or its amendments. They all reveal without doubt that the
Filipino people, in adopting these constitutions, manifested their adherence to the benevolent neutrality approach that
requires accommodations in interpreting the religion clauses.
127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it asserted that the 1935
Constitution incorporates the Walz ruling as this case was decided subsequent to the 1935 Constitution is a misreading of
the ponencia. What the ponencia pointed out was that even as early as 1935, or more than three decades before the U.S.
Court could validate the exemption in Walz as a form or permissible accommodation, we have already incorporated the
same in our Constitution, as a mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitutions departure from the U.S. Constitution, insofar as religious
accommodations are concerned. It is indubitable that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution.
128
As stated in our Decision, dated
August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses were largely adopted from the First
Amendment of the U.S. Constitution xxxx Philippine jurisprudence and commentaries on the religious clauses also
continued to borrow authorities from U.S. jurisprudence without articulating the stark distinction between the two streams
of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two identifiable
streams; thus, when a religion clause case comes before the Court, a separationist approach or a benevolent neutrality
approach might be adopted and each will have U.S. authorities to support it. Or, one might conclude that as the history of
the First Amendment as narrated by the Court in Everson supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion clauses history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation would not be breached if the Court grants him an
exemption. These conclusions, however, are not and were never warranted by the 1987, 1973 and 1935 Constitutions as
shown by other provisions on religion in all three constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized in
a manner that will give to all of them full force and effect. From this construction, it will be ascertained that the intent of the
framers was to adopt a benevolent neutrality approach in interpreting the religious clauses in the Philippine constitutions,
and the enforcement of this intent is the goal of construing the constitution.
129
[citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts interpretation of the religion clauses to
effectively deny accommodations on the sole basis that the law in question is neutral and of general application. For even
if it were true that "an unbroken line of U.S. Supreme Court decisions" has never held that "an individuals religious beliefs
[do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," our
own Constitutions have made significant changes to accommodate and exempt religion. Philippine jurisprudence shows
that the Court has allowed exemptions from a law of general application, in effect, interpreting our religion clauses to cover
both mandatory and permissive accommodations.
130

To illustrate, in American Bible Society v. City of Manila,
131
the Court granted to plaintiff exemption from a law of general
application based on the Free Exercise Clause. In this case, plaintiff was required by an ordinance to secure a mayors
permit and a municipal license as ordinarily required of those engaged in the business of general merchandise under the
citys ordinances. Plaintiff argued that this amounted to "religious censorship and restrained the free exercise and
enjoyment of religious profession, to wit: the distribution and sale of bibles and other religious literature to the people of the
Philippines." Although the Court categorically held that the questioned ordinances were not applicable to plaintiff as it was
not engaged in the business or occupation of selling said "merchandise" for profit, it also ruled that applying the ordinance
to plaintiff and requiring it to secure a license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a privilege is
the power to control or suppress its enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right
to disseminate religious information. Any restraint of such right can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any substantive evil which the State has the right to
prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of Schools.
132
The case
involved several Jehovahs Witnesses who were expelled from school for refusing to salute the flag, sing the national
anthem and recite the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the religious freedom
issue, a unanimous Court overturned an earlier ruling denying such exemption,
133
using the "grave and imminent danger"
test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom (according to the late Chief
Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence of a
grave and present danger of a character both grave and imminent, of a serious evil to public safety, public morals, public
health or any other legitimate public interest, that the State has a right (and duty) to prevent. Absent such a threat to public
safety, the expulsion of the petitioners from the schools is not justified.
134
(emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general application, on the strength directly of
the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of Victoriano v. Elizalde Rope Workers
Union
135
is an example of the application of Mr. Justice Carpios theory of permissive accommodation, where religious
exemption is granted by a legislative act. In Victoriano, the constitutionality of Republic Act No. 3350 was questioned. The
said R.A. exempt employees from the application and coverage of a closed shop agreementmandated in another law
based on religious objections. A unanimous Court upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if the incidental result would be favorable to a religion
or sect." Interestingly, the secular purpose of the challenged law which the Court upheld was the advancement of "the
constitutional right to the free exercise of religion."
136

Having established that benevolent neutrality-accommodation is the framework by which free exercise cases must be
decided, the next question then turned to the test that should be used in ascertaining the limits of the exercise of religious
freedom. In our Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases involving purely
conduct based on religious belief, as in the case at bar, the compelling state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free
Exercise Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced
that the test of permissibility of religious freedom is whether it violates the established institutions of society and law. The
Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a law of general applicability
may burden religious exercise provided the law is the least restrictive means to accomplish the goal of the law. The case
also used, albeit inappropriately, the "compelling state interest" test. After Victoriano, German went back to the Gerona
rule. Ebralinag then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case of American Bible Society.
Not surprisingly, all the cases which employed the "clear and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is often used in cases on freedom of expression. On the
other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established institutions
of society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test. Victoriano was the only case that employed the "compelling state
interest" test, but as explained previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and
present danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate
effects. The Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct
arising from religious belief. The "compelling state interest" test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the states interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail over the right
to religious freedom as this is a fundamental right that enjoys a preferred position in the hierarchy of rights - "the most
inalienable and sacred of all human rights", in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is premised
upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in order to build a
just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a
colorable state interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful ones until they are destroyed. In determining
which shall prevail between the states interest and religious liberty, reasonableness shall be the guide. The "compelling
state interest" serves the purpose of revering religious liberty while at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the
end, the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect the very state,
without which, religious liberty will not be preserved.
137
(citations omitted)
At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing the applicability of the benevolent
neutrality framework and compelling state interest test, states that "[i]t is true that a test needs to be applied by the Court
in determining the validity of a free exercise claim of exemption as made here by Escritor." This assertion is inconsistent
with the position negating the benevolent neutrality or accommodation approach. If it were true, indeed, that the religion
clauses do not require accommodations based on the free exercise of religion, then there would be no need for a test to
determine the validity of a free exercise claim, as any and all claims for religious exemptions from a law of general
application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and mandatory
accommodation is more critically important in analyzing free exercise exemption claims because it forces the Court to
confront how far it can validly set the limits of religious liberty under the Free Exercise Clause, rather than presenting the
separation theory and accommodation theory as opposite concepts, and then rejecting relevant and instructive American
jurisprudence (such as the Smith case) just because it does not espouse the theory selected." He then asserts that the
Smith doctrine cannot be dismissed because it does not really espouse the strict neutrality approach, but more of
permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the doctrine in Smith is that only legislative
accommodations are allowed under the Free Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even assuming that the Smith doctrine actually espouses
the theory of accommodation or benevolent neutrality, the accommodation is limited to the permissive, or legislative
exemptions. It, therefore, cannot be used as a test in determining the claims of religious exemptions directly under the
Free Exercise Clause because Smith does not recognize such exemption. Moreover, Mr. Justice Carpios advocacy of the
Smith doctrine would effectively render the Free Exercise protectiona fundamental right under our Constitution
nugatory because he would deny its status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We explained this process in detail,
by showing the questions which must be answered in each step, viz:
First, "[H]as the statute or government action created a burden on the free exercise of religion?" The courts often look
into the sincerity of the religious belief, but without inquiring into the truth of the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is ascertained to
avoid the mere claim of religious beliefs to escape a mandatory regulation. xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of religious liberty?" In
this step, the government has to establish that its purposes are legitimate for the state and that they are compelling.
Government must do more than assert the objectives at risk if exemption is given; it must precisely show how and to what
extent those objectives will be undermined if exemptions are granted.
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive means possible so that
the free exercise is not infringed any more than necessary to achieve the legitimate goal of the state?" The analysis
requires the state to show that the means in which it is achieving its legitimate state objective is the least intrusive means,
i.e., it has chosen a way to achieve its legitimate state end that imposes as little as possible on religious liberties xxx.
138

[citations omitted]
Again, the application of the compelling state interest test could result to three situations of accommodation: First,
mandatory accommodation would result if the Court finds that accommodation is required by the Free Exercise Clause.
Second, if the Court finds that the State may, but is not required to, accommodate religious interests, permissive
accommodation results. Finally, if the Court finds that that establishment concerns prevail over potential accommodation
interests, then it must rule that the accommodation is prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only permissive accommodation can carve out an
exemption from a law of general application. He posits the view that the law should prevail in the absence of a legislative
exemption, and the Court cannot make the accommodation or exemption.
Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The cases of American Bible Society,
Ebralinag, and Victoriano demonstrate that our application of the doctrine of benevolent neutrality-accommodation covers
not only the grant of permissive, or legislative accommodations, but also mandatory accommodations. Thus, an exemption
from a law of general application is possible, even if anchored directly on an invocation of the Free Exercise Clause alone,
rather than a legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from the application of general penal laws, permissive accommodation based
on religious freedom has been granted with respect to one of the crimes penalized under the Revised Penal Code, that of
bigamy.
In the U.S. case of Reynolds v. United States,
139
the U.S. Court expressly denied to Mormons an exemption from a
general federal law criminalizing polygamy, even if it was proven that the practice constituted a religious duty under their
faith.
140
In contradistinction, Philippine law accommodates the same practice among Moslems, through a legislative act.
For while the act of marrying more than one still constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No.
1083, otherwise known as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative to
the crime of bigamy "shall not apply to a person marriedunder Muslim law." Thus, by legislative action, accommodation
is granted of a Muslim practice which would otherwise violate a valid and general criminal law. Mr. Justice Carpio
recognized this accommodation when, in his dissent in our Decision dated August 4, 2003 and citing Sulu Islamic
Association of Masjid Lambayong v. Malik,
141
he stated that a Muslim Judge "is not criminally liable for bigamy because
Sharia law allows a Muslim to have more than one wife."
From the foregoing, the weakness of Mr. Justice Carpios "permissive-accommodation only" advocacy in this jurisdiction
becomes manifest. Having anchored his argument on the Smith doctrine that "the guaranty of religious liberty as
embodied in the Free Exercise Clause does not require the grant of exemptions from generally applicable laws to
individuals whose religious practice conflict with those laws," his theory is infirmed by the showing that the benevolent
neutrality approach which allows for both mandatory and permissive accommodations was unequivocally adopted by our
framers in the Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the antithesis to the notion that
religion clauses, like the other fundamental liberties found in the Bill or Rights, is a preferred right and an independent
source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not applicable when the
law in question is a generally applicable criminal law. Stated differently, even if Mr. Justice Carpio conceded that there is
no question that in the Philippine context, accommodations are made, the question remains as to how far the exemptions
will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the question of mandatory
accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed legislative accommodation.
Second, the power of the Courts to grant exemptions in general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been decided, not just once, but twice by the Court. Thus,
the crux of the matter is whether this Court can make exemptions as in Ebralinag and the American Bible Society, in cases
involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine religion clauses, the
benevolent neutrality-accommodation approach in Philippine jurisdiction is more pronounced and given leeway than in the
U.S.
Second, the whole purpose of the accommodation theory, including the notion of mandatory accommodations, was to
address the "inadvertent burdensome effect" that an otherwise facially neutral law would have on religious exercise. Just
because the law is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise Clause. As stated
by Justice OConnor in her concurring opinion in Smith, "[t]here is nothing talismanic about neutral laws of general
applicability or general criminal prohibitions, for laws neutral towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as laws aimed at religion."
142

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority religions who are likewise
protected by the Free Exercise Clause. Mandatory accommodations are particularly necessary to protect adherents of
minority religions from the inevitable effects of majoritarianism, which include ignorance and indifference and overt hostility
to the minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not infrequently, they
come into conflict with the religious scruples of those holding different world views, even in the absence of a deliberate
intent to interfere with religious practice. At times, this effect is unavoidable as a practical matter because some laws are
so necessary to the common good that exceptions are intolerable. But in other instances, the injury to religious conscience
is so great and the advancement of public purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials are frequently willing
to make such exemptions when the need is brought to their attention, but this may not always be the case when the
religious practice is either unknown at the time of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents needless injury to the religious consciences of those
who can have an influence in the legislature; while a constitutional interpretation that requires accommodations extends
this treatment to religious faiths that are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it be applied for the first
time, as an exemption of such nature, albeit by legislative act, has already been granted to Moslem polygamy and the
criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other fundamental rights in the Bill of Rights.
It has been noted that unlike other fundamental rights like the right to life, liberty or property, the Religion Clauses are
stated in absolute terms, unqualified by the requirement of "due process," "unreasonableness," or "lawful order." Only the
right to free speech is comparable in its absolute grant. Given the unequivocal and unqualified grant couched in the
language, the Court cannot simply dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise
that the law in question is a general criminal law.
143
If the burden is great and the sincerity of the religious belief is not in
question, adherence to the benevolent neutrality-accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation approach does not mean
that the Court ought to grant exemptions every time a free exercise claim comes before it. This is an erroneous reading of
the framework which the dissent of Mr. Justice Carpio seems to entertain. Although benevolent neutrality is the lens with
which the Court ought to view religion clause cases, the interest of the state should also be afforded utmost protection.
This is precisely the purpose of the testto draw the line between mandatory, permissible and forbidden religious
exercise. Thus, under the framework, the Court cannot simply dismiss a claim under the Free Exercise Clause because
the conduct in question offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely is the
protection afforded by the religion clauses of the Constitution.
144
As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of judgment in
determining the degree of burden on religious practice or importance of the state interest or the sufficiency of the means
adopted by the state to pursue its interest, the Court can set a doctrine on the ideal towards which religious clause
jurisprudence should be directed. We here lay down the doctrine that in Philippine jurisdiction, we adopt the benevolent
neutrality approach not only because of its merits as discussed above, but more importantly, because our constitutional
history and interpretation indubitably show that benevolent neutrality is the launching pad from which the Court should
take off in interpreting religion clause cases. The ideal towards which this approach is directed is the protection of religious
liberty "not only for a minority, however small- not only for a majority, however large but for each of us" to the greatest
extent possible within flexible constitutional limits.
145

II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what remained to be resolved, upon
which remand was necessary, pertained to the final task of subjecting this case to the careful application of the compelling
state interest test, i.e., determining whether respondent is entitled to exemption, an issue which is essentially factual or
evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the Hearing Officers report,
146
along
with the evidence submitted by the OSG, this case is once again with us, to resolve the penultimate question of whether
respondent should be found guilty of the administrative charge of "disgraceful and immoral conduct." It is at this point then
that we examine the report and documents submitted by the hearing officer of this case, and apply the three-step process
of the compelling state interest test based on the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and centrality of
respondents claimed religious belief and practice are beyond serious doubt.
147
Thus, having previously established the
preliminary conditions required by the compelling state interest test, i.e., that a law or government practice inhibits the free
exercise of respondents religious beliefs, and there being no doubt as to the sincerity and centrality of her faith to claim
the exemption based on the free exercise clause, the burden shifted to the government to demonstrate that the law or
practice justifies a compelling secular objective and that it is the least restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses, endangering paramount
interests" which could limit or override respondents fundamental right to religious freedom. Neither did the government
exert any effort to show that the means it seeks to achieve its legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking The September 30, 2003 Letter to the OSG of Bro. Raymond B. Leach, Legal
Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of respondents claimed religious
belief and practice.
2. Exhibit "B-OSG" and submarking The duly notarized certification dated September 30, 2003 issued and signed by
Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed religious belief and practice; and (2)
to prove that the Declaration of Pledging Faithfulness, being a purely internal arrangement within the congregation of the
Jehovahs Witnesses, cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to override respondents
claimed religious belief and practice, in order to protect marriage and the family as basic social institutions. The Solicitor
General, quoting the Constitution
148
and the Family Code,
149
argues that marriage and the family are so crucial to the
stability and peace of the nation that the conjugal arrangement embraced in the Declaration of Pledging Faithfulness
should not be recognized or given effect, as "it is utterly destructive of the avowed institutions of marriage and the family
for it reduces to a mockery these legally exalted and socially significant institutions which in their purity demand respect
and dignity."
150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as he asserts that the
State has a compelling interest in the preservation of marriage and the family as basic social institutions, which is
ultimately the public policy underlying the criminal sanctions against concubinage and bigamy. He also argues that in
dismissing the administrative complaint against respondent, "the majority opinion effectively condones and accords a
semblance of legitimacy to her patently unlawful cohabitation..." and "facilitates the circumvention of the Revised Penal
Code." According to Mr. Justice Carpio, by choosing to turn a blind eye to respondents criminal conduct, the majority is in
fact recognizing a practice, custom or agreement that subverts marriage. He argues in a similar fashion as regards the
states interest in the sound administration of justice.
There has never been any question that the state has an interest in protecting the institutions of marriage and the family,
or even in the sound administration of justice. Indeed, the provisions by which respondents relationship is said to have
impinged, e.g., Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles 334 and 349 of the
Revised Penal Code, and even the provisions on marriage and family in the Civil Code and Family Code, all clearly
demonstrate the States need to protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental rights in our
Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of rights "the most inalienable and
sacred of human rights," in the words of Jefferson. Hence, it is not enough to contend that the states interest is important,
because our Constitution itself holds the right to religious freedom sacred. The State must articulate in specific terms the
state interest involved in preventing the exemption, which must be compelling, for only the gravest abuses, endangering
paramount interests can limit the fundamental right to religious freedom. To rule otherwise would be to emasculate the
Free Exercise Clause as a source of right by itself.
Thus, it is not the States broad interest in "protecting the institutions of marriage and the family," or even "in the sound
administration of justice" that must be weighed against respondents claim, but the States narrow interest in refusing to
make an exception for the cohabitation which respondents faith finds moral. In other words, the government must do more
than assert the objectives at risk if exemption is given; it must precisely show how and to what extent those objectives will
be undermined if exemptions are granted.
151
This, the Solicitor General failed to do.
To paraphrase Justice Blackmuns application of the compelling interest test, the States interest in enforcing its
prohibition, in order to be sufficiently compelling to outweigh a free exercise claim, cannot be merely abstract or symbolic.
The State cannot plausibly assert that unbending application of a criminal prohibition is essential to fulfill any compelling
interest, if it does not, in fact, attempt to enforce that prohibition. In the case at bar, the State has not evinced any concrete
interest in enforcing the concubinage or bigamy charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The States asserted interest thus amounts only to the symbolic preservation of an
unenforced prohibition. Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their concurring opinions
in our Decision, dated August 4, 2003, to deny the exemption would effectively break up "an otherwise ideal union of two
individuals who have managed to stay together as husband and wife [approximately twenty-five years]" and have the
effect of defeating the very substance of marriage and the family.
The Solicitor General also argued against respondents religious freedom on the basis of morality, i.e., that "the conjugal
arrangement of respondent and her live-in partner should not be condoned because adulterous relationships are
constantly frowned upon by society";
152
and "that State laws on marriage, which are moral in nature, take clear precedence
over the religious beliefs and practices of any church, religious sect or denomination on marriage. Verily, religious beliefs
and practices should not be permitted to override laws relating to public policy such as those of marriage."
153

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-Santiago in her dissenting
opinion to our Decision dated August 4, 2003, which she offers again in toto. These arguments have already been
addressed in our decision dated August 4, 2003.
154
In said Decision, we noted that Mme. Justice Ynares-Santiagos
dissenting opinion dwelt more on the standards of morality, without categorically holding that religious freedom is not in
issue.
155
We, therefore, went into a discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our constitutional order, the religion
clauses prohibit the state from establishing a religion, including the morality it sanctions.
156
Thus, when the law
speaks of "immorality" in the Civil Service Law or "immoral" in the Code of Professional Responsibility for
lawyers,
157
or "public morals" in the Revised Penal Code,
158
or "morals" in the New Civil Code,
159
or "moral
character" in the Constitution,
160
the distinction between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind;
161

(b) Although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests;
162

(c) The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court
makes in the case at bar should be understood only in this realm where it has authority.
163

(d) Having distinguished between public and secular morality and religious morality, the more difficult task is
determining which immoral acts under this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held administratively liable.
164
Only one conduct is in
question before this Court, i.e., the conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both immoral and illegal.
165

(e) While there is no dispute that under settled jurisprudence, respondents conduct constitutes "disgraceful and
immoral conduct," the case at bar involves the defense of religious freedom, therefore none of the cases cited by
Mme. Justice Ynares-Santiago apply.
166
There is no jurisprudence in Philippine jurisdiction holding that the defense
of religious freedom of a member of the Jehovahs Witnesses under the same circumstances as respondent will
not prevail over the laws on adultery, concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law.
167

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging respondent with conduct prejudicial to
the best interest of the service, and we reiterate that the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct prejudicial to the best interest of the service." Indeed, there is
no evidence of the alleged prejudice to the best interest of the service.
168

Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the Court grants respondent exemption
from the laws which respondent Escritor has been charged to have violated, the exemption would not apply to Catholics
who have secured church annulment of their marriage even without a final annulment from a civil court. First, unlike
Jehovahs Witnesses, the Catholic faith considers cohabitation without marriage as immoral. Second, but more important,
the Jehovahs Witnesses have standards and procedures which must be followed before cohabitation without marriage is
given the blessing of the congregation. This includes an investigative process whereby the elders of the congregation
verify the circumstances of the declarants. Also, the Declaration is not a blanket authority to cohabit without marriage
because once all legal impediments for the couple are lifted, the validity of the Declaration ceases, and the congregation
requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as he raises the issue of
equality among religions, we look to the words of the Religion Clauses, which clearly single out religion for both a benefit
and a burden: "No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof" On
its face, the language grants a unique advantage to religious conduct, protecting it from governmental imposition; and
imposes a unique disadvantage, preventing the government from supporting it. To understand this as a provision which
puts religion on an equal footing with other bases for action seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family relations. The language itself thus seems to answer
whether we have a paradigm of equality or liberty; the language of the Clause is clearly in the form of a grant of liberty.
169

In this case, the governments conduct may appear innocent and nondiscriminatory but in effect, it is oppressive to the
minority. In the interpretation of a document, such as the Bill of Rights, designed to protect the minority from the majority,
the question of which perspective is appropriate would seem easy to answer. Moreover, the text, history, structure and
values implicated in the interpretation of the clauses, all point toward this perspective. Thus, substantive equalitya
reading of the religion clauses which leaves both politically dominant and the politically weak religious groups equal in their
inability to use the government (law) to assist their own religion or burden othersmakes the most sense in the
interpretation of the Bill of Rights, a document designed to protect minorities and individuals from mobocracy in a
democracy (the majority or a coalition of minorities).
170

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

Finally, even assuming that the OSG has proved a compelling state interest, it has to further demonstrate that the state
has used the least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve
the legitimate goal of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties.
174
Again, the Solicitor General utterly failed to prove this element of the test. Other than the
two documents offered as cited above which established the sincerity of respondents religious belief and the fact that the
agreement was an internal arrangement within respondents congregation, no iota of evidence was offered. In fact, the
records are bereft of even a feeble attempt to procure any such evidence to show that the means the state adopted in
pursuing this compelling interest is the least restrictive to respondents religious freedom.
Thus, we find that in this particular case and under these distinct circumstances, respondent Escritors conjugal
arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right
to freedom of religion. The Court recognizes that state interests must be upheld in order that freedoms - including religious
freedom - may be enjoyed. In the area of religious exercise as a preferred freedom, however, man stands accountable to
an authority higher than the state, and so the state interest sought to be upheld must be so compelling that its violation will
erode the very fabric of the state that will also protect the freedom. In the absence of a showing that such state interest
exists, man must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
Facts: Escritor is a court interpreter since 1999 in the RTC of Las Pinas City. She has been living with Quilapio, a
man who is not her husband, for more than twenty five years and had a son with him as well. Respondents husband
died a year before she entered into the judiciary while Quilapio is still legally married to another woman.

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

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

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

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

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

The Court further states that our Constitution adheres the benevolent neutrality approach that gives room for
accommodation of religious exercises as required by the Free Exercise Clause. This benevolent neutrality could allow
for accommodation of morality based on religion, provided it does not offend compelling state interests. Assuming
arguendo that the OSG has proved a compelling state interest, it has to further demonstrate that the state has used the
least intrusive means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state. Thus the conjugal arrangement cannot be penalized for it constitutes an exemption to the
law based on her right to freedom of religion.




[G.R. NO. 193636 - July 24, 2012]
MARYNETTE R. GAMBOA, Petitioner, v. P/SSUPT. MARLOU C. CHAN, in his capacity as the PNP-Provincial Director
of Ilocos Norte, and P/SUPT. WILLIAM 0. FANG, in his capacity as Chief, Intelligence Division, PNP Provincial
Office, Ilocos Norte, Respondents.
D E C I S I O N
SERENO, J.:
Before this Court is an Appeal by Certiorari (Under Rule 45 of the Rules of Court) filed pursuant to Rule 19
1
of the Rule on
the Writ of Habeas Data,
2
seeking a review of the 9 September 2010 Decision in Special Proc. No. 14979 of the Regional
Trial Court, First Judicial Region, Laoag City, Branch 13 (RTC Br. 13).
3
The questioned Decision denied petitioner the
privilege of the writ of habeas data.
4
rll
At the time the present Petition was filed, petitioner Marynette R. Gamboa (Gamboa) was the Mayor of Dingras, Ilocos
Norte.
5
Meanwhile, respondent Police Senior Superintendent (P/SSUPT.) Marlou C. Chan was the Officer-in-Charge, and
respondent Police Superintendent (P/SUPT.) William O. Fang was the Chief of the Provincial Investigation and Detective
Management Branch, both of the Ilocos Norte Police Provincial Office.
6
rll
On 8 December 2009, former President Gloria Macapagal-Arroyo issued Administrative Order No. 275 (A.O. 275), "Creating
an Independent Commission to Address the Alleged Existence of Private Armies in the Country."
7
The body, which was later
on referred to as the Zearosa Commission,
8
was formed to investigate the existence of private army groups (PAGs) in the
country with a view to eliminating them before the 10 May 2010 elections and dismantling them permanently in the future.
9

Upon the conclusion of its investigation, the Zearosa Commission released and submitted to the Office of the President a
confidential report entitled "A Journey Towards H.O.P.E.: The Independent Commission Against Private Armies Report to the
President" (the Report).
10
rll
Gamboa alleged that the Philippine National Police in Ilocos Norte (PNP Ilocos Norte) conducted a series of surveillance
operations against her and her aides,
11
and classified her as someone who keeps a PAG.
12
Purportedly without the benefit of
data verification, PNP Ilocos Norte forwarded the information gathered on her to the Zearosa Commission,
13
thereby
causing her inclusion in the Report s enumeration of individuals maintaining PAGs.
14
More specifically, she pointed out the
following items reflected therein: rbl r l l l brr
(a) The Report cited the PNP as its source for the portion regarding the status of PAGs in the Philippines.
15
rl l
(b) The Report stated that "x x x the PNP organized one dedicated Special Task Group (STG) for each private armed group
(PAG) to monitor and counteract their activities."
16
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(c) Attached as Appendix "F" of the Report is a tabulation generated by the PNP and captioned as "Status of PAGs Monitoring
by STGs as of April 19, 2010," which classifies PAGs in the country according to region, indicates their identity, and lists the
prominent personalities with whom these groups are associated.
17
The first entry in the table names a PAG, known as the
Gamboa Group, linked to herein petitioner Gamboa.
18
rl l
(d) Statistics on the status of PAGs were based on data from the PNP, to wit: rl
The resolutions were the subject of a national press conference held in Malacaang on March 24, 2010 at which time, the
Commission was also asked to comment on the PNP report that out of one hundred seventeen (117) partisan armed groups
validated, twenty-four (24) had been dismantled with sixty-seven (67) members apprehended and more than eighty-six
(86) firearms confiscated.
Commissioner Herman Basbao qualified that said statistics were based on PNP data but that the more significant fact
from his report is that the PNP has been vigilant in monitoring the activities of these armed groups and this vigilance is
largely due to the existence of the Commission which has continued communicating with the Armed Forces of the Philippines
(AFP) and PNP personnel in the field to constantly provide data on the activities of the PAGs. Commissioner Basbao
stressed that the Commission s efforts have preempted the formation of the PAGs because now everyone is aware that there
is a body monitoring the PAGs movement through the PNP. Commissioner Lieutenant General Edilberto Pardo Adan also
clarified that the PAGs are being destabilized so that their ability to threaten and sow fear during the election has been
considerably weakened.
19
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(e) The Report briefly touched upon the validation system of the PNP:
chanrobles vi rtual law li brary
Also, in order to provide the Commission with accurate data which is truly reflective of the situation in the field, the PNP
complied with the Commission s recommendation that they revise their validation system to include those PAGs previously
listed as dormant. In the most recent briefing provided by the PNP on April 26, 2010, there are one hundred seven (107)
existing PAGs. Of these groups, the PNP reported that seven (7) PAGs have been reorganized.
20
rll
On 6 and 7 July 2010, ABS-CBN broasted on its evening news program the portion of the Report naming Gamboa as one of
the politicians alleged to be maintaining a PAG.
21
Gamboa averred that her association with a PAG also appeared on print
media.
22
Thus, she was publicly tagged as someone who maintains a PAG on the basis of the unverified information that the
PNP-Ilocos Norte gathered and forwarded to the Zearosa Commission.
23
As a result, she claimed that her malicious or
reckless inclusion in the enumeration of personalities maintaining a PAG as published in the Report also made her, as well as
her supporters and other people identified with her, susceptible to harassment and police surveillance operations.
24
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Contending that her right to privacy was violated and her reputation maligned and destroyed, Gamboa filed a Petition dated
9 July 2010 for the issuance of a writ of habeas data against respondents in their capacities as officials of the PNP-Ilocos
Norte.
25
In her Petition, she prayed for the following reliefs: (a) destruction of the unverified reports from the PNP-Ilocos
Norte database; (b) withdrawal of all information forwarded to higher PNP officials; (c) rectification of the damage done to
her honor; (d) ordering respondents to refrain from forwarding unverified reports against her; and (e) restraining
respondents from making baseless reports.
26
rl l
The case was docketed as Special Proc. No. 14979 and was raffled to RTC Br. 13, which issued the corresponding writ on 14
July 2010 after finding the Petition meritorious on its face.
27
Thus, the trial court (a) instructed respondents to submit all
information and reports forwarded to and used by the Zearosa Commission as basis to include her in the list of persons
maintaining PAGs; (b) directed respondents, and any person acting on their behalf, to cease and desist from forwarding to
the Zearosa Commission, or to any other government entity, information that they may have gathered against her
without the approval of the court; (c) ordered respondents to make a written return of the writ together with supporting
affidavits; and (d) scheduled the summary hearing of the case on 23 July 2010.
28
rl l
In their Return of the Writ, respondents alleged that they had acted within the bounds of their mandate in conducting the
investigation and surveillance of Gamboa.
29
The information stored in their database supposedly pertained to two criminal
cases in which she was implicated, namely: (a) a Complaint for murder and frustrated murder docketed as NPS DOC No. 1-
04-INQ-091-00077, and (b) a Complaint for murder, frustrated murder and direct assault upon a person in authority, as well
as indirect assault and multiple attempted murder, docketed as NPS DOCKET No. 1-04-INV-10-A-00009.
30
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Respondents likewise asserted that the Petition was incomplete for failing to comply with the following requisites under the
Rule on the Writ of Habeas Data: (a) the manner in which the right to privacy was violated or threatened with violation and
how it affected the right to life, liberty or security of Gamboa; (b) the actions and recourses she took to secure the data or
information; and (c) the location of the files, registers or databases, the government office, and the person in charge, in
possession or in control of the data or information.
31
They also contended that the Petition for Writ of Habeas Data, being
limited to cases of extrajudicial killings and enforced disappearances, was not the proper remedy to address the alleged
besmirching of the reputation of Gamboa.
32
rll
RTC Br. 13, in its assailed Decision dated 9 September 2010, dismissed the Petition.
33
The trial court categorically ruled that
the inclusion of Gamboa in the list of persons maintaining PAGs, as published in the Report, constituted a violation of her
right to privacy, to wit:rl
In this light, it cannot also be disputed that by her inclusion in the list of persons maintaining PAGs, Gamboa s right to
privacy indubitably has been violated. The violation understandably affects her life, liberty and security enormously. The
untold misery that comes with the tag of having a PAG could even be insurmountable. As she essentially alleged in her
petition, she fears for her security that at any time of the day the unlimited powers of respondents may likely be exercised
to further malign and destroy her reputation and to transgress her right to life.
By her inclusion in the list of persons maintaining PAGs, it is likewise undisputed that there was certainly intrusion into
Gamboa s activities. It cannot be denied that information was gathered as basis therefor. After all, under Administrative
Order No. 275, the Zearosa Commission was tasked to investigate the existence of private armies in the country, with all
the powers of an investigative body under Section 37, Chapter 9, Book I of the Administrative Code of 1987.
x x x x x x x x x
By her inclusion in the list of persons maintaining PAGs, Gamboa alleged as she accused respondents, who are public
officials, of having gathered and provided information that made the Zearosa Commission to include her in the list.
Obviously, it was this gathering and forwarding of information supposedly by respondents that petitioner barks at as
unlawful. x x x.
34
rl l
Despite the foregoing findings, RTC Br. 13 nevertheless dismissed the Petition on the ground that Gamboa failed to prove
through substantial evidence that the subject information originated from respondents, and that they forwarded this
database to the Zearosa Commission without the benefit of prior verification.
35
The trial court also ruled that even before
respondents assumed their official positions, information on her may have already been acquired.
36
Finally, it held that the
Zearosa Commission, as the body tasked to gather information on PAGs and authorized to disclose information on her,
should have been impleaded as a necessary if not a compulsory party to the Petition.
37
rll
Gamboa then filed the instant Appeal by Certiorari dated 24 September 2010,
38
raising the following assignment of
errors:rbl r l l lbrr
1. The trial court erred in ruling that the Zearosa Commission be impleaded as either a necessary or indispensable party;
2. The trial court erred in declaring that Gamboa failed to present sufficient proof to link respondents as the informant to
[sic] the Zearosa Commission;
3. The trial court failed to satisfy the spirit of Habeas Data;
4. The trial court erred in pronouncing that the reliance of the Zearosa Commission to [sic] the PNP as alleged by
Gamboa is an assumption;
5. The trial court erred in making a point that respondents are distinct to PNP as an agency.
39
rll
chanrobles vi rtual law li brary
On the other hand, respondents maintain the following arguments: (a) Gamboa failed to present substantial evidence to
show that her right to privacy in life, liberty or security was violated, and (b) the trial court correctly dismissed the Petition
on the ground that she had failed to present sufficient proof showing that respondents were the source of the report naming
her as one who maintains a PAG.
40
rl l
Meanwhile, Gamboa argues that although A.O. 275 was a lawful order, fulfilling the mandate to dismantle PAGs in the
country should be done in accordance with due process, such that the gathering and forwarding of unverified information on
her must be considered unlawful.
41
She also reiterates that she was able to present sufficient evidence showing that the
subject information originated from respondents.
42
rll
In determining whether Gamboa should be granted the privilege of the writ of habeas data, this Court is called upon to, first,
unpack the concept of the right to privacy; second, explain the writ of habeas data as an extraordinary remedy that seeks to
protect the right to informational privacy; and finally, contextualize the right to privacy vis- -vis the state interest involved
in the case at bar.
The Right to Privacy
The right to privacy, as an inherent concept of liberty, has long been recognized as a constitutional right. This Court, in
Morfe v. Mutuc,
43
thus enunciated:rl
The due process question touching on an alleged deprivation of liberty as thus resolved goes a long way in disposing of the
objections raised by plaintiff that the provision on the periodical submission of a sworn statement of assets and liabilities is
violative of the constitutional right to privacy. There is much to be said for this view of Justice Douglas: "Liberty in the
constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if
it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom." As a matter of fact, this
right to be let alone is, to quote from Mr. Justice Brandeis "the most comprehensive of rights and the right most valued by
civilized men."
The concept of liberty would be emasculated if it does not likewise compel respect for his personality as a unique individual
whose claim to privacy and interference demands respect. xxx.
x x x x x x x x x
x x x In the leading case of Griswold v. Connecticut, Justice Douglas, speaking for five members of the Court, stated:
"Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers in any house in time of
peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Fifth
Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force
him to surrender to his detriment. The Ninth Amendment provides: The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people." After referring to various American Supreme
Court decisions, Justice Douglas continued: "These cases bear witness that the right of privacy which presses for recognition
is a legitimate one."
x x x x x x x x x
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its identification with
liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The
concept of limited government has always included the idea that governmental powers stop short of certain intrusions into
the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government.
Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the
public sector, which the state can control. Protection of this private sector protection, in other words, of the dignity and
integrity of the individual has become increasingly important as modern society has developed. All the forces of a
technological age industrialization, urbanization, and organization operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society."
44
(Emphases supplied)
In Ople v. Torres,
45
this Court traced the constitutional and statutory bases of the right to privacy in Philippine jurisdiction, to
wit:rl
Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several provisions
of our Constitution. It is expressly recognized in section 3 (1) of the Bill of Rights:rl
Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by law.
Other facets of the right to privacy are protected in various provisions of the Bill of Rights, viz: rl
Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied
the equal protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
x x x x x x x x x
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public
safety, or public health as may be provided by law.
x x x x x x x x x
Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.
Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "every person shall respect
the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of another. It also holds a public officer or employee or any
private individual liable for damages for any violation of the rights and liberties of another person, and recognizes the
privacy of letters and other private communications. The Revised Penal Code makes a crime the violation of secrets by an
officer, the revelation of trade and industrial secrets, and trespass to dwelling. Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act and the Intellectual Property Code. The Rules of Court
on privileged communication likewise recognize the privacy of certain information.
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state interest
and that it is narrowly drawn. x x x.
46
(Emphases supplied)
Clearly, the right to privacy is considered a fundamental right that must be protected from intrusion or constraint. However,
in Standard Chartered Bank v. Senate Committee on Banks,
47
this Court underscored that the right to privacy is not
absolute, viz:rl
With respect to the right of privacy which petitioners claim respondent has violated, suffice it to state that privacy is not an
absolute right. While it is true that Section 21, Article VI of the Constitution, guarantees respect for the rights of persons
affected by the legislative investigation, not every invocation of the right to privacy should be allowed to thwart a legitimate
congressional inquiry. In Sabio v. Gordon, we have held that the right of the people to access information on matters of
public concern generally prevails over the right to privacy of ordinary financial transactions. In that case, we declared that
the right to privacy is not absolute where there is an overriding compelling state interest. Employing the rational basis
relationship test, as laid down in Morfe v. Mutuc, there is no infringement of the individual s right to privacy as the
requirement to disclosure information is for a valid purpose, in this case, to ensure that the government agencies involved in
regulating banking transactions adequately protect the public who invest in foreign securities. Suffice it to state that this
purpose constitutes a reason compelling enough to proceed with the assailed legislative investigation.
48
rl l
Therefore, when the right to privacy finds tension with a competing state objective, the courts are required to weigh both
notions. In these cases, although considered a fundamental right, the right to privacy may nevertheless succumb to an
opposing or overriding state interest deemed legitimate and compelling.
The Writ of Habeas Data
The writ of habeas data is an independent and summary remedy designed to protect the image, privacy, honor, information,
and freedom of information of an individual, and to provide a forum to enforce one s right to the truth and to informational
privacy.
49
It seeks to protect a person s right to control information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve unlawful ends.
50
It must be emphasized that in
order for the privilege of the writ to be granted, there must exist a nexus between the right to privacy on the one hand, and
the right to life, liberty or security on the other. Section 1 of the Rule on the Writ of Habeas Data reads:rl
Habeas data. The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data information regarding the person, family, home and correspondence
of the aggrieved party.
The notion of informational privacy is still developing in Philippine law and jurisprudence. Considering that even the Latin
American habeas data, on which our own Rule on the Writ of Habeas Data is rooted, finds its origins from the European
tradition of data protection,
51
this Court can be guided by cases on the protection of personal data decided by the European
Court of Human Rights (ECHR). Of particular note is Leander v. Sweden,
52
in which the ECHR balanced the right of citizens to
be free from interference in their private affairs with the right of the state to protect its national security. In this case,
Torsten Leander (Leander), a Swedish citizen, worked as a temporary replacement museum technician at the Naval
Museum, which was adjacent to a restricted military security zone.
53
He was refused employment when the requisite
personnel control resulted in an unfavorable outcome on the basis of information in the secret police register, which was
kept in accordance with the Personnel Control Ordinance and to which he was prevented access.
54
He claimed, among
others, that this procedure of security control violated Article 8 of the European Convention of Human Rights
55
on the right to
privacy, as nothing in his personal or political background would warrant his classification in the register as a security risk.
56
rl l
The ECHR ruled that the storage in the secret police register of information relating to the private life of Leander, coupled
with the refusal to allow him the opportunity to refute the same, amounted to an interference in his right to respect for
private life.
57
However, the ECHR held that the interference was justified on the following grounds: (a) the personnel control
system had a legitimate aim, which was the protection of national security,
58
and (b) the Personnel Control Ordinance gave
the citizens adequate indication as to the scope and the manner of exercising discretion in the collection, recording and
release of information by the authorities.
59
The following statements of the ECHR must be emphasized: rbl r l l lbrr
58. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is
proportionate to the legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A no. 109, p.
22, 55).
59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of which will
depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved.
In the instant case, the interest of the respondent State in protecting its national security must be balanced against the
seriousness of the interference with the applicant s right to respect for his private life.
chanrobles vi rtual law li brary
There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States to have
laws granting the competent domestic authorities power, firstly, to collect and store in registers not accessible to the public
information on persons and, secondly, to use this information when assessing the suitability of candidates for employment in
posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leander s legitimate interests through the consequences it had
on his possibilities of access to certain sensitive posts within the public service. On the other hand, the right of access to
public service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A
no. 105, p. 20, 34-35), and, apart from those consequences, the interference did not constitute an obstacle to his leading a
private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the
pressing social need in the present case, and in particular in choosing the means for achieving the legitimate aim of
protecting national security, was a wide one.
x x x x x x x x x
66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by itself
warrant the conclusion that the interference was not "necessary in a democratic society in the interests of national security",
as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control
procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, 58).
The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including the
Chancellor of Justice and the Parliamentary Ombudsman, considered it desirable that the rule of communication to the
person concerned, as contained in section 13 of the Ordinance, should be effectively applied in so far as it did not jeopardise
the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in the Swedish personnel
control system meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of
appreciation available to it, the respondent State was entitled to consider that in the present case the interests of national
security prevailed over the individual interests of the applicant (see paragraph 59 above). The interference to which Mr.
Leander was subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued. (Emphases
supplied)
Leander illustrates how the right to informational privacy, as a specific component of the right to privacy, may yield to an
overriding legitimate state interest. In similar fashion, the determination of whether the privilege of the writ of habeas data,
being an extraordinary remedy, may be granted in this case entails a delicate balancing of the alleged intrusion upon the
private life of Gamboa and the relevant state interest involved.
The collection and forwarding of information by the PNP vis- -vis the interest of the state to dismantle private armies.
The Constitution explicitly mandates the dismantling of private armies and other armed groups not recognized by the duly
constituted authority.
60
It also provides for the establishment of one police force that is national in scope and civilian in
character, and is controlled and administered by a national police commission.
61
rl l
Taking into account these constitutional fiats, it is clear that the issuance of A.O. 275 articulates a legitimate state aim,
which is to investigate the existence of PAGs with the ultimate objective of dismantling them permanently.
To enable the Zearosa Commission to achieve its goals, A.O. 275 clothed it with the powers of an investigative body,
including the power to summon witnesses, administer oaths, take testimony or evidence relevant to the investigation and
use compulsory processes to produce documents, books, and records.
62
A.O. 275 likewise authorized the Zearosa
Commission to deputize the Armed Forces of the Philippines, the National Bureau of Investigation, the Department of
Justice, the PNP, and any other law enforcement agency to assist the commission in the performance of its functions.
63
rl l
Meanwhile, the PNP, as the national police force, is empowered by law to (a) enforce all laws and ordinances relative to the
protection of lives and properties; (b) maintain peace and order and take all necessary steps to ensure public safety; and (c)
investigate and prevent crimes.
64
rll
Pursuant to the state interest of dismantling PAGs, as well as the foregoing powers and functions accorded to the Zearosa
Commission and the PNP, the latter collected information on individuals suspected of maintaining PAGs, monitored them and
counteracted their activities.
65
One of those individuals is herein petitioner Gamboa.
This Court holds that Gamboa was able to sufficiently establish that the data contained in the Report listing her as a PAG
coddler came from the PNP. Contrary to the ruling of the trial court, however, the forwarding of information by the PNP to
the Zearosa Commission was not an unlawful act that violated or threatened her right to privacy in life, liberty or
security.
The PNP was rationally expected to forward and share intelligence regarding PAGs with the body specifically created for the
purpose of investigating the existence of these notorious groups. Moreover, the Zearosa Commission was explicitly
authorized to deputize the police force in the fulfillment of the former s mandate, and thus had the power to request
assistance from the latter.
Following the pronouncements of the ECHR in Leander, the fact that the PNP released information to the Zearosa
Commission without prior communication to Gamboa and without affording her the opportunity to refute the same cannot be
interpreted as a violation or threat to her right to privacy since that act is an inherent and crucial component of intelligence-
gathering and investigation. Additionally, Gamboa herself admitted that the PNP had a validation system, which was used to
update information on individuals associated with PAGs and to ensure that the data mirrored the situation on the field.
66

Thus, safeguards were put in place to make sure that the information collected maintained its integrity and accuracy.
Pending the enactment of legislation on data protection, this Court declines to make any further determination as to the
propriety of sharing information during specific stages of intelligence gathering. To do otherwise would supplant the
discretion of investigative bodies in the accomplishment of their functions, resulting in an undue encroachment on their
competence.
However, to accord the right to privacy with the kind of protection established in existing law and jurisprudence, this Court
nonetheless deems it necessary to caution these investigating entities that information-sharing must observe strict
confidentiality. Intelligence gathered must be released exclusively to the authorities empowered to receive the relevant
information. After all, inherent to the right to privacy is the freedom from "unwarranted exploitation of one s person or from
intrusion into one s private activities in such a way as to cause humiliation to a person s ordinary sensibilities."
67
rll
In this case, respondents admitted the existence of the Report, but emphasized its confidential nature. That it was leaked to
third parties and the media was regrettable, even warranting reproach. But it must be stressed that Gamboa failed to
establish that respondents were responsible for this unintended disclosure. In any event, there are other reliefs available to
her to address the purported damage to her reputation, making a resort to the extraordinary remedy of the writ of habeas
data unnecessary and improper.
Finally, this Court rules that Gamboa was unable to prove through substantial evidence that her inclusion in the list of
individuals maintaining PAGs made her and her supporters susceptible to harassment and to increased police surveillance. In
this regard, respondents sufficiently explained that the investigations conducted against her were in relation to the criminal
cases in which she was implicated. As public officials, they enjoy the presumption of regularity, which she failed to
overcome.
It is clear from the foregoing discussion that the state interest of dismantling PAGs far outweighs the alleged intrusion on
the private life of Gamboa, especially when the collection and forwarding by the PNP of information against her was pursuant
to a lawful mandate. Therefore, the privilege of the writ of habeas data must be denied.
WHEREFORE, the instant Petition for Review is DENIED. The assailed Decision in Special Proc. No. 14979 dated 9 September
2010 of the Regional Trial Court, Laoag City, Br. 13, insofar as it denies Gamboa the privilege of the writ of habeas data, is
AFFIRMED.

















[G.R. No. 126102. December 4, 2000.]
ORTIGAS & CO. LTD., Petitioner, v. THE COURT OF APPEALS and ISMAEL G. MATHAY III, Respondents.

This petition seeks to reverse the decision of the Court of Appeals, dated March 25, 1996, in CA-G.R. SP No. 39193, which
nullified the writ of preliminary injunction issued by the Regional Trial Court of Pasig City, Branch 261, in Civil Case No.
64931. It also assails the resolution of the appellate court, dated August 13, 1996, denying petitioners motion for
reconsideration.chanrobles.com.ph : red

The facts of this case, as culled from the records, are as follows:chanrob1es vi rtual 1aw li brary

On August 25, 1976, petitioner Ortigas & Company sold to Emilia Hermoso, a parcel of land known as Lot 1, Block 21, Psd-
66759, with an area of 1,508 square meters, located in Greenhills Subdivision IV, San Juan, Metro Manila, and covered by
Transfer Certificate of Title No. 0737. The contract of sale provided that the lot:chanrob1es virtual 1aw l ibrary

1. . . . (1) be used exclusively . . . for residential purposes only, and not more than one single-family residential building will
be constructed thereon, . . .

6. The BUYER shall not erect . . . any sign or billboard on the roof . . . for advertising purposes . . .

11. No single-family residential building shall be erected . . . until the building plans, specification . . . have been approved
by the SELLER . . .

14. . . . restrictions shall run with the land and shall be construed as real covenants until December 31, 2025 when they
shall cease and terminate . . . 1

These and the other conditions were duly annotated on the certificate of title issued to Emilia.

In 1981, the Metropolitan Manila Commission (now Metropolitan Manila Development Authority) enacted MMC Ordinance No.
81-01, also known as the Comprehensive Zoning Area for the National Capital Region. The ordinance reclassified as a
commercial area a portion of Ortigas Avenue from Madison to Roosevelt Streets of Greenhills Subdivision where the lot is
located.

On June 8, 1984, private respondent Ismael Mathay III leased the lot from Emilia Hermoso and J.P. Hermoso Realty Corp..
The lease contract did not specify the purposes of the lease. Thereupon, private respondent constructed a single story
commercial building for Greenhills Autohaus, Inc., a car sales company.

On January 18, 1995, petitioner filed a complaint against Emilia Hermoso with the Regional Trial Court of Pasig, Branch 261.
Docketed as Civil Case No. 64931, the complaint sought the demolition of the said commercial structure for having violated
the terms and conditions of the Deed of Sale. Complainant prayed for the issuance of a temporary restraining order and a
writ of preliminary injunction to prohibit petitioner from constructing the commercial building and/or engaging in commercial
activity on the lot. The complaint was later amended to implead Ismael G. Mathay III and J.P. Hermoso Realty Corp., which
has a ten percent (10%) interest in the lot.

In his answer, Mathay III denied any knowledge of the restrictions on the use of the lot and filed a cross-claim against the
Hermosos.

On June 16, 1995, the trial court issued the writ of preliminary injunction. On June 29, 1995, Mathay III moved to set aside
the injunctive order, but the trial court denied the motion.chanrob1es virtua1 1aw 1ibrary

Mathay III then filed with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 39193,
ascribing to the trial court grave abuse of discretion in issuing the writ of preliminary injunction. He claimed that MMC
Ordinance No. 81-01 classified the area where the lot was located as commercial area and said ordinance must be read into
the August 25, 1976 Deed of Sale as a concrete exercise of police power.

Ortigas and Company averred that inasmuch as the restrictions on the use of the lot were duly annotated on the title it
issued to Emilia Hermoso, said restrictions must prevail over the ordinance, specially since these restrictions were agreed
upon before the passage of MMC Ordinance No. 81-01.

On March 25, 1996, the appellate court disposed of the case as follows:chanrob1es virtual 1aw l ibrary

WHEREFORE, in light of the foregoing, the petition is hereby GRANTED. The assailed orders are hereby nullified and set
aside.

SO ORDERED. 2

In finding for Mathay III, the Court of Appeals held that the MMC Ordinance No. 81-01 effectively nullified the restrictions
allowing only residential use of the property in question.

Ortigas seasonably moved for reconsideration, but the appellate court denied it on August 13, 1996.

Hence, the instant petition.

In its Memorandum, petitioner now submits that the "principal issue in this case is whether respondent Court of Appeals
correctly set aside the Order dated June 16, 1995 of the trial court which issued the writ of preliminary injunction on the
sole ground that MMC Ordinance No. 81-01 nullified the building restriction imposing exclusive residential use on the
property in question." 3 It also asserts that "Mathay III lacks legal capacity to question the validity of conditions of the deed
of sale; and he is barred by estoppel or waiver to raise the same question like his principals, the owners." 4 Lastly, it avers
that the appellate court "unaccountably failed to address" several questions of fact.

Principally, we must resolve the issue of whether the Court of Appeals erred in holding that the trial court committed grave
abuse of discretion when it refused to apply MMC Ordinance No. 81-01 to Civil Case No. 64931.

But first, we must address petitioners allegation that the Court of Appeals "unaccountably failed to address" questions of
fact. For basic is the rule that factual issues may not be raised before this Court in a petition for review and this Court is not
duty-bound to consider said questions. 5 CA G.R. SP No. 39193 was a special civil action for certiorari, and the appellate
court only had to determine if the trial court committed grave abuse of discretion amounting to want or excess of jurisdiction
in issuing the writ of preliminary injunction. Thus, unless vital to our determination of the issue at hand, we shall refrain
from further consideration of factual questions.

Petitioner contends that the appellate court erred in limiting its decision to the cited zoning ordinance. It avers that a
contractual right is not automatically discarded once a claim is made that it conflicts with police power. Petitioner submits
that the restrictive clauses in the questioned contract is not in conflict with the zoning ordinance. For one, according to
petitioner, the MMC Ordinance No. 81-01 did not prohibit the construction of residential buildings. Petitioner argues that
even with the zoning ordinance, the seller and buyer of the re-classified lot can voluntarily agree to an exclusive residential
use thereof. Hence, petitioner concludes that the Court of Appeals erred in holding that the condition imposing exclusive
residential use was effectively nullified by the zoning ordinance.chanrob1es vi rtua1 1aw 1i brary

In its turn, private respondent argues that the appellate court correctly ruled that the trial court had acted with grave abuse
of discretion in refusing to subject the contract to the MMC Ordinance No. 81-01. He avers that the appellate court properly
held the police power superior to the non-impairment of contract clause in the Constitution. He concludes that the appellate
court did not err in dissolving the writ of preliminary injunction issued by the trial court in excess of its jurisdiction.

We note that in issuing the disputed writ of preliminary injunction, the trial court observed that the contract of sale was
entered into in August 1976, while the zoning ordinance was enacted only in March 1981. The trial court reasoned that since
private respondent had failed to show that MMC Ordinance No. 81-01 had retroactive effect, said ordinance should be given
prospective application only, 6 citing Co v. Intermediate Appellate Court, 162 SCRA 390 (1988).

In general, we agree that laws are to be construed as having only prospective operation. Lex prospicit, non respicit. Equally
settled, only laws existing at the time of the execution of a contract are applicable thereto and not later statutes, unless the
latter are specifically intended to have retroactive effect. 7 A later law which enlarges, abridges, or in any manner changes
the intent of the parties to the contract necessarily impairs the contract itself 8 and cannot be given retroactive effect
without violating the constitutional prohibition against impairment of contracts. 9

But, the foregoing principles do admit of certain exceptions. One involves police power. A law enacted in the exercise of
police power to regulate or govern certain activities or transactions could be given retroactive effect and may reasonably
impair vested rights or contracts. Police power legislation is applicable not only to future contracts, but equally to those
already in existence. 10 Non-impairment of contracts or vested rights clauses will have to yield to the superior and
legitimate exercise by the State of police power to promote the health, morals, peace, education, good order, safety, and
general welfare of the people. 11 Moreover, statutes in exercise of valid police power must be read into every contract. 12
Noteworthy, in Sangalang v. Intermediate Appellate Court, 13 we already upheld MMC Ordinance No. 81-01 as a legitimate
police power measure.

The trial courts reliance on the Co v. IAC, 14 is misplaced. In Co, the disputed area was agricultural and Ordinance No. 81-
01 did not specifically provide that "it shall have retroactive effect so as to discontinue all rights previously acquired over
lands located within the zone which are neither residential nor light industrial in nature," 15 and stated with respect to
agricultural areas covered that "the zoning ordinance should be given prospective operation only." 16 The area in this case
involves not agricultural but urban residential land. Ordinance No. 81-01 retroactively affected the operation of the zoning
ordinance in Greenhills by reclassifying certain locations therein as commercial.

Following our ruling in Ortigas & Co., Ltd. v. Feati Bank & Trust Co., 94 SCRA 533 (1979), the contractual stipulations
annotated on the Torrens Title, on which Ortigas relies, must yield to the ordinance. When that stretch of Ortigas Avenue
from Roosevelt Street to Madison Street was reclassified as a commercial zone by the Metropolitan Manila Commission in
March 1981, the restrictions in the contract of sale between Ortigas and Hermoso, limiting all construction on the disputed
lot to single-family residential buildings, were deemed extinguished by the retroactive operation of the zoning ordinance and
could no longer be enforced. While our legal system upholds the sanctity of contract so that a contract is deemed law
between the contracting parties, 17 nonetheless, stipulations in a contract cannot contravene "law, morals, good customs,
public order, or public policy." 18 Otherwise such stipulations would be deemed null and void. Respondent court correctly
found that the trial court committed in this case a grave abuse of discretion amounting to want of or excess of jurisdiction in
refusing to treat Ordinance No. 81-01 as applicable to Civil Case No. 64931. In resolving matters in litigation, judges are not
only duty-bound to ascertain the facts and the applicable laws, 19 they are also bound by their oath of office to apply the
applicable law. 20

As a secondary issue, petitioner contends that respondent Mathay III, as a mere lessee of the lot in question, is a total
stranger to the deed of sale and is thus barred from questioning the conditions of said deed. Petitioner points out that the
owners of the lot voluntarily agreed to the restrictions on the use of the lot and do not question the validity of these
restrictions. Petitioner argues that Mathay III as a lessee is merely an agent of the owners, and could not override and rise
above the status of his principals.

Petitioner submits that he could not have a higher interest than those of the owners, the Hermosos, and thus had no locus
standi to file CA-G.R. SP No. 39193 to dissolve the injunctive writ issued by the RTC of Pasig City.

For his part, private respondent argues that as the lessee who built the commercial structure, it is he and he alone who
stands to be either benefited or injured by the results of the judgment in Civil Case No. 64931. He avers he is the party with
real interest in the subject matter of the action, as it would be his business, not the Hermosos, which would suffer had not
the respondent court dissolved the writ of preliminary injunction.chanrob1es vi rtua1 law li brary

A real party in interest is defined as "the party who stands to be benefited or injured by the judgment or the party entitled
to the avails of the suit." "Interest" within the meaning of the rule means 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. 21 By
real interest is meant a present substantial interest, as distinguished from a mere expectancy or a future, contingent,
subordinate, or consequential interest. 22

Tested by the foregoing definition, private respondent in this case is clearly a real party in interest. It is not disputed that he
is in possession of the lot pursuant to a valid lease. He is a possessor in the concept of a "holder of the thing" under Article
525 of the Civil Code. 23 He was impleaded as a defendant in the amended complaint in Civil Case No. 64931. Further, what
petitioner seeks to enjoin is the building by respondent of a commercial structure on the lot. Clearly, it is private
respondents acts which are in issue, and his interest in said issue cannot be a mere incidental interest. In its amended
complaint, petitioner prayed for, among others, judgment "ordering the demolition of all improvements illegally built on the
lot in question." 24 These show that it is petitioner Mathay III, doing business as "Greenhills Autohaus, Inc.," and not only
the Hermosos, who will be adversely affected by the courts decree.

Petitioner also cites the rule that a stranger to a contract has no rights or obligations under it, 25 and thus has no standing
to challenge its validity. 26 But in seeking to enforce the stipulations in the deed of sale, petitioner impleaded private
respondent as a defendant. Thus petitioner must recognize that where a plaintiff has impleaded a party as a defendant, he
cannot subsequently question the latters standing in court. 27

WHEREFORE, the instant petition is DENIED. The challenged decision of the Court of Appeals dated March 25, 1996, as well
as the assailed resolution of August 13, 1996, in CA-G.R. SP No. 39193 is AFFIRMED. Costs against petitioner.















Ortigas v. Court of Appeals [GR 126102, 4 December 2000] Second Division, Quisumbing (J): 4 concur

Facts: On 25 August 1976, Ortigas & Company sold to Emilia Hermoso, a parcel of land located in Greenhills
Subdivision IV, San Juan, Metro Manila (TCT 0737) with conditions duly annotated on the certificate of title issued
to Emilia. In 1981, the Metropolitan Manila Commission (now MMDA) enacted MMC Ordinance 81-01
(Comprehensive Zoning Area for the National Capital Region), which reclassified as a commercial area a portion of
Ortigas Avenue from Madison to Roosevelt Streets of Greenhills Subdivision where the lot is located. On 8 June
1984, Ismael Mathay III leased the lot from Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease contract did
not specify the purposes of the lease. Thereupon, Mathay constructed a single story commercial building for
Greenhills Autohaus, Inc., a car sales company. On 18 January 1995, Ortigas filed a complaint against Emilia
Hermoso with the RTC Pasig (Branch 261, Civil Case 64931), seeking the demolition of the said commercial
structure for having violated the terms and conditions of the Deed of Sale. The complaint was later amended to
implead Ismael G. Mathay III and J.P. Hermoso Realty Corp., which have 10% interest in the lot. In his answer,
Mathay III denied any knowledge of the restrictions on the use of the lot and filed a cross-claim against the
Hermosos. On 16 June 1995, the trial court issued the writ of preliminary injunction. On 29 June 1995, Mathay III
moved to set aside the injunctive order, but the trial court denied the motion. Mathay III then filed with the CA a
special civil action for certiorari (CA-GR SP 39193), ascribing to the trial court grave abuse of discretion in issuing
the writ of preliminary injunction. He claimed that MMC Ordinance 81-01 classified the area where the lot was
located as commercial area and said ordinance must be read into the 25 August 1976 Deed of Sale as a concrete
exercise of police power. Ortigas & Company averred that restrictions duly annotated on the title must prevail over
the ordinance. On 25 March 1996, the appellate court granted the petition, nullified and set aside the assailed orders.
The appellate court held that the MMC Ordinance effectively nullified the restrictions allowing only residential use of
the property in question. Ortigas seasonably moved for reconsideration, but the appellate court denied it on 13 August
1996. Ortigas filed the petition for review.

Issue: Whether ordinances, in exercise of police power, be given retroactive effect and impair vested rights and
contracts.

Held: In general, laws are to be construed as having only prospective operation. Lex prospicit, non respicit. Equally
settled, only laws existing at the time of the execution of a contract are applicable thereto and not later statutes, unless
the latter are specifically intended to have retroactive effect. A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract necessarily impairs the contract itself and cannot be given retroactive
effect without violating the constitutional prohibition against impairment of contracts. One exception involves police
power. A law enacted in the exercise of police power to regulate or govern certain activities or transactions could be
given retroactive effect and may reasonably impair vested rights or contracts. Police power legislation is applicable
not only to future contracts, but equally to those already in existence. Non-impairment of contracts or vested rights
clauses will have to yield to the superior and legitimate exercise by the State of police power to promote the health,
morals, peace, education, good order, safety, and general welfare of the people. Moreover, statutes in exercise of valid
police power must be read into every contract. MMC Ordinance 81-01 is a legitimate police power measure as
previously held in Sangalang vs. IAC. Thus, following the ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust Co.,
94 SCRA 533 (1979), the contractual stipulations annotated on the Torrens Title must yield to the ordinance. When
that stretch was reclassified, the restrictions in the contract of sale were deemed extinguished by the retroactive
operation of the zoning ordinance and could no longer be enforced. While Philippine legal system upholds the
sanctity of contract so that a contract is deemed law between the contracting parties, nonetheless, stipulations in a
contract cannot contravene "law, morals, good customs, public order, or public policy." Otherwise such stipulations
would be deemed null and void.






[G.R. No. L-32312. November 25, 1983.]
AURELIO TIRO, as City Superintendent of Schools of Cebu City, v. HORABLE AGAPITO HONTANOSAS

SYLLABUS

1. ADMINISTRATIVE LAW; PUBLIC SCHOOL TEACHERS; CIRCULAR NO.21, SERIES OF 1969; PROHIBITING PAYMENT OF
SALARY TO PERSONS OTHER THAN THE EMPLOYEE CONCERNED, VALID. The core issue is whether or not Circular No. 21
is valid and enforceable and the answer is definitely in the affirmative. The salary check of a government officer or employee
such as a teacher does not belongs to him before it is physically delivered to him. Until that time the check belong to the
Government. Accordingly, before there is actual delivery of the check, the payee has no power over it; he can not assign it
without the consent of the Government. On this basis Circular No. 21, stands on firm legal footing. The Circular in question
is authorized by relevant statutes extant when it was issued such as Sec. 79 (b) of the Revised Administrative Code and
Sec. 21 of the Magna Carta For Teachers, R.A. No.4670.

2. CONSTITUTIONAL LAW; IMPAIRMENT OF CONTRACTUAL OBLIGATIONS; NOT PRESENT IN THE CASE AT BAR. Zafras
claim that the Circular impairs the obligation of contracts with the teachers is baseless. For the Circular does not prevent
Zafra from collecting the loans. The Circular merely makes the Government a non-participant in their collection which is
within its competence to do so.

In Civil Case No. 11616 of the defunct Court of First Instance of Cebu, Zafra Financing Enterprise sued Aurelio Tiro in his
official capacity as Superintendent of Schools in Cebu City. It appears that Zafra had extend loans to public school teachers
in Cebu City and the teachers concerned executed promissory notes and special powers of attorney in favor of Zafra to take
and collect their salary checks from the Division Office in Cebu City of the Bureau of Public Schools. However, Tiro forbade
the collection of the checks on the basis of Circular No. 21, series 1969, dated December 5, 1969, of the Director of Public
Schools which reads as follows:jgc:chanrobles.com.ph

"PROHIBITING PAYMENT OF SALARY TO PERSONS OTHER THAN THE EMPLOYEE CONCERNED.

To Superintendents:chanrob1es vi rtual 1aw library

1. Quoted hereunder is Memorandum Order No. 93 dated February 5, 1968, of the Executive Office entitled, Prohibiting
Payment of Salary to Any Person Other Than the Employees Concerned, Except As Provided Herein.

It has been observed that some employees delegate the collection of their salaries to attorneys-in-fact on the strength of
powers of attorney or other forms of authority in favor of other persons, evidently in satisfaction of obligations contracted by
them. This practice should be discouraged in view of its adverse effects on the efficiency and morale of employees whose
incentive to work is necessarily impaired, since their salary or a portion thereof goes to other persons.

To curb this unwholesome practice, it is hereby directed that henceforth no cashier or disbursing officer shall pay to
attorneys-in-fact or other forms of authority to collect the salary of an employee, expect when the persons so designated
and authorized is a immediate member of the family of the employee concerned, and in all other cases, except upon proper
authorization of the Assistant Executive Secretary for legal and Administrative Matters, with the recommendation of the
Financial Assistant.

All orders or regulations inconsistent herewith are hereby revoked. This order shall take effect immediately.

2. Accordingly, it is desired that, henceforth, cashiers or disbursing officers pay the salary due any school employee or issue
the treasury warrant of any teacher direct to such employee or teacher, except when authority to collect the salary or
treasury warrant has been given to another person, and the person so authorized is an immediate member of the family of
the employee or teacher concerned.

3. Any previous regulation issued by this Office inconsistent with this Circular is hereby revoked."cralaw vi rtua1aw l ibrary

Zafra sought to compel Tiro to honor the special powers of attorney; to declare Circular No. 21 to be illegal; and to make
Tiro pay attorneys fees and damages. The trial court granted the prayer of Zafra but the claim for money was disallowed on
the ground that he acted in good faith in implementing Circular No. 21.chanrobles vi rtual lawli brary

Tiro now seeks in this petition for review a reversal of the trial courts decision. The petition is highly impressed with merit.
The core issue is whether or not Circular No. 21 is valid and enforceable and the answer is definitely in the affirmative.

The salary check of a government officer or employee such as a teacher does not belong to him before it is physically
delivered to him. Until that time the check belongs to the Government. Accordingly, before there is actual delivery of the
check, the payee has no power over it; he cannot assign it without the consent of the Government. On this basis Circular
No. 21 stands on firm legal footing.

The Circular is question is authorized by relevant statutes extant when it was issued such as the following:jgc:chanrobles.com.ph

"SEC. 79(b). Power to regulate. The Department Head shall have power to promulgate, whoever he may see fit to do so,
all rules, regulations, orders, circular, memorandums, not contrary to law, necessary to regulate the proper working and
harmonious and efficient administration of each and all of the offices and dependencies of his Department, and for the strict
enforcement and proper execution of the laws relative to matters under the jurisdiction of said Department; but none of said
rules or orders shall prescribe penalties. All rules, regulations, order or instructions of a general and permanent character
promulgated in conformity with this section shall be numbered by be numbered by each Department consecutively each
year, and shall be duly published.

Chiefs of Bureaus or office may, however, be authorized to promulgate circulars of information or instructions for the
government of the officers and employees in the interior administration of the business of each Bureau or office, and in such
case said circulars shall not be required to be published." (Revised Administrative Code.)chanrobles virtual lawl ibrary

"SEC. 21 Deductive Prohibited. No person shall make any deduction whatsoever from the salaries of teachers except
under specific authority of law authorizing such deductions: Provided, however, that upon written authority executed by the
teacher concerned, (1) lawful dues and fees owing to the Philippine Public School Teachers Association, and (2) premiums
properly due on insurance policies, shall be deductible." (Magna Carta For Teachers, R.A. No. 4670.)

Zafras claim that the Circular impairs the obligation of contracts with the teachers is baseless. For the Circular does not
prevent Zafra from collecting the loans. The Circular merely makes the Government a non-participant in their collection
which is within its competence to do.

WHEREFORE, the petition is granted; the judgment of the court a quo is hereby set aside; costs against the private
Respondent.

Tiro v. Hontanosas [GR L-32312, 25 November 1983] Second Division, Abad Santos (J): 5 concur, 1 took no part

Facts: Zafra Financing Enterprise extended loans to public school teachers in Cebu City and the teachers concerned
executed promissory notes and special powers of attorney in favor of Zafra to take and collect their salary checks
from the Division Office in Cebu City of the Bureau of Public Schools. Aurelio Tiro, Superintendent of Schools in
Cebu City, forbade the collection of checks by persons other than the employees concerned with Circular 21 (series of
1969, Memorandum Order 93 of the Executive Office dated 5 February 1968 was quoted) dated 5 December 1969.
Zafra sued Tiro with the now defunct Court of First Instance (CFI) Cebu (Civil Case 11616). Zafra sought to compel
Tiro to honor the special powers of attorney, to declare Circular 21 to be illegal, and to make Tiro pay attorneys fees
and damages. The trial court granted the prayer but the claim for money was disallowed on the ground that he acted in
good faith in implementing Circular 21. Tiro seeks in the petition for review before the Supreme Court a reversal of
the trial courts decision.

Issue: Whether Circular 21 impairs the obligations of contracts between Zafra Financing Enterprise and the teachers.

Held: The salary check of a government officer or employee such as a teacher does not belong to him before it is
physically delivered to him. Until that time the check belongs to the Government. Accordingly, before there is actual
delivery of the check, the payee has no power over it; he cannot assign it without the consent of the Government. The
Circular, further, is authorized by relevant statutes such as the Revised Administrative Code (Section 79b, Power to
regulate) and the Magna Carta for Teachers (RA 4670, Section 21, Deductive prohibited). The Circular does not
impair the obligation of contracts with the teachers as the Circular does not prevent Zafra from collecting the loans
but merely makes the Government a non-participant in their collection.








[G.R. No. 88211. September 15, 1989.]

FERDINAND E. MARCOS v. HONORABLE RAUL MANGLAPUS

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO RETURN TO ONES COUNTRY, NOT AMONG THE RIGHTS GUARANTEED.
The right to return to ones country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel.

2. ID.; ID.; RIGHT TO RETURN CONSIDERED AS A GENERALLY ACCEPTED PRINCIPLE OF INTERNATIONAL LAW. It is the courts
well-considered view that the right to return may be considered, as a generally accepted principle of international law and under our
Constitution, is part of the law of the land [Art. II Sec. 2 of the Constitution.]

3. ID.; ID.; RIGHT TO RETURN, DISTINCT AND SEPARATE FROM THE RIGHT TO TRAVEL. It is distinct and separate from the right
to travel and enjoys a different protection under the International Covenant of Civil and Political Rights, i.e., against being
"arbitrarily deprived" thereof [Art. 12 (4).]

4. ID.; ALLOCATION OF POWER IN THE THREE BRANCHES OF GOVERNMENT A GRANT OF ALL THE POWERS INHERENT THERETO.
As the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant
of all legislative power; and a grant of the judicial power means a grant of all the judicial power which may be exercised under the
government." [At 631-632.] If this can be said of the legislative power which is exercised by two chambers with a combined
membership of more than two hundred members and of the judicial power which is vested in a hierarchy of courts, it can equally be
said of the executive power which is vested in one official the President.

5. ID.; PRESIDENTS POWER UNDER THE 1987 CONSTITUTION; EXTENT AND LIMITATION. Consideration of tradition and the
development of presidential power under the different constitutions are essential for a complete understanding of the extent of and
limitations to the Presidents powers under the 1987 Constitution. Although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so enumerated.

6. ID.; PRESIDENTS RESIDUAL POWER TO PROTECT THE GENERAL WELFARE OF THE PEOPLE; THE POWERS INVOLVED. The
power involved is the Presidents residual power to protect the general welfare of the people. It is founded on the duty of the
President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to
do anything not forbidden by the Constitution or the laws that the needs of the nation demand. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquillity in times when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision.

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; REQUEST TO BE ALLOWED TO RETURN TO THE PHILIPPINES; TO BE TREATED
AS ADDRESSED TO THE RESIDUAL UNSTATED POWERS OF THE PRESIDENT. The request or demand of the Marcoses to be
allowed to return to the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of
abode and the right to travel, subject to certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a matter that is appropriately addressed to those residual unstated
powers of the President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part of the
President to determine whether it must be granted or denied.

8. ID.; JUDICIAL REVIEW; POWER TO DETERMINE GRAVE ABUSE OF DISCRETION OR EXCESS OF JURISDICTION ON ANY BRANCH
OR INSTRUMENTALITY OF THE GOVERNMENT. The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the
political departments to decide. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them.
When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned.

9. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL OF REQUEST TO BE ALLOWED TO RETURN TO THE PHILIPPINES, NOT
A GRAVE ABUSE OF DISCRETION. We find that from the pleadings filed by the parties, from their oral arguments, and the facts
revealed during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were represented, there exist factual bases for the Presidents decision. The
documented history of the efforts of the Marcoses and their followers to destabilize the country, as earlier narrated in this ponencia
bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the violence directed
against the State and instigate more chaos. With these before her, the President cannot be said to have acted arbitrarily and
capriciously and whimsically in determining that the return of the Marcoses poses a serious threat to the national interest and
welfare and in prohibiting their return.

GUTIERREZ, JR., J.: dissenting:chanrob1es virtual 1aw l ibrary

1. CONSTITUTIONAL LAW; CONSTITUTION; ITS PROVISIONS PROTECT ALL MEN, AT ALL TIMES AND UNDER ALL CIRCUMSTANCES.
"The Constitution . . . is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all
classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by
the wit of man than that any of its provisions can be suspended during any of the great exigencies of government." (Ex Parte
Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866]).

2. ID.; POLITICAL QUESTIONS; OUTSIDE THE SCOPE OF JUDICIAL DETERMINATION. It is a well-settled doctrine that political
questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been
conferred on the courts by express constitutional or statutory provisions.

3. ID.; ID.; CONSTRUED. It is not so easy, however, to define the phrase political question, nor to determine what matters fall
within its scope. It is frequently used to designate all questions that lie outside the scope of the judicial power. More properly,
however, it means those questions which, under the constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or executive branch of the government.

4. ID.; ID.; CONSTITUTIONAL POWER VESTED EXCLUSIVELY IN THE PRESIDENT OR CONGRESS, BEYOND PROHIBITION OR
EXAMINATION BY THE COURT REQUIRED FOR ITS EXISTENCE. For a political question to exist, there must be in the Constitution
a power vested exclusively in the President or Congress, the exercise of which the court should not examine or prohibit. A claim of
plenary or inherent power against a civil right which claim is not found in a specific provision is dangerous. Neither should we
validate a roving commission allowing public officials to strike where they please and to override everything which to them
represents evil. The entire Government is bound by the rule of law. The authority implied in Section 6 of the Bill of Rights itself does
not exist because no law has been enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.

5. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; RIGHT TO TRAVEL INCLUDES RIGHT TO TRAVEL OUT OF OR BACK TO THE
PHILIPPINES. Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the
limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the President.
Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back into the Philippines,
cannot be impaired except in the interest of national security, public safety, or public health, as may be provided by law.

6. ID.; POLITICAL QUESTION DOCTRINE NO LONGER UTILIZED BY THE COURT; COURT COMPELLED TO DECIDE THE CASE UNDER
THE 1987 CONSTITUTION. The framers of the Constitution believed that the free use of the political question doctrine allowed
the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of
consequences or a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down
an exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most vigorous
critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was accordingly amended.
We are now precluded by its mandate from refusing to invalidate a political use of power through a convenient resort to the political
question doctrine. We are compelled to decide what would have been non-justiceable under our decisions interpreting earlier
fundamental charters.

7. ID.; LIBERTY OF ABODE AND RIGHT TO TRAVEL; DENIAL A GRAVE ABUSE OF DISCRETION. We do not have to look into the
factual bases of the ban Marcos policy in order to ascertain whether or not the respondents acted with grave abuse of discretion.
Nor are we forced to fall back upon judicial notice of the implications of a Marcos return to his home to buttress a conclusion. In the
first place, there has never been a pronouncement by the President that a clear and present danger to national security and public
safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after the present petition was filed
that the alleged danger to national security and public safety conveniently surfaced in the respondents pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to (1) national welfare and interest and (2) the continuing need
to preserve the gains achieved in terms of recovery and stability. Neither ground satisfies the criteria of national security and public
safety. The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the claim
of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome person can be
substituted for the Marcos threat as the catalysing factor. It was precisely the banning by Mr. Marcos of the right to travel by
Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during that
unfortunate period which led the framers of our present Constitution not only to re-enact but to strengthen the declaration of this
right.

Before the Court is a controversy of grave national importance. While ostensibly only legal issues are involved, the Courts decision
in this case would undeniably have a profound effect on the political, economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people power"
revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a revolutionary
government. Her ascension to and consolidation of power have not been unchallenged. The failed Manila Hotel coup in 1986 led by
political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unsuccessful plot of the Marcos spouses to surreptitiously return from Hawaii with mercenaries aboard an
aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987] awakened the nation to the capacity of the
Marcoses to stir trouble even from afar and to the fanaticism and blind loyalty of their followers in the country. The ratification of
the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the constitutional moorings of Mrs.
Aquinos presidency. This did not, however, stop bloody challenges to the government. On August 28, 1987, Col. Gregorio Honasan,
one of the major players in the February Revolution, led a failed coup that left scores of people, both combatants and civilians,
dead. There were several other armed sorties of lesser significance, but the message they conveyed was the same a split in the
ranks of the military establishment that threatened civilian supremacy over the military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements in the military establishment and among rabid
followers of Mr. Marcos. There were also the communist insurgency and the secessionist movement in Mindanao which gained
ground during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their own in the areas
they effectively control while the separatists are virtually free to move about in armed bands. There has been no let up in these
groups determination to wrest power from the government. Not only through resort to arms but also through the use of
propaganda have they been successful in creating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed to Mr.
Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs. Aquino assumed
office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the
Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philippines to die. But Mrs. Aquino, considering the dire
consequences to the nation of his return at a time when the stability of government is threatened from various directions and the
economy is just beginning to rise and move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after causing
twenty years of political, economic and social havoc in the country and who within the short space of three years seeks to return, is
in a class by itself.

This petition for mandamus and prohibition asks the Court to order the respondents to issue travel documents to Mr. Marcos and
the immediate members of his family and to enjoin the implementation of the Presidents decision to bar their return to the
Philippines.
The Issue


The issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President may
prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of the following issues:chanrob1es vi rtual 1aw library

1. Does the President have the power to bar the return of former President Marcos and his family to the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family from returning to the Philippines, in the
interest of "national security, public safety or public health"

a. Has the President made a finding that the return of former President Marcos and his family to the Philippines is a clear and
present danger to national security, public safety or public health?

b. Assuming that she has made that finding,

(1) Have the requirements of due process been complied with in making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the Presidents decision, including the grounds upon which it was
based, been made known to petitioners so that they may controvert the same?

c. Is the Presidents determination that the return of former President Marcos and his family to the Philippines is a clear and present
danger to national security, public safety, or public health a political question?

d. Assuming that the Court may inquire as to whether the return of former President Marcos and his family is a clear and present
danger to national security, public safety, or public health, have respondents established such fact?

3. Have the respondents, therefore, in implementing the Presidents decision to bar the return of former President Marcos and his
family, acted and would be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in performing
any act which would effectively bar the return of former President Marcos and his family to the Philippines? [Memorandum for
Petitioners, pp. 5-7; Rollo, pp. 234-236.]

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is guaranteed under
the following provisions of the Bill of Rights, to wit:chanrob1es vi rtual 1aw li brary

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the
equal protection of the laws.

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon
lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.

The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a court may
do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law has authorized her to
do so. They advance the view that before the right to travel may be impaired by any authority or agency of the government, there
must be legislation to that effect.chanrobles lawl ibrary : rednad

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the Philippines is
guaranteed.

The Universal Declaration of Human Rights provides:chanrob1es vi rtual 1aw library

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:chanrob1es vi rtual 1aw library

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to
choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to
protect national security, public order (order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents principal argument is that the issue in this case involves a political question which is non-
justiciable. According to the Solicitor General:chanrob1es virtual 1aw l ibrary

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos and his family have the right
to travel and liberty of abode. Petitioners invoke these constitutional rights in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E. Marcos and family have the
right to return to the Philippines and reside here at this time in the face of the determination by the President that such return and
residence will endanger national security and public safety.

It may be conceded that as formulated by petitioners, the question is not a political question as it involves merely a determination
of what the law provides on the matter and application thereof to petitioners Ferdinand E. Marcos and family. But when the question
is whether the two rights claimed by petitioners Ferdinand E. Marcos and family impinge on or collide with the more primordial and
transcendental right of the State to security and safety of its nationals, the question becomes political and this Honorable Court can
not consider it.chanrobles virtual lawl ibrary

There are thus gradations to the question, to wit:chanrob1es vi rtual 1aw li brary

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish their residence here? This
is clearly a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish their residence here even
if their return and residence here will endanger national security and public safety? This is still a justiciable question which this
Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall return to the Philippines and
establish their residence here? This is now a political question which this Honorable Court can not decide for it falls within the
exclusive authority and competence of the President of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-
299.]

Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof, they cite
Article II of the Constitution, to wit:chanrob1es virtual 1aw l ibrary

Section 4. The prime duty of the Government is to serve and protect the people. The Government may call upon the people to
defend the State and, in the fulfillment thereof, all citizens may be required, under conditions provided by law, to render personal,
military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy.

Respondents also point out that the decision to ban Mr. Marcos and his family from returning to the Philippines for reasons of
national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic, Anastacio Somoza, Jr. of
Nicaragua, Jorge Ubico of Guatemala, Fulgencio Batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El
Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in Memorandum for
Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We, however, view
this issue in a different light. Although we give due weight to the parties formulation of the issues, we are not bound by its narrow
confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import of the
decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt. 1113, 2 L Ed. 2d 1204] and Haig
v. Agee [453 U.S. 280, 101 SCt. 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the
exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or within
the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the right to return to
ones country, a totally distinct right under international law, independent from although related to the right to travel. Thus, the
Universal Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right to freedom of
movement and abode within the territory of a state, the right to leave a country, and the right to enter ones country as separate
and distinct rights. The Declaration speaks of the "right to freedom of movement and residence within the borders of each state"
[Art. 13(1)] separately from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On the
other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(1)] and the
right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be restricted by such laws as "are
necessary to protect national security, public order, public health or morals or the separate rights and freedoms of others." [Art.
12(3)] as distinguished from the "right to enter his own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It
would therefore be inappropriate to construe the limitations to the right to return to ones country in the same context as those
pertaining to the liberty of abode and the right to travel.

The right to return to ones country is not among the rights specifically guaranteed in the Bill of Rights, which treats only of the
liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered, as a generally
accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

Thus, the rulings in the cases of Kent and Haig, which refer to the issuance of passports for the purpose of effectively exercising the
right to travel are not determinative of this case and are only tangentially material insofar as they relate to a conflict between
executive action and the exercise of a protected right. The issue before the Court is novel and without precedent in Philippine, and
even in American jurisprudence.chanrobles vi rtual lawlibrary

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right to travel in
the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our resolution of
the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the power under the
Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to the express power of the
Court under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined that the return of the Marcoses to the Philippines poses
a serious threat to national interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the words of
Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with deft strokes and in
bold lines, allotment of power to the executive, the legislative and the judicial departments of the government." [At 157.] Thus, the
1987 Constitution explicitly provides that" [t]he legislative power shall be vested in the Congress of the Philippines" [Art. VI, Sec.
1]," [t]he executive power shall be vested in the President of the Philippines" [Art. VII, Sec. 1], and" [t]he judicial power shall be
vested in one Supreme Court and in such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v.
Cabangis [15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative power; and a grant of
the judicial power means a grant of all the judicial power which may be exercised under the government." [At 631-632.] If this can
be said of the legislative power which is exercised by two chambers with a combined membership of more than two hundred
members and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the executive power which is
vested in one official the President.

As stated above, the Constitution provides that" [t]he executive power shall be vested in the President of the Philippines." [Art. VII,
Sec. 1]. However, it does not define what is meant by "executive power" although in the same article it touches on the exercise of
certain powers by the President, i.e., the power of control over all executive departments, bureaus and offices, the power to
execute the laws, the appointing power, the powers under the commander-in-chief clause, the power to grant reprieves,
commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or guarantee
foreign loans, the power to enter into treaties or international agreements, the power to submit the budget to Congress, and the
power to address Congress [Art. VII, Secs. 14-23].chanrobles law li brary

The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution intend that
the President shall exercise those specific powers and no other? Are these enumerated powers the breadth and scope of "executive
power" ? Petitioners advance the view that the Presidents powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to her.
Inclusio unius est exclusio alterius." [Memorandum for Petitioners, p. 4; Rollo p. 233.] This argument brings to mind the institution
of the U. S. Presidency after which ours is legally patterned. **

Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said:chanrob1es vi rtual 1aw library

Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution ought to settle everything
beforehand it should be a nightmare; by the same token, to those who think that constitution makers ought to leave considerable
leeway for the future play of political forces, it should be a vision realized.

We encounter this characteristic of Article II in its opening words: "The executive power shall be vested in a President of the United
States of America.." . . [The President: Office and Powers, 1787-1957, pp. 3-4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from Washington to the
early 1900s, and the swing from the presidency by commission to Lincolns dictatorship, he concluded that "what the presidency is
at any particular moment depends in important measure on who is President." [At 30.]

This view is shared by Schlesinger, who wrote in The Imperial Presidency:chanrob1es vi rtual 1aw library

For the American Presidency was a peculiarly personal institution. It remained, of course, an agency of government subject to
unvarying demands and duties no matter who was President. But, more than most agencies of government, it changed shape,
intensity and ethos according to the man in charge. Each Presidents distinctive temperament and character, his values, standards,
style, his habits, expectations, idiosyncrasies, compulsions, phobias recast the White House and pervaded the entire government.
The executive branch, said Clark Clifford, was a chameleon, taking its color from the character and personality of the President. The
thrust of the office, its impact on the constitutional order, therefore altered from President to President. Above all, the way each
President understood it as his personal obligation to inform and involve the Congress, to earn and hold the confidence of the
electorate and to render an accounting to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212-213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of tradition
and the development of presidential power under the different constitutions are essential for a complete understanding of the
extent of and limitations to the Presidents powers under the 1987 Constitution. The 1935 Constitution created a strong President
with explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify the system of government into
the parliamentary type, with the President as a mere figurehead, but through numerous amendments, the President became even
more powerful, to the point that he was also the de facto Legislature. The 1987 Constitution, however, brought back the
presidential system of government and restored the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for checks and balances.cralawnad

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is head of
state as well as head of government and whatever powers inhere in such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of the powers of the President.
It also grants the President other powers that do not involve the execution of any provision of law, e.g., his power over the
countrys foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific powers of
the President, it maintains intact what is traditionally considered as within the scope of "executive power." Corollarily, the powers of
the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive.
Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on the issue of who
between the Governor-General of the Philippines and the Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:chanrob1es virtual 1aw l ibrary

. . . Here the members of the legislature who constitute a majority of the "board" and "committee" respectively, are not charged
with the performance of any legislative functions or with the doing of anything which is in aid of performance of any such functions
by the legislature. Putting aside for the moment the question whether the duties devolved upon these members are vested by the
Organic Act in the Governor-General, it is clear that they are not legislative in character, and still more clear that they are not
judicial. The fact that they do not fall within the authority of either of these two constitutes logical ground for concluding that they
do fall within that of the remaining one among which the powers of government are divided . . . [At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes strong dissent. But in his enduring words of dissent we find reinforcement for the view that
it would indeed be a folly to construe the powers of a branch of government to embrace only what are specifically mentioned in the
Constitution:chanrob1es vi rtual 1aw library

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are
found to terminate in a penumbra shading gradually from one extreme to the other. . . .

It does not seem to need argument to show that however we may disguise it by veiling words we do not and cannot carry out the
distinction between legislative and executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution reqiures.[At 210-
211.]

The Power Involved

The Constitution declares among the guiding principles that" [t]he prime duty of the Government is to serve and protect the people"
and that" [t]he maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and property,
and the promotion of the general welfare are essentially ideals to guide governmental action. But such does not mean that they are
empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in directing implementing action
for these plans, or from another point of view, in making any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.chanrobles.com : virtual law li brary

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President is, under
the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an allocation of power is also a
social contract whereby the people have surrendered their sovereign powers to the State for the common good. Hence, lest the
officers of the Government exercising the powers delegated by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that" [s]overeignty resides in the people and all government authority emanates from them." [Art.
II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed dictator and
his family at whose door the travails of the country are laid and from whom billions of dollars believed to be ill-gotten wealth are
sought to be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and of expression, although couched in absolute terms, admits of limits and must be adjusted to the
requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos. 79690-707, October 7, 1988].

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights of certain
individuals. The power involved is the Presidents residual power to protect the general welfare of the people. It is founded on the
duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but
also his duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra,
at 153]. It is a power borne by the Presidents duty to preserve and defend the Constitution. It also may be viewed as a power
implicit in the Presidents duty to take care that the laws are faithfully executed [see Hyman, The American President, where the
author advances the view that an allowance of discretionary power is unavoidable in any government and is best lodged in the
President].

More particularly, this case calls for the exercise of the Presidents powers as protector of the peace. [Rossiter, The American
Presidency]. The power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquillity in times when no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the President commander-in-chief the enumeration of powers that
follow cannot be said to exclude the Presidents exercising as Commander-in-Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace, and maintain public
order and security.

That the President has the power under the Constitution to bar the Marcoses from returning has been recognized by members of
the Legislature, and is manifested by the Resolution proposed in the House of Representatives and signed by 103 of its members
urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish gesture for true national reconciliation
and as irrevocable proof of our collective adherence to uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.] The Resolution does not question the Presidents power to bar the Marcoses from
returning to the Philippines, rather, it appeals to the Presidents sense of compassion to allow a man to come home to die in his
country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines cannot be
considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel, subject to certain
exceptions, or of case law which clearly never contemplated situations even remotely similar to the present one. It must be treated
as a matter that is appropriately addressed to those residual unstated powers of the President which are implicit in and correlative
to the paramount duty residing in that office to safeguard and protect general welfare. In that context, such request or demand
should submit to the exercise of a broader discretion on the part of the President to determine whether it must be granted or
denied.chanrobles lawl ibrary : rednad

The Extent of Review

Under the Constitution, judicial power includes the duty 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." [Art. VIII, Sec. 1.]
Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political question which is beyond the
jurisdiction of the Court to decide.

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which
the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there
remain issues beyond the Courts jurisdiction the determination of which is exclusively for the President, for Congress or for the
people themselves through a plebiscite or referendum. We cannot, for example, question the Presidents recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it
may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of
resolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations
of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they
did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution
limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment
for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which
specifically empowers the courts to determine whether or not there has been a grave abuse of discretion on the part of any branch
or instrumentality of the government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964,
December 11, 1971, 42 SCRA 448] that:chanrob1es vi rtual 1aw library

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ of habeas corpus under
specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is
supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes
hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to determine whether or
not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme.

In the exercise of such authority, the function of the Court is merely to check not to supplant the Executive, or to ascertain
merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act .. [At 479-480.].

Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to conclude that it
was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist, it cannot be said that
she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing in
chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein petitioners and
respondents were represented, there exist factual bases for the Presidents decision.

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-organized
communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban terrorism, the murder with
impunity of military men, police officers and civilian officials, to mention only a few. The documented history of the efforts of the
Marcoses and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given assurances
that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the Marcoses that may prove
to be the proverbial final straw that would break the camels back.

With these before her, the President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that
the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the State,
that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the Constitution to
suppress or stamp out such violence. The State, acting through the Government, is not precluded from taking pre-emptive action
against threats to its existence if, though still nascent, they are perceived as apt to become serious and direct. Protection of the
people is the essence of the duty of government. The preservation of the State the fruition of the peoples sovereignty is an
obligation in the highest order. The President, sworn to preserve and defend the Constitution and to see the faithful execution the
laws, cannot shirk from that responsibility.chanrobles vi rtualawlibrary chanrobles. com:chanrobles.com.ph

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about by the
plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still here in the
Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so to speak, in its efforts
to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually
increasing burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which stifles and
stagnates development and is one of the root causes of widespread poverty and all its attendant ills. The resulting precarious state
of our economy is of common knowledge and is easily within the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains achieved
during the past few years and lead to total economic collapse. Given what is within our individual and common knowledge of the
state of the economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family at the present time and under present circumstances poses a
serious threat to national interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
Marcos vs. Manglapus, 177 SCRA 668; 1989

FACTS: This case involves a petition of mandamus and prohibition asking the court to order the respondents Secretary of
Foreign Affairs, etc. To issue travel documents to former Pres. Marcos and the immediate members of his family and to enjoin
the implementation of the President's decision to bar their return to the Philippines. Petitioners assert that the right of the
Marcoses to return in the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They contended that Pres.
Aquino is without power to impair the liberty of abode of the Marcoses because only a court may do so within the limits
prescribed by law. Nor the President impair their right to travel because no law has authorized her to do so.
They further assert that under international law, their right to return to the Philippines is guaranteed particularly by the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights, which has been ratified by the
Philippines.
ISSUE: Whether or not, in the exercise of the powers granted by the constitution, the President (Aquino) may prohibit the
Marcoses from returning to the Philippines.
HELD: "It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or
within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved in this case at bar
is the right to return to one's country, a distinct right under international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights treat the
right to freedom of movement and abode within the territory of a state, the right to leave the country, and the right to enter one's
country as separate and distinct rights. What the Declaration speaks of is the "right to freedom of movement and residence
within the borders of each state". On the other hand, the Covenant guarantees the right to liberty of movement and freedom to
choose his residence and the right to be free to leave any country, including his own. Such rights may only be restricted by laws
protecting the national security, public order, public health or morals or the separate rights of others. However, right to enter
one's country cannot be arbitrarily deprived. It would be therefore inappropriate to construe the limitations to the right to return to
ones country in the same context as those pertaining to the liberty of abode and the right to travel.
The Bill of rights treats only the liberty of abode and the right to travel, but it is a well considered view that the right to return may
be considered, as a generally accepted principle of International Law and under our Constitution as part of the law of the land.
The court held that President did not act arbitrarily or with grave abuse of discretion in determining that the return of the Former
Pres. Marcos and his family poses a serious threat to national interest and welfare. President Aquino has determined that the
destabilization caused by the return of the Marcoses would wipe away the gains achieved during the past few years after the
Marcos regime.
The return of the Marcoses poses a serious threat and therefore prohibiting their return to the Philippines, the instant petition is
hereby DISMISSED.