EN BANC
1. G.R. No. 122846 January 20, 2009 On December 3, 1992, City Mayor Alfredo S. Lim
WHITE LIGHT CORPORATION, TITANIUM
CORPORATION and STA. MESA TOURIST &
DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO,
MAYOR ALFREDO S. LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally
involving the tourist district as subject, the Court is
confronted anew with the incessant clash between
government power and individual liberty in tandem
with the archetypal tension between law and
morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the
nullification of a city ordinance barring the operation
of motels and inns, among other establishments,
within the Ermita-Malate area. The petition at bar
assails a similarly-motivated city ordinance that
prohibits those same establishments from offering
short-time admission, as well as pro-rated or "wash
up" rates for such abbreviated stays. Our earlier
decision tested the city ordinance against our sacred
constitutional rights to liberty, due process and equal
protection of law. The same parameters apply to the
present petition.
This Petition2 under Rule 45 of the Revised Rules on
Civil Procedure, which seeks the reversal of the
Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of
Appeals, challenges the validity of Manila City
Ordinance No. 7774 entitled, "An Ordinance
Prohibiting Short-Time Admission, Short-Time
Admission Rates, and Wash-Up Rate Schemes in
Hotels, Motels, Inns, Lodging Houses, Pension
Houses, and Similar Establishments in the City of
Manila" (the Ordinance).
I.
The facts are as follows:
(Mayor Lim) signed into law the Ordinance. 4 The
Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the
declared policy of the City Government to protect the
best interest, health and welfare, and the morality of
its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An
Ordinance" prohibiting short time admission in
hotels, motels, lodging houses, pension houses and
similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time
admission and rate [sic], wash-up rate or other
similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension houses
and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission
shall mean admittance and charging of room rate for
less than twelve (12)m hours at any given time or the
renting out of rooms more than twice a day or any
other term that may be concocted by owners or
managers of said establishments but would mean the
same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation
who shall violate any provision of this ordinance shall
upon conviction thereof be punished by a fine of Five
Thousand (₱5,000.00) Pesos or imprisonment for a
period of not exceeding one (1) year or both such fine
and imprisonment at the discretion of the court;
Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of
the operation thereof shall be liable: Provided,
further, That in case of subsequent conviction for the
same offense, the business license of the guilty party
shall automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City
ordinances not consistent with or contrary to this
measure or any portion hereof are hereby deemed
repealed.
SEC. 7. Effectivity. This ordinance shall take effect
immediately upon approval.
Enacted by the city Council of Manila at its regular
session today, November 10, 1992.
Approved by His Honor, the Mayor on December 3,
1992.
On December 15, 1992, the Malate Tourist and
Development Corporation (MTDC) filed a complaint
for declaratory relief with prayer for a writ of
preliminary injunction and/or temporary restraining
order ( TRO)5 with the Regional Trial Court (RTC) of
Manila, Branch 9 impleading as defendant, herein
respondent City of Manila (the City) represented by
Mayor Lim.6 MTDC prayed that the Ordinance, insofar
as it includes motels and inns as among its prohibited
establishments, be declared invalid and
unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was
authorized by Presidential Decree (P.D.) No. 259 to
admit customers on a short time basis as well as to
charge customers wash up rates for stays of only
three hours.
On December 21, 1992, petitioners White Light
Corporation (WLC), Titanium Corporation (TC) and
Sta. Mesa Tourist and Development Corporation
(STDC) filed a motion to intervene and to admit
attached complaint-in-intervention7 on the ground
that the Ordinance directly affects their business
interests as operators of drive-in-hotels and motels in
Manila.8 The three companies are components of the
Anito Group of Companies which owns and operates
several hotels and motels in Metro Manila.9
On December 23, 1992, the RTC granted the motion
to intervene.10 The RTC also notified the Solicitor
General of the proceedings pursuant to then Rule 64,
Section 4 of the Rules of Court. On the same date,
MTDC moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's
motion to withdraw.12 The RTC issued a TRO on
January 14, 1993, directing the City to cease and
desist from enforcing the Ordinance.13 The City filed
an Answer dated January 22, 1993 alleging that the
Ordinance is a legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of
preliminary injunction ordering the city to desist from
the enforcement of the Ordinance.15 A month later,
on March 8, 1993, the Solicitor General filed his
Comment arguing that the Ordinance is
constitutional.
During the pre-trial conference, the WLC, TC and
STDC agreed to submit the case for decision without
trial as the case involved a purely legal question.16 On
October 20, 1993, the RTC rendered a decision
declaring the Ordinance null and void. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance
No. 7774 of the City of Manila is hereby declared null
and void.
Accordingly, the preliminary injunction heretofor
issued is hereby made permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the
personal liberty of the individual guaranteed and
jealously guarded by the Constitution."18 Reference
was made to the provisions of the Constitution
encouraging private enterprises and the incentive to
needed investment, as well as the right to operate
economic enterprises. Finally, from the observation
that the illicit relationships the Ordinance sought to
dissuade could nonetheless be consummated by
simply paying for a 12-hour stay, the RTC likened the
law to the ordinance annulled in Ynot v. Intermediate
Appellate Court,19 where the legitimate purpose of
preventing indiscriminate slaughter of carabaos was
sought to be effected through an inter-province ban
on the transport of carabaos and carabeef.
The City later filed a petition for review
on certiorari with the Supreme Court.20 The petition
was docketed as G.R. No. 112471. However in a
resolution dated January 26, 1994, the Court treated
the petition as a petition for certiorari and referred
the petition to the Court of Appeals.21
Before the Court of Appeals, the City asserted that the
Ordinance is a valid exercise of police power pursuant
to Section 458 (4)(iv) of the Local Government Code
which confers on cities, among other local
government units, the power:
[To] regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses
and other similar establishments, including tourist
guides and transports.22
The Ordinance, it is argued, is also a valid exercise of
the power of the City under Article III, Section 18(kk)
of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance
of the prosperity and the promotion of the morality,
peace, good order, comfort, convenience and general
welfare of the city and its inhabitants, and such others
as be necessary to carry into effect and discharge the
powers and duties conferred by this Chapter; and to
fix penalties for the violation of ordinances which
shall not exceed two hundred pesos fine or six
months imprisonment, or both such fine and
imprisonment for a single offense.23
Petitioners argued that the Ordinance is
unconstitutional and void since it violates the right to
privacy and the freedom of movement; it is an invalid
exercise of police power; and it is an unreasonable
and oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC
and affirmed the constitutionality of the
Ordinance.24 First, it held that the Ordinance did not
violate the right to privacy or the freedom of
movement, as it only penalizes the owners or
operators of establishments that admit individuals for
short time stays. Second, the virtually limitless reach
of police power is only constrained by having a lawful
object obtained through a lawful method. The lawful
objective of the Ordinance is satisfied since it aims to
curb immoral activities. There is a lawful method
since the establishments are still allowed to operate.
Third, the adverse effect on the establishments is
justified by the well-being of its constituents in
general. Finally, as held in Ermita-Malate Motel
Operators Association v. City Mayor of Manila, liberty
is regulated by law.
TC, WLC and STDC come to this Court via petition for
review on certiorari.25 In their petition and
Memorandum, petitioners in essence repeat the
assertions they made before the Court of Appeals.
They contend that the assailed Ordinance is an invalid
exercise of police power.
II.
We must address the threshold issue of petitioners’
standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their
business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the
equal protection rights of their clients are also being
interfered with. Thus, the crux of the matter is
whether or not these establishments have the
requisite standing to plead for protection of their
patrons' equal protection rights.
Standing or locus standi is the ability of a party to
demonstrate to the court sufficient connection to and
harm from the law or action challenged to support
that party's participation in the case. More
importantly, the doctrine of standing is built on the
principle of separation of powers,26 sparing as it does
unnecessary interference or invalidation by the
judicial branch of the actions rendered by its co-equal
branches of government.
The requirement of standing is a core component of
the judicial system derived directly from the
Constitution.27 The constitutional component of
standing doctrine incorporates concepts which
concededly are not susceptible of precise
definition.28 In this jurisdiction, the extancy of "a
direct and personal interest" presents the most
obvious cause, as well as the standard test for a
petitioner's standing.29 In a similar vein, the United
States Supreme Court reviewed and elaborated on
the meaning of the three constitutional standing
requirements of injury, causation, and redressability
in Allen v. Wright.30
Nonetheless, the general rules on standing admit of
several exceptions such as the overbreadth doctrine,
taxpayer suits, third party standing and, especially in
the Philippines, the doctrine of transcendental
importance.31
For this particular set of facts, the concept of third
party standing as an exception and the overbreadth
doctrine are appropriate. In Powers v. Ohio,32 the
United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on
behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered
an ‘injury-in-fact,’ thus giving him or her a
"sufficiently concrete interest" in the outcome of the
issue in dispute; the litigant must have a close relation
to the third party; and there must exist some
hindrance to the third party's ability to protect his or
her own interests."33 Herein, it is clear that the
business interests of the petitioners are likewise
injured by the Ordinance. They rely on the patronage
of their customers for their continued viability which
appears to be threatened by the enforcement of the
Ordinance. The relative silence in constitutional
litigation of such special interest groups in our nation
such as the American Civil Liberties Union in the
United States may also be construed as a hindrance
for customers to bring suit.34
American jurisprudence is replete with examples
where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or
equal protection claims of other persons or classes of
persons injured by state action. In Griswold v.
Connecticut,35 the United States Supreme Court held
that physicians had standing to challenge a
reproductive health statute that would penalize them
as accessories as well as to plead the constitutional
protections available to their patients. The Court held
that:
"The rights of husband and wife, pressed here, are
likely to be diluted or adversely affected unless those
rights are considered in a suit involving those who
have this kind of confidential relation to them." 36
An even more analogous example may be found
in Craig v. Boren,37 wherein the United States
Supreme Court held that a licensed beverage vendor
has standing to raise the equal protection claim of a
male customer challenging a statutory scheme
prohibiting the sale of beer to males under the age of
21 and to females under the age of 18. The United
States High Court explained that the vendors had
standing "by acting as advocates of the rights of third
parties who seek access to their market or
function."38
Assuming arguendo that petitioners do not have a
relationship with their patrons for the former to
assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect
permitted to raise the rights of third parties.
Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies
when a statute needlessly restrains even
constitutionally guaranteed rights.39 In this case, the
petitioners claim that the Ordinance makes a
sweeping intrusion into the right to liberty of their
clients. We can see that based on the allegations in
the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to
assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time
frame.
III.
To students of jurisprudence, the facts of this case will
recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate
Hotel and Motel Operations Association, Inc., v. Hon.
City Mayor of Manila.40Ermita-Malate concerned the
City ordinance requiring patrons to fill up a prescribed
form stating personal information such as name,
gender, nationality, age, address and occupation
before they could be admitted to a motel, hotel or
lodging house. This earlier ordinance was precisely
enacted to minimize certain practices deemed
harmful to public morals. A purpose similar to the
annulled ordinance in City of Manila which sought a
blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However,
the constitutionality of the ordinance in Ermita-
Malate was sustained by the Court.
The common thread that runs through those
decisions and the case at bar goes beyond the
singularity of the localities covered under the
respective ordinances. All three ordinances were
enacted with a view of regulating public morals
including particular illicit activity in transient lodging
establishments. This could be described as the middle
case, wherein there is no wholesale ban on motels
and hotels but the services offered by these
establishments have been severely restricted. At its
core, this is another case about the extent to which
the State can intrude into and regulate the lives of its
citizens.
The test of a valid ordinance is well established. A long
line of decisions including City of Manila has held that
for an ordinance to be valid, it must not only be within
the corporate powers of the local government unit to
enact and pass according to the procedure prescribed
by law, it must also conform to the following
substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair
or oppressive; (3) must not be partial or
discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.41
The Ordinance prohibits two specific and distinct
business practices, namely wash rate admissions and
renting out a room more than twice a day. The ban is
evidently sought to be rooted in the police power as
conferred on local government units by the Local
Government Code through such implements as the
general welfare clause.
A.
Police power, while incapable of an exact definition,
has been purposely veiled in general terms to
underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient
and flexible response as the conditions
warrant.42 Police power is based upon the concept of
necessity of the State and its corresponding right to
protect itself and its people.43 Police power has been
used as justification for numerous and varied actions
by the State. These range from the regulation of
dance halls,44 movie theaters,45 gas stations46 and
cockpits.47 The awesome scope of police power is
best demonstrated by the fact that in its hundred or
so years of presence in our nation’s legal system, its
use has rarely been denied.
The apparent goal of the Ordinance is to minimize if
not eliminate the use of the covered establishments
for illicit sex, prostitution, drug use and alike. These
goals, by themselves, are unimpeachable and
certainly fall within the ambit of the police power of
the State. Yet the desirability of these ends do not
sanctify any and all means for their achievement.
Those means must align with the Constitution, and
our emerging sophisticated analysis of its guarantees
to the people. The Bill of Rights stands as a rebuke to
the seductive theory of Macchiavelli, and, sometimes
even, the political majorities animated by his
cynicism.
Even as we design the precedents that establish the
framework for analysis of due process or equal
protection questions, the courts are naturally
inhibited by a due deference to the co-equal branches
of government as they exercise their political
functions. But when we are compelled to nullify
executive or legislative actions, yet another form of
caution emerges. If the Court were animated by the
same passing fancies or turbulent emotions that
motivate many political decisions, judicial integrity is
compromised by any perception that the judiciary is
merely the third political branch of government. We
derive our respect and good standing in the annals of
history by acting as judicious and neutral arbiters of
the rule of law, and there is no surer way to that end
than through the development of rigorous and
sophisticated legal standards through which the
courts analyze the most fundamental and far-
reaching constitutional questions of the day.
B.
The primary constitutional question that confronts us
is one of due process, as guaranteed under Section 1,
Article III of the Constitution. Due process evades a
precise definition.48 The purpose of the guaranty is to
prevent arbitrary governmental encroachment
against the life, liberty and property of individuals.
The due process guaranty serves as a protection
against arbitrary regulation or seizure. Even
corporations and partnerships are protected by the
guaranty insofar as their property is concerned.
The due process guaranty has traditionally been
interpreted as imposing two related but distinct
restrictions on government, "procedural due process"
and "substantive due process." Procedural due
process refers to the procedures that the government
must follow before it deprives a person of life, liberty,
or property.49 Procedural due process concerns itself
with government action adhering to the established
process when it makes an intrusion into the private
sphere. Examples range from the form of notice given
to the level of formality of a hearing.
If due process were confined solely to its procedural
aspects, there would arise absurd situation of
arbitrary government action, provided the proper
formalities are followed. Substantive due process
completes the protection envisioned by the due
process clause. It inquires whether the government
has sufficient justification for depriving a person of
life, liberty, or property.50
The question of substantive due process, moreso
than most other fields of law, has reflected dynamism
in progressive legal thought tied with the expanded
acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted
with a more rigorous level of analysis before it can be
upheld. The vitality though of constitutional due
process has not been predicated on the frequency
with which it has been utilized to achieve a liberal
result for, after all, the libertarian ends should
sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency
because of the sophisticated methodology that has
emerged to determine the proper metes and bounds
for its application.
C.
The general test of the validity of an ordinance on
substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down
by the U.S. Supreme Court in U.S. v. Carolene
Products.51 Footnote 4 of the Carolene Products case
acknowledged that the judiciary would defer to the
legislature unless there is a discrimination against a
"discrete and insular" minority or infringement of a
"fundamental right."52 Consequently, two standards
of judicial review were established: strict scrutiny for
laws dealing with freedom of the mind or restricting
the political process, and the rational basis standard
of review for economic legislation.
A third standard, denominated as heightened or
immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on
gender53 and legitimacy.54 Immediate scrutiny was
adopted by the U.S. Supreme Court in Craig,55 after
the Court declined to do so in Reed v. Reed.56 While
the test may have first been articulated in equal
protection analysis, it has in the United States since
been applied in all substantive due process cases as
well.
We ourselves have often applied the rational basis
test mainly in analysis of equal protection
challenges.57 Using the rational basis examination,
laws or ordinances are upheld if they rationally
further a legitimate governmental interest.58 Under
intermediate review, governmental interest is
extensively examined and the availability of less
restrictive measures is considered.59 Applying strict
scrutiny, the focus is on the presence of compelling,
rather than substantial, governmental interest and on
the absence of less restrictive means for achieving
that interest.
In terms of judicial review of statutes or ordinances,
strict scrutiny refers to the standard for determining
the quality and the amount of governmental interest
brought to justify the regulation of fundamental
freedoms.60 Strict scrutiny is used today to test the
validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights as
expansion from its earlier applications to equal
protection.61 The United States Supreme Court has
expanded the scope of strict scrutiny to protect
fundamental rights such as suffrage,62 judicial
access63and interstate travel.64
If we were to take the myopic view that an Ordinance
should be analyzed strictly as to its effect only on the
petitioners at bar, then it would seem that the only
restraint imposed by the law which we are
capacitated to act upon is the injury to property
sustained by the petitioners, an injury that would
warrant the application of the most deferential
standard – the rational basis test. Yet as earlier
stated, we recognize the capacity of the petitioners to
invoke as well the constitutional rights of their
patrons – those persons who would be deprived of
availing short time access or wash-up rates to the
lodging establishments in question.
Viewed cynically, one might say that the infringed
rights of these customers were are trivial since they
seem shorn of political consequence. Concededly,
these are not the sort of cherished rights that, when
proscribed, would impel the people to tear up their
cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet
fundamental freedoms – which the people reflexively
exercise any day without the impairing awareness of
their constitutional consequence – that accurately
reflect the degree of liberty enjoyed by the people.
Liberty, as integrally incorporated as a fundamental
right in the Constitution, is not a Ten
Commandments-style enumeration of what may or
what may not be done; but rather an atmosphere of
freedom where the people do not feel labored under
a Big Brother presence as they interact with each
other, their society and nature, in a manner innately
understood by them as inherent, without doing harm
or injury to others.
D.
The rights at stake herein fall within the same
fundamental rights to liberty which we upheld in City
of Manila v. Hon. Laguio, Jr. We expounded on that
most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined
by Justice Malcolm to include "the right to exist and
the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the
citizen, but is deemed to embrace the right of man to
enjoy the facilities with which he has been endowed
by his Creator, subject only to such restraint as are
necessary for the common welfare."[65] In accordance
with this case, the rights of the citizen to be free to
use his faculties in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful
calling; and to pursue any avocation are all deemed
embraced in the concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board
of Regents, sought to clarify the meaning of "liberty."
It said:
While the Court has not attempted to define with
exactness the liberty . . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not
merely freedom from bodily restraint but also the
right of the individual to contract, to engage in any of
the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of
his own conscience, and generally to enjoy those
privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men. In a
Constitution for a free people, there can be no doubt
that the meaning of "liberty" must be broad
indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind
the ordinance is the curtailment of sexual behavior.
The City asserts before this Court that the subject
establishments "have gained notoriety as venue of
‘prostitution, adultery and fornications’ in Manila
since they ‘provide the necessary atmosphere for
clandestine entry, presence and exit and thus became
the ‘ideal haven for prostitutes and thrill-
seekers.’"68 Whether or not this depiction of a mise-
en-scene of vice is accurate, it cannot be denied that
legitimate sexual behavior among willing married or
consenting single adults which is constitutionally
protected69 will be curtailed as well, as it was in the
City of Manila case. Our holding therein retains
significance for our purposes:
The concept of liberty compels respect for the
individual whose claim to privacy and interference
demands respect. As the case of Morfe v. Mutuc,
borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing
reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that
they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his
isolation, which are, broadly speaking, that his
experience is private, and the will built out of that
experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set
by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a
master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right
was recognized in Morfe, the invasion of which
should be justified by a compelling state
interest. Morfe accorded recognition to the right to
privacy independently of its identification with
liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short
of certain intrusions into the personal life of the
citizen.70
We cannot discount other legitimate activities which
the Ordinance would proscribe or impair. There are
very legitimate uses for a wash rate or renting the
room out for more than twice a day. Entire families
are known to choose pass the time in a motel or hotel
whilst the power is momentarily out in their homes.
In transit passengers who wish to wash up and rest
between trips have a legitimate purpose for
abbreviated stays in motels or hotels. Indeed any
person or groups of persons in need of comfortable
private spaces for a span of a few hours with purposes
other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a
convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash
rate depriving patrons of a product and the
petitioners of lucrative business ties in with another
constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear
that the interests of the public generally, as
distinguished from those of a particular class, require
an interference with private rights and the means
must be reasonably necessary for the
accomplishment of the purpose and not unduly
oppressive of private rights.71 It must also be evident
that no other alternative for the accomplishment of
the purpose less intrusive of private rights can work.
More importantly, a reasonable relation must exist
between the purposes of the measure and the means
employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights
and those pertaining to private property will not be
permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the police
measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v.
Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is
affected.73 However, this is not in any way meant to
take it away from the vastness of State police power
whose exercise enjoys the presumption of validity.74
Similar to the Comelec resolution requiring
newspapers to donate advertising space to
candidates, this Ordinance is a blunt and heavy
instrument.75 The Ordinance makes no distinction
between places frequented by patrons engaged in
illicit activities and patrons engaged in legitimate
actions. Thus it prevents legitimate use of places
where illicit activities are rare or even unheard of. A
plain reading of section 3 of the Ordinance shows it
makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and
subject them without exception to the unjustified
prohibition.
The Court has professed its deep sentiment and
tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict
our capital city – the Pearl of the Orient – as a
modern-day Sodom or Gomorrah for the Third World
set. Those still steeped in Nick Joaquin-dreams of the
grandeur of Old Manila will have to accept that
Manila like all evolving big cities, will have its
problems. Urban decay is a fact of mega cities such as
Manila, and vice is a common problem confronted by
the modern metropolis wherever in the world. The
solution to such perceived decay is not to prevent
legitimate businesses from offering a legitimate
product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus
attracting the dynamism of individuals that would
bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is
in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less
intrusive measures such as curbing the proliferation
of prostitutes and drug dealers through active police
work would be more effective in easing the situation.
So would the strict enforcement of existing laws and
regulations penalizing prostitution and drug use.
These measures would have minimal intrusion on the
businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance
can easily be circumvented by merely paying the
whole day rate without any hindrance to those
engaged in illicit activities. Moreover, drug dealers
and prostitutes can in fact collect "wash rates" from
their clientele by charging their customers a portion
of the rent for motel rooms and even apartments.
IV.
We reiterate that individual rights may be adversely
affected only to the extent that may fairly be required
by the legitimate demands of public interest or public
welfare. The State is a leviathan that must be
restrained from needlessly intruding into the lives of
its citizens. However well-intentioned the Ordinance
may be, it is in effect an arbitrary and whimsical
intrusion into the rights of the establishments as well
as their patrons. The Ordinance needlessly restrains
the operation of the businesses of the petitioners as
well as restricting the rights of their patrons without
sufficient justification. The Ordinance rashly equates
wash rates and renting out a room more than twice a
day with immorality without accommodating
innocuous intentions.
The promotion of public welfare and a sense of
morality among citizens deserves the full
endorsement of the judiciary provided that such
measures do not trample rights this Court is sworn to
protect.77 The notion that the promotion of public
morality is a function of the State is as old as
Aristotle.78 The advancement of moral relativism as a
school of philosophy does not de-legitimize the role
of morality in law, even if it may foster wider debate
on which particular behavior to penalize. It is
conceivable that a society with relatively little shared
morality among its citizens could be functional so long
as the pursuit of sharply variant moral perspectives
yields an adequate accommodation of different
interests.79
To be candid about it, the oft-quoted American
maxim that "you cannot legislate morality" is
ultimately illegitimate as a matter of law, since as
explained by Calabresi, that phrase is more accurately
interpreted as meaning that efforts to legislate
morality will fail if they are widely at variance with
public attitudes about right and wrong.80 Our penal
laws, for one, are founded on age-old moral
traditions, and as long as there are widely accepted
distinctions between right and wrong, they will
remain so oriented.
Yet the continuing progression of the human story
has seen not only the acceptance of the right-wrong
distinction, but also the advent of fundamental
liberties as the key to the enjoyment of life to the
fullest. Our democracy is distinguished from non-free
societies not with any more extensive elaboration on
our part of what is moral and immoral, but from our
RENATO C. CONCHITA CARPIO
recognition that the individual liberty to make the
CORONA MORALES
choices in our lives is innate, and protected by the
Associate Justice Associate Justice
State. Independent and fair-minded judges
themselves are under a moral duty to uphold the
Constitution as the embodiment of the rule of law, by
ADOLFO S. PRESBITERO J.
reason of their expression of consent to do so when
AZCUNA VELASCO, JR.
they take the oath of office, and because they are
Associate Justice Associate Justice
entrusted by the people to uphold the law.81

Even as the implementation of moral norms remains

an indispensable complement to governance, that ANTONIO
MINITA V. CHICO-
prerogative is hardly absolute, especially in the face EDUARDO B.
NAZARIO
of the norms of due process of liberty. And while the NACHUR
Associate Justice
tension may often be left to the courts to relieve, it is Associate Justice
possible for the government to avoid the
constitutional conflict by employing more judicious,
TERESITA
less drastic means to promote morality. (On Sick Leave)
LEONARDO DE
ARTURO D. BRION
WHEREFORE, the Petition is GRANTED. The Decision CASTRO
Associate Justice
of the Court of Appeals is REVERSED, and the Decision Associate Justice
of the Regional Trial Court of Manila, Branch 9,
is REINSTATED. Ordinance No. 7774 is hereby (On Official Leave)
declared UNCONSTITUTIONAL. No pronouncement as DIOSDADO M. PERALTA
to costs. Associate Justice

SO ORDERED. CERTIFICATION

DANTE O. TINGA Pursuant to Article VIII, Section 13 of the Constitution,

Associate Justice it is hereby certified that the conclusions in the above
Decision were reached in consultation before the
WE CONCUR:
case was assigned to the writer of the opinion of the
REYNATO S. PUNO Court.
Chief Justice
REYNATO S. PUNO
Chief Justice
CONSUELO
LEONARDO A.
YNARES-
QUISUMBING
SANTIAGO
Associate Justice
Associate Justice
Footnotes

1
G.R. 118127, 12 April 2005, 455 SCRA 308.
(On Official Leave) MA. ALICIA
ANTONIO T. AUSTRIA- 2
See rollo, pp. 4-41.
CARPIO MARTINEZ
3
Associate Justice Associate Justice Id. at 42-59. Penned by Associate Justice Jaime M.
Lantin, concurred in by Associate Justices Ricardo P.
 28
Galvez (later, Solicitor-General) and Antonio P. Gladstone, Realtors v. Village of Bellwood, 441 U.S.
Solano. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979).

4 29
Id. at 46. See Domingo v. Carague, G.R. No. 161065, 15 April
2005, 456 SCRA 450. See also Macasiano v. National
5
Id. at 62-69. Housing Authority, G.R. No. 107921, 1 July 1993, 224
6 SCRA 236.
Id. at 45-46.
30
7 468 U.S. 737 (1984).
Id. at 70-77.
31
8 Supra note 29.
Id. at 47.
32
9 499 U.S. 400 (1991).
Id.
33
10 Id. at p 410-411.
Id.
34
11 See Kelsey McCowan Heilman, The Rights of
Id. at 48.
Others: Protection and Advocacy Organizations
12
Id. at 81. Associational Standing to Sue, 157 U. Pa. L. Rev. 237,
for a general discussion on advocacy groups.
13
Id. at 82-83.
35
381 U.S. 479(1965).
14
Id. at 84-99.
36
Id. at 481.
15
Id. at 104-105.
37
429 U.S. 190 (1976).
16
Id. at 49.
38
Id. at 194.
17
Id. at 52.
39
Chavez v. Comelec, G.R. No. 162777, 31 August
18
Id. at 120. 2004, 437 SCRA 415; Adiong v. Comelec, G.R. No.
19
103956, 31 March 1992, 207 SCRA 712.
No. L-74457, 20 March 1987, 148 SCRA 659.
40
20
127 Phil. 306 (1967).
Rollo, pp. 129-145.
41
21
City of Manila v. Laguio, Jr., supra note 1; Tatel v.
Id. at 158.
Municipality of Virac, G.R. No. 40243, 11 March 1992,
22
Id. at 53. 207 SCRA 157, 161; Solicitor General v. Metropolitan
Manila Authority, G.R. No. 102782, 11 December
23
Id. 1991, 204 SCRA 837, 845; Magtajas v. Pryce
Properties Corp., Inc., G.R. No. 111097, 20 July 1994,
24
Id. at 43-59. 234 SCRA 255, 268-267.
25
Id. at 4-40. 42
Ermita-Malate Hotel and Motel Operators
26 Association, Inc. v. City Mayor of Manila, 127 Phil. 306
Allen v. Wright, 468 U.S. 737 (1984).
(1967).
27
Const., Art. VIII , Sec. 5, Sanlakas v. Executive 43
JMM Promotion and Management Inc. v. Court of
Secretary Reyes, 466 Phil. 482 (2004).
Appeals, 329 Phil. 87, 94 (1996) citing Rubi v.
Provincial Board of Mindoro, 39 Phil. 660 (1919).
44 60
U.S. v. Rodriguez, 38 Phil. 759. Mendoza, J., Concurring Opinion in Estrada v.
Sandiganbayan, G.R. No. 148560, 19 November 2001,
45
People v. Chan, 65 Phil. 611 (1938). 369 SCRA 394.
46
Javier v. Earnshaw, 64 Phil. 626 (1937). 61
Id.
47
Pedro v. Provincial Board of Rizal, 56 Phil. 123 62
Bush v. Gore, 531 U.S. 98 (2000).
(1931).
63
Boddie v. Connecticut, 401 U.S. 371 (1971).
48
See U.S. v. Ling Su Fan, 10 Phil. 104 (1908); Insular
64
Government v. Ling Su Fan, 15 Phil. 58 (1910). Shapiro v. Thompson, 394 U.S. 618 (1969). It has
been opined by Chemerinsky that the use of the equal
49
Lopez v. Director of Lands, 47 Phil. 23, 32 (1924). protection clause was to avoid the use of substantive
50 due process since the latter fell into disfavor in the
See City of Manila v. Hon. Laguio, Jr., supra note 1
United States. See Erwin Chemerinsky, Constitutional
at 330 citing CHEMERINSKY, ERWIN,
Law, Principles and Policies (2nd ed. 2002).
CONSTITUTIONAL LAW PRINCIPLES AND POLICIES,
2nd Ed. 523 (2002). 65
Morfe v. Mutuc, 130 Phil. 415 (1968).
51
304 U.S. 144 (1938). 66
Id. at 440.
52
Id, at 152. 67
City of Manila v. Laguio, Jr., supra note 1 at 336-
53 337.
Craig v. Boren, 429 U.S. 190 (1976).
68
54 Rollo, p. 258.
Clark v. Jeter, 486 U.S. 456 (1988).
69
55 "Motel patrons who are single and unmarried may
429 U.S. 190 (1976).
invoke this right to autonomy to consummate their
56
404 U.S. 71 (1971). bonds in intimate sexual conduct within the motel's
premises — be it stressed that their consensual sexual
57
Central Bank Employee’s Association v. Bangko behavior does not contravene any fundamental state
Sentral ng Pilipinas, 487 Phil. 531 (2004); Association policy as contained in the Constitution. (See
of Small Landowners in the Philippines v. Secretary of Concerned Employee v. Glenda Espiritu Mayor, A.M.
Agrarian Reform, G.R. Nos. 78742, 79310, 79744, and No. P-02-1564, 23 November 2004) Adults have a
79777, July 14, 1989, 175 SCRA 343; In Ermita-Malate, right to choose to forge such relationships with others
supra note 1 at 324, the Court in fact noted: "if the in the confines of their own private lives and still
liberty involved were freedom of the mind or the retain their dignity as free persons. The liberty
person, the standard for the validity of government protected by the Constitution allows persons the
acts is much more rigorous and exacting, but where right to make this choice. Their right to liberty under
the liberty curtailed affects what are at the most the due process clause gives them the full right to
rights of property, the permissible scope of regulatory engage in their conduct without intervention of the
measures is wider." government, as long as they do not run afoul of the
58
law. Liberty should be the rule and restraint the
Central Bank Employee’s Association v. Bangko
exception.
Sentral ng Pilipinas, supra note 57.

59
Liberty in the constitutional sense not only means
Id.
freedom from unlawful government restraint; it must
include privacy as well, if it is to be a repository of
freedom. The right to be let alone is the beginning of
all freedom — it is the most comprehensive of rights
and the right most valued by civilized men." City of
Manila v. Hon. Laguio, Jr. supra note 1 at 337-338.
70
City of Manila v. Laguio, Jr., supra note 1 at 338-
339.
71
Metro Manila Development Authority v. Viron
Transportation Co., G.R. Nos. 170656 and 170657, 15
August 2007, 530 SCRA 341.
72
U.S. v. Toribio, 15 Phil. 85 (1910).
73
130 Phil. 415 (1968).
74
Carlos Superdrug v. DSWD, G.R. No. 166494, June
29, 2007, Alalayan v. National Power Corporation, 24
Phil. 172 (1968); U.S. v. Salaveria, 39 Phil. 102 (1918).
75
Philippine Press Institute v. Comelec, 314 Phil. 131
(1995).
76
Supra note 1.
77
City of Manila v. Hon. Laguio, Jr., supra note 1; De
La Cruz, et al. v. Hon. Paras, et al., 208 Phil. 490
(1983); Ermita-Malate Hotel and Motel Operations
Association, Inc. v. City Mayor of Manila, supra note
42.
78
"The end of the state is not mere life; it is, rather, a
good quality of life." Therefore any state "which is
truly so called, and is not merely one in name, must
devote itself to the end of encouraging goodness.
Otherwise, a political association sinks into a mere
alliance…" The law "should be a rule of life such as will
make the members of a [state] good and just."
Otherwise it "becomes a mere covenant – or (in the
phrase of the Sophist Lycophron) ‘a guarantor of
men’s rights against one another.’" Politics II.9.6-
8.1280 31-1280bii; cited in Hamburger, M., Morals
and Law: The Growth of Aristotle’s Legal Theory (1951
ed.), p. 178.
79
Greenwalt, K., Conflicts of Law and Morality (1989
ed.), at 38.
80
Steven G., Render Unto Caesar that which is
Caesars, and unto God that which is God’s, 31 Harv.
J.L. & Pub. Pol'y 495. He cites the example of the
failed Twentieth (?) Amendment to the U.S.
Constitution, which prohibited the sale and
consumption of liquor, where it was clear that the
State cannot justly and successfully regulate
consumption of alcohol, when huge portions of the
population engage in its consumption.
See also Posner, Richard H., The Problematics of
Moral And Legal Theory, The Belknap Press of
Harvard University Press (2002). He writes:
. . . Holmes warned long ago of the pitfalls of
misunderstanding law by taking its moral vocabulary
too seriously. A big part of legal education consists of
showing students how to skirt those pitfalls. The law
uses moral terms in part because of its origin, in part
to be impressive, in part to speak a language that the
laity, to whom the commands of the law are
addressed, is more likely to understand – and in part,
because there is a considerable overlap between law
and morality. The overlap, however, is too limited to
justify trying to align these two systems of social
control (the sort of project that Islamic nations such
as Iran, Pakistan, and Afghanistan have been engaged
in of late). It is not a scandal when the law to
pronounce it out of phase with current moral feeling.
If often is, and for good practical reasons (in
particular, the law is a flywheel, limiting the effects of
wide swings in public opinion). When people make
that criticism—as many do of the laws, still found on
the statute books of many states, punishing
homosexual relations—what they mean is that the
law neither is supported by public opinion nor serves
any temporal purpose, even that of stability, that it is
merely a vestige, an empty symbol.
81
See Burton, S., Judging in Good Faith, (1992 ed.), at
218.
EN BANC
2. G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding
Judge, Regional Trial Court-Branch 41, Bacolod City,
and ROSALIE JAYPE-GARCIA, for herself and in behalf
of minor children, namely: JO-ANN, JOSEPH
EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the
Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million –
adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their
own bodies just as Christ loved the church and gave
himself up for her2 failed to prevent, or even to curb,
the pervasiveness of violence against Filipino women.
The National Commission on the Role of Filipino
Women (NCRFW) reported that, for the years 2000-
2003, "female violence comprised more than 90o/o
of all forms of abuse and violence and more than 90%
of these reported cases were committed by the
women's intimate partners such as their husbands
and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited
advocacy by women's groups, Congress enacted
Republic Act (R.A.) No. 9262, entitled "An Act Defining
Violence Against Women and Their Children,
Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other
Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and
criminalizes acts of violence against women and their
children (VAWC) perpetrated by women's intimate
partners, i.e, husband; former husband; or any
person who has or had a sexual or dating relationship,
or with whom the woman has a common child. 5 The
law provides for protection orders from the barangay
and the courts to prevent the commission of further
acts of VAWC; and outlines the duties and
responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers,
health care providers, and other local government
officials in responding to complaints of VAWC or
requests for assistance.
A husband is now before the Court assailing the
constitutionality of R.A. 9262 as being violative of the
equal protection and due process clauses, and an
undue delegation of judicial power to barangay
officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private
respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-
797) before the Regional Trial Court (RTC) of Bacolod
City for the issuance of a Temporary Protection Order
(TPO) against her husband, Jesus C. Garcia
(petitioner), pursuant to R.A. 9262. She claimed to be
a victim of physical abuse; emotional, psychological,
and economic violence as a result of marital infidelity
on the part of petitioner, with threats of deprivation
of custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when
she was 34 years old and the former was eleven years
her senior. They have three (3) children, namely: Jo-
Ann J. Garcia, 17 years old, who is the natural child of
petitioner but whom private respondent adopted;
Jessie Anthone J. Garcia, 6 years old; and Joseph
Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and
faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of
Filipino-Chinese descent, is dominant, controlling,
and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and
deliberately isolated her from her friends. When she
took up law, and even when she was already working
part time at a law office, petitioner trivialized her
ambitions and prevailed upon her to just stay at
home. He was often jealous of the fact that his
attractive wife still catches the eye of some men, at
one point threatening that he would have any man
eyeing her killed.9
Things turned for the worse when petitioner took up
an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their
sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He even
boasted to the household help about his sexual
relations with said bank manager. Petitioner told
private respondent, though, that he was just using
the woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that
left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner grabbed
private respondent on both arms and shook her with
such force that caused bruises and hematoma. At
another time, petitioner hit private respondent
forcefully on the lips that caused some bleeding.
Petitioner sometimes turned his ire on their
daughter, Jo-Ann, who had seen the text messages he
sent to his paramour and whom he blamed for
squealing on him. He beat Jo-Ann on the chest and
slapped her many times. When private respondent
decided to leave petitioner, Jo-Ann begged her
mother to stay for fear that if the latter leaves,
petitioner would beat her up. Even the small boys are
aware of private respondent's sufferings. Their 6-
year-old son said that when he grows up, he would
beat up his father because of his cruelty to private
respondent.11
All the emotional and psychological turmoil drove
private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted
suicide by cutting her wrist. She was found by her son
bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days
in which time petitioner never bothered to visit, nor
apologized or showed pity on her. Since then, private
respondent has been undergoing therapy almost
every week and is taking anti-depressant
medications.12
When private respondent informed the management
of Robinson's Bank that she intends to file charges
against the bank manager, petitioner got angry with
her for jeopardizing the manager's job. He then
packed his things and told private respondent that he
was leaving her for good. He even told private
respondent's mother, who lives with them in the
family home, that private respondent should just
accept his extramarital affair since he is not
cohabiting with his paramour and has not sired a child
with her.13
Private respondent is determined to separate from
petitioner but she is afraid that he would take her
children from her and deprive her of financial
support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get
a single centavo.14
Petitioner controls the family businesses involving
mostly the construction of deep wells. He is the
President of three corporations – 326 Realty
Holdings, Inc., Negros Rotadrill Corporation, and J-
Bros Trading Corporation – of which he and private
respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations,
private respondent merely draws a monthly salary of
₱20,000.00 from one corporation only, the Negros
Rotadrill Corporation. Household expenses
amounting to not less than ₱200,000.00 a month are
paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly
salary of ₱60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and
other benefits in hundreds of thousands of pesos
from the corporations.16 After private respondent
confronted him about the affair, petitioner forbade
her to hold office at JBTC Building, Mandalagan,
where all the businesses of the corporations are
conducted, thereby depriving her of access to full
information about said businesses. Until the filing of
the petition a quo, petitioner has not given private
respondent an accounting of the businesses the value
of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an
imminent danger of violence against the private
respondent and her children exists or is about to
recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted
hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is
hereby:
a) Ordered to remove all his personal belongings from
the conjugal dwelling or family home within 24 hours
from receipt of the Temporary Restraining Order and
if he refuses, ordering that he be removed by police
officers from the conjugal dwelling; this order is
enforceable notwithstanding that the house is under
the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to
allow the Petitioner (private respondent herein) to
enter the conjugal dwelling without any danger from
the Respondent.
After the Respondent leaves or is removed from the
conjugal dwelling, or anytime the Petitioner decides
to return to the conjugal dwelling to remove things,
the Petitioner shall be assisted by police officers when
re-entering the family home.
The Chief of Police shall also give the Petitioner police
assistance on Sunday, 26 March 2006 because of the
danger that the Respondent will attempt to take her
children from her when he arrives from Manila and
finds out about this suit.
b) To stay away from the petitioner and her children,
mother and all her household help and driver from a
distance of 1,000 meters, and shall not enter the gate
of the subdivision where the Petitioner may be
temporarily residing.
c) Not to harass, annoy, telephone, contact or
otherwise communicate with the Petitioner, directly
or indirectly, or through other persons, or contact
directly or indirectly her children, mother and
household help, nor send gifts, cards, flowers, letters
and the like. Visitation rights to the children may be
subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM
caliber firearm and a Walther PPK and ordering the
Philippine National Police Firearms and Explosives
Unit and the Provincial Director of the PNP to cancel
all the Respondent's firearm licenses. He should also
be ordered to surrender any unlicensed firearms in
his possession or control.
e) To pay full financial support for the Petitioner and
the children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits,
bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March
2006, which himself and as President of the
corporations and his Comptroller, must submit to the
Court not later than 2 April 2006. Thereafter, an
accounting of all these funds shall be reported to the
court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.
h) To ensure compliance especially with the order
granting support pendente lite, and considering the
financial resources of the Respondent and his threat
that if the Petitioner sues she will not get a single
centavo, the Respondent is ordered to put up a BOND
TO KEEP THE PEACE in the amount of FIVE MILLION
PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private
respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included
the following additional provisions:
i) The petitioners (private respondents herein) are
given the continued use of the Nissan Patrol and the
Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and
occupation of the house in Parañaque, the continued
use of the Starex van in Metro Manila, whenever they
go to Manila.
k) Respondent is ordered to immediately post a bond
to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner
provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php 150,000.00) per month plus
rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support
could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed
an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the
renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain
a notice of hearing. He further asked that the TPO be
modified by (1) removing one vehicle used by private
respondent and returning the same to its rightful
owner, the J-Bros Trading Corporation, and (2)
cancelling or reducing the amount of the bond from
₱5,000,000.00 to a more manageable level at
₱100,000.00.
Subsequently, on May 23, 2006, petitioner
moved22 for the modification of the TPO to allow him
visitation rights to his children.
On May 24, 2006, the TPO was renewed and
extended yet again, but subject only to the following
modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the
clothes and other personal belongings of Rosalie and
her children to Judge Jesus Ramos, co-counsel for
Petitioner, within 24 hours from receipt of the
Temporary Protection Order by his counsel,
otherwise be declared in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of
furniture and equipment in the conjugal house in
Pitimini St., Capitolville Subdivision, Bacolod City
within 24 hours from receipt of the Temporary
Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the
Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight
(8) hours from receipt of the Temporary Protection
Order by his counsel, and that he cannot return until
48 hours after the petitioners have left, so that the
petitioner Rosalie and her representatives can
remove things from the conjugal home and make an
inventory of the household furniture, equipment and
other things in the conjugal home, which shall be
submitted to the Court.
d) Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes
of the three petitioners (sic) children within 24 hours
from receipt of the Temporary Protection Order by
his counsel, otherwise be declared in indirect
contempt of Court;
e) That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24
hours from receipt of the Temporary Protection
Order by his counsel;
f) That respondent shall pay petitioner educational
expenses of the children upon presentation of proof
of payment of such expenses.23
Claiming that petitioner continued to deprive them of
financial support; failed to faithfully comply with the
TPO; and committed new acts of harassment against
her and their children, private respondent filed
another application24 for the issuance of a TPO ex
parte. She alleged inter
alia that petitioner contrived a replevin suit against
himself by J-Bros Trading, Inc., of which the latter was
purportedly no longer president, with the end in view
of recovering the Nissan Patrol and Starex Van used
by private respondent and the children. A writ of
replevin was served upon private respondent by a
group of six or seven policemen with long firearms
that scared the two small boys, Jessie Anthone and
Joseph Eduard.25
While Joseph Eduard, then three years old, was
driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy
resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their
daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-
Ann subsequently filed a criminal complaint against
her father for violation of R.A. 7610, also known as
the "Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers
initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and
illegal detention against private respondent. This
came about after private respondent, armed with a
TPO, went to said home to get her and her children's
belongings. Finding some of her things inside a
housemaid's (Sheryl Jamola) bag in the maids' room,
private respondent filed a case for qualified theft
against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective
for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is
hereby:
1) Prohibited from threatening to commit or
committing, personally or through another, acts of
violence against the offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form
with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his
friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children, Rosalie
J. Garcia's three brothers, her mother Primitiva Jaype,
cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard
Darwin Gayona and the petitioner's other household
helpers from a distance of 1,000 meters, and shall not
enter the gate of the subdivision where the
Petitioners are temporarily residing, as well as from
the schools of the three children; Furthermore, that
respondent shall not contact the schools of the
children directly or indirectly in any manner including,
ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children
through the schools and the TPO will be rendered
nugatory;
4) Directed to surrender all his firearms including
.9MM caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental
for the period from August 6 to September 6, 2006;
and support in arrears from March 2006 to August
2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-
2007 the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan
Patrol with Plate No. FEW 508 and a Starex van with
Plate No. FFD 991 and should the respondent fail to
deliver said vehicles, respondent is ordered to
provide the petitioner another vehicle which is the
one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell,
lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua
Garcia only and those in which the conjugal
partnership of gains of the Petitioner Rosalie J. Garcia
and respondent have an interest in, especially the
conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other
properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie
J. Garcia and the respondent have an interest in and
listed in Annexes "I," "I-1," and "I-2," including
properties covered by TCT Nos. T-186325 and T-
168814;
9) Ordered that the Register of Deeds of Bacolod City
and E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are ordered
not to allow the transfer, sale, encumbrance or
disposition of these above-cited properties to any
person, entity or corporation without the personal
presence of petitioner Rosalie J. Garcia, who shall
affix her signature in the presence of the Register of
Deeds, due to the fear of petitioner Rosalie that her
signature will be forged in order to effect the
encumbrance or sale of these properties to defraud
her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial
court extended the aforequoted TPO for another ten
(10) days, and gave petitioner a period of five (5) days
within which to show cause why the TPO should not
be renewed, extended, or modified. Upon
petitioner's manifestation,30 however, that he has not
received a copy of private respondent's motion to
modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be
furnished a copy of said motion. Nonetheless, an
Order32 dated a day earlier, October 5, had already
been issued renewing the TPO dated August 23, 2006.
The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not
yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby renewed
and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such
modifications as may be ordered by the court.
After having received a copy of the foregoing Order,
petitioner no longer submitted the required
comment to private respondent's motion for renewal
of the TPO arguing that it would only be an "exercise
in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797,
petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No.
01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality
of R.A. 9262 for being violative of the due process and
the equal protection clauses, and (2) the validity of
the modified TPO issued in the civil case for being "an
unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day
Temporary Restraining Order36 (TRO) against the
enforcement of the TPO, the amended TPOs and
other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the
appellate court dismissed36 the petition for failure of
petitioner to raise the constitutional issue in his
pleadings before the trial court in the civil case, which
is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking
to annul the protection orders issued by the trial
court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing
Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now
before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE
EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE
VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS
ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE
EQUAL PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE
MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS
COUNTER TO THE DUE PROCESS CLAUSE OF THE
CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
THE LAW DOES VIOLENCE TO THE POLICY OF THE
STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by
petitioner against the constitutionality of R.A. 9262,
we shall first tackle the propriety of the dismissal by
the appellate court of the petition for prohibition (CA-
G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality
must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be
raised in the trial, and if not raised in the trial court, it
will not be considered on appeal.39 Courts will not
anticipate a question of constitutional law in advance
of the necessity of deciding it.40
In defending his failure to attack the constitutionality
of R.A. 9262 before the RTC of Bacolod City, petitioner
argues that the Family Court has limited authority and
jurisdiction that is "inadequate to tackle the complex
issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to
consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts
are special courts, of the same level as Regional Trial
Courts. Under R.A. 8369, otherwise known as the
"Family Courts Act of 1997," family courts have
exclusive original jurisdiction to hear and decide cases
of domestic violence against women and
children.42 In accordance with said law, the Supreme
Court designated from among the branches of the
Regional Trial Courts at least one Family Court in each
of several key cities identified.43 To achieve harmony
with the first mentioned law, Section 7 of R.A. 9262
now provides that Regional Trial Courts designated as
Family Courts shall have original and exclusive
jurisdiction over cases of VAWC defined under the
latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated
as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and
their children under this law. In the absence of such
court in the place where the offense was committed,
the case shall be filed in the Regional Trial Court
where the crime or any of its elements was
committed at the option of the complainant.
(Emphasis supplied)
Inspite of its designation as a family court, the RTC of
Bacolod City remains possessed of authority as a
court of general original jurisdiction to pass upon all
kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship,
naturalization, admiralty or insolvency.44 It is settled
that RTCs have jurisdiction to resolve the
constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial
power to determine what are the valid and binding
laws by the criterion of their conformity to the
fundamental law."46The Constitution vests the power
of judicial review or the power to declare the
constitutionality or validity of a law, treaty,
international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation
not only in this Court, but in all RTCs.47 We said in J.M.
Tuason and Co., Inc. v. CA48 that, "plainly the
Constitution contemplates that the inferior courts
should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts
in cases where such constitutionality happens to be in
issue." Section 5, Article VIII of the 1987 Constitution
reads in part as follows:
SEC. 5. The Supreme Court shall have the following
powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts
in:
a. All cases in which the constitutionality or validity of
any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.
xxxx
Thus, contrary to the posturing of petitioner, the issue
of constitutionality of R.A. 9262 could have been
raised at the earliest opportunity in his Opposition to
the petition for protection order before the RTC of
Bacolod City, which had jurisdiction to determine the
same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on
Violence Against Women and Their Children, lays
down a new kind of procedure requiring the
respondent to file an opposition to the petition and
not an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent
may file an opposition to the petition which he
himself shall verify. It must be accompanied by the
affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not
be issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint,
but any cause of action which could be the subject
thereof may be litigated in a separate civil action.
(Emphasis supplied)
We cannot subscribe to the theory espoused by
petitioner that, since a counterclaim, cross-claim and
third-party complaint are to be excluded from the
opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined
as any claim for money or other relief which a
defending party may have against an opposing
party.50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the
transaction or occurrence that is the subject matter
either of the original action or of a counterclaim
therein.51Finally, a third-party complaint is a claim
that a defending party may, with leave of court, file
against a person not a party to the action for
contribution, indemnity, subrogation or any other
relief, in respect of his opponent's claim.52As pointed
out by Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action
that could be the subject of a counterclaim, cross-
claim or a third-party complaint. Therefore, it is not
prohibited from being raised in the opposition in view
of the familiar maxim expressio unius est exclusio
alterius.
Moreover, it cannot be denied that this issue affects
the resolution of the case a quo because the right of
private respondent to a protection order is founded
solely on the very statute the validity of which is being
attacked53 by petitioner who has sustained, or will
sustain, direct injury as a result of its enforcement.
The alleged unconstitutionality of R.A. 9262 is, for all
intents and purposes, a valid cause for the non-
issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are
summary in nature should not have deterred
petitioner from raising the same in his Opposition.
The question relative to the constitutionality of a
statute is one of law which does not need to be
supported by evidence.54 Be that as it may, Section 25
of A.M. No. 04-10-11-SC nonetheless allows the
conduct of a hearing to determine legal issues, among
others, viz:
SEC. 25. Order for further hearing. - In case the court
determines the need for further hearing, it may issue
an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that
have been marked and will be presented;
(d) Names of witnesses who will be ordered to
present their direct testimonies in the form of
affidavits; and
(e) Schedule of the presentation of evidence by both
parties which shall be done in one day, to the extent
possible, within the 30-day period of the effectivity of
the temporary protection order issued. (Emphasis
supplied)
To obviate potential dangers that may arise
concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC
provides that if a temporary protection order issued
is due to expire, the trial court may extend or renew
the said order for a period of thirty (30) days each
time until final judgment is rendered. It may likewise
modify the extended or renewed temporary
protection order as may be necessary to meet the
needs of the parties. With the private respondent
given ample protection, petitioner could proceed to
litigate the constitutional issues, without necessarily
running afoul of the very purpose for the adoption of
the rules on summary procedure.
In view of all the foregoing, the appellate court
correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order
(CA-G.R. CEB - SP. No. 01698). Petitioner may have
proceeded upon an honest belief that if he finds
succor in a superior court, he could be granted an
injunctive relief. However, Section 22(j) of A.M. No.
04-10-11-SC expressly disallows the filing of a petition
for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence,
the 60-day TRO issued by the appellate court in this
case against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto
was improper, and it effectively hindered the case
from taking its normal course in an expeditious and
summary manner.
As the rules stand, a review of the case by appeal or
certiorari before judgment is prohibited. Moreover, if
the appeal of a judgment granting permanent
protection shall not stay its enforcement,55 with more
reason that a TPO, which is valid only for thirty (30)
days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be
unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v.
Harris, Jr.,58 the Supreme Court of the United States
declared, thus:
Federal injunctions against state criminal statutes,
either in their entirety or with respect to their
separate and distinct prohibitions, are not to be
granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the
community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of
such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone
ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable
injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the
status quo until the trial court hears fully the merits
of the case. It bears stressing, however, that
protection orders are granted ex parte so as to
protect women and their children from acts of
violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall
not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching
implications. We have, time and again, discharged our
solemn duty as final arbiter of constitutional issues,
and with more reason now, in view of private
respondent's plea in her Comment59 to the instant
Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to
prevent and criminalize spousal and child abuse,
which could very well be committed by either the
husband or the wife, gender alone is not enough basis
to deprive the husband/father of the remedies under
the law.60
A perusal of the deliberations of Congress on Senate
Bill No. 2723,61 which became R.A. 9262, reveals that
while the sponsor, Senator Luisa Pimentel-Ejercito
(better known as Senator Loi Estrada), had originally
proposed what she called a "synthesized
measure"62 – an amalgamation of two measures,
namely, the "Anti-Domestic Violence Act" and the
"Anti-Abuse of Women in Intimate Relationships
Act"63 – providing protection to "all family members,
leaving no one in isolation" but at the same time
giving special attention to women as the "usual
victims" of violence and abuse,64 nonetheless, it was
eventually agreed that men be denied protection
under the same measure. We quote pertinent
portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on
record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me
that if we are to include domestic violence apart from
against women as well as other members of the
household, including children or the husband, they
fear that this would weaken the efforts to address
domestic violence of which the main victims or the
bulk of the victims really are the wives, the spouses or
the female partners in a relationship. We would like
to place that on record. How does the good Senator
respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this
group of women who call themselves "WIIR" Women
in Intimate Relationship. They do not want to include
men in this domestic violence. But plenty of men are
also being abused by women. I am playing safe so I
placed here members of the family, prescribing
penalties therefor and providing protective measures
for victims. This includes the men, children, live-in,
common-law wives, and those related with the
family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was
the discussion whether to limit this to women and not
to families which was the issue of the AWIR group.
The understanding that I have is that we would be
having a broader scope rather than just women, if I
remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator
Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in
support of the measure. Do not get me wrong.
However, I believe that there is a need to protect
women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless,
voiceless women who have not had the opportunity
to file a case against their spouses, their live-in
partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the
men, assuming they can at all be abused by the
women or their spouses, then it would not equalize
the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier
conversations, concurs with this position. I am sure
that the men in this Chamber who love their women
in their lives so dearly will agree with this
representation. Whether we like it or not, it is an
unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given
equal opportunities especially in the domestic
environment where the macho Filipino man would
always feel that he is stronger, more superior to the
Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor
say?
Senator Estrada. Mr. President, before accepting this,
the committee came up with this bill because the
family members have been included in this proposed
measure since the other members of the family other
than women are also possible victims of violence.
While women are most likely the intended victims,
one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few
cases, men also stand to be victimized and that
children are almost always the helpless victims of
violence. I am worried that there may not be enough
protection extended to other family members
particularly children who are excluded. Although
Republic Act No. 7610, for instance, more or less,
addresses the special needs of abused children. The
same law is inadequate. Protection orders for one are
not available in said law.
I am aware that some groups are apprehensive about
granting the same protection to men, fearing that
they may use this law to justify their abusive behavior
against women. However, we should also recognize
that there are established procedures and standards
in our courts which give credence to evidentiary
support and cannot just arbitrarily and whimsically
entertain baseless complaints.
Mr. President, this measure is intended to harmonize
family relations and to protect the family as the basic
social institution. Though I recognize the unequal
power relations between men and women in our
society, I believe we have an obligation to uphold
inherent rights and dignity of both husband and wife
and their immediate family members, particularly
children.
While I prefer to focus mainly on women, I was
compelled to include other family members as a
critical input arrived at after a series of
consultations/meetings with various NGOs, experts,
sports groups and other affected sectors, Mr.
President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission
of the other senators.
Senator Sotto. Yes, with the permission of the two
ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto
III is recognized.
Senator Sotto. I presume that the effect of the
proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill
and focus specifically on women alone. That will be
the net effect of that proposed amendment. Hearing
the rationale mentioned by the distinguished
sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not
sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or
not because if she is going to accept this, I will
propose an amendment to the amendment rather
than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr.
President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to
the amendment.
The President Pro Tempore. Before we act on the
amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe
the rationale used by the distinguished proponent of
the amendment. As a matter of fact, I tend to agree.
Kung may maaabuso, mas malamang iyong babae
kaysa sa lalake. At saka iyong mga lalake, puwede na
talagang magulpi iyan. Okey lang iyan. But I cannot
agree that we remove the children from this
particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children
are very much abused. As a matter of fact, it is not
limited to minors. The abuse is not limited to seven,
six, 5-year-old children. I have seen 14, 15-year-old
children being abused by their fathers, even by their
mothers. And it breaks my heart to find out about
these things.
Because of the inadequate existing law on abuse of
children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of
children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes,
we remove the aspect of the men in the bill but not
the children.
Senator Legarda. I agree, Mr. President, with the
Minority Leader.
The President Pro Tempore. Effectively then, it will be
women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
[Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the
wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real
motivations and wisdom of the members of Congress
in limiting the protection against violence and abuse
under R.A. 9262 to women and children only. No
proper challenge on said grounds may be entertained
in this proceeding. Congress has made its choice and
it is not our prerogative to supplant this judgment.
The choice may be perceived as erroneous but even
then, the remedy against it is to seek its amendment
or repeal by the legislative. By the principle of
separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and
expediency of any law.68 We only step in when there
is a violation of the Constitution. However, none was
sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal
protection of the laws.
Equal protection simply requires that all persons or
things similarly situated should be treated alike, both
as to rights conferred and responsibilities imposed.
The oft-repeated disquisition in the early case of
Victoriano v. Elizalde Rope Workers' Union69 is
instructive:
The guaranty of equal protection of the laws is not a
guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional
prohibition against inequality, that every man,
woman and child should be affected alike by a
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity
of rights. The Constitution does not require that
things which are different in fact be treated in law as
though they were the same. The equal protection
clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is
limited either in the object to which it is directed or
by the territory within which it is to operate.
The equal protection of the laws clause of the
Constitution allows classification. Classification in
law, as in the other departments of knowledge or
practice, is the grouping of things in speculation or
practice because they agree with one another in
certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is
that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of
a valid classification is that it be reasonable, which
means that the classification should be based on
substantial distinctions which make for real
differences; that it must be germane to the purpose
of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each
member of the class. This Court has held that the
standard is satisfied if the classification or distinction
is based on a reasonable foundation or rational basis
and is not palpably arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential
yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as
such, did not violate the equal protection clause by
favoring women over men as victims of violence and
abuse to whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and
men; the fact that women are more likely than men
to be victims of violence; and the widespread gender
bias and prejudice against women all make for real
differences justifying the classification under the law.
As Justice McIntyre succinctly states, "the
accommodation of differences ... is the essence of
true equality."70
A. Unequal power relationship between men and
women
According to the Philippine Commission on Women
(the National Machinery for Gender Equality and
Women's Empowerment), violence against women
(VAW) is deemed to be closely linked with the
unequal power relationship between women and
men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think
men are the leaders, pursuers, providers, and take on
dominant roles in society while women are nurturers,
men's companions and supporters, and take on
subordinate roles in society. This perception leads to
men gaining more power over women. With power
comes the need to control to retain that power. And
VAW is a form of men's expression of controlling
women to retain power.71
The United Nations, which has long recognized VAW
as a human rights issue, passed its Resolution 48/104
on the Declaration on Elimination of Violence Against
Women on December 20, 1993 stating that "violence
against women is a manifestation of historically
unequal power relations between men and women,
which have led to domination over and discrimination
against women by men and to the prevention of the
full advancement of women, and that violence
against women is one of the crucial social
mechanisms by which women are forced into
subordinate positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the
historical and social context of gender-based violence
and developments in advocacies to eradicate VAW, in
his remarks delivered during the Joint Launching of
R.A. 9262 and its Implementing Rules last October 27,
2004, the pertinent portions of which are quoted
hereunder:
History reveals that most societies sanctioned the use
of violence against women. The patriarch of a family
was accorded the right to use force on members of
the family under his control. I quote the early studies:
Traditions subordinating women have a long history
rooted in patriarchy – the institutional rule of men.
Women were seen in virtually all societies to be
naturally inferior both physically and intellectually. In
ancient Western societies, women whether slave,
concubine or wife, were under the authority of men.
In law, they were treated as property.
The Roman concept of patria potestas allowed the
husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism,
Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated
structure of society.
English feudal law reinforced the tradition of male
control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying
husband and wife were one and that one was the
husband. However, in the late 1500s and through the
entire 1600s, English common law began to limit the
right of husbands to chastise their wives. Thus,
common law developed the rule of thumb, which
allowed husbands to beat their wives with a rod or
stick no thicker than their thumb.
In the later part of the 19th century, legal recognition
of these rights to chastise wives or inflict corporeal
punishment ceased. Even then, the preservation of
the family was given more importance than
preventing violence to women.
The metamorphosis of the law on violence in the
United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became
the first appellate court to strike down the common
law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's
wife with a stick, to pull her hair, choke her, spit in her
face or kick her about the floor, or to inflict upon her
like indignities, is not now acknowledged by our law...
In person, the wife is entitled to the same protection
of the law that the husband can invoke for himself.
As time marched on, the women's advocacy
movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus.
They considered the evils of alcoholism as the root
cause of wife abuse. Hence, they demonstrated and
picketed saloons, bars and their husbands' other
watering holes. Soon, however, their crusade was
joined by suffragette movements, expanding the
liberation movement's agenda. They fought for
women's right to vote, to own property, and more.
Since then, the feminist movement was on the roll.
The feminist movement exposed the private
invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an
important public concern. No less than the United
States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
In an average 12-month period in this country,
approximately two million women are the victims of
severe assaults by their male partners. In a 1985
survey, women reported that nearly one of every
eight husbands had assaulted their wives during the
past year. The [American Medical Association] views
these figures as "marked underestimates," because
the nature of these incidents discourages women
from reporting them, and because surveys typically
exclude the very poor, those who do not speak
English well, and women who are homeless or in
institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on
family violence agree that the true incidence of
partner violence is probably double the above
estimates; or four million severely assaulted women
per year."
Studies on prevalence suggest that from one-fifth to
one-third of all women will be physically assaulted by
a partner or ex-partner during their lifetime... Thus on
an average day in the United States, nearly 11,000
women are severely assaulted by their male partners.
Many of these incidents involve sexual assault... In
families where wife beating takes place, moreover,
child abuse is often present as well.
Other studies fill in the rest of this troubling picture.
Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social
and economic isolation of women, is also common.
Many victims of domestic violence remain with their
abusers, perhaps because they perceive no superior
alternative...Many abused women who find
temporary refuge in shelters return to their
husbands, in large part because they have no other
source of income... Returning to one's abuser can be
dangerous. Recent Federal Bureau of Investigation
statistics disclose that 8.8 percent of all homicide
victims in the United States are killed by their
spouses...Thirty percent of female homicide victims
are killed by their male partners.
Finally in 1994, the United States Congress enacted
the Violence Against Women Act.
In the International front, the women's struggle for
equality was no less successful. The United States
Charter and the Universal Declaration of Human
Rights affirmed the equality of all human beings. In
1979, the UN General Assembly adopted the
landmark Convention on the Elimination of all Forms
of Discrimination Against Women (CEDAW). In 1993,
the UN General Assembly also adopted the
Declaration on the Elimination of Violence Against
Women. World conferences on the role and rights of
women have been regularly held in Mexico City,
Copenhagen, Nairobi and Beijing. The UN itself ranking first among the different VAW categories
established a Commission on the Status of Women. since its implementation in 2004,74 thus:

The Philippines has been in cadence with the half – Table 1. Annual Comparative Statistics on Violence
and full – steps of all these women's movements. No Against Women, 2004 - 2011*
less than Section 14, Article II of our 1987 Constitution
mandates the State to recognize the role of women in
Reported
nation building and to ensure the fundamental 2004 2005 2006 2007 2008 2009 2010
Cases
equality before the law of women and men. Our
Senate has ratified the CEDAW as well as the
Convention on the Rights of the Child and its two
protocols. To cap it all, Congress, Rape
on March 8, 2004, 997 927 659 837 811 770 1,042
enacted Rep. Act No. 9262, entitled "An Act Defining
Violence Against Women and Their Children,
Providing for Protective Measures for Victims,
Incestuous
Prescribing Penalties therefor and for other 38 46 26 22 28 27 19
Rape
Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

Attempted
victims of violence. 194 148 185 147 204 167 268
Rape
At the time of the presentation of Senate Bill No.
2723, official statistics on violence against women
and children show that – Acts of
580 536 382 358 445 485 745
Lasciviousness
x x x physical injuries had the highest number of cases
at 5,058 in 2002 representing 55.63% of total cases
reported (9,903). And for the first semester of 2003,
there were 2,381 reported cases Physical
out of 4,354 cases
3,553 2,335 1,892 1,505 1,307 1,498 2,018
which represent 54.31%. xxx (T)he Injuries
total number of
women in especially difficult circumstances served by
the Department of Social Welfare and Development
(DSWD) for the year 2002, there are 1,417 physically
Sexual
abused/maltreated cases out of Harassment
the total of 5,608 53 37 38 46 18 54 83
cases. xxx (T)here are 1,091 DSWD cases out of a total
number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all
forms of abuse and violence and RA 9262
more than 90% of 218 924 1,269 2,387 3,599 5,285 9,974
these reported cases were committed by the
women's intimate partners such as their husbands
and live-in partners.73 Threats 319 223 199 182 220 208 374

Recently, the Philippine Commission on Women

presented comparative statistics on violence against
women across an eight-year periodSeduction
from 2004 to 62 19 29 30 19 19 25
August of 2011 with violations under R.A. 9262
 While there are, indeed, relatively few cases of
age 121 102 93 109 109 99 158
violence and128abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city

17 11 16 24 34 152 190 62
ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the
manure emitted or discharged by their vehicle-
n drawing animals in any public highways, streets,
ng 16 34 23 28 18 25 22
plazas, parks or alleys, said ordinance was challenged
as violative of the guaranty of equal protection of
laws as its application is limited to owners and drivers
of vehicle-drawing animals and not to those animals,
although not utilized, but similarly pass through the
90 50 59 59 83 703 183
same streets.155

The ordinance was upheld as a valid classification for

6,271 5,374 4,881 5,729 6,905 9,485
*2011 report covers only from January to August
Source: Philippine National Police – Women and
Children Protection Center (WCPC)
On the other hand, no reliable estimates may be
obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are
relatively low and, perhaps, because many men will
not even attempt to report the situation. In the
United Kingdom, 32% of women who had ever
experienced domestic violence did so four or five (or
more) times, compared with 11% of the smaller
number of men who had ever experienced domestic
violence; and women constituted 89% of all those
who had experienced 4 or more incidents of domestic
violence.75Statistics in Canada show that spousal
violence by a woman against a man is less likely to
cause injury than the other way around (18 percent
versus 44 percent). Men, who experience violence
from their spouses are much less likely to live in fear
of violence at the hands of their spouses, and much
less likely to experience sexual assault. In fact, many
cases of physical violence by a woman against a
spouse are in self-defense or the result of many years
of physical or emotional abuse.76
the reason that, while there may be non-vehicle-
drawing animals
15,104 that also traverse the city roads, "but
12,948
their number must be negligible and their appearance
therein merely occasional, compared to the rig-
drawing ones, as not to constitute a menace to the
health of the community."77 The mere fact that the
legislative classification may result in actual inequality
is not violative of the right to equal protection, for
every classification of persons or things for regulation
by law produces inequality in some degree, but the
law is not thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through
prosecution, trial, and sentencing, crimes against
women are often treated differently and less
seriously than other crimes. This was argued by then
United States Senator Joseph R. Biden, Jr., now Vice
President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights
remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection
Clauses. He stressed that the widespread gender bias
in the U.S. has institutionalized historic prejudices
against victims of rape or domestic violence,
subjecting them to "double victimization" – first at
the hands of the offender and then of the legal
system.79
Our own Senator Loi Estrada lamented in her
Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police
treat it as a private matter and advise the parties to
settle the conflict themselves. Once the complainant
brings the case to the prosecutor, the latter is
hesitant to file the complaint for fear that it might
later be withdrawn. This lack of response or
reluctance to be involved by the police and
prosecution reinforces the escalating, recurring and
often serious nature of domestic violence."80
Sadly, our own courts, as well, have exhibited
prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined
RTC Judge Venancio J. Amila for Conduct Unbecoming
of a Judge. He used derogatory and irreverent
language in reference to the complainant in a petition
for TPO and PPO under R.A. 9262, calling her as "only
a live-in partner" and presenting her as an
"opportunist" and a "mistress" in an "illegitimate
relationship." Judge Amila even called her a
"prostitute," and accused her of being motivated by
"insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge
Amila's prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the
discrimination brought about by biases and
prejudices against women. As emphasized by the
CEDAW Committee on the Elimination of
Discrimination against Women, addressing or
correcting discrimination through specific measures
focused on women does not discriminate against
men.82Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male,"
"husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW,
the Philippines bound itself to take all appropriate
measures "to modify the social and cultural patterns
of conduct of men and women, with a view to
achieving the elimination of prejudices and
customary and all other practices which are based on
the idea of the inferiority or the superiority of either
of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that
"(t)he paradigm shift changing the character of
domestic violence from a private affair to a public
offense will require the development of a distinct
mindset on the part of the police, the prosecution and
the judges."85
II. The classification is germane to the purpose of the
law.
The distinction between men and women is germane
to the purpose of R.A. 9262, which is to address
violence committed against women and children,
spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared
that the State values the dignity of women and
children and guarantees full respect for human rights.
The State also recognizes the need to protect the
family and its members particularly women and
children, from violence and threats to their personal
safety and security.
Towards this end, the State shall exert efforts to
address violence committed against women and
children in keeping with the fundamental freedoms
guaranteed under the Constitution and the provisions
of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of
Discrimination Against Women, Convention on the
Rights of the Child and other international human
rights instruments of which the Philippines is a party.
In 1979, the U.N. General Assembly adopted the
CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the
CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that
State parties shall accord to women equality with
men before the law87 and shall take all appropriate
measures to eliminate discrimination against women
in all matters relating to marriage and family relations
on the basis of equality of men and women.88 The
Philippines likewise ratified the Convention on the
Rights of the Child and its two protocols.89 It is, thus,
bound by said Conventions and their respective
protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited
to the existing conditions when it was promulgated,
but to future conditions as well, for as long as the
safety and security of women and their children are
threatened by violence and abuse.
R.A. 9262 applies equally to all women and children
who suffer violence and abuse. Section 3 thereof
defines VAWC as:
x x x any act or a series of acts committed by any
person against a woman who is his wife, former wife,
or against a woman with whom the person has or had
a sexual or dating relationship, or with whom he has
a common child, or against her child whether
legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical,
sexual, psychological harm or suffering, or economic
abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following
acts:
A. "Physical Violence" refers to acts that include
bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It
includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks,
physically attacking the sexual parts of the victim's
body, forcing her/him to watch obscene publications
and indecent shows or forcing the woman or her child
to do indecent acts and/or make films thereof, forcing
the wife and mistress/lover to live in the conjugal
home or sleep together in the same room with the
abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other
harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional
suffering of the victim such as but not limited to
intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated
verbal abuse and marital infidelity. It includes causing
or allowing the victim to witness the physical, sexual
or psychological abuse of a member of the family to
which the victim belongs, or to witness pornography
in any form or to witness abusive injury to pets or to
unlawful or unwanted deprivation of the right to
custody and/or visitation of common children.
D. "Economic abuse" refers to acts that make or
attempt to make a woman financially dependent
which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73 of
the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment of
the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties or
solely controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the
aforequoted provision are attributable to research
that has exposed the dimensions and dynamics of
battery. The acts described here are also found in the
U.N. Declaration on the Elimination of Violence
Against Women.90 Hence, the argument advanced by
petitioner that the definition of what constitutes
abuse removes the difference between violent action
and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is
vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily
understood and provide adequate contrast between
the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is
prohibited, and need not guess at its meaning nor
differ in its application.91 Yet, petitioner insists92that
phrases like "depriving or threatening to deprive the
woman or her child of a legal right," "solely
controlling the conjugal or common money or
properties," "marital infidelity," and "causing mental
or emotional anguish" are so vague that they make
every quarrel a case of spousal abuse. However, we
have stressed that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the
statute to be upheld – not absolute precision or
mathematical exactitude, as petitioner seems to
suggest. Flexibility, rather than meticulous specificity,
is permissible as long as the metes and bounds of the
statute are clearly delineated. An act will not be held
invalid merely because it might have been more
explicit in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A.
9262 singles out the husband or father as the culprit.
As defined above, VAWC may likewise be committed
"against a woman with whom the person has or had
a sexual or dating relationship." Clearly, the use of the
gender-neutral word "person" who has or had a
sexual or dating relationship with the woman
encompasses even lesbian relationships. Moreover,
while the law provides that the offender be related or
connected to the victim by marriage, former
marriage, or a sexual or dating relationship, it does
not preclude the application of the principle of
conspiracy under the Revised Penal Code (RPC). Thus,
in the case of Go-Tan v. Spouses Tan,94 the parents-
in-law of Sharica Mari L. Go-Tan, the victim, were held
to be proper respondents in the case filed by the
latter upon the allegation that they and their son (Go-
Tan's husband) had community of design and purpose
in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected
from the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262,
specifically in the issuance of POs, of all protections
afforded by the due process clause of the
Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no
opportunity to respond, the husband is stripped of
family, property, guns, money, children, job, future
employment and reputation, all in a matter of
seconds, without an inkling of what happened."95
A protection order is an order issued to prevent
further acts of violence against women and their
children, their family or household members, and to
grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm,
minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control
of their life.96
"The scope of reliefs in protection orders is
broadened to ensure that the victim or offended
party is afforded all the remedies necessary to curtail
access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to
accord the victim and any designated family or
household member safety in the family residence,
and to prevent the perpetrator from committing acts
that jeopardize the employment and support of the
victim. It also enables the court to award temporary
custody of minor children to protect the children from
violence, to prevent their abduction by the
perpetrator and to ensure their financial support."97
The rules require that petitions for protection order
be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility,
criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further
violence is to be prevented,"99 the court is authorized
to issue ex parte a TPO after raffle but before notice
and hearing when the life, limb or property of the
victim is in jeopardy and there is reasonable ground
to believe that the order is necessary to protect the
victim from the immediate and imminent danger of
VAWC or to prevent such violence, which is about to
recur.100
There need not be any fear that the judge may have
no rational basis to issue an ex parte order. The victim
is required not only to verify the allegations in the
petition, but also to attach her witnesses' affidavits to
the petition.101
The grant of a TPO ex parte cannot, therefore, be
challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is
issued without notice and hearing because the time
in which the hearing will take could be enough to
enable the defendant to abscond or dispose of his
property,102 in the same way, the victim of VAWC may
already have suffered harrowing experiences in the
hands of her tormentor, and possibly even death, if
notice and hearing were required before such acts
could be prevented. It is a constitutional
commonplace that the ordinary requirements of
procedural due process must yield to the necessities
of protecting vital public interests,103among which is
protection of women and children from violence and
threats to their personal safety and security.
It should be pointed out that when the TPO is issued
ex parte, the court shall likewise order that notice be
immediately given to the respondent directing him to
file an opposition within five (5) days from service.
Moreover, the court shall order that notice, copies of
the petition and TPO be served immediately on the
respondent by the court sheriffs. The TPOs are
initially effective for thirty (30) days from service on
the respondent.104
Where no TPO is issued ex parte, the court will
nonetheless order the immediate issuance and
service of the notice upon the respondent requiring
him to file an opposition to the petition within five (5)
days from service. The date of the preliminary
conference and hearing on the merits shall likewise
be indicated on the notice.105
The opposition to the petition which the respondent
himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not
be issued.106
It is clear from the foregoing rules that the
respondent of a petition for protection order should
be apprised of the charges imputed to him and
afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family,
property, guns, money, children, job, future
employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The
essence of due process is to be found in the
reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense.
"To be heard" does not only mean verbal arguments
in court; one may be heard also through pleadings.
Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no
denial of procedural due process.107
It should be recalled that petitioner filed on April 26,
2006 an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO that was granted only two days
earlier on April 24, 2006. Likewise, on May 23, 2006,
petitioner filed a motion for the modification of the
TPO to allow him visitation rights to his children. Still,
the trial court in its Order dated September 26, 2006,
gave him five days (5) within which to show cause
why the TPO should not be renewed or extended. Yet,
he chose not to file the required comment arguing
that it would just be an "exercise in futility,"
conveniently forgetting that the renewal of the
questioned TPO was only for a limited period (30
days) each time, and that he could prevent the
continued renewal of said order if he can show
sufficient cause therefor. Having failed to do so,
petitioner may not now be heard to complain that he
was denied due process of law.
Petitioner next laments that the removal and
exclusion of the respondent in the VAWC case from
the residence of the victim, regardless of ownership
of the residence, is virtually a "blank check" issued to
the wife to claim any property as her conjugal
home.108
The wording of the pertinent rule, however, does not
by any stretch of the imagination suggest that this is
so. It states:
SEC. 11. Reliefs available to the offended party. -- The
protection order shall include any, some or all of the
following reliefs:
xxxx
(c) Removing and excluding the respondent from the
residence of the offended party, regardless of
ownership of the residence, either temporarily for the
purpose of protecting the offended party, or
permanently where no property rights are violated. If
the respondent must remove personal effects from
the residence, the court shall direct a law
enforcement agent to accompany the respondent to
the residence, remain there until the respondent has
gathered his things and escort him from the
residence;
xxxx
Indubitably, petitioner may be removed and excluded
from private respondent's residence, regardless of
ownership, only temporarily for the purpose of
protecting the latter. Such removal and exclusion may
be permanent only where no property rights are
violated. How then can the private respondent just
claim any property and appropriate it for herself, as
petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-
mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the
avowed policy of the State to "protect and strengthen
the family as a basic autonomous social
institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the
court shall not refer the case or any issue thereof to a
mediator. The reason behind this provision is well-
explained by the Commentary on Section 311 of the
Model Code on Domestic and Family Violence as
follows:110
This section prohibits a court from ordering or
referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which
parties in equivalent bargaining positions voluntarily
reach consensual agreement about the issue at hand.
Violence, however, is not a subject for compromise. A
process which involves parties mediating the issue of
violence implies that the victim is somehow at fault.
In addition, mediation of issues in a proceeding for an
order of protection is problematic because the
petitioner is frequently unable to participate equally
with the person against whom the protection order
has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve
the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and
such other lower courts as may be established by law"
and, thus, protests the delegation of power to
barangay officials to issue protection orders.111 The
pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who
May Issue and How. – Barangay Protection Orders
(BPOs) refer to the protection order issued by the
Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of
this Act.1âwphi1 A Punong Barangay who receives
applications for a BPO shall issue the protection order
to the applicant on the date of filing after ex parte
determination of the basis of the application. If the
Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted
upon by any available Barangay Kagawad. If the BPO
is issued by a Barangay Kagawad, the order must be
accompanied by an attestation by the Barangay
Kagawad that the Punong Barangay was unavailable
at the time of the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the
issuance of an ex parte BPO, the Punong Barangay or
Barangay Kagawad shall personally serve a copy of
the same on the respondent, or direct any barangay
official to effect its personal service.
The parties may be accompanied by a non-lawyer
advocate in any proceeding before the Punong
Barangay.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving rights
which are legally demandable and enforceable, and
to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other
hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the
power of carrying the laws into practical operation
and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the
BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad,
merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and
(2) threatening to cause the woman or her child
physical harm. Such function of the Punong Barangay
is, thus, purely executive in nature, in pursuance of his
duty under the Local Government Code to "enforce
all laws and ordinances," and to "maintain public
order in the barangay."114
We have held that "(t)he mere fact that an officer is
required by law to inquire into the existence of
certain facts and to apply the law thereto in order to
determine what his official conduct shall be and the
fact that these acts may affect private rights do not
constitute an exercise of judicial powers."115
In the same manner as the public prosecutor
ascertains through a preliminary inquiry or
proceeding "whether there is reasonable ground to
believe that an offense has been committed and the
accused is probably guilty thereof," the Punong
Barangay must determine reasonable ground to
believe that an imminent danger of violence against
the woman and her children exists or is about to recur
that would necessitate the issuance of a BPO. The
preliminary investigation conducted by the
prosecutor is, concededly, an executive, not a judicial,
function. The same holds true with the issuance of a
BPO.
We need not even belabor the issue raised by
petitioner that since barangay officials and other law
enforcement agencies are required to extend
assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and
impartial, and that the chances of acquittal are nil. As
already stated, assistance by barangay officials and
other law enforcement agencies is consistent with
their duty to enforce the law and to maintain peace
and order.
Conclusion
Before a statute or its provisions duly challenged are
voided, an unequivocal breach of, or a clear conflict
with the Constitution, not merely a doubtful or
argumentative one, must be demonstrated in such a
manner as to leave no doubt in the mind of the Court.
In other words, the grounds for nullity must be
beyond reasonable doubt.116 In the instant case,
however, no concrete evidence and convincing
arguments were presented by petitioner to warrant a
declaration of the unconstitutionality of R.A. 9262,
which is an act of Congress and signed into law by the
highest officer of the co-equal executive department.
As we said in Estrada v. Sandiganbayan, 117 courts
must assume that the legislature is ever conscious of
the borders and edges of its plenary powers, and
passed laws with full knowledge of the facts and for
the purpose of promoting what is right and advancing
the welfare of the majority.
We reiterate here Justice Puno's observation that
"the history of the women's movement against
domestic violence shows that one of its most difficult
struggles was the fight against the violence of law
itself. If we keep that in mind, law will not again be a
hindrance to the struggle of women for equality but
will be its fulfillment."118 Accordingly, the
constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on See separate concurring opinion
certiorari is hereby DENIED for lack of merit. MARVIC MARIO VICTOR F. LEONEN
Associate Justice
SO ORDERED.
CERTIFICATION
ESTELA M. PERLAS-BERNABE
Associate Justice I certify that the conclusions in the above Decision
had been reached in consultation before the case was
WE CONCUR: assigned to the writer of the opinion of the Court.
MARIA LOURDES P. A. SERENO MARIA LOURDES P. A. SERENO
Chief Justice Chief Justice

ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.
Associate Justice Associate Justice Footnotes

* On official leave.
See separate
1
concurring opinion: See: Concurring "Philippines still top Christian country in Asia, 5th in
TERESITA J. Opinion world," Philippine Daily Inquirer, December 21, 2011.
LEONARDO-DE ARTURO D. BRION
2
Ephesians 5:25-28.
CASTRO Associate Justice
Associate Justice 3
RATIONALE OF THE PROPOSED RULE ON VIOLENCE
AGAINST WOMEN AND THEIR CHILDREN, citing
statistics furnished by the National Commission on
On official leave
LUCAS P. the Role of Filipino Women.
DIOSDADO M.
BERSAMIN
PERALTA* 4
Id.
Associate Justice
Associate Justice
5
Section 3(a), R.A. 9262.

6
See Separate Rollo, pp. 63-83.
MARIANO C. DEL
Concurring Opinion 7
CASTILLO Id. at 66-67.
ROBERTO A. ABAD
Associate Justice
Associate Justice 8
Id. at 64.

9
Id. at 67-68.
MARTIN S. JOSE PORTUGAL
10
VILLARAMA, JR. PEREZ Id. at 68-70.
Associate Justice Associate Justice 11
Id. at 70-71.

12
Id. at 72.
JOSE CATRAL BIENVENIDO L.
13
MENDOZA REYES Id. at 73.
Associate Justice Associate Justice
14
Id. at 74.
15 38
Id. at 65-66. Petition, id. at 22.

16 39
Id. at 66. ABS-CBN Broadcasting Corporation v. Philippine
Multi-Media System, Inc., G.R. Nos. 175769-70,
17
Id. at 70. January 19, 2009, 576 SCRA 262, 289.
18
Id. at 84-87. 40
Philippine National Bank v. Palma, 503 Phil. 917,
19 932 (2005).
Urgent Ex-Parte Motion for Renewal of Temporary
Protection Order (TPO) or Issuance of Modified TPO. 41
Petition, rollo, p. 24.
Id. at 90-93.
42
SEC. 5. Jurisdiction of Family Courts. - The Family
20
Id. at 94-97. Courts shall have exclusive original jurisdiction to
21 hear and decide the following cases:
Id. at 98-103.

22 xxxx
Id. at 138-140.

23 k) Cases of domestic violence against:

Order dated May 24, 2006. Id. at 148-149.

24 1) Women - which are acts of gender based violence

Id. at 154-166.
that results, or are likely to result in physical, sexual
25
Id. at 156. or psychological harm or suffering to women; and
other forms of physical abuse such as battering or
26
Id. at 157. threats and coercion which violate a woman's
27
personhood, integrity and freedom movement; and
Id. at 158-159.

28
2) Children - which include the commission of all
Id. at 167-174.
forms of abuse, neglect, cruelty, exploitation,
29
Id. at 182. violence, and discrimination and all other conditions
prejudicial to their development.
30
Id. at 183-184.
43
Sec. 17, R.A. 8369.
31
Id. at 185.
44
Manalo v. Mariano, 161 Phil. 108, 120 (1976).
32
Id. at 186-187.
45
Planters Products, Inc. v. Fertiphil Corporation, G.R.
33
See Manifestation dated October 10, 2006. Id. at No. 166006, March 14, 2008, 548 SCRA 485, 504.
188-189.
46
Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235
34
Id. at 104-137. SCRA 135, 140.

35 47
Id. at 151-152. Planters Products, Inc. v. Fertiphil Corporation,
supra note 45, at 505, citing Mirasol v. CA, 403 Phil.
36
Decision dated January 24, 2007. Penned by 760 (2001).
Associate Justice Priscilla Baltazar-Padilla, with
48
Associate Justices Arsenio J. Magpale and Romeo F. G.R. Nos. L-18128 & L-18672, December 26, 1961,
Barza, concurring. Id. at 47-57. 3 SCRA 696, 703-704.

37 49
Id. at 60-61. RATIONALE OF THE PROPOSED RULES ON
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN.
50 67
Korea Exchange Bank v. Hon. Rogelio C. Gonzales, Lawyers Against Monopoly and Poverty (LAMP) v.
496 Phil. 127, 143-144 (2005); Spouses Sapugay v. CA, The Secretary of Budget and Management, G.R. No.
262 Phil. 506, 513 (1990). 164987, April 24, 2012, 670 SCRA 373, 391.

51 68
Sec. 8, Rule 6, 1997 Rules of Civil Procedure. Garcia v. Commission on Elections, G.R. No.
111511, October 5, 1993, 227 SCRA 100, 113-114.
52
Sec. 11, Rule 6, 1997 Rules of Civil Procedure.
69
158 Phil. 60, 86-87 (1974).
53
See People of the Philippine Islands and Hongkong
70
& Shanghai Banking Corporation v. Vera, 65 Phil 199 Andrews v. Law Society of British Columbia, [1989]
(1937); Philippine Coconut Producers Federation, Inc. 1 S.C.R. 143, p. 169.
(COCOFED) v. Republic, G.R. Nos. 177857-58, January
71
24, 2012, 663 SCRA 514, 594. Philippine Commission on Women, National
Machinery for Gender Equality and Women's
54
Recreation and Amusement Association of the Empowerment, "Violence Against Women (VAW),"
Philippines v. City of Manila, 100 Phil 950, 956 (1957). <http://www.pcw.gov.ph> (visited November 16,
2012).
55
Secs. 22 and 31, A.M. No. 04-10-11-SC.
72
<http://www.lawphil.net/international/treaties/d
56
Sec. 26 (b), A.M. No. 04-10-11-SC. ec_dec_1993.html> (visited November 16, 2012).
57
Sto. Domingo v. De Los Angeles, 185 Phil. 94, 102 73
As reported by Senator Loi Estrada in her
(1980). Sponsorship Speech, Congressional Records, Vol. III,
58 No. 45, December 10, 2003, p. 22.
27 L.Ed.2d 669 (1971), cited in The Executive
Secretary v. Court of Appeals, 473 Phil. 27, 56-57 74
Philippine Commission on Women, "Statistics on
(2004). Violence Against Filipino Women,"
59 <http://pcw.gov.ph/statistics/201210/statistics-
Rollo, pp. 214-240, 237.
violence-against-filipino-women> (visited October
60
Petition, id. at 26-27. 12, 2012).

75
61
An Act Defining Violence Against Women and Women's Aid, "Who are the victims of domestic
Members of the Family, Prescribing Penalties violence?," citing Walby and Allen, 2004,
Therefor, Providing for Protective Measures for <www.womensaid.org.uk/domestic-violence-
Victims and for Other Purposes. articles.asp?
section=00010001002200410001&itemid= 1273
62
Congressional Records, Vol. III, No. 45, December (visited November 16, 2012).
10, 2003, p. 27.
76
Toronto District School Board, Facts and Statistics
63
Id. at 25. <www.tdsb.on.ca/site/viewitem.asp?siteid=15&
64
menuid=23082&pageid=20007> (visited November
Id. at 27.
16, 2012).
65
Id. at 43-44. 77
People v. Solon, 110 Phil. 39, 41 (1960).
66
Congressional Records, Vol. III, No. 51, January 14, 78
Victoriano v. Elizalde Rope Workers' Union, supra
2004, pp. 141-147.
note 69, 90.
79 96
Biden, Jr., Joseph R., "The Civil Rights Remedy of the Sec. 4 (o), A.M. No. 04-10-11-SC.
Violence Against Women Act: A Defense," 37 Harvard
97
Journal on Legislation 1 (Winter, 2000). Supra note 49.

98
80
Congressional Records, Vol. III, No. 45, December Sec. 7, A.M. No. 04-10-11-SC.
10, 2003, pp. 22-23. 99
Supra note 49.
81
Benancillo v. Amila, A.M. No. RTJ-08-2149, March 9, 100
Id.
2011, 645 SCRA 1, 8.
101
82
Supra note 85.
"General recommendation No. 25, on article 4,
paragraph 1, of the Convention on the Elimination of 102
Cuartero v. CA, G.R. No. 102448, August 5, 1992,
All Forms of Discrimination against Women, on 212 SCRA 260, 265.
temporary special measures"
103
Laguna Lake Development Authority v. Court of
<www.un.org/womenwatch/.../recommendation> Appeals, G.R. No. 110120, March 16, 1994, 231 SCRA
(visited January 4, 2013). 292, 307, citing Pollution Adjudication Board v. Court
83
of Appeals, G.R. No. 93891, March 11, 1991, 195 SCRA
Petition, rollo, p. 27.
112.
84
Article 5(a), CEDAW. 104
Sec. 15, A.M. No. 04-10-11-SC.
85
"The Rule on Violence Against Women and Their 105
Sec. 16, A.M. No. 04-10-11-SC.
Children," Remarks delivered during the Joint
Launching of R.A. 9262 and its Implementing Rules 106
Sec. 20, A.M. No. 04-10-11-SC.
last October 27, 2004 at the Session Hall of the
107
Supreme Court. Esperida v. Jurado, Jr., G.R. No. 172538, April 25,
2012, 671 SCRA 66, 74.
86
Supra note 49.
108
Petition, rollo, pp. 30-31.
87
Article 15.
109
Id. at 36.
88
Article 16.
110
Supra note 49.
89
Supra note 49.
111
Petition, rollo, pp. 130-131.
90
Supra note 49.
112
Sec. 1, Article VIII, 1987 Constitution.
91
Estrada v. Sandiganbayan, 421 Phil 290, 351-352
113
(2001). Laurel v. Desierto, 430 Phil. 658 (2002).

114
92
Petition, rollo, p. 35. People v. Tomaquin, 478 Phil. 885, 899 (2004),
citing Section 389, Chapter 3, Title One, Book III, Local
93
Estrada v. Sandiganbayan , supra note 91, at 352- Government Code of 1991, as amended.
353.
115
Lovina and Montilla v. Moreno and Yonzon, 118
94
G.R. No. 168852, September 30, 2008, 567 SCRA Phil 1401, 1406 (1963).
231.
116
Hacienda Luisita, Incorporated v. Presidential
95
Petition, rollo, p. 31. Agrarian Reform Council, G.R. No. 171101, July 5,
2011, 653 SCRA 154, 258.
117
Supra note 91.
118
Supra note 85.
SECOND DIVISION
3. G.R. No. 128959 September 30, 2005
CIRIACO ‘BOY’ GUINGGUING, Petitioners,
vs.
THE HONORABLE COURT OF APPEALS and THE
PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
Tinga, J.:
The liberty of the press is indeed essential. Whoever
would overthrow the liberty of a nation must begin by
subduing the freeness of speech.
- Benjamin Franklin1
The right of free expression stands as a hallmark of
the modern democratic and humane state.2 Not only
does it assure a person’s right to say freely what is
thought freely, it likewise evinces the polity’s
freedom from psychological insecurity. This
fundamental liberty is translated into the
constitutional guarantee that no law shall be passed
abridging the freedom of speech, of expression, or
the press,3 contained in the Bill of Rights,4 which itself
obtains a position of primacy in our fundamental
law.5
Criminal libel laws present a special problem. At face
value, they might strike as laws passed that abridge
the freedom of speech, expression, or the press.
Whatever seeming conflict between these two
precepts has long been judicially resolved with the
doctrine that libelous speech does not fall within the
ambit of constitutional protection. Nonetheless, in
ascertaining what class of materials may be
considered as libelous, the freedom of expression
clause, its purposes as well as the evils it guards
against, warrant primordial consideration and
application.
Before this Court is a Petition for Review under Rule
45 of the 1997 Rules of Civil Procedure, assailing
the Decision6 and the Resolution7 of the Court of
Appeals (CA) dated 29 July 1996 and 3 October 1996,
respectively, in CA-G.R. CR No. 16413. The CA
affirmed with modification8 the decision9 rendered
by the Regional Trial Court (RTC), Branch 7 of Cebu
City, finding Ciriaco "Boy" Guingguing (petitioner) and
Segundo Lim (Lim) guilty beyond reasonable doubt of
the crime of libel. This petition for certiorari was filed
by petitioner alone, hence the verdict of guilt with
respect to Lim had already become final and
executory.
The antecedent facts follow.
This case originated from a criminal complaint for
libel filed by Cirse "Choy" Torralba (complainant)
against Lim and petitioner under Criminal Case No.
CBU-26582. Complainant was a broadcast journalist
who handled two programs for radio stations DYLA
and DYFX. The radio stations were based in Cebu City
but the programs were aired over a large portion of
the Visayas and Mindanao.10
On 13 October 1991, Lim caused the publication of
records of criminal cases filed against complainant as
well as photographs11 of the latter being arrested.
These were published by means of a one-page
advertisement paid for by Lim in the Sunday Post, a
weekly publication edited and published by
petitioner. The Sunday Post was circulated in the
province of Bohol, as well as in the Visayas and
Mindanao.12 The full text of the advertisement which
was the basis of the information13 for libel reads:
REQUEST FOR PUBLIC SERVICE
ATTN: RADIOMAN CHOY TORRALBA, STATION DYFX,
CEBU CITY
TEXT: IN THE INTEREST OF PUBLIC SERVICE, PLEASE
DO ENLIGHTEN ME REGARDING THE DISPOSITION OF
THE FOLLOWING WHICH APPEAR HEREUNDER. THE
CASES WERE FOUND IN THE BLOTTER OF THE CEBU
CITY POLICE DEPARTMENT. PLEASE DO TELL ME THE
STATUS OF THOSE CASES, WHETHER THEY HAVE BEEN
DISMISSED, ARCHIVED AND/OR PENDING.
Name: CIRSE ‘CHOY’ TORRALBA
CRIM. CASE NO. R-43035
FOR: MALICIOUS MISCHIEF
DATE FILED: MAY 10, 1979
COMPLAINANTS: DR. JOVENAL ALMENDRAS
ADDRESS: ALMENDRAS ST., MABOLO, CEBU CITY
MR. VICTORIANO VELOSO
ADDRESS: 117 HIPODROMO, MABOLO, CEBU CITY
DISPOSITION: PENDING ARREST
CRIM. CASE NO. 17984-R
FOR : ESTAFA
DATE FILED: July 12, 1982
COMPLAINANTS: MR. PIO Y. GO AND
MRS. ROSALITA R. ROLDAN
ADDRESS: c/o 2nd Floor Martinez Bldg.
(ALPHA MKTG., INC.),
Jones Ave., Cebu City
DISPOSITION: PENDING ARREST
CRIM. CASE NO. 14843-R
FOR: SERIOUS PHYSICAL INJURIES
DATED FILED: APRIL 28, 1980
COMPLAINANTS:
ADDRESS:
DISPOSITION: PROVISIONALLY DISMISSED
DATED: APRIL 14, 1991
NOT TOO LONG AGO, I RECEIVED THE FOLLOWING
NEWSPAPER CLIPPING COURTESY OF A CEBU CITY
CONCERNED CITIZEN. THE CAPTION STORY BELOW
TELLS ALL. IF YOU KNOW WHO THE BUSINESSMAN
ALLUDED TO IN THE CAPTION, PLEASE DO TELL ME.
[Thereafter followed by a picture of a person with
face blotted out being arrested and an inset picture
of the same person with face likewise blotted out,
being detained, these pictures being followed by the
caption, which states]:
‘ESTAFA CASE. Members of Cebu City Police
Intelligence group under Lt. Col. Eduardo Ricardo
arrested last night a businessman (extreme left) for
his alleged involvement in estafa case filed by
APOCEMCO. Left photo a member of the team serves
the warrant of arrest order issued by CEBU RTC Judge
German Lee.
ANOTHER CLIPPING WHICH IDENTIFIED
BUSINESSMAN CHOY TORRALBA TO HAVE BEEN
SERVED A WARRANT OF ARREST IN A (P)LUSH
UPTOWN HOTEL IN CEBU CITY BY OPERATIVES OF THE
CEBU CITY POLICE. NOW TELL ME, IS IT YOU THE
SAME CHOY TORRALBA REFERRED TO IN THE
CAPTION STORY. IF INDEED YOU ARE THE ONE AND
THE SAME WHO APPEARED IN THE PICTURE BELOW,
PLEASE TO (sic) INFORM ME.:
[Thereafter followed by another picture, this time,
the face of the person being arrested is clearly shown
to be that of Cirse Choy Torralba, followed by this
caption.]
SERENE EVENING: The otherwise serene evening
enjoyed by businessman Choy Torralba (left) in a
plush uptown Hotel was disturbed by operatives
(right) of the Cebu City Police under P/Lt/Col. Eduardo
Ricardo just to serve on the former a warrant of arrest
issued by Cebu RTC Judge German Lee relative to the
suit filed by Apocemco against the businessman (PR)
THANK YOU, AND MY BEST REGARDS.
PAID SPACE BY: (sgd.) SEGUNDO LIM14
Asserting inter alia that he had been acquitted and
the case/s referred to had already been settled,
complainant sought Lim and petitioner’s conviction
for libel. At the same time, he asked for moral,
compensatory and exemplary damages as well as
attorney’s fees because the publication allegedly
placed him in public contempt and ridicule. It was
claimed that the publication was also designed to
degrade and malign his person and destroy him as a
broadcast journalist.15
Lim, in his defense, claimed that complainant was
allegedly making scurrilous attacks against him and
his family over the airwaves. Since Lim had no access
to radio time, he opted for paid advertisements via
newspaper to answer the attacks,16 as a measure of
self-defense. Lim also argued that complainant, as a
media man and member of the fourth estate,
occupied a position almost similar to a public
functionary and should not be onion-skinned and be
able to absorb the thrust of public scrutiny.17
After trial, the lower court concluded that the
publication complained of was indeed
libelous.18 Declaring that malice is the most important
element of libel, it held that the same was present in
the case because every defamatory publication prima
facie implies malice on the part of the author and
publisher towards the person subject thereof.19The
lower court gave no credence to Lim and petitioner’s
argument that the publication was resorted to in self-
defense.
The trial court likewise disregarded the insulative
effects of complainant’s status as a mediaman to the
prosecution of the criminal libel charge. The
publication of a calumny even against public officers
or candidates for public office, according to the trial
court, is an offense most dangerous to the people. It
deserves punishment because the latter may be
deceived thereby and reject the best and deserving
citizens to their great injury.20 It further held that a
private reputation is as constitutionally protected as
the enjoyment of life, liberty and property such that
anybody who attacks a person’s reputation by
slanderous words or libelous publications is obliged to
make full compensation for the damage done.21
On appeal, the CA modified the penalty imposed but
it affirmed the RTC’s finding of guilt. The CA likewise
held that self-defense was unavailing as a justification
since the defendant should not go beyond explaining
what was previously said of him. The appellate court
asserted that the purpose of self-defense in libel is to
repair, minimize or remove the effect of the damage
caused to him but it does not license the defendant
to utter blow-for-blow scurrilous language in return
for what he received. Once the defendant hits back
with equal or more scurrilous remarks unnecessary
for his defense, the retaliation becomes an
independent act for which he may be liable.22 For this
reason, the CA refused to sanction the invocation of
self-defense.
Petitioner now comes before this Court praying for
the reversal of the judgment against him. Petitioner
contends inter alia that as editor-publisher of the
Sunday Post and as a member of the fourth estate,
the lower courts’ finding of guilt against him
constitutes an infringement of his constitutional right
to freedom of speech and of the press.23Petitioner
likewise faults the lower courts’ failure to appreciate
their invocation of self-defense.
For resolution of this Court, therefore, is the
fundamental question of whether the publication
subject matter of the instant case is indeed libelous.
While the findings and conclusions of the lower courts
are rigid in their application of the strict letter of the
law, the issue seems more complex than it appears at
first blush. The Court is compelled to delve deeper
into the issue considering that libel principles
formulated at one time or another have waxed and
waned through the years, in the constant ebb and
flow of judicial review.24 A change in the factual
milieu of a case is apt to evoke a change in the
judgment applicable. Viewed in this context, the
petition has merit and the judgment appealed from
must be reversed.
Criminal Libel vis-à-vis the
Guarantee of Free Speech
Under our law, criminal libel is defined 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.25 Thus, the elements of libel are: (a)
imputation of a discreditable act or condition to
another; (b) publication of the imputation; (c) identity
of the person defamed; and, (d) existence of malice.26
Originally, the truth of a defamatory imputation was
not considered a defense in the prosecution for libel.
In the landmark opinion of England's Star Chamber in
the Libelis Famosis case in 1603, two major
propositions in the prosecution of defamatory
remarks were established: first, that libel against a
public person is a greater offense than one directed
against an ordinary man, and second, that it is
immaterial that the libel be true.27 These propositions
were due to the fact that the law of defamatory libel
was developed under the common law to help
government protect itself from criticism and to
provide an outlet for individuals to defend their honor
and reputation so they would not resort to taking the
law into their own hands.28
Our understanding of criminal libel changed in 1735
with the trial and acquittal of John Peter Zenger for
seditious libel in the then English colony of New York.
Zenger, the publisher of the New-York Weekly
Journal, had been charged with seditious libel, for his
paper’s consistent attacks against Colonel William
Cosby, the Royal Governor of New York. In his
defense, Zenger’s counsel, Andrew Hamilton, argued
that the criticisms against Governor Cosby were "the
right of every free-born subject to make when the
matters so published can be supported with
truth."29The jury, by acquitting Zenger, acknowledged
albeit unofficially the defense of truth in a libel action.
The Zengercase also laid to rest the idea that public
officials were immune from criticism.30
The Zenger case is crucial, not only to the evolution of
the doctrine of criminal libel, but also to the
emergence of the American democratic ideal. It has
been characterized as the first landmark in the
tradition of a free press, then a somewhat radical
notion that eventually evolved into the First
Amendment31 in the American Bill of Rights and also
proved an essential weapon in the war of words that
led into the American War for Independence.32
Yet even in the young American state, the
government paid less than ideal fealty to the
proposition that Congress shall pass no law abridging
the freedom of speech. The notorious Alien and
Sedition Acts of 179833 made it a crime for any person
who, by writing, speaking or printing, should threaten
an officer of the government with damage to his
character, person, or estate. The law was passed at
the insistence of President John Adams, whose
Federalist Party had held a majority in Congress, and
who had faced persistent criticism from political
opponents belonging to the Jeffersonian Republican
Party. As a result, at least twenty-five people, mostly
Jeffersonian Republican editors, were arrested under
the law. The Acts were never challenged before the
U.S. Supreme Court, but they were not subsequently
renewed upon their expiration.34
The massive unpopularity of the Alien and Sedition
Acts contributed to the electoral defeat of President
Adams in 1800. In his stead was elected Thomas
Jefferson, a man who once famously opined, "Were it
left to me to decide whether we should have a
government without newspapers, or newspapers
without a government, I should not hesitate a
moment to prefer the latter."35
There is an important observation to be made about
the quality of the American press during the time of
Jefferson, one that is crucial to the contemporaneous
understanding of the "freedom of expression" clause
at the time of its inception. The tenor of the public
debate during that era was hardly polite. About the
impending election of Jefferson, the New England
Courant predicted that "murder, robbery, rape and
adultery and incest will be openly taught and
practiced, the air will be rent with cries of distress, the
soil soaked with blood and the nation black with
crimes."36 After Jefferson was elected, rumors spread
about his dalliances with his slave, Sally Hemmings,
adding more fodder to his critics. The thirteen-year
old William Cullen Bryant, who would grow up to
become a prominent poet and abolitionist, published
the following doggerel: "Thy country’s ruin and thy
country’s shame!/ Go wretch! Resign the Presidential
chair/Disclose thy secret measures foul and fair…/ Go
scan, philosophist, thy [Sally’s] charms/And sink
supinely in her sable arms."37
Any comprehensive history of the American media
during the first few decades of the existence of the
United States would reveal a similar preference in the
media for such "mad-dog rhetoric."38 These
observations are important in light of the
misconception that freedom of expression extends
only to polite, temperate, or reasoned expression.
The assailed decision of the RTC betrays such a
perception, when it opined that the subject
advertisement was libelous "because by the language
used, it had passed from the bounds of playful gist,
and intensive criticism into the region of scurrilous
calumniation and intemperate
personalities."39 Evidently, the First Amendment was
designed to protect expression even at its most
rambunctious and vitriolic form as it had prevalently
taken during the time the clause was enacted.
Nonetheless, juristic enforcement of the guarantee of
freedom of expression was not demonstrably
prominent in the United States during most of the
1800s. Notably, the prevalent philosophy then was
that the Bill of Rights did not apply to the different
federal states.40 When the US Supreme Court was
confronted with substantial First Amendment issues
in the late 1800s and early 1900s, it responded by
repeatedly declining to protect free speech.41The
subsequent enactment of the due process clause in
the Fourteenth Amendment eventually allowed the
U.S. Supreme Court to accept, in Gitlow v. New
York42 that the First Amendment was protected from
impairment by the States, thus allowing for a more
vigorous enforcement of the freedom of expression
clause in the twentieth century.43
The most important American ruling on libel, arguably
from which modern libel law emerged 44 was New
York Times v. Sullivan,45 penned by the liberal lion
Justice William Brennan, Jr. In ascertaining whether
the New York Times was liable for damages in a libel
action, the U.S. Supreme Court had acknowledged
that the writing in question, an advertisement
published in the paper46 extolling the virtues of the
civil rights movement, had contained several factual
inaccuracies in describing actions taken by
Montgomery, Alabama officials on civil rights
protesters.47 The Court even concluded that at most,
there was a finding against the New York Times of
negligence in failing to discover the misstatements
against the news stories in the newspaper’s own
files.48
Nonetheless, the U.S. Supreme Court squarely
assessed the import of the First Amendment
freedoms in the prosecution of criminal libel.
Famously, the precedent was established that a
public official may not successfully sue for libel unless
the official can prove actual malice, which was
defined as "with knowledge that the statement was
false or with reckless disregard as to
whether or not it was true."49 By this standard, it was
concluded that factual errors aside, actual malice was
not proven to sustain the convictions for libel.
Moreover, leeway was allowed even if the challenged
statements were factually erroneous if honestly
made.50
Shortly after New York Times was promulgated, its
principles were extended by the U.S. Supreme Court
to criminal libel actions in Garrison v. Louisiana.51 The
decision, also penned by Justice Brennan,
commented on the marked decline in the common
resort to criminal libel actions:
Where criticism of public officials is concerned, we
see no merit in the argument that criminal libel
statutes serve interests distinct from those secured
by civil libel laws, and therefore should not be subject
to the same limitations. At common law, truth was no
defense to criminal libel. Although the victim of a true
but defamatory publication might not have been
unjustly damaged in reputation by the libel, the
speaker was still punishable since the remedy was
designed to avert the possibility that the utterance
would provoke an enraged victim to a breach of peace
...
[However], preference for the civil remedy, which
enabled the frustrated victim to trade chivalrous
satisfaction for damages, has substantially eroded the
breach of peace justification for criminal libel laws. In
fact, in earlier, more violent times, the civil remedy
had virtually pre-empted the field of defamation;
except as a weapon against seditious libel, the
criminal prosecution fell into virtual desuetude.52
Then, the Court proceeded to consider whether the
historical limitation of the defense of truth in criminal
libel to utterances published "with good motives and
for justifiable ends:"53
. . . The "good motives" restriction incorporated in
many state constitutions and statutes to reflect
Alexander Hamilton’s unsuccessfully urged formula in
People v. Croswell, liberalized the common-law rule
denying any defense for truth. . . . In any event,
where the criticism is of public officials and their
conduct of public business, the interest in private
reputation is overborne by the larger public interest,
secured by the Constitution, in the dissemination of
truth. . . .
Moreover, even where the utterance is false, the
great principles of the Constitution which secure
freedom of expression in this area preclude
attaching adverse consequences to any except the
knowing or reckless falsehood. Debate on public
issues will not be uninhibited if the speaker must run
the risk that it will be proved in court that he spoke
out of hatred; even if he did speak out of hatred,
utterances honestly believed contribute to the free
interchange of ideas and the ascertainment of truth.
. . .54
Lest the impression be laid that criminal libel law was
rendered extinct in regards to public officials, the
Court made this important qualification in Garrison:
The use of calculated falsehood, however, would put
a different cast on the constitutional question.
Although honest utterance, even if inaccurate, may
further the fruitful exercise of the right of free speech,
it does not follow that the lie, knowingly and
deliberately published about a public official, should
enjoy a like immunity. At the time the First
Amendment was adopted, as today, there were
those unscrupulous enough and skillful enough to
use the deliberate or reckless falsehood as an
effective political tool to unseat the public servant
or even topple an administration. That speech is
used as a tool for political ends does not
automatically bring it under the protective mantle of
the Constitution. For the use of the known lie as a
tool is at once with odds with the premises of
democratic government and with the orderly manner
in which economic, social, or political change is to be
effected.55
Another ruling crucial to the evolution of our
understanding was Curtis Publishing Co. v.
Butts,56 which expanded the actual malice test to
cover not just public officials, but also public figures.
The U.S. Supreme Court, speaking through Chief
Justice Warren, stated that:
[D]ifferentiation between ‘public figures’ and ‘public
officials’ and adoption of separate standards of proof
for each have no basis in law, logic, or First
Amendment policy. Increasingly in this country, the
distinctions between governmental and private
sectors are blurred. . . . [I]t is plain that although they
are not subject to the restraints of the political
process, ‘public figures’, like ‘public officials’, often
play an influential role in ordering society. And surely
as a class these ‘public figures’ have as ready access
as ‘public officials’ to mass media of communication,
both to influence policy and to counter criticism of
their views and activities. Our citizenry has a
legitimate and substantial interest in the conduct of
such persons, and freedom of the press to engage in
uninhibited debate about their involvement in public
issues and events is as crucial as it is in the case of
"public officials." The fact that they are not amenable
to the restraints of the political process only
underscores the legitimate and substantial nature of
the interest, since it means that public opinion may
be the only instrument by which society can attempt
to influence their conduct.57
The public figure concept was later qualified in the
case of Gertz v. Welch, Inc.,58 which held that a
private person should be able to recover damages
without meeting the New York Times standard.59 In
doing so, the US Supreme Court recognized the
legitimate state interest in compensating private
individuals for wrongful injury to reputation.60
The prominent American legal commentator, Cass
Sunstein, has summarized the current American
trend in libel law as follows:
[C]onsider the law of libel. Here we have an explicit
system of free speech tiers. To simplify a complex
body of law: In the highest, most-speech protective
tier is libelous speech directed against a "public
figure". Government can allow libel plaintiffs to
recover damages as a result of such speech if and only
if the speaker had "actual malice"–that is, the speaker
must have known that the speech was false, or he
must have been recklessly indifferent to its truth or
falsity. This standard means that the speaker is
protected against libel suits unless he knew that he
was lying or he was truly foolish to think that he was
telling the truth. A person counts as a public figure (1)
if he is a "public official" in the sense that he works for
the government, (2) if, while not employed by
government, he otherwise has pervasive fame or
notoriety in the community, or (3) if he has thrust
himself into some particular controversy in order to
influence its resolution. Thus, for example, Jerry
Falwell is a public figure and, as a famous case holds,
he is barred from recovering against a magazine that
portrays him as having had sex with his mother.
Movie stars and famous athletes also qualify as public
figures. False speech directed against public figures is
thus protected from libel actions except in quite
extreme circumstances.61
It may also be noted that this heightened degree of
protection afforded to free expression to comment
on public figures or matters against criminal
prosecution for libel has also gained a foothold in
Europe. Article 10 of the European Convention on
Human Rights and Fundamental Freedoms provides
that "[e]veryone has the right to freedom of
expression. This right shall include freedom to hold
opinions and to receive and impart information and
ideas without interference by public authority and
regardless of frontiers."62 The European Court of
Human Rights applied this provision in Lingens v.
Austria,63 in ruling that the Republic of Austria was
liable to pay monetary damages "as just satisfaction"
to a journalist who was found guilty for defamation
under the Austrian Criminal Code.64 The European
Court noted:
[Article 10] is applicable not only to ‘information’ or
‘ideas’ that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb. Such are the
demands of that pluralism, tolerance and
broadmindedness without which there is no
‘democratic society’. . . . These principles are of
particular importance as far as the press is concerned.
Whilst the press must not overstep the bounds set,
inter alia, for the ‘protection of the reputation of
others’, it is nevertheless incumbent on it to impart
information and ideas on political issues just as on
those in other areas of public interest. Not only does
the press have the task of imparting such information
and ideas: the public also has the right to receive
them. . . .65
The international trend in diminishing the scope, if
not the viability, of criminal libel prosecutions is clear.
Most pertinently, it is also evident in our own
acceptance in this jurisdiction of the principles
applied by the U.S. Supreme Court in cases such
as New York Times and Garrison.
Particularly, this Court has accepted the proposition
that the actual malice standard governs the
prosecution of criminal libel cases concerning public
figures. In Adiong v. COMELEC,66 the Court cited New
York Times in noting that "[w]e have adopted the
principle that debate on public issues should be
uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes
unpleasantly sharp attacks on government and public
officials."67 The Court was even more explicit in its
affirmation of New York Times in Vasquez v. Court of
Appeals.68Speaking through Justice Mendoza:
For that matter, even if the defamatory statement is
false, no liability can attach if it relates to official
conduct, unless the public official concerned proves
that the statement was made with actual malice —
that is, with knowledge that it was false or with
reckless disregard of whether it was false or not. This
is the gist of the ruling in the landmark case of New
York Times v. Sullivan, which this Court has cited with
approval in several of its own decisions.[69] This is the
rule of "actual malice." In this case, the prosecution
failed to prove not only that the charges made by
petitioner were false but also that petitioner made
them with knowledge of their falsity or with reckless
disregard of whether they were false or not.70
The Court has likewise extended the "actual malice"
rule to apply not only to public officials, but also to
public
figures. In Ayer Productions Pty. Ltd. v.
Capulong,71 the Court cited with approval the
following definition of a public figure propounded by
an American textbook on torts:
A public figure has been defined as a person who, by
his accomplishments, fame, or mode of living, or by
adopting a profession or calling which gives the public
a legitimate interest in his doings, his affairs, and his
character, has become a 'public personage.' He is, in
other words, a celebrity. Obviously to be included in
this category are those who have achieved some
degree of reputation by appearing before the public,
as in the case of an actor, a professional baseball
player, a pugilist, or any other entertainer. The list is,
however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even
ordinary soldiers, an infant prodigy, and no less a
personage than the Grand Exalted Ruler of a lodge. It
includes, in short, anyone who has arrived at a
position where public attention is focused upon him
as a person.72
Ayer did not involve a prosecution for libel, but a
complaint for injunction on the filming of a
dramatized account of the 1986 EDSA Revolution.
Nonetheless, its definition of a public figure is
important to this case, as it clearly establishes that
even non-governmental officials are considered
public figures. In fact, the definition propounded
in Ayer was expressly applied by the Court in Borjal v.
Court of Appeals73 in ascertaining whether the
complainant therein was a public figure, thus
warranting the application of the actual malice test.74
We considered the following proposition as settled in
this jurisdiction: that in order to justify a conviction
for criminal libel against a public figure, it must be
established beyond reasonable doubt that the
libelous statements were made or published with
actual malice, meaning knowledge that the statement
was false or with reckless disregard as to whether or
not it was true. As applied to the present petition,
there are two main determinants: whether
complainant is a public figure, and assuming that he
is, whether the publication of the subject
advertisement was made with actual malice. Sadly,
the RTC and the CA failed to duly consider both
propositions.
Complainant Is a Public Figure
There should be little controversy in holding that
complainant is a public figure. He is a broadcast
journalist hosting two radio programs aired over a
large portion of the Visayas and Mindanao. Measured
against the definition provided in Ayer, complainant
would definitely qualify as a public figure.
Complainant even asserted before the trial court that
his broadcast was listened to widely, hence, his
notoriety is unquestionable.
Complainant’s standing as a public figure is further
militated by the contextual circumstances of the case.
The newspaper in question, the Sunday Post, is
particularly in circulation in the areas where
complainant’s broadcasts were aired. Certainly, it
cannot be denied that the target audience of the
newspaper were the same persons who may have
listened regularly to the complainant’s broadcast.
Even if the sphere of complainant’s renown is limited
in geography, it is in the same plane as the circulation
of the offending newspaper. The extent of
complainant’s ability to influence hearts and minds
through his broadcasts need not be established, only
that he has such capacity and willingness to exert an
influence. Complainant’s volition to practice the radio
broadcasting profession necessarily thrusts him in the
public sphere.
Actual Malice Not Proven
As it has been established that complainant was a
public figure, it was incumbent upon the prosecution
to prove actual malice on the part of Lim and
petitioner when the latter published the article
subject matter of the complaint. Set otherwise, the
prosecution must have established beyond
reasonable doubt that the defendants knew the
statements in the advertisement was false or
nonetheless proceeded with reckless disregard as to
publish it whether or not it was true.
It should thus proceed that if the statements made
against the public figure are essentially true, then no
conviction for libel can be had. Any statement that
does not contain a provably false factual connotation
will receive full constitutional protection.75 An
examination of the records of this case showed that
the précis of information contained in the questioned
publication were actually true. Thus, complainant
himself testified:
Q But is it true that these cases published in Exhibit
"F-1" are actually existing or previous cases?
A At the time of the publication those cases were
terminated, long terminated.
Q But is it true that in fact, there was a criminal case
No. R-43035 for Malicious Mischief filed May 10, 1979
against you?
FISCAL ROCAMORA:
Your Honor, I believe the witness did not understand
the question.
COURT: (to Stenographer)
Read back the question.
Q Is it true that in fact, there was a criminal case No.
R-43035 for Malicious Mischief filed May 10, 1979,
against you?
A I really do not know about that accusation.
COURT:
Proceed.
ATTY. FLORIDO:
Q When you came across the publication, did you
check if in fact there was a case docketed with that
number against you? Did you check?
A I did not.
Q: Now, is it true that there was a criminal case
against you for Estafa docketed as criminal case No.
17984-R filed July 21, 1982 where the complaints
were Pio Go and Mrs. Rosalita Roldan?
A: Yes.
Q: Is it true that there was also a criminal case filed
against you numbered 14843-R for Serious Physical
Injuries, date filed April 28, 1980 which in this
publication appears provisionally dismissed April 14,
1991?
A: That case, I do not have any idea about it.
Q: Did you inquire from the appropriate Court when
you received a copy of this to find out if it is true that
these cases were filed against you?
A: As far as I know, in fact, I never received any
subpoena or anything about this case.
Q: Yes, but did you upon receipt of Exhibit "F-1", did
you inquire from the Court whether it is true that
these cases had been recorded as filed against you?
A: Well, as far as I know like the Estafa case, I was
already long been acquitted in that case.
Q: You did not answer the question. Will you please
answer.
COURT: (to witness)
Q: The question is, did you inquire from the Court
concerned whether that case exist?
A: Yes.
COURT:
Proceed.
ATTY. FLORIDO:
Q: And you discovered that they were true that this
was provisionally dismissed with reference to 14843-
R for Serious Physical Injuries. You made inquiries?
A: Yes.
Q: And you also know that Dr. Jovenal Almendras your
godfather in the wedding had also filed a case of
Malicious Mischief against you?
A: I know but that was in the past.
Q: Yes, I know that that was in the past, but that is
true?
A: Yes.
Q: So, there is nothing false so far as Exhibit "F-1"?
A: There is no question about that but that is
malicious.
Q: Let me see. On the lefthand side of the bottom it
says. "Not too long ago, I received the following
newspaper clippings courtesy of the Cebu City
concerned citizens. The caption story below tells all.
If you know who the businessman alluded to in the
caption. Please do tells me and then, there is a
photograph a reprint from Sun Star publication. Do
you confirm that?76
xxx
Q: But is it true that you were arrested per this
photograph and I quote. "In a plush uptown hotel was
disturbed by operatives (right) of the Cebu City Police
under Police Lieutenant Col. Eduardo Ricardo just to
serve on the former a warrant of arrest issued by the
Cebu RTC Judge German Lee relative to the suit filed
by Apocemco against a businessman". Is it true that
you were arrested?
A: Yes.
Q: So this photograph is genuine photograph?
A: Yes.
Q: And you claimed that you have a good reputation
and that good reputation had been soiled by the
accused in this case. Let me ask you concerning your
reputation then. Is it not a fact that aside from this
record of criminal cases appearing in Exhibit "F-1",
you have also been at one time or another been
accused of several other criminal cases both in and
out of the City of Cebu?
A: Yes, before, 10 years, 15 years ago.
Q: And in the Municipal Trial Court in Cities alone in
Cebu City, you have the following per certificate
which we marked as Exhibit "2". Criminal Case Nos.
14843-R for Serious Physical Injuries, Torralba Cirse
"Choy"; 17984-R, for Estafa; Torralba Cirse R. R-43035
for Malicious Mischief. You will confirm that the same
Cirse Torralba and/or Choy Torralba and/or Cirse R.
Torralba mentioned in this certificate refer to your
person?
A: Yes.
Q: Now, aside from these criminal cases in the
Municipal Trial Courts in Cities, in Cebu City, you also
have 1, 2, 3, 4, 5, 6, 7, 8, 9 criminal cases before the
Regional Trial Court of Cebu per certificate that I
marked as Exhibit "3". Is that correct?
A: Yes, but all those cases have already been either
acquitted or dismissed. I will present the certification.
Q: Specifically, these cases has something to do with
your character. Let me count 1, 2, 3, 4, 5 cases for
Estafa, the 6th case for issuance of a bouncing check,
the 7th case is a case for issuance of a bouncing check;
and the 9th is also for issuance of a bouncing check.
You will confirm that?
....
COURT: (to witness)
Q: What happened to those cases?
A: I was acquitted your Honor. I was acquitted in all
those cases, some are dismissed, and fortunately,
your Honor, I do not have any conviction.77
From the foregoing, it is clear that there was nothing
untruthful about what was published in the Sunday
Post. The criminal cases listed in the advertisement as
pending against the complainant had indeed been
filed. It may have been inconvenient for the
complainant that these matters may have been
divulged, yet such information hardly falls within any
realm of privacy complainant could invoke, since the
pendency of these criminal charges are actually
matters of public record.
The information, moreover, went into the very
character and integrity of complainant to which his
listening public has a very legitimate interest.
Complainant hosts a public affairs program, one
which he himself claimed was imbued with public
character since it deals with "corruptions in
government, corruptions by public officials,
irregularities in government in comrades."78 By
entering into this line of work, complainant in effect
gave the public a legitimate interest in his life. He
likewise gave them a stake in finding out if he himself
had the integrity and character to have the right to
criticize others for their conduct.
In convicting the defendants, the lower courts paid
particular heed to Article 354 of the Revised Penal
Code, which provides that "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…". We hold that this provision, as
applied to public figures complaining of criminal libel,
must be construed in light of the constitutional
guarantee of free expression, and this Court’s
precedents upholding the standard of actual malice
with the necessary implication that a statement
regarding a public figure if true is not libelous. The
provision itself allows for such leeway, accepting as a
defense "good intention and justifiable motive." The
exercise of free expression, and its concordant
assurance of commentary on public affairs and public
figures, certainly qualify as "justifiable motive," if not
"good intention."
It cannot be helped if the commentary protected by
the Bill of Rights is accompanied by excessive color or
innuendo. Certainly, persons in possession of truthful
facts are not obliged to present the same in bland
fashion. These true facts may be utilized to convince
the listener/reader against a particular position, or to
even dissuade one against accepting the credibility of
a public figure. Dry facts, by themselves, are hardly
stirring. It is the commentary thereupon that usually
animates the discourse which is encouraged by the
Constitution as integral to the democratic way of life.
This is replete in many components of our daily life,
such as political addresses, televised debates, and
even commercial advertisements.
As adverted earlier, the guarantee of free speech was
enacted to protect not only polite speech, but even
expression in its most unsophisticated form. Criminal
libel stands as a necessary qualification to any
absolutist interpretation of the free speech clause, if
only because it prevents the proliferation of untruths
which if unrefuted,
would gain an undue influence in the public
discourse. But in order to safeguard against fears that
the public debate might be muted due to the reckless
enforcement of libel laws, truth has been sanctioned
as a defense, much more in the case when the
statements in question address public issues or
involve public figures.
In ascertaining the degree of falsity that would
constitute actual malice, the Court, citing New York
Times, has even gone so far as acknowledging:
Even assuming that the contents of the articles are
false, mere error, inaccuracy or even falsity alone
does not prove actual malice. Errors or misstatements
are inevitable in any scheme of truly free expression
and debate. Consistent with good faith and
reasonable care, the press should not be held to
account, to a point of suppression, for honest
mistakes or imperfections in the choice of language.
There must be some room for misstatement of fact as
well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and
effectively function as critical agencies in our
democracy. In Bulletin Publishing Corp. v. Noel we SO ORDERED.
held —
DANTE O. TINGA
A newspaper especially one national in reach and Associate Justice
coverage, should be free to report on events and
developments in which the public has a legitimate WE CONCUR:
interest with minimum fear of being hauled to court
REYNATO S. PUNO
by one group or another on criminal or civil charges
for libel, so long as the newspaper respects and keeps Associate Justice
within the standards of morality and civility prevailing
within the general community. Chairman

To avoid the self-censorship that would necessarily MA. ALICIA AUSTRIA-MARTINEZ, ROMEO J. CALLEJO,
accompany strict liability for erroneous statements, SR.
rules governing liability for injury to reputation are
Associate Justice Associate Justice
required to allow an adequate margin of error by
protecting some inaccuracies. It is for the same MINITA V. CHICO-NAZARIO
reason that the New York Times doctrine requires
that liability for defamation of a public official or Associate Justice
public figure may not be imposed in the absence of
proof of "actual malice" on the part of the person ATTESTATION
making the libelous statement.79
I attest that the conclusions in the above Decision had
To this end, the publication of the subject been in consultation before the case was assigned to
advertisement by petitioner and Lim cannot be the writer of the opinion of the Court’s Division.
deemed by this Court to have been done with actual
REYNATO S. PUNO
malice. Aside from the fact that the information
contained in said publication was true, the intention Associate Justice
to let the public know the character of their radio Chairman, Second Division
commentator can at best be subsumed under the
mantle of having been done with good motives and CERTIFICATION
for justifiable ends. The advertisement in question
Pursuant to Section 13, Article VIII of the Constitution,
falls squarely within the bounds of constitutionally
and the Division Chairman’s Attestation, it is hereby
protected expression under Section 4, Article III, and
certified that the conclusions in the above Decision
thus, acquittal is mandated.
had been reached in consultation before the case was
WHEREFORE, premises considered, the petition is assigned to the writer of the opinion of the Court’s
GRANTED. The assailed Decision and Resolution of Division.
the Court of Appeals dated 29 July 1996 and 3
HILARIO G. DAVIDE, JR.
October 1996, respectively, in CA-G.R. CR No. 16413
are REVERSED and SET ASIDE insofar as they affect Chief Justice
petitioner. The Decision of the Regional Trial Court of
Cebu City, promulgated on 17 May 1994, as regards
petitioner is likewise REVERSED and SET ASIDE and
petitioner is ACQUITTED of the charge of libel therein.
No costs. Footnotes
1 11
Published under the pseudonym "Silence Dogood" in The two photographs were reprinted from the Sun
the New England Courant (July 2 to 9, 1722 edition). Star Daily and the Freeman, newspapers of general
circulation in Visayas and Mindanao.
2
As a matter of fact, the principle is enshrined in
12
Article 19 of the United Nations Declaration of Human Rollo, p. 15.
Rights: "Everyone has the right to freedom of opinion
13
and expression; this right includes freedom to hold "That on or about the 13th day of October, 1991, in
opinions without interference and to seek, receive the City of Cebu, Philippines, and within the
and impart information and ideas through any media jurisdiction of this Honorable Court, the said accused,
and regardless of frontiers." conniving and confederating together and mutually
helping each other, with deliberate intent, with intent
3
See Section 4, Article III, Constitution. to besmirch, dishonor or discredit the person of one
Cirse ‘Choy’ Torralba and to place him in public
4
Article III, Constitution. contempt and ridicule, did then and there write and
5 publish or cause to be written and published on the
See People v. Tudtud, G.R. No. 144037, 26
Sunday Post, a newspaper of wide circulation in the
September 2003, 412 SCRA 142, 168; Teves v.
provinces of Cebu and Bohol on its issue on October
Sandiganbayan, G.R. No. 154182, 17 December 2004,
13, 1991, specifically on page 8 thereof, the context
447 SCRA 309, 335, J. Tinga, dissenting.
of which is hereunder reproduced verbatim, as
6
Penned by Associate Justice Eduardo G. follows:
Montenegro, concurred in by Associate Justices
....
Emeterio C. Cui and Jose C. De La Rama.

7 to the damage and prejudice of the said Cirse "Choy"

Rollo, p. 27.
Torralba."
8
The Court of Appeals lowered the penalty imposed 14
Rollo, p. 13.
to TWO (2) MONTHS and ONE (1) DAY of arresto
mayor, as minimum to ONE (1) YEAR, EIGHT (8) 15
RTC Records, p. 180.
MONTHS and TWENTY-ONE (21) DAYS of prision
16
correccional as maximum. TSN, 19 November 1993, pp. 8-9; TSN, 20 January
1994, pp. 7-9.
9
"WHEREFORE, the court finds accused SEGUNDO
17
LIM and BOY ‘BG’ GUINGGING, GUILTY beyond RTC Records, p. 183.
reasonable doubt, as principals of the crime of libel as
18
charged in the information, defined and penalized in Id. at 184.
Art. 353 in relation to Art. 355 of the Revised Penal 19
Supra. note 13.
Code, and hereby sentences the said accused to a
prison term of, ranging from, One (1) year, Eight (8) 20
Id. at 185.
months and Twenty-one (21) days as minimum to,
21
Two (2) years, Eleven (11) months and Eleven (11) Ibid.
days of prision correccional, as maximum; to 22
Rollo, p. 22.
indemnify the complainant, damages in the amount
of ₱50,000.00 and to pay the costs. 23
Id. at 6.

SO ORDERED." 24
Borjal v. Court of Appeals, 361 Phil. 1, 7 (1999).
10
RTC Records, p. 178. 25
Art. 353 of the Revised Penal Code.
26 39
Vicario v. Court of Appeals, et. al., 367 Phil. 292, 297 See Records, pp. 184-185.
(1990); citing Daez v. Court of Appeals, G.R. No.
40
47971, 31 October 1990, 191 SCRA 61, 67. See Wagman, supra note 28 at 146.

41
27
Supra note 24, citing Alfred H. Knight, The Life of See Laurence H. Tribe, Constitutional Choices
the Law, Crown Publishers, Inc., New York, 1996, pp. (1985), at 190.
102, 230 and 231. 42
268 U.S. 652 (1925).
28
Robert J. Wagman, The First Amendment Book 43
"This tentative incorporation of the First
(1991) at 144.
Amendment in the Fourteenth Amendment was
29
See "Record of the Trial of John Peter Zenger (from accepted in subsequent decisions and moved from
Zenger’s 1736 Narrative)", at dictum to holding in Fiske v. Kansas, the first case to
<http://www.law.umkc.edu/faculty/projects/ftrials/ uphold a defendant’s claim to protection under the
zenger/ zengerrecord.html> (Last visited, 27 First Amendment." Thomas Emerson, The System of
September 2005). Freedom of Expression (1970) at 103.

44
30
Wagman, supra note 28 at 146. See Wagman, supra note 28 at 146.

45
31
Which reads: "Congress shall make no law 376 U.S. 254 (1964).
respecting an establishment of religion, or prohibiting 46
Published by the Committee to Defend Martin
the free exercise thereof, abridging the freedom of
Luther King, Jr.
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the 47
New York Times v. Sullivan, supra note 45 at 258-
Government for redress of grievances." 259.
32
Kenneth Davis, Don’t Know Much About History: 48
Id. at 287-288.
Everything You Need to Know About American
49
History But Never Learned (1990), at 41. Id. at 280.

50
33
1 Stat. 596. The U.S. Supreme Court held: "A rule compelling the
critic of official conduct to guarantee the truth of all
34
In 1801. More than one-hundred fifty years later, his factual assertions–and to do so on pain of libel
Justice Brennan noted in New York Times v. Sullivan, judgments virtually unlimited in amount–leads to a
376 U.S. 254 (1964), "Although the Sedition Act was comparable ‘self-censorship.’ Allowance of the
never tested in this Court, the attack upon its validity defense of truth, with the burden of proving it on the
has carried the day in the court of history. Fines levied defendant, does not mean that only false speech will
in its prosecution were repaid by Act of Congress on be deterred." New York Times v. Sullivan, supra note
the ground that it was unconstitutional." Id. at 276. 45 at 279. Moreover, cited by way of footnote
35
reference is the statement of John Stuart Mill that
In a letter to Col. Edward Carrington dated 16
"Even a false statement may be deemed to make a
January 1787.
valuable contribution to the public debate, since it
36
See Gail Collins, Scorpion Tongues: The Irresistible brings about the clearer perception and livelier
History Of Gossip In American Politics (1998) at 25. impression of truth, produced by its collision with
error."
37
Id. at 29.
51
379 U.S. 64 (1964).
38
See id. at 25.
52
Id. at 67-69.
53
The phraseology, similarly adopted in Article 354 of
the Revised Penal Code, was employed as a standard
of defense for criminal libel in several American
states. See Footnote 7, Garrison v. Louisiana, ibid.
54
Id. at 72-74. (Emphasis supplied.)
55
Id. at 75. Emphasis supplied. It seems that the
provision of this distinction was the cause for three of
the Justices sitting in the Garrison case, Justices Hugo
Black, William O. Douglas, and Arthur Goldberg, to
concur separately, holding the more absolutist view
that the notion of seditious criminal libel was itself
noxious to the Constitution.
56
388 U.S. 130 (1967).
57
Id. at 163-164, CJ Warren, concurring. Nonetheless,
this passage from the opinion of Chief Justice Warren
acquired precedental value, four other Justices
concurring in the views expressed therein. See id., at
133.
58
418 U.S. 323 (1974).
59
See Kathleen Sullivan and Gerald Gunther,
Constitutional Law: Fourteenth Edition (2001) at
1036.
60
Gertz v. Welch, Inc., supra note 58 at 348.
61
Cass Sunstein, Democracy and the Problem of Free
Speech (1995 ed.) at 9-10.
62
Article 10(1), European Convention on Human
Rights and Fundamental Freedoms.
63
9815/82 [1986] ECHR 7 (8 July 1986).
64
Particularly, the defendant Lingens had criticized
the former Austrian Chancellor Bruno Kreisky for
protecting a political ally accused of having earlier
served in the German SS.
65
Lingens v. Austria, supra note 63, at par. 41.
66
G.R. No. 103956, 31 March 1992, 207 SCRA 712.
67
Id. at 716.
68
373 Phil. 238 (1999).
69
Particularly cited are Lopez v. Court of Appeals, 145
Phil. 219 (1970); Mercado v. Court of First Instance,
201 Phil. 565 (1982); Babst v. National Intelligence
Board, 132 SCRA 316, 325 (1984) (Fernando, C.J.,
concurring).
70
Vasquez, supra note 68 at 254.
71
G.R. Nos. 82380 and 82398, 29 April 1988, 160 SCRA
861.
72
Id. at 874-875; citing Prosser and Keeton on Torts,
(5th ed.) at 859-861.
73
Supra note 24.
74
The complainant in Borjal was the Executive
Director of the First National Conference on Land
Transportation, "to be participated in by the private
sector in the transport industry and government
agencies concerned in order to find ways and means
to solve the transportation crisis." Applying the
definition in Ayer, the Court concluded that the
complainant was a public figure, and that the actual
malice test found application.
75
Kathleen Sullivan and Gerald Gunther, supra note
59 at 1032; citing Milkovich v. Lorain Journal Co., 497
U.S. 1 (1990). The opinion therein of Chief Justice
Rehnquist nonetheless qualifies, "a false statement of
fact gains no constitutional immunity if the speaker
simply adds the words ‘I think’."
76
TSN, 23 April 23 1993, pp. 8-9.
77
TSN, 23 April 1993, pp. 6-11, 13.
78
TSN, 15 March 1993, p. 40.
79
Borjal v. Court of Appeals, supra note 24 at 26-27.
EN BANC
4. A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
RESOLUTION
PUNO, J.:
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 Piñas City, for an
investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her
husband, and having borne a child within this live-in
arrangement. Estrada believes that Escritor is
committing an immoral act that tarnishes the image
of the court, thus she should not be allowed to remain
employed therein as it might appear that the court
condones her act.2 Consequently, respondent was
charged with committing "disgraceful and immoral
conduct" under Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code. 3
Respondent Escritor testified that when she entered
the judiciary in 1999, she was already a widow, her
husband having died in 1998.4 She admitted that she
started living with Luciano Quilapio, Jr. without the
benefit of marriage more than twenty years ago when
her husband was still alive but living with another
woman. She also admitted that she and Quilapio have
a son.5 But as a member of the religious sect known
as the Jehovah’s Witnesses and the Watch Tower and
Bible Tract Society, respondent asserted that their
conjugal arrangement is in conformity with their
religious beliefs and has the approval of her
congregation.6 In fact, after ten years of living
together, she executed on July 28, 1991, a
"Declaration of Pledging Faithfulness."7
For Jehovah’s Witnesses, the Declaration allows
members of the congregation who have been
abandoned by their spouses to enter into marital
relations. The Declaration thus makes the resulting
union moral and binding within the congregation all
over the world except in countries where divorce is
allowed. As laid out by the tenets of their faith, the
Jehovah’s congregation requires that at the time the
declarations are executed, the couple cannot secure
the civil authorities’ approval of the marital
relationship because of legal impediments. Only
couples who have been baptized and in good standing
may execute the Declaration, which requires the
approval of the elders of the congregation. As a
matter of practice, the marital status of the
declarants and their respective spouses’ commission
of adultery are investigated before the declarations
are executed.8 Escritor and Quilapio’s declarations
were executed in the usual and approved form
prescribed by the Jehovah’s Witnesses,9 approved by
elders of the congregation where the declarations
were executed,10 and recorded in the Watch Tower
Central Office.11
Moreover, the Jehovah’s congregation believes that
once all legal impediments for the couple are lifted,
the validity of the declarations ceases, and the couple
should legalize their union. In Escritor’s case,
although she was widowed in 1998, thereby lifting
the legal impediment to marry on her part, her mate
was still not capacitated to remarry. Thus, their
declarations remained valid.12 In sum, therefore,
insofar as the congregation is concerned, there is
nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain
members in good standing in the congregation.
By invoking the religious beliefs, practices and moral
standards of her congregation, in asserting that her
conjugal arrangement does not constitute disgraceful
and immoral conduct for which she should be held
administratively liable,13 the Court had to determine
the contours of religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and
arduous scrutiny into the origins and development of
the religion clauses in the United States (U.S.) and the
Philippines, we held that in resolving claims involving
religious freedom (1) benevolent neutrality or
accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the
religion clauses in our Constitution; and (2) in
deciding respondent’s plea of exemption based on
the Free Exercise Clause (from the law with which she
is administratively charged), it is the compelling state
interest test, the strictest test, which must be
applied.14
Notwithstanding the above rulings, the Court could
not, at that time, rule definitively on the ultimate
issue of whether respondent was to be held
administratively liable for there was need to give the
State the opportunity to adduce evidence that it has
a more "compelling interest" to defeat the claim of
the respondent to religious freedom. Thus, in the
decision dated August 4, 2003, we remanded the
complaint to the Office of the Court Administrator
(OCA), and ordered the Office of the Solicitor General
(OSG) to intervene in the case so it can:
(a) examine the sincerity and centrality of
respondent’s claimed religious belief and practice;
(b) present evidence on the state’s "compelling
interest" to override respondent’s religious belief and
practice; and
(c) show that the means the state adopts in pursuing
its interest is the least restrictive to respondent’s
religious freedom. 15
It bears stressing, therefore, that the residual issues
of the case pertained NOT TO WHAT APPROACH THIS
COURT SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN
DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already
been ruled upon prior to the remand, and constitute
"the law of the case" insofar as they resolved the
issues of which framework and test are to be applied
in this case, and no motion for its reconsideration
having been filed.16 The only task that the Court is left
to do is to determine whether the evidence adduced
by the State proves its more compelling interest. This
issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpio’s insistence, in his dissent, in
attacking the ruling of this case interpreting the
religious clauses of the Constitution, made more than
two years ago, is misplaced to say the least. Since
neither the complainant, respondent nor the
government has filed a motion for reconsideration
assailing this ruling, the same has attained finality and
constitutes the law of the case. Any attempt to
reopen this final ruling constitutes a crass
contravention of elementary rules of procedure.
Worse, insofar as it would overturn the parties’ right
to rely upon our interpretation which has long
attained finality, it also runs counter to substantive
due process.
Be that as it may, even assuming that there were no
procedural and substantive infirmities in Mr. Justice
Carpio’s belated attempts to disturb settled issues,
and that he had timely presented his arguments, the
results would still be the same.
We review the highlights of our decision dated August
4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking
review of Old World antecedents of the religion
clauses, because "one cannot understand, much less
intelligently criticize the approaches of the courts and
the political branches to religious freedom in the
recent past in the United States without a deep
appreciation of the roots of these controversies in the
ancient and medieval world and in the American
experience."17 We delved into the conception of
religion from primitive times, when it started out as
the state
itself, when the authority and power of the state were
ascribed to God.18 Then, religion developed on its
own and became superior to the state, 19 its
subordinate,20 and even becoming an engine of state
policy.21
We ascertained two salient features in the review of
religious history: First, with minor exceptions, the
history of church-state relationships was
characterized by persecution, oppression, hatred,
bloodshed, and war, all in the name of the God of
Love and of the Prince of Peace. Second, likewise with
minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the
willing acceptance of that role by the vanguards of
religion in exchange for the favors and mundane
benefits conferred by ambitious princes and
emperors in exchange for religion’s invaluable
service. This was the context in which the unique
experiment of the principle of religious freedom and
separation of church and state saw its birth in
American constitutional democracy and in human
history. 22
Strictly speaking, the American experiment of
freedom and separation was not translated in the
First Amendment. That experiment had been
launched four years earlier, when the founders of the
republic carefully withheld from the new national
government any power to deal with religion. As James
Madison said, the national government had no
"jurisdiction" over religion or any "shadow of right to
intermeddle" with it. 23
The omission of an express guaranty of religious
freedom and other natural rights, however, nearly
prevented the ratification of the Constitution. The
restriction had to be made explicit with the adoption
of the religion clauses in the First Amendment as they
are worded to this day. Thus, the First Amendment
did not take away or abridge any power of the
national government; its intent was to make express
the absence of power.24 It commands, in two parts
(with the first part usually referred to as the
Establishment Clause and the second part, the Free
Exercise Clause), viz:
Congress shall make no law respecting an
establishment of religion or prohibiting the free
exercise thereof. 25
The Establishment and Free Exercise Clauses, it
should be noted, were not designed to serve
contradictory purposes. They have a single goal—to
promote freedom of individual religious beliefs and
practices. In simplest terms, the Free Exercise Clause
prohibits government from inhibiting religious beliefs
with penalties for religious beliefs and practice, while
the Establishment Clause prohibits government from
inhibiting religious belief with rewards for religious
beliefs and practices. In other words, the two religion
clauses were intended to deny government the
power to use either the carrot or the stick to influence
individual religious beliefs and practices.26
In sum, a review of the Old World antecedents of
religion shows the movement of establishment of
religion as an engine to promote state interests, to
the principle of non-establishment to allow the free
exercise of religion.
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 state’s hostility towards
religion allows no interaction between the two.
According to this Jeffersonian view, an absolute
barrier to formal interdependence of religion and
state needs to be erected. Religious institutions could
not receive aid, whether direct or indirect, from the
state. Nor could the state adjust its secular programs
to alleviate burdens the programs placed on
believers.29 Only the complete separation of religion
from politics would eliminate the formal influence of
religious institutions and provide for a free choice
among political views, thus a strict "wall of
separation" is necessary. 30
Strict separation faces difficulties, however, as it is
deeply embedded in American history and
contemporary practice that enormous amounts of
aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly
indirect aid from religion.31 For example, less than
twenty-four hours after Congress adopted the First
Amendment’s prohibition on laws respecting an
establishment of religion, Congress decided to
express its thanks to God Almighty for the many
blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer.32 Thus, strict
separationists are caught in an awkward position of
claiming a constitutional principle that has never
existed and is never likely to.33
The tamer version of the strict separationist view, the
strict neutrality or separationist view, (or, the
governmental neutrality theory) finds basis in
Everson v. Board of Education,34 where the Court
declared that Jefferson’s "wall of separation"
encapsulated the meaning of the First Amendment.
However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation"
does not require the state to be their adversary.
Rather, the state must be neutral in its relations with
groups of religious believers and non-believers. "State
power is no more to be used so as to handicap
religions than it is to favor them."35 The strict
neutrality approach is not hostile to religion, but it is
strict in holding that religion may not be used as a
basis for classification for purposes of governmental
action, whether the action confers rights or privileges
or imposes duties or obligations. Only secular criteria
may be the basis of government action. It does not
permit, much less require, accommodation of secular
programs to religious belief.36
The problem with the strict neutrality approach,
however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto
voiding of religious expression in the Free Exercise
Clause. As pointed out by Justice Goldberg in his
concurring opinion in Abington School District v.
Schempp,37 strict neutrality could lead to "a brooding
and pervasive devotion to the secular and a passive,
or even active, hostility to the religious" which is
prohibited by the Constitution.38 Professor Laurence
Tribe commented in his authoritative treatise, viz:
To most observers. . . strict neutrality has seemed
incompatible with the very idea of a free exercise
clause. The Framers, whatever specific applications
they may have intended, clearly envisioned religion as
something special; they enacted that vision into law
by guaranteeing the free exercise of religion but not,
say, of philosophy or science. The strict neutrality
approach all but erases this distinction. Thus it is not
surprising that the [U.S.] Supreme Court has rejected
strict neutrality, permitting and sometimes
mandating religious classifications.39
Thus, the dilemma of the separationist approach,
whether in the form of strict separation or strict
neutrality, is that while the Jeffersonian wall of
separation "captures the spirit of the American ideal
of church-state separation," in real life, church and
state are not and cannot be totally separate. This is all
the more true in contemporary times when both the
government and religion are growing and expanding
their spheres of involvement and activity, resulting in
the intersection of government and religion at many
points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or
accommodation is premised on a different view of the
"wall of separation," associated with Williams,
founder of the Rhode Island colony. Unlike the
Jeffersonian wall that is meant to protect the state
from the church, the wall is meant to protect the
church from the state.41 This doctrine was expressed
in Zorach v. Clauson,42 which held, viz:
The First Amendment, however, does not say that in
every and all respects there shall be a separation of
Church and State. Rather, it studiously defines the
manner, the specific ways, in which there shall be no
concert or union or dependency one or the other.
That is the common sense of the matter. Otherwise,
the state and religion would be aliens to each other -
hostile, suspicious, and even unfriendly. Churches
could not be required to pay even property taxes.
Municipalities would not be permitted to render
police or fire protection to religious groups.
Policemen who helped parishioners into their places
of worship would violate the Constitution. Prayers in
our legislative halls; the appeals to the Almighty in the
messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God"
in our courtroom oaths- these and all other
references to the Almighty that run through our laws,
our public rituals, our ceremonies would be flouting
the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the
Court opens each session: "God save the United
States and this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions
presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the
state encourages religious instruction or cooperates
with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For
it then respects the religious nature of our people and
accommodates the public service to their spiritual
needs. To hold that it may not would be to find in the
Constitution a requirement that the government
show a callous indifference to religious groups. . . But
we find no constitutional requirement which makes it
necessary for government to be hostile to religion and
to throw its weight against efforts to widen their
effective scope of religious influence. 43
Benevolent neutrality recognizes that religion plays
an important role in the public life of the United
States as shown by many traditional government
practices which, to strict neutrality, pose
Establishment Clause questions. Among these are the
inscription of "In God We Trust" on American
currency; the recognition of America as "one nation
under God" in the official pledge of allegiance to the
flag; the Supreme Court’s time-honored practice of
opening oral argument with the invocation "God save
the United States and this Honorable Court"; and the
practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant
denomination, to lead representatives in prayer.
These practices clearly show the preference for one
theological viewpoint—the existence of and potential
for intervention by a god—over the contrary
theological viewpoint of atheism. Church and
government agencies also cooperate in the building
of low-cost housing and in other forms of poor relief,
in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with
strong moral dimension. 44
Examples of accommodations in American
jurisprudence also abound, including, but not limited
to the U.S. Court declaring the following acts as
constitutional: a state hiring a Presbyterian minister
to lead the legislature in daily prayers,45 or requiring
employers to pay workers compensation when the
resulting inconsistency between work and Sabbath
leads to discharge;46 for government to give money to
religiously-affiliated organizations to teach
adolescents about proper sexual behavior;47 or to
provide religious school pupils with books;48 or bus
rides to religious schools;49 or with cash to pay for
state-mandated standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the
rights embodied in the Religion clauses are invoked in
relation to governmental action, almost invariably in
the form of legislative acts.
Generally speaking, a legislative act that purposely
aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free
Exercise Clause or the Establishment Clause or both.
This is true whether one subscribes to the
separationist approach or the benevolent neutrality
or accommodationist approach.
But the more difficult religion cases involve legislative
acts which have a secular purpose and general
applicability, but may incidentally or inadvertently aid
or burden religious exercise. Though the government
action is not religiously motivated, these laws have a
"burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with
respect to these governmental actions,
accommodation of religion may be allowed, not to
promote the government’s favored form of religion,
but to allow individuals and groups to exercise their
religion without hindrance. The purpose of
accommodations is to remove a burden on, or
facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the
"government [may] take religion into account…to
exempt, when possible, from generally applicable
governmental regulation individuals whose religious
beliefs and practices would otherwise thereby be
infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may
flourish."51 In the ideal world, the legislature would
recognize the religions and their practices and would
consider them, when practical, in enacting laws of
general application. But when the legislature fails to
do so, religions that are threatened and burdened
may turn to the courts for protection.52
Thus, what is sought under the theory of
accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an
exemption from its application or its "burdensome
effect," whether by the legislature or the
courts.53 Most of the free exercise claims brought to
the U.S. Court are for exemption, not invalidation of
the facially neutral law that has a "burdensome"
effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and
Smith
The pinnacle of free exercise protection and the
theory of accommodation in the U.S. blossomed in
the case of Sherbert v. Verner,55 which ruled that
state regulation that indirectly restrains or punishes
religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause.56 According
to Sherbert, when a law of general application
infringes religious exercise, albeit incidentally, the
state interest sought to be promoted must be so
paramount and compelling as to override the free
exercise claim. Otherwise, the Court itself will carve
out the exemption.
In this case, Sherbert, a Seventh Day Adventist,
claimed unemployment compensation under the law
as her employment was terminated for refusal to
work on Saturdays on religious grounds. Her claim
was denied. She sought recourse in the Supreme
Court. In laying down the standard for determining
whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellee’s conscientious objection to
Saturday work constitutes no conduct prompted by
religious principles of a kind within the reach of state
legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellant’s
constitutional challenge, it must be either because
her disqualification as a beneficiary represents no
infringement by the State of her constitutional right
of free exercise, or because any incidental burden on
the free exercise of appellant’s religion may be
justified by a "compelling state interest in the
regulation of a subject within the State’s
constitutional power to regulate. . . ."57 (emphasis
supplied)
The Court stressed that in the area of religious liberty,
it is basic that it is not sufficient to merely show a
rational relationship of the substantial infringement
to the religious right and a colorable state interest.
"(I)n this highly sensitive constitutional area, ‘[o]nly
the gravest abuses, endangering paramount
interests, give occasion for permissible
58
limitation.’" The Court found that there was no such
compelling state interest to override Sherbert’s
religious liberty. It added that even if the state could
show that Sherbert’s exemption would pose serious
detrimental effects to the unemployment
compensation fund and scheduling of work, it was
incumbent upon the state to show that no alternative
means of regulations would address such detrimental
effects without infringing religious liberty. The state,
however, did not discharge this burden. The Court
thus carved out for Sherbert an exemption from the
Saturday work requirement that caused her
disqualification from claiming the unemployment
benefits. The Court reasoned that upholding the
denial of Sherbert’s benefits would force her to
choose between receiving benefits and following her
religion. This choice placed "the same kind of burden
upon the free exercise of religion as would a fine
imposed against (her) for her Saturday worship." This
germinal case of Sherbert firmly established the
exemption doctrine, 59 viz:
It is certain that not every conscience can be
accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience,
exemptions ought to be granted unless some
"compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when
government action burdens, even inadvertently, a
sincerely held religious belief or practice, the state
must justify the burden by demonstrating that the
law embodies a compelling interest, that no less
restrictive alternative exists, and that a religious
exemption would impair the state’s ability to
effectuate its compelling interest. As in other
instances of state action affecting fundamental rights,
negative impacts on those rights demand the highest
level of judicial scrutiny. After Sherbert, this strict
scrutiny balancing test resulted in court-mandated
religious exemptions from facially-neutral laws of
general application whenever unjustified burdens
were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the
U.S. Court again ruled that religious exemption was in
order, notwithstanding that the law of general
application had a criminal penalty. Using heightened
scrutiny, the Court overturned the conviction of
Amish parents for violating Wisconsin compulsory
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 protected—conduct
beyond speech, press, or worship was included in the
shelter of freedom of religion. Neither Sherbert’s
refusal to work on the Sabbath nor the Amish parents’
refusal to let their children attend ninth and tenth
grades can be classified as conduct protected by the
other clauses of the First Amendment. Second,
indirect impositions on religious conduct, such as the
denial of twenty-six weeks of unemployment
insurance benefits to Adel Sherbert, as well as direct
restraints, such as the criminal prohibition at issue in
Yoder, were prohibited. Third, as the language in the
two cases indicate, the protection granted was
extensive. Only extremely strong governmental
interests justified impingement on religious conduct,
as the absolute language of the test of the Free
Exercise Clause suggests. 64
Fourth, the strong language was backed by a
requirement that the government provide proof of
the important interest at stake and of the dangers to
that interest presented by the religious conduct at
issue. Fifth, in determining the injury to the
government’s interest, a court was required to focus
on the effect that exempting religious claimants from
the regulation would have, rather than on the value
of the regulation in general. Thus, injury to
governmental interest had to be measured at the
margin: assuming the law still applied to all others,
what would be the effect of exempting the religious
claimant in this case and other similarly situated
religious claimants in the future? Together, the fourth
and fifth elements required that facts, rather than
speculation, had to be presented concerning how the
government’s interest would be harmed by excepting
religious conduct from the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free
exercise jurisprudence which would impose a
discipline to prevent manipulation in the balancing of
interests. The fourth and the fifth elements
prevented the likelihood of exaggeration of the
weight on the governmental interest side of the
balance, by not allowing speculation about the effects
of a decision adverse to those interests nor accepting
that those interests would be defined at a higher level
of generality than the constitutional interests on the
other side of the balance. 66
Thus, the strict scrutiny and compelling state interest
test significantly increased the degree of protection
afforded to religiously motivated conduct. While not
affording absolute immunity to religious activity, a
compelling secular justification was necessary to
uphold public policies that collided with religious
practices. Although the members of the U.S. Court
often disagreed over which governmental interests
should be considered compelling, thereby producing
dissenting and separate opinions in religious conduct
cases, this general test established a strong
presumption in favor of the free exercise of
religion.67 Most scholars and courts agreed that
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 state’s determination that their
religious use of peyote, which resulted in their
dismissal from employment, was misconduct
disqualifying them from receipt of unemployment
compensation benefits. 70
Justice Scalia, writing for the majority, rejected the
claim that free exercise of religion required an
exemption from an otherwise valid law. Scalia said
that "[w]e have never held that an individual’s
religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State
is free to regulate. On the contrary, the record of
more than a century of our free exercise
jurisprudence contradicts that proposition." 71 Scalia
thus declared "that the right of free exercise does not
relieve an individual of the obligation to comply with
a ‘valid and neutral law of general applicability of the
ground that the law proscribes (or prescribes)
conduct that his religion prescribes (or
proscribes).’" 72
Justice Scalia’s opinion then reviewed the cases
where free exercise challenges had been upheld—
such as Cantwell, Murdock, Follet, Pierce, and
Yoder—and said that none involved the free exercise
clause claims alone. All involved "the Free Exercise
Clause in conjunction with other constitutional
protections, such as freedom of speech and of the
press, or the right of parents to direct the education
of their children." 73 The Court said that Smith was
distinguishable because it did not involve such a
"hybrid situation," but was a free exercise claim
"unconnected with any communicative activity or
parental right." 74
Moreover, the Court said that the Sherbert line of
cases applied only in the context of the denial of
unemployment benefits; it did not create a basis for
an exemption from criminal laws. Scalia wrote that
"[e]ven if we were inclined to breathe into Sherbert
some life beyond the unemployment compensation
field, we would not apply it to require exemptions
from a generally applicable criminal law." 75
The Court expressly rejected the use of strict scrutiny
for challenges to neutral laws of general applicability
that burden religion. Justice Scalia said that
"[p]recisely because ‘we are a cosmopolitan nation
made up of people of almost conceivable religious
preference,’ and precisely because we value and
protect that religious divergence, we cannot afford
the luxury of deeming presumptively invalid, as
applied to the religious objector, every regulation of
conduct that does not protect an interest of the
highest order." The Court said that those seeking
religious exemptions from laws should look to the
democratic process for protection, not the courts. 76
Smith thus changed the test for the free exercise
clause. Strict or heightened scrutiny and the
compelling justification approach were abandoned
for evaluating laws burdening religion; neutral laws of
general applicability only have to meet the rational
basis test, no matter how much they burden
religion. 77
Justice O’Connor wrote a concurring opinion sharply
criticizing the rejection of the compelling state
interest test, asserting that "(t)he compelling state
interest test effectuates the First Amendment’s
command that religious liberty is an independent
liberty, that it occupies a preferred position, and that
the Court will not permit encroachments upon this
liberty, whether direct or indirect, unless required by
clear and compelling government interest ‘of the
highest order.’"78 She said that strict scrutiny is
appropriate for free exercise challenges because
"[t]he compelling interest test reflects the First
Amendment’s mandate of preserving religious liberty
to the fullest extent possible in a pluralistic
society." 79
Justice O’Connor also disagreed with the majority’s
description of prior cases and especially its leaving the
protection of minority religions to the political
process. She said that, "First Amendment was
enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and
may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was
joined by Justices Brennan and Marshall. The
dissenting Justices agreed with Justice O’Connor that
the majority had mischaracterized precedents, such
as in describing Yoder as a "hybrid" case rather than
as one under the free exercise clause. The dissent also
argued that strict scrutiny should be used in
evaluating government laws burdening religion. 81
Criticism of Smith was intense and
widespread.82 Academics, Justices, and a bipartisan
majority of Congress noisily denounced the
decision.83 Smith has the rather unusual distinction of
being one case that is almost universally despised
(and this is not too strong a word) by both the liberals
and conservatives.84 Liberals chasten the Court for its
hostility to minority faiths which, in light of Smith’s
general applicability rule, will allegedly suffer at the
hands of the majority faith whether through outright
hostility or neglect. Conservatives bemoan the
decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an
ever more secular nation that is increasingly hostile to
religious belief as an oppressive and archaic
anachronism. 85
The Smith doctrine is highly unsatisfactory in several
respects and has been criticized as exhibiting a
shallow understanding of free exercise
jurisprudence.86 First, the First amendment was
intended to protect minority religions from the
tyranny of the religious and political
87
majority. 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
92
religion. 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-
Smith94 doctrine simply defies common sense. The
state should not be allowed to interfere with the most
deeply held fundamental religious convictions of an
individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially
true when there are alternative approaches for the
state to effectively pursue its objective without
serious inadvertent impact on religion.95
At bottom, the Court’s ultimate concern in Smith
appeared to be two-fold: (1) the difficulty in defining
and limiting the term "religion" in today’s pluralistic
society, and (2) the belief that courts have no
business determining the significance of an
individual’s religious beliefs. For the Smith Court,
these two concerns appear to lead to the conclusion
that the Free Exercise Clause must protect everything
or it must protect virtually nothing. As a result, the
Court perceives its only viable options are to leave
free exercise protection to the political process or to
allow a "system in which each conscience is a law
unto itself." 96 The Court’s characterization of its
choices have been soundly rejected as false, viz:
If one accepts the Court’s assumption that these are
the only two viable options, then admittedly, the
Court has a stronger argument. But the Free Exercise
Clause cannot be summarily dismissed as too difficult
to apply and this should not be applied at all. The
Constitution does not give the judiciary the option of
simply refusing to interpret its provisions. The First
Amendment dictates that free exercise of "religion"
must be protected. Accordingly, the Constitution
compels the Court to struggle with the contours of
what constitutes "religion." There is no constitutional
opt-out provision for constitutional words that are
difficult to apply.
Nor does the Constitution give the Court the option
of simply ignoring constitutional mandates. A large
area of middle ground exists between the Court’s two
opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court
to tackle difficult issues such as defining religion and
possibly evaluating the significance of a religious
belief against the importance of a specific law. The
Court describes the results of this middle ground
where "federal judges will regularly balance against
the importance of general laws the significance of
religious practice," and then dismisses it as a "parade
of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most
hurt by this "parade of horribles." Surely not religious
individuals; they would undoubtedly prefer their
religious beliefs to be probed for sincerity and
significance rather than acquiesce to the Court’s
approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the
Court is concerned about requiring lawmakers at
times constitutionally to exempt religious individuals
from statutory provisions, its concern is misplaced. It
is the lawmakers who have sought to prevent the
Court from dismantling the Free Exercise Clause
through such legislation as the [Religious Freedom
Restoration Act of 1993], and in any case, the Court
should not be overly concerned about hurting
legislature’s feelings by requiring their laws to
conform to constitutional dictates. Perhaps the Court
is concerned about putting such burden on judges. If
so, it would truly be odd to say that
requiring the judiciary to perform its appointed role
as constitutional interpreters is a burden no judge
should be expected to fulfill.97
Parenthetically, Smith’s characterization that the U.S.
Court has "never held that an individual’s religious
beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the state
is free to regulate"—an assertion which Mr. Justice
Carpio adopted unequivocally in his dissent—has
been sharply criticized even implicitly by its
supporters, as blatantly untrue. Scholars who
supported Smith frequently did not do so by opposing
the arguments that the Court was wrong as a matter
of original meaning [of the religion clauses] or that
the decision conflicted with precedent [i.e. the Smith
decision made shocking use of precedent]—those
points were often conceded. 98
To justify its perversion of precedent, the Smith Court
attempted to distinguish the exemption made in
Yoder, by asserting that these were premised on two
constitutional rights combined—the right of parents
to direct the education of their children and the right
of free exercise of religion. Under the Court’s opinion
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
Court’s opinion in Yoder, parents whose objection to
the law was not religious would also have to obey it.
The fatal flaw in this argument, however, is that if two
constitutional claims will fail on its own, how would it
prevail if combined?99 As for Sherbert, the Smith
Court attempted to limit its doctrine as applicable
only to denials of unemployment compensation
benefits where the religiously-compelled conduct
that leads to job loss is not a violation of criminal law.
And yet, this is precisely why the rejection of Sherbert
was so damaging in its effect: the religious person was
more likely to be entitled to constitutional protection
when forced to choose between religious conscience
and going to jail than when forced to choose between
religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative
public reaction especially from the religious
community, and commentaries insisted that the
Court was allowing the Free Exercise Clause to
disappear.101 So much was the uproar that a majority
in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993.102 The RFRA
was adopted to negate the Smith test and require
strict scrutiny for free exercise claims. Indeed, the
findings section of the Act notes that Smith "virtually
eliminated the requirement that the government
justify burdens on religious exercise imposed by laws
neutral toward religion."103 The Act declares that its
purpose is to restore the compelling interest test as
set forth in Sherbert v. Verner and Wisconsin v. Yoder,
and to guarantee its application in all cases where
free exercise of religion is substantially burdened; and
to provide a claim of defense to a person whose
religious exercise is substantially burdened by
government.104 The RFRA thus sought to overrule
Smith and make strict scrutiny the test for all free
exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme
Court declared the RFRA unconstitutional, ruling that
Congress had exceeded its power under the
Fourteenth Amendment in enacting the law. The
Court ruled that Congress is empowered to enact
laws "to enforce the amendment," but Congress is
not "enforcing" when it creates new constitutional
rights or expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S.
Supreme Court was accused of lack of judicial respect
for the constitutional decision-making by a
coordinate branch of government. In Smith, Justice
Scalia wrote:
"Values that are protected against governmental
interference through enshrinement in the Bill of
Rights are not thereby banished from the political
process. Just as society believes in the negative
protection accorded to the press by the First
Amendment is likely to enact laws that affirmatively
foster the dissemination of the printed word, so also
a society that believes in the negative protection
accorded to religious belief can be expected to be
solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked
disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court’s characterization of
the RFRA as a kind of usurpation of the judicial power
to say what the Constitution means, the law offered
no definition of Free Exercise, and on its face
appeared to be a procedural measure establishing a
standard of proof and allocating the duty of meeting
it. In effect, the Court ruled that Congress had no
power in the area of religion. And yet, Free Exercise
exists in the First Amendment as a negative on
Congress. The power of Congress to act towards the
states in matters of religion arises from the
Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while
expressly recognizing the power of legislature to give
accommodations, is in effect contrary to the
benevolent neutrality or accommodation approach.
Moreover, if we consider the history of the
incorporation of the religion clauses in the U.S., the
decision in Smith is grossly inconsistent with the
importance placed by the framers on religious faith.
Smith is dangerous precedent because it
subordinates fundamental rights of religious belief
and practice to all neutral, general legislation.
Sherbert recognized the need to protect religious
exercise in light of the massive increase in the size of
government, the concerns within its reach, and the
number of laws administered by it. However, Smith
abandons the protection of religious exercise at a
time when the scope and reach of government has
never been greater. It has been pointed out that
Smith creates the legal framework for persecution:
through general, neutral laws, legislatures are now
able to force conformity on religious minorities
whose practice irritate or frighten an intolerant
majority.109
The effect of Smith is to erase entirely the concept of
mandatory accommodations, thereby emasculating
the Free Exercise Clause. Smith left religious freedom
for many in the hands of the political process, exactly
where it would be if the religion clauses did not exist
in the Bill of Rights. Like most protections found in the
Bill of Rights, the religion clauses of the First
Amendment are most important to those who cannot
prevail in the political process. The Court in Smith
ignores the fact that the protections found in the Bill
of Rights were deemed too important to leave to the
political process. Because mainstream religions
generally have been successful in protecting their
interests through the political process, it is the non-
mainstream religions that are adversely affected by
Smith. In short, the U.S. Supreme Court has made it
clear to such religions that they should not look to the
First Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of
accommodation: (a) those which are found to be
constitutionally compelled, i.e., required by the Free
Exercise Clause; (b) those which are discretionary or
legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the
Establishment Clause; and (c) those which the religion
clauses prohibit.111
Mandatory accommodation results when the Court
finds that accommodation is required by the Free
Exercise Clause, i.e, when the Court itself carves out
an exemption. This accommodation occurs when all
three conditions of the compelling interest test are
met, i.e, a statute or government action has burdened
claimant’s free exercise of religion, and there is no
doubt as to the sincerity of the religious belief; the
state has failed to demonstrate a particularly
important or compelling governmental goal in
preventing an exemption; and that the state has
failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury
to religious conscience is so great and the
advancement of public purposes is incomparable that
only indifference or hostility could explain a refusal to
make exemptions. Thus, if the state’s objective could
be served as well or almost as well by granting an
exemption to those whose religious beliefs are
burdened by the regulation, the Court must grant the
exemption. The Yoder case is an example where the
Court held that the state must accommodate the
religious beliefs of the Amish who objected to
enrolling their children in high school as required by
law. The Sherbert case is another example where the
Court held that the state unemployment
compensation plan must accommodate the religious
convictions of Sherbert.112
In permissive accommodation, the Court finds that
the State may, but is not required to, accommodate
religious interests. The U.S. Walz case illustrates this
situation where the U.S. Supreme Court upheld the
constitutionality of tax exemption given by New York
to church properties, but did not rule that the state
was required to provide tax exemptions. The Court
declared that "(t)he limits of permissible state
accommodation to religion are by no means co-
extensive with the noninterference mandated by the
Free Exercise Clause."113 Other examples are Zorach
v. Clauson,114 allowing released time in public schools
and Marsh v. Chambers,115 allowing payment of
legislative chaplains from public funds.
Parenthetically, the Court in Smith has ruled that this
is the only accommodation allowed by the Religion
Clauses.
Finally, when the Court finds no basis for a mandatory
accommodation, or it determines that the legislative
accommodation runs afoul of the establishment or
the free exercise clause, it results to a prohibited
accommodation. In this case, the Court finds that
establishment concerns prevail over potential
accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause
does not mean that all claims for free exercise
exemptions are valid.116 An example where
accommodation was prohibited is McCollum v. Board
of Education,117 where the Court ruled against
optional religious instruction in the public school
premises.118
Given that a free exercise claim could lead to three
different results, the question now remains as to how
the Court should determine which action to take. In
this regard, it is the strict scrutiny-compelling state
interest test which is most in line with the benevolent
neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle
underlying the First Amendment is that freedom to
carry out one’s duties to a Supreme Being is an
inalienable right, not one dependent on the grace of
legislature. Religious freedom is seen as a substantive
right and not merely a privilege against discriminatory
legislation. With religion looked upon with
benevolence and not hostility, benevolent neutrality
allows accommodation of religion under certain
circumstances.
Considering that laws nowadays are rarely enacted
specifically to disable religious belief or practice, free
exercise disputes arise commonly when a law that is
religiously neutral and generally applicable on its face
is argued to prevent or burden what someone’s
religious faith requires, or alternatively, requires
someone to undertake an act that faith would
preclude. In essence, then, free exercise arguments
contemplate religious exemptions from otherwise
general laws.119
Strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test
reflects the First Amendment’s mandate of
preserving religious liberty to the fullest extent
possible in a pluralistic society.120Underlying the
compelling state interest test is the notion that free
exercise is a fundamental right and that laws
burdening it should be subject to strict scrutiny.121
In its application, the compelling state interest test
follows a three-step process, summarized as follows:
If the plaintiff can show that a law or government
practice inhibits the free exercise of his religious
beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to
the accomplishment of some important (or
‘compelling’) secular objective and that it is the least
restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does
not, the plaintiff is entitled to exemption from the law
or practice at issue. In order to be protected, the
claimant’s beliefs must be ‘sincere’, but they need not
necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant’s
religious denomination. ‘Only beliefs rooted in
religion are protected by the Free Exercise Clause’;
secular beliefs, however sincere and conscientious,
do not suffice.122
In sum, the U.S. Court has invariably decided claims
based on the religion clauses using either the
separationist approach, or the benevolent neutrality
approach. The benevolent neutrality approach has
also further been split by the view that the First
Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The
current prevailing view as pronounced in Smith,
however, is that that there are no required
accommodation under the First Amendment,
although it permits of legislative accommodations.
3. Religion Clauses in the Philippine Context:
Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis-à-vis
Philippine Constitution
By juxtaposing the American Constitution and
jurisprudence against that of the Philippines, it is
immediately clear that one cannot simply conclude
that we have adopted—lock, stock and barrel—the
religion clauses as embodied in the First Amendment,
and therefore, the U.S. Court’s interpretation of the
same. Unlike in the U.S. where legislative exemptions
of religion had to be upheld by the U.S. Supreme
Court as constituting permissive accommodations,
similar exemptions for religion are mandatory
accommodations under our own constitutions. Thus,
our 1935, 1973 and 1987 Constitutions contain
provisions on tax exemption of church
property,123 salary of religious officers in government
institutions,124 and optional religious
125
instruction. 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
Constitution’s departure from the U.S. Constitution,
insofar as religious accommodations are concerned.
It is indubitable that benevolent neutrality-
accommodation, whether mandatory or permissive,
is the spirit, intent and framework underlying the
Philippine Constitution.128 As stated in our Decision,
dated August 4, 2003:
The history of the religion clauses in the 1987
Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S.
Constitution 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 Carpio’s total
adherence to the U.S. Court’s interpretation of the
religion clauses to effectively deny accommodations
on the sole basis that the law in question is neutral
and of general application. For even if it were true
that "an unbroken line of U.S. Supreme Court
decisions" has never held that "an individual’s
religious beliefs [do not] excuse him from compliance
with an otherwise valid law prohibiting conduct that
the State is free to regulate," our own Constitutions
have made significant changes to accommodate and
exempt religion. Philippine jurisprudence shows that
the Court has allowed exemptions from a law of
general application, in effect, interpreting our religion
clauses to cover both mandatory and permissive
accommodations.130
To illustrate, in American Bible Society v. City of
Manila,131 the Court granted to plaintiff exemption
from a law of general application based on the Free
Exercise Clause. In this case, plaintiff was required by
an ordinance to secure a mayor’s permit and a
municipal license as ordinarily required of those
engaged in the business of general merchandise
under the city’s ordinances. Plaintiff argued that this
amounted to "religious censorship and restrained the
free exercise and enjoyment of religious profession,
to wit: the distribution and sale of bibles and other
religious literature to the people of the Philippines."
Although the Court categorically held that the
questioned ordinances were not applicable to
plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for profit, it
also ruled that applying the ordinance to plaintiff and
requiring it to secure a license and pay a license fee
or tax would impair its free exercise of religious
profession and worship and its right of dissemination
of religious beliefs "as the power to tax the exercise
of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and
enjoyment of religious profession and worship carries
with it the right to disseminate religious information.
Any restraint of such right can only be justified like
other restraints of freedom of expression on the
grounds that there is a clear and present danger of
any substantive evil which the State has the right to
prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is
Ebralinag v. The Division Superintendent of
Schools.132 The case involved several Jehovah’s
Witnesses who were expelled from school for
refusing to salute the flag, sing the national anthem
and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the religious
freedom issue, a unanimous Court overturned an
earlier ruling denying such exemption,133 using the
"grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation
on the exercise of religious freedom (according to the
late Chief Justice Claudio Teehankee in his dissenting
opinion in German v. Barangan, 135 SCRA 514, 517) is
the existence of a grave and present danger of a
character both grave and imminent, of a serious evil
to public safety, public morals, public health or any
other legitimate public interest, that the State has a
right (and duty) to prevent. Absent such a threat to
public safety, the expulsion of the petitioners from
the schools is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an
exemption from a law of general application, on the
strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive
accommodation. The case of Victoriano v. Elizalde
Rope Workers Union135 is an example of the
application of Mr. Justice Carpio’s theory of
permissive accommodation, where religious
exemption is granted by a legislative act. In
Victoriano, the constitutionality of Republic Act No.
3350 was questioned. The said R.A. exempt
employees from the application and coverage of a
closed shop agreement—mandated in another law—
based on religious objections. A unanimous Court
upheld the constitutionality of the law, holding that
"government is not precluded from pursuing valid
objectives secular in character even if the incidental
result would be favorable to a religion or sect."
Interestingly, the secular purpose of the challenged
law which the Court upheld was the advancement of
"the constitutional right to the free exercise of
religion."136
Having established that benevolent neutrality-
accommodation is the framework by which free
exercise cases must be decided, the next question
then turned to the test that should be used in
ascertaining the limits of the exercise of religious
freedom. In our Decision dated August 4, 2003, we
reviewed our jurisprudence, and ruled that in cases
involving purely conduct based on religious belief, as
in the case at bar, the compelling state interest test,
is proper, viz:
Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case
on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger"
test but did not employ it. Nevertheless, this test
continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the
test of permissibility of religious freedom is whether
it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a
law of general applicability may burden religious
exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case
also used, albeit inappropriately, the "compelling
state interest" test. After Victoriano, German went
back to the Gerona rule. Ebralinag then employed the
"grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo
went back to the "clear and present danger" test in
the maiden case of American Bible Society. Not
surprisingly, all the cases which employed the "clear
and present danger" or "grave and immediate
danger" test involved, in one form or another,
religious speech as this test is often used in cases on
freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious
freedom will not prevail over established institutions
of society and law. Gerona, however, which was the
authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate
danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as
explained previously, the use of the test was
inappropriate to the facts of the case.
The case at bar does not involve speech as in
American Bible Society, Ebralinag and Iglesia ni Cristo
where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech
has easily discernible or immediate effects. The
Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case
involves purely conduct arising from religious belief.
The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human
conduct has different effects on the state’s interests:
some effects may be immediate and short-term while
others delayed and far-reaching. A test that would
protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is
therefore necessary. However, not any interest of the
state would suffice to prevail over the right to
religious freedom as this is a fundamental right that
enjoys a preferred position in the hierarchy of rights -
"the most inalienable and sacred of all human rights",
in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to
a higher sovereignty. The entire constitutional order
of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the
Filipinos implore the "aid of Almighty God in order to
build a just and humane society and establish a
government." As held in Sherbert, only the gravest
abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests
which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a
compelling interest of the state can prevail over the
fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the
state to batter religion, especially the less powerful
ones until they are destroyed. In determining which
shall prevail between the state’s interest and religious
liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of
revering religious liberty while at the same time
affording protection to the paramount interests of
the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In
the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks
to protect the very state, without which, religious
liberty will not be preserved. 137 (citations omitted)
At this point, we take note of Mr. Justice Carpio’s
dissent, which, while loosely disputing the
applicability of the benevolent neutrality framework
and compelling state interest test, states that "[i]t is
true that a test needs to be applied by the Court in
determining the validity of a free exercise claim of
exemption as made here by Escritor." This assertion
is inconsistent with the position negating the
benevolent neutrality or accommodation approach. If
it were true, indeed, that the religion clauses do not
require accommodations based on the free exercise
of religion, then there would be no need for a test to
determine the validity of a free exercise claim, as any
and all claims for religious exemptions from a law of
general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a
distinction between permissive accommodation and
mandatory accommodation is more critically
important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can
validly set the limits of religious liberty under the Free
Exercise Clause, rather than presenting the
separation theory and accommodation theory as
opposite concepts, and then rejecting relevant and
instructive American jurisprudence (such as 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 Carpio’s assertion misses the point.
Precisely because the doctrine in Smith is that only
legislative accommodations are allowed under the
Free Exercise Clause, it cannot be used in determining
a claim of religion exemption directly anchored on the
Free Exercise Clause. Thus, even assuming that the
Smith doctrine actually espouses the theory of
accommodation or benevolent neutrality, the
accommodation is limited to the permissive, or
legislative exemptions. It, therefore, cannot be used
as a test in determining the claims of religious
exemptions directly under the Free Exercise Clause
because Smith does not recognize such exemption.
Moreover, Mr. Justice Carpio’s advocacy of the Smith
doctrine would effectively render the Free Exercise
protection—a fundamental right under our
Constitution—nugatory because he would deny its
status as an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest
test involves a three-step process. We explained this
process in detail, by showing the questions which
must be answered in each step, viz:
…First, "[H]as the statute or government action
created a burden on the free exercise of religion?"
The courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the
belief because the Free Exercise Clause prohibits
inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant’s belief is
ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently
compelling state interest to justify this infringement
of religious liberty?" In this step, the government has
to establish that its purposes are legitimate for the
state and that they are compelling. Government must
do more than assert the objectives at risk if
exemption is given; it must precisely show how and
to what extent those objectives will be undermined if
exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its
legitimate purposes used the least intrusive means
possible so that the free exercise is not infringed any
more than necessary to achieve the legitimate goal of
the state?" The analysis requires the state to show
that the means in which it is achieving its legitimate
state objective is the least intrusive means, i.e., it has
chosen a way to achieve its legitimate state end that
imposes as little as possible on religious liberties
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 Carpio’s
dissent is that only permissive accommodation can
carve out an exemption from a law of general
application. He posits the view that the law should
prevail in the absence of a legislative exemption, and
the Court cannot make the accommodation or
exemption.
Mr. Justice Carpio’s position is clearly not supported
by Philippine jurisprudence. The cases of American
Bible Society, Ebralinag, and Victoriano demonstrate
that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant
of permissive, or legislative accommodations, but
also mandatory accommodations. Thus, an
exemption from a law of general application is
possible, even if anchored directly on an invocation of
the Free Exercise Clause alone, rather than a
legislative exemption.
Moreover, it should be noted that while there is no
Philippine case as yet wherein the Court granted an
accommodation/exemption to a religious act from
the application of general penal laws, permissive
accommodation based on religious freedom has been
granted with respect to one of the crimes penalized
under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the
U.S. Court expressly denied to Mormons an
exemption from a general federal law criminalizing
polygamy, even if it was proven that the practice
constituted a religious duty under their faith.140 In
contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative
act. For while the act of marrying more than one still
constitutes bigamy under the Revised Penal Code,
Article 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines,
provides that the penal laws relative to the crime of
bigamy "shall not apply to a person married…under
Muslim law." Thus, by legislative action,
accommodation is granted of a Muslim practice
which would otherwise violate a valid and general
criminal law. Mr. Justice Carpio recognized this
accommodation when, in his dissent in our Decision
dated August 4, 2003 and citing Sulu Islamic
Association of Masjid Lambayong v. Malik,141 he
stated that a Muslim Judge "is not criminally liable for
bigamy because Shari’a law allows a Muslim to have
more than one wife."
From the foregoing, the weakness of Mr. Justice
Carpio’s "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 O’Connor in her concurring opinion
in Smith, "[t]here is nothing talismanic about neutral
laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can
coerce a person to violate his religious conscience or
intrude upon his religious duties just as effectively as
laws aimed at religion."142
Third, there is wisdom in accommodation made by
the Court as this is the recourse of minority religions
who are likewise protected by the Free Exercise
Clause. Mandatory accommodations are particularly
necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which
include ignorance and indifference and overt hostility
to the minority. As stated in our Decision, dated
August 4, 2003:
....In a democratic republic, laws are inevitably based
on the presuppositions of the majority, thus not
infrequently, they come into conflict with the
religious scruples of those holding different world
views, even in the absence of a deliberate intent to
interfere with religious practice. At times, this effect
is unavoidable as a practical matter because some
laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the
injury to religious conscience is so great and the
advancement of public purposes so small or
incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of
plural traditions, legislators and executive officials are
frequently willing to make such exemptions when the
need is brought to their attention, but this may not
always be the case when the religious practice is
either unknown at the time of enactment or is for
some reason unpopular. In these cases, a
constitutional interpretation 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-à-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 however large but for each of us" to the greatest
great and the sincerity of the religious belief is not in extent possible within flexible constitutional limits.145
question, adherence to the benevolent neutrality-
accommodation approach require that the Court II. THE CURRENT PROCEEDINGS
make an individual determination and not dismiss the
We now resume from where we ended in our August
claim outright.
4, 2003 Decision. As mentioned, what remained to be
At this point, we must emphasize that the adoption of resolved, upon which remand was necessary,
the benevolent neutrality-accommodation approach pertained to the final task of subjecting this case to
does not mean that the Court ought to grant the careful application of the compelling state
exemptions every time a free exercise claim comes interest test, i.e., determining whether respondent is
before it. This is an erroneous reading of the entitled to exemption, an issue which is essentially
framework which the dissent of Mr. Justice Carpio factual or evidentiary in nature.
seems to entertain. Although benevolent neutrality is
After the termination of further proceedings with the
the lens with which the Court ought to view religion
OCA, and with the transmittal of the Hearing Officer’s
clause cases, the interest of the state should also be
report,146along with the evidence submitted by the
afforded utmost protection. This is precisely the
OSG, this case is once again with us, to resolve the
purpose of the test—to draw the line between
penultimate question of whether respondent should
mandatory, permissible and forbidden religious
be found guilty of the administrative charge of
exercise. Thus, under the framework, the Court
"disgraceful and immoral conduct." It is at this point
cannot simply dismiss a claim under the Free Exercise
then that we examine the report and documents
Clause because the conduct in question offends a law
submitted by the hearing officer of this case, and
or the orthodox view, as proposed by Mr. Justice
apply the three-step process of the compelling state
Carpio, for this precisely is the protection afforded by
interest test based on the evidence presented by the
the religion clauses of the Constitution.144 As stated in
parties, especially the government.
the Decision:
On the sincerity of religious belief, the Solicitor
xxx While the Court cannot adopt a doctrinal
General categorically concedes that the sincerity and
formulation that can eliminate the difficult questions
centrality of respondent’s claimed religious belief and
of judgment in determining the degree of burden on
practice are beyond serious doubt.147 Thus, having
religious practice or importance of the state interest
previously established the preliminary conditions
or the sufficiency of the means adopted by the state
required by the compelling state interest test, i.e.,
to pursue its interest, the Court can set a doctrine on
that a law or government practice inhibits the free
the ideal towards which religious clause
exercise of respondent’s religious beliefs, and there
jurisprudence should be directed. We here lay down
being no doubt as to the sincerity and centrality of her
the doctrine that in Philippine jurisdiction, we adopt
faith to claim the exemption based on the free
the benevolent neutrality approach not only because
exercise clause, the burden shifted to the
of its merits as discussed above, but more
government to demonstrate that the law or practice
importantly, because our constitutional history and
justifies a compelling secular objective and that it is
interpretation indubitably show that benevolent
the least restrictive means of achieving that objective.
neutrality is the launching pad from which the Court
should take off in interpreting religion clause cases. A look at the evidence that the OSG has presented
The ideal towards which this approach is directed is fails to demonstrate "the gravest abuses,
the protection of religious liberty "not only for a endangering paramount interests" which could limit
minority, however small- not only for a majority, or override respondent’s fundamental right to
religious freedom. Neither did the government exert
any effort to show that the means it seeks to achieve
its legitimate state objective is the least intrusive
means.
The OSG merely offered the following as exhibits and
their purposes:
1. Exhibit "A-OSG" and submarking — The September
30, 2003 Letter to the OSG of Bro. Raymond B. Leach,
Legal Representative of the Watch Tower Bible and
Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to
examine the sincerity and centrality of respondent’s
claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking — The duly
notarized certification dated September 30, 2003
issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and
centrality of respondent’s claimed religious belief and
practice; and (2) to prove that the Declaration of
Pledging Faithfulness, being a purely internal
arrangement within the congregation of the
Jehovah’s Witnesses, cannot be a source of any legal
protection for respondent.
In its Memorandum-In-Intervention, the OSG
contends that the State has a compelling interest to
override respondent’s claimed religious belief and
practice, in order to protect marriage and the family
as basic social institutions. The Solicitor General,
quoting the Constitution148 and the Family
Code,149 argues that marriage and the family are so
crucial to the stability and peace of the nation that the
conjugal arrangement embraced in the Declaration of
Pledging Faithfulness should not be recognized or
given effect, as "it is utterly destructive of the avowed
institutions of marriage and the family for it reduces
to a mockery these legally exalted and socially
significant institutions which in their purity demand
respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice
Carpio echoes the Solicitor General in so far as he
asserts that the State has a compelling interest in the
preservation of marriage and the family as basic social
institutions, which is ultimately the public policy
underlying the criminal sanctions against
concubinage and bigamy. He also argues that in
dismissing the administrative complaint against
respondent, "the majority opinion effectively
condones and accords a semblance of legitimacy to
her patently unlawful cohabitation..." and "facilitates
the circumvention of the Revised Penal Code."
According to Mr. Justice Carpio, by choosing to turn a
blind eye to respondent’s criminal conduct, the
majority is in fact recognizing a practice, custom or
agreement that subverts marriage. He argues in a
similar fashion as regards the state’s interest in the
sound administration of justice.
There has never been any question that the state has
an interest in protecting the institutions of marriage
and the family, or even in the sound administration of
justice. Indeed, the provisions by which respondent’s
relationship is said to have impinged, e.g., Book V,
Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code, Articles 334 and 349 of the
Revised Penal Code, and even the provisions on
marriage and family in the Civil Code and Family Code,
all clearly demonstrate the State’s need to protect
these secular interests.
Be that as it may, the free exercise of religion is
specifically articulated as one of the fundamental
rights in our Constitution. It is a fundamental right
that enjoys a preferred position in the hierarchy of
rights — "the most inalienable and sacred of human
rights," in the words of Jefferson. Hence, it is not
enough to contend that the state’s interest is
important, because our Constitution itself holds the
right to religious freedom sacred. The State must
articulate in specific terms the state interest involved
in preventing the exemption, which must be
compelling, for only the gravest abuses, endangering
paramount interests can limit the fundamental right
to religious freedom. To rule otherwise would be to
emasculate the Free Exercise Clause as a source of
right by itself.
Thus, it is not the State’s broad interest in "protecting
the institutions of marriage and the family," or even
"in the sound administration of justice" that must be
weighed against respondent’s claim, but the State’s
narrow interest in refusing to make an exception for
the cohabitation which respondent’s faith finds
moral. In other words, the government must do more
than assert the objectives at risk if exemption is given;
it must precisely show how and to what extent those
objectives will be undermined if exemptions are
granted.151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun’s application of the
compelling interest test, the State’s interest in
enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot
be merely abstract or symbolic. The State cannot
plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any
compelling interest, if it does not, in fact, attempt to
enforce that prohibition. In the case at bar, the State
has not evinced any concrete interest in enforcing the
concubinage or bigamy charges against respondent
or her partner. The State has never sought to
prosecute respondent nor her partner. The State’s
asserted interest thus amounts only to the symbolic
preservation of an unenforced prohibition.
Incidentally, as echoes of the words of Messrs. J.
Bellosillo and Vitug, in their concurring opinions in our
Decision, dated August 4, 2003, to deny the
exemption would effectively break up "an otherwise
ideal union of two individuals who have managed to
stay together as husband and wife [approximately
twenty-five years]" and have the effect of defeating
the very substance of marriage and the family.
The Solicitor General also argued against
respondent’s religious freedom on the basis of
morality, i.e., that "the conjugal arrangement of
respondent and her live-in partner should not be
condoned because adulterous relationships are
constantly frowned upon by society";152 and "that
State laws on marriage, which are moral in nature,
take clear precedence over the religious beliefs and
practices of any church, religious sect or
denomination on marriage. Verily, religious beliefs
and practices should not be permitted to override
laws relating to public policy such as those of
marriage."153
The above arguments are mere reiterations of the
arguments raised by Mme. Justice Ynares-Santiago in
her dissenting opinion to our Decision dated August
4, 2003, which she offers again in toto. These
arguments have already been addressed in our
decision dated August 4, 2003.154 In said Decision, we
noted that Mme. Justice Ynares-Santiago’s dissenting
opinion dwelt more on the standards of morality,
without categorically holding that religious freedom
is not in issue.155 We, therefore, went into a
discussion on morality, in order to show that:
(a) The public morality expressed in the law is
necessarily secular for in our constitutional order, the
religion clauses prohibit the state from establishing a
religion, including the morality it sanctions. 156 Thus,
when the law speaks of "immorality" in the Civil
Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the
Revised Penal Code,158 or "morals" in the New Civil
Code,159 or "moral character" in the
160
Constitution, the distinction between public and
secular morality on the one hand, and religious
morality, on the other, should be kept in mind;161
(b) Although the morality contemplated by laws is
secular, benevolent neutrality could allow for
accommodation of morality based on religion,
provided it does not offend compelling state
interests;162
(c) The jurisdiction of the Court extends only to public
and secular morality. Whatever pronouncement the
Court makes in the case at bar should be understood
only in this realm where it has authority.163
(d) Having distinguished between public and secular
morality and religious morality, the more difficult task
is determining which immoral acts under this public
and secular morality fall under the phrase
"disgraceful and immoral conduct" for which a
government employee may be held administratively
liable.164 Only one conduct is in question before this
Court, i.e., the conjugal arrangement of a government
employee whose partner is legally married to another
which Philippine law and jurisprudence consider both
immoral and illegal.165
(e) While there is no dispute that under settled
jurisprudence, respondent’s conduct constitutes
"disgraceful and immoral conduct," the case at bar
involves the defense of religious freedom, therefore
none of the cases cited by Mme. Justice Ynares-
Santiago apply.166 There is no jurisprudence in
Philippine jurisdiction holding that the defense of
religious freedom of a member of the Jehovah’s
Witnesses under the same circumstances as
respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot
summarily conclude therefore
that her conduct is likewise so "odious" and
"barbaric" as to be immoral and punishable by law.167
Again, we note the arguments raised by Mr. Justice
Carpio with respect to charging respondent with
conduct prejudicial to the best interest of the service,
and we reiterate that the dissent offends due process
as respondent was not given an opportunity to
defend herself against the charge of "conduct
prejudicial to the best interest of the service." Indeed,
there is no evidence of the alleged prejudice to the
best interest of the service.168
Mr. Justice Carpio’s slippery slope argument, on the
other hand, is non-sequitur. If the Court grants
respondent exemption from the laws which
respondent Escritor has been charged to have
violated, the exemption would not apply to Catholics
who have secured church annulment of their
marriage even without a final annulment from a civil
court. First, unlike Jehovah’s Witnesses, the Catholic
faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovah’s
Witnesses have standards and procedures which
must be followed before cohabitation without
marriage is given the blessing of the congregation.
This includes an investigative process whereby the
elders of the congregation verify the circumstances of
the declarants. Also, the Declaration is not a blanket
authority to cohabit without marriage because once
all legal impediments for the couple are lifted, the
validity of the Declaration ceases, and the
congregation requires that the couple legalize their
union.
At bottom, the slippery slope argument of Mr. Justice
Carpio is speculative. Nevertheless, insofar as he
raises the issue of equality among religions, we look
to the words of the Religion Clauses, which clearly
single out religion for both a benefit and a burden:
"No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof…" On
its face, the language grants a unique advantage to
religious conduct, protecting it from governmental
imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To
understand this as a provision which puts religion on
an equal footing with other bases for action seems to
be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports,
philosophy, or family relations. The language itself
thus seems to answer whether we have a paradigm
of equality or liberty; the language of the Clause is
clearly in the form of a grant of liberty. 169
In this case, the government’s conduct may appear
innocent and nondiscriminatory but in effect, it is
oppressive to the minority. In the interpretation of a
document, such as the Bill of Rights, designed to
protect the minority from the majority, the question
of which perspective is appropriate would seem easy
to answer. Moreover, the text, history, structure and
values implicated in the interpretation of the clauses,
all point toward this perspective. Thus, substantive
equality—a reading of the religion clauses which
leaves both politically dominant and the politically
weak religious groups equal in their inability to use
the government (law) to assist their own religion or
burden others—makes the most sense in the
interpretation of the Bill of Rights, a document
designed to protect minorities and individuals from
mobocracy in a democracy (the majority or a coalition
of minorities). 170
As previously discussed, our Constitution adheres to
the benevolent neutrality approach that gives room
for accommodation of religious exercises as required
by the Free Exercise Clause.171 Thus, in arguing that
respondent should be held administratively liable as
the arrangement she had was "illegal per se because,
by universally recognized standards, it is inherently or
by its very nature bad, improper, immoral and REYNATO S. PUNO
contrary to good conscience,"172 the Solicitor General Associate Justice
failed to appreciate that benevolent neutrality could
allow for accommodation of morality based on WE CONCUR:
religion, provided it does not offend compelling state
ARTEMIO V. PANGANIBAN
interests.173
Chief Justice
Finally, even assuming that the OSG has proved a
compelling state interest, it has to further CONSUELO
demonstrate that the state has used the least LEONARDO A.
YNARES-
intrusive means possible so that the free exercise is QUISUMBING
SANTIAGO
not infringed any more than necessary to achieve the Associate Justice
Asscociate Justice
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 ANGELINA
ANTONIO T.
of the test. Other than the two documents offered as SANDOVAL-
CARPIO
cited above which established the sincerity of GUTIERREZ
Asscociate Justice
respondent’s religious belief and the fact that the Associate Justice
agreement was an internal arrangement within
respondent’s congregation, no iota of evidence was
offered. In fact, the records are bereft of even a MA. ALICIA
feeble attempt to procure any such evidence to show RENATO C.
AUSTRIA-
that the means the state adopted in pursuing this CORONA
MARTINEZ
compelling interest is the least restrictive to Asscociate Justice
Associate Justice
respondent’s religious freedom.

Thus, we find that in this particular case and under

these distinct circumstances, respondent Escritor’s CONCHITA
ROMEO J.
conjugal arrangement cannot be penalized as she has CARPIO
CALLEJO, SR.
made out a case for exemption from the law based on MORALES
Asscociate Justice
her fundamental right to freedom of religion. The Associate Justice
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 ADOLFO S.
preferred freedom, however, man stands DANTE O. TINGA
AZCUNA
accountable to an authority higher than the state, and Asscociate Justice
Associate Justice
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, MINITA V. CANCIO C.
man must be allowed to subscribe to the Infinite. CHICO-NAZARIO GARCIA
Associate Justice Asscociate Justice
IN VIEW WHEREOF, the instant administrative
complaint is dismissed.
PRESBITERO J. VELASCO, JR.
SO ORDERED. Associate Justice

Footnotes
1 legalize this union.
Estrada v. Escritor, 455 Phil. 411 (2003).
2 Signed this 28th day of July 1991.
Id. at 444. Incidentally, Escritor moved for the
inhibition of Judge Caoibes from hearing her case to
avoid suspicion and bias as she previously filed an
administrative case against him. Escritor’s motion
was denied.
3 her husband was still alive but living with another
Id. The Code provides:
Sec. 46. Discipline: General Provisions. –
(a) No officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided
by law and after due process.
(b) The following shall be grounds for disciplinary
action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
4
Id. at 445.
5
Id. at 445, 447.
6
Id. at 445, 453, and 457.
7
Id. at 445-456. The Declaration provides:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have
accepted Luciano D. Quilapio, Jr., as my mate in
marital relationship; that I have done all within my
ability to obtain legal recognition of this relationship
by the proper public authorities and that it is because
of having been unable to do so that I therefore make
this public declaration pledging faithfulness in this
marital relationship.
I recognize this relationship as a binding tie before
‘Jehovah’ God and before all persons to be held to
and honored in full accord with the principles of God’s
Word. I will continue to seek the means to obtain
legal recognition of this relationship by the civil
authorities and if at any future time a change in
circumstances make this possible, I promise to
Parenthetically, Escritor’s partner, Quilapio, executed
a similar pledge on the same day. Both pledges were
executed in Atimonan, Quezon and signed by three
witnesses. At the time Escritor executed her pledge,
woman. Quilapio was likewise married at that time,
but had been separated in fact from his wife. Id. at
446.
8
Id. at 447-448, 452-453. Based on the testimony of
Gregorio Salazar, a member of the Jehovah’s
Witnesses since 1985. As presiding minister since
1991, he is aware of the rules and regulations of the
Congregation. An authenticated copy of the magazine
article entitled, "Maintaining Marriage Before God
and Men," which explains the rationale behind the
Declaration, was also presented.
9
Id. at 449.
10
Id. at 452.
11
Id. at 449.
12
See id. at 447-452.
13
Id. at 445, 453, and 457.
14
Id. at 596.
15
Id. at 599-600.
16
Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271
SCRA 457; Gokongwei v. SEC, G.R. No. 52129, April 21,
1980, 97 SCRA 78; Commissioner of Public Highways
v. Burgos, G.R. No. L-36706, March 31, 1980, 96 SCRA
831; Municipality of Daet v. C.A., G.R. No. L-35861,
October 18, 1979, 93 SCRA 503; and People’s
Homesite and Housing Corp. v. Mencias, G.R. No. L-
24114, August 16, 1967, 20 SCRA 1031.
17 31
See discussion under Estrada v. Escritor, 455 Phil. See Drakeman, D., Church-State Constitutional
411, 458-468 (2003). Issues 55 (1991), citing Cord, R., Separation of Church
and State: Historical Fact and Current Fiction 50.
18
During primitive times, when there was no Thus:
distinction between the religious and secular, and the
same authority that promulgated laws regulating The [separationist] school of thought argues that the
relations between man and man promulgated laws First Congress intended to allow government support
concerning man’s obligations to the supernatural. See of religion, at least as long as that support did not
id. at 458-459. discriminate in favor of one particular religion. . . the
Supreme Court has overlooked many important
19
This was the time of theocracy, during the rise of pieces of history. Madison, for example, was on the
the Hebrew state and the Mosaic religion. See id. at congressional committee that appointed a chaplain,
459-461. he declared several national days of prayer and
20 fasting during his presidency, and he sponsored
Following the rise of Saul, and the pre-Christian
Jefferson’s bill for punishing Sabbath breakers;
Rome which engaged in emperor-worship. See id. at
moreover, while president, Jefferson allowed federal
461-462.
support of religious missions to the Indians. . . And so,
21
Id. at 462-463. concludes one recent book, "there is no support in
the Congressional records that either the First
22
Id. at 468. Congress, which framed the First Amendment, or its
23
principal author and sponsor, James Madison,
Cohen, William & Danelski, David J., Constitutional
intended that Amendment to create a state of
Law: Civil Liberty and Individual Rights 565(4th ed.
complete independence between religion and
1997).
government. In fact, the evidence in the public
24
Id. documents goes the other way." Id. at 513-514.

25
See Estrada v. Escritor, 455 Phil. 411, 479-480
(2003).
26
Cohen, William & Danelski, David J., Constitutional
Law: Civil Liberty and Individual Rights 575(4th ed.
1997).
27
Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing
Beth, L., American Theory of Church and State 71
(1958).
28
See id. at 487, 512-516.
29
Id. at 515, citing Buzzard, L., Ericsson, S., The Battle
for Religious Liberty 46 (1980); Beth, L., American
Theory of Church and State 71 & 72 (1958); and
Grossman, J.B. and Wells, R.S., Constitutional Law &
Judicial Policy Making 1276 (2nd ed. 1980).
30
Id. at 515, citing The Constitution and Religion
1541.
32
Id. at 514, citing Drakeman, D., Church-State
Constitutional Issues 55 (1991), Cord, R., Separation
of Church and State: Historical Fact and Current
Fiction 50; and 1 The Debates and Proceedings in the
Congress of the United States, Compiled from
Authentic Materials 949-950 (Annala, Gales, J. and
Seaton, W., eds.). Only two members of U.S. Congress
opposed the resolution, one on the ground that the
move was a "mimicking of European customs, where
they made a mere mockery of thanksgivings," the
other on establishment clause concerns.
Nevertheless, the salutary effect of thanksgivings
throughout Western history was acknowledged and
the motion was passed without further recorded
discussion.
33
Id. at 515, citing Weber, P., Neutrality and First
Amendment Interpretation in Equal Separation 3
(1990).
34
330 U.S. 1 (1946). It was in this case that the U.S.
Supreme Court adopted Jefferson’s metaphor of "a
wall of separation between church and state" as
encapsulating the meaning of the Establishment
Clause. Said the U.S. Court: "The First Amendment
has erected a wall between church and state. That
wall must be kept high and impregnable. We could
not approve the slightest breach…." Id. at 18.
35
Everson v. Board of Education, 330 U.S. 1, 18
(1947).
36
See Estrada v. Escritor, 455 Phil. 411, 516 (2003),
citing The Constitution and Religion 1541; and
Kurland, Of Church and State and the Supreme Court,
29 U.Chi.L.Rev. 1, 5 (1961). Parenthetically, the U.S.
Court in Employment Division, Oregon Department of
Human Resources v. Smith, 494 U.S. 872 (1990),
echoed the rationale of the separationists, when it
held that if government acts in pursuit of a generally
applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First
Amendment has not been offended.
37
374 U.S. 203 (1963).
38
Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing
Buzzard, L., Ericsson, S., The Battle for Religious
Liberty 60 (1980).
39
Id. at 517-518, citing Kelley, D. Strict Neutrality and
the Free Exercise of Religion in Weber, P., Equal
Separation 1189 (1990).
40
Id. at 518, citing 75. Monsma, S. The Neutrality
Principle and a Pluralist Concept of Accommodation,
in Weber, P., Equal Separation 74-75 (1990).
41
I.e., the "garden" of the church must be walled in
for its own protection from the "wilderness" of the
world with its potential for corrupting those values so
necessary to religious commitment. According to
Williams, this wall is breached, for the church is in the
state, and so the remaining purpose of the wall is to
safeguard religious liberty. Williams’ wall, therefore,
would allow for interaction between church and
state, but is strict with regard to state action which
would threaten the integrity of religious
commitment. His conception of separation is not total
such that it provides basis for certain interactions
between church and state dictated by apparent
necessity or practicality.
See discussion of the birth of the theory in Estrada v.
Escritor, 455 Phil. 411, 518-519 (2003).
42
343 U.S. 306 (1951).
43
Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).
44
Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).
45
Marsh v. Chambers, 463 US 783, 792-93 (1983).
46
Sherbert v. Verner, 374 US 398, 403-04 (1963).
47
Bowen v. Kendrick, 487 US 589, 611 (1988).
48
Board of Education v. Allen, 392 US 236, 238 (1968).
49
Everson v. Board of Education, 330 US 1, 17 (1947).
50
Committee for Public Education and Religious
Liberty v. Regan, 444 US 646, 653-54 (1980).
51
Cited in McConnel, M., Accommodation of Religion:
An Update and a Response to the Critics, 60 The
George Washington Law Review 685, 688. See
Estrada v. Escritor, 455 Phil. 411, 522-523 (2003).
52
Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing
Carter, S., The Resurrection of Religious Freedom, 107
Harvard Law Review 118, 1280129 (1993).
53
Id. at 482, citing Sullivan, K., Religion and Liberal
Democracy, 59 The University of Chicago Law Review
195, 214-215 (1992).
54
Id.
55
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963).
See Johnson, Bradley C., By its Fruits Shall Ye Know;
Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1302 (2005).
56 71
Carmella, Angela C., State Constitutional Protection 494 U.S. 872, 878-889 (1990), cited in Chemerinsky,
of Religious Exercise: An Emerging Post-Smith Erwin, Constitutional Law: Principles and Policies
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993). 1211 (2nd ed. 2002).

57 72
Sherbert v. Verner, 374 U.S. 398, 403 (1963). 494 U.S. 872, 879 (1990), cited in Chemerinsky,
Erwin, Constitutional Law: Principles and Policies
58
Id. at 406. 1212 (2nd ed. 2002).
59
Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing 73
494 U.S. 872, 881 (1990), cited in Chemerinsky,
Lupu, I., The Religion Clauses and Justice Brennan in Erwin, Constitutional Law: Principles and Policies
Full, 87 California Law Review 1105, 1114, 1105 and 1212 (2nd ed. 2002).
1110 (1999).
74
494 U.S. 872, 882 (1990), cited in Chemerinsky,
60
Carmella, Angela C., State Constitutional Protection Erwin, Constitutional Law: Principles and Policies
of Religious Exercise: An Emerging Post-Smith 1212 (2nd ed. 2002).
Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).
75
494 U.S. 872, 884 (1990), cited in Chemerinsky,
61
406 U.S. 205 (1972). Erwin, Constitutional Law: Principles and Policies
62 1212 (2nd ed. 2002).
Id. at 214-215, 219-220.
76
63 494 U.S. 872, 888 (1990), cited in Chemerinsky,
Ivan E. Bodensteiner, The Demise of the First
Erwin, Constitutional Law: Principles and Policies
Amendment as a Guarantor of Religious Freedom, 27
1212 (2nd ed. 2002).
Whittier L. Rev. 415,417-418 (2005). (citations
omitted) 77
See Chemerinsky, Erwin, Constitutional Law:
64 Principles and Policies 1213 (2nd ed. 2002).
See Pepper, Stephen, Conflicting Paradigms of
Religious Freedom: Liberty Versus Equality, 1993 B. Y. 78
Employment Division v. Smith, 494 U.S. 872, 906
U. L. Rev. 7, 30-32 (1993). (1990). (O’Connor, J. concurring in the judgment) This
65 portion of her concurring opinion was supported by
Id. at 30-32.
Justices Brennan, Marshall and Blackmun who
66
Id. dissented from the Court’s decision; cited in
Chemerinsky, Erwin, Constitutional Law: Principles
67
Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing and Policies 1212 (2nd ed. 2002).
Stephens, Jr., O.H. and Scheb, II J.M., American
79
Constitutional Law 522-523 and 526 (2nd ed. 1999). Id at 903. (O’Connor, J. concurring in the judgment),
cited in Chemerinsky, Erwin, Constitutional Law:
68
Johnson, Bradley C., By its Fruits Shall Ye Know; Principles and Policies 1212 (2nd ed. 2002).
Axson-Flynn v. Johnson: More Rotted Fruit From
80
Employment Division v. Smith, 80 Chi.-Kent L. Rev. Id. at 902. (O’Connor, J. concurring in the judgment)
1287, 1304 (2005). cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
69
494 U.S. 872 (1990).
81
Id. at 908-909. (Blackmun, J. dissenting), cited in
70
Chemerinsky, Erwin, Constitutional Law: Principles Chemerinsky, Erwin, Constitutional Law: Principles
and Policies 1211 (2nd ed. 2002). and Policies 1213 (2nd ed. 2002).

82
Tebbe, Nelson, Free Exercise and the Problem of
Symmetry, 56 Hastings L.J. 699 (2005).
83
Id.
84
Aden, Steven H & Strang, Lee J., When a "Rule"
Doesn’t Rule: The Failure of the Oregon Employment
Division v. Smith "Hybrid Rights Exception," 108 Penn.
St. L. Rev. 573, 581 (2003).
85
Id.
86
Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing
McConnell, M., Accommodation of Religion: An
Update and a Response to the Critics, 60 The George
Washington Law Review 685, 726 (1992).
87
Id. at 482, citing McCoy, T., A Coherent
Methodology for First Amendment Speech and
Religion Clause Cases, 48 Vanderbilt Law Review,
1335, 1350-1352 (1995).
88
Tebbe, Nelson, Free Exercise and the Problem of
Symmetry, 56 Hastings L.J. 699 (2005).
89
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing
II Ducat, C., Constitutional Interpretation 1180 & 1191
(2000). See also Sullivan, K., Religion and Liberal
Democracy, 59 The University of Chicago Law Review
195, 216 (1992).
90
Id. at 502, citing McConnell, M., Religious Freedom
at a Crossroads, 59 The University of Chicago Law
Review 115, 139 (1992).
91
Id., citing Sullivan, K., Religion and Liberal
Democracy, 59 The University of Chicago Law Review
195, 216 (1992).
92
Tebbe, Nelson, Free Exercise and the Problem of
Symmetry, 56 Hastings L.J. 699 (2005).
93
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing
McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48
Vanderbilt Law Review, 1335, 1350-1351 (1995).
94
Reynolds v. U.S., 98 U.S. 145 (1878); Minersville
School District v. Gobitis, 310 U.S. 586 (1940); and
Employment Division, Oregon Department of Human
Resources v. Smith, 494 U.S. 872 (1990).
95
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing
McCoy, T., A Coherent Methodology for First
Amendment Speech and Religion Clause Cases, 48
Vanderbilt Law Review, 1335, 1350-1351 (1995).
96
Johnson, Bradley C., By its Fruits Shall Ye Know;
Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1327 (2005).
97
Bodensteiner, Ivan E., The Demise of the First
Amendment As a Guarantor of Religious Freedom, 27
Whittier L. Rev. 415, 419 (2005).
98
Aden, Steven H & Strang, Lee J., When a "Rule"
Doesn’t Rule: The Failure of the Oregon Employment
Division v. Smith "Hybrid Rights Exception", 108 Penn.
St. L. Rev. 573, 584 (2003).
99
See Cohen, William & Danelski, David J.,
Constitutional Law: Civil Liberty and Individual Rights
620-621 (4th ed. 1997).
100
Id.
101
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing
Carter, S., The Resurrection of Religious Freedom, 107
Harvard Law Review 118 (1993).
102
42 U.S.C. §2000bb.
103
42 U.S.C. §2000bb, Sec. (a) (4), cited in
Chemerinsky, Erwin, Constitutional Law: Principles
and Policies 1216 (2nd ed. 2002).
104
Id.
105
Chemerinsky, Erwin, Constitutional Law: Principles
and Policies 1212 (2nd ed. 2002).
106
City of Boerne v. Flores, 521 U.S. 507 (1997), cited
in Chemerinsky, Erwin, Constitutional Law: Principles
and Policies 1216 (2nd ed. 2002).
107
City of Boerne clearly invalidated the RFRA as
applied to state and local governments, but did not
resolve the constitutionality of the law as applied to
the federal government. Some federal courts have
expressly ruled that the RFRA is constitutional as
applied to the federal government. See Chemerinsky,
Erwin, Constitutional Law: Principles and Policies
1216 (2nd ed. 2002).
108
See Noonan, John T., Jr. & Gaffney, Edward
McGlynn, Jr., Religious Freedom: History, Cases, and
Other Materials on the Interaction of Religion and
Government 531 (2001).
109
Carmella, Angela C., State Constitutional
Protection of Religious Exercise: An Emerging Post-
Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 278
(1993).
110
Johnson, Bradley C., By its Fruits Shall Ye Know;
Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1327 (2005).
111
Estrada v. Escritor, 455 Phil. 411, 526 (2003).
112
Id. at 527, citing Buzzard, L., Ericsson, S., The Battle
for Religious Liberty 61-62 (1980).
113
Walz v. Tax Commission, 397 U.S. 664, 673 (1969).
114
343 U.S. 306 (1952).
115
463 U.S. 783 (1983).
116
McConnell, M., Accommodation of Religion: An
Update and a Response to the Critics, 60 The George
Washington Law Review 685, 715 (1992).
117
333 U.S. 203 (1948).
118
Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing
Buzzard, L., Ericsson, S., The Battle for Religious
Liberty 61-63 (1980).
119
Kmiec, Douglas W. & Presser, Stephen B.,
Individual Rights and the American Constitution 105
(1998).
120
Employment Division v. Smith, 494 U.S. 872, 903
(1990), cited in Chemerinsky, Erwin, Constitutional
Law: Principles and Policies 1212 (2nd ed. 2002).
121
See, e.g. Michael McConnell, Free Exercise
Revisionism and the Smith Decision, 57 U. Chi. L. Rev.
1109 (1990); Jesse H. Choper, The Rise and Decline of
the Constitutional Protection of Religious Liberty, 70
Neb. L. Rev. 651 (1991) (criticizing Smith). Cited in
Chemerinsky, Erwin, Constitutional Law: Principles
and Policies 1213 (2nd ed. 2002).
122
McConnell, The Origins and Historical
Understanding of Free Exercise of Religion, 103
Harvard Law Review 1410, 1416-1417 (1990).
123
Constitution, (1935), Art. VI, Sec. 22, par 3(b);
Constitution, (1973), Art. VI, Sec. 22(3); and
Constitution, (1987), Art.VI, Sec. 28(3).
124
Constitution, (1935), Art. VI, Sec. 23(3);
Constitution, (1973), Art. VIII, Sec. 18(2); and
Constitution, (1987), Art. VI, Sec. 29(2).
125
Constitution, (1935) Art. XIII, Sec. 5; Constitution,
(1973), Art. XV, Sec. 8(8); and Constitution, (1987),
Art. XIV, Sec. 3(3).
126
"Divine Providence" in the 1935 and 1973
Constitutions; and "Almighty God" in the 1987
Constitution.
127
Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).
128
Id. at 564 and 575.
129
Id. at 563-564.
130
Id. at 574. As stated in the Decision dated August
4, 2003:
Considering the American origin of the Philippine
religion clauses and the intent to adopt the historical
background, nature, extent and limitations of the
First Amendment of the U.S. Constitution when it was
included in the 1935 Bill of Rights, it is not surprising
that nearly all the major Philippine cases involving the
religion clauses turn to U.S. jurisprudence in
explaining the nature, extent and limitations of these
clauses. However, a close scrutiny of these cases
would also reveal that while U.S. jurisprudence on
religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality
- the well-spring of Philippine jurisprudence on this
subject is for the most part, benevolent neutrality
which gives room for accommodation. Id. at 536.
131
101 Phil. 386 (1957).
132
G.R. No. 95770, March 1, 1993, 219 SCRA 256.
133
Gerona v. Secretary of Education, 106 Phil. 2
(1959). In this prior case, petitioners were also
members of the Jehovah’s Witnesses. They
challenged a Department Order issued by the
Secretary of Education implementing Republic Act
No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the
Order, petitioner’s children refused to salute the
Philippine flag, sing the national anthem, or recite the
patriotic pledge, hence they were expelled from
school. Seeking protection under the Free Exercise
Clause, petitioners claimed that their refusal was on
account of their religious belief that the Philippine
flag is an image and saluting the same is contrary to
their religious belief. The Court denied exemption,
and sustained the expulsion of petitioners’ children,
on the ground that "If the exercise of religious belief
clashes with the established institutions of society
and with the law, then the former must yield to the
latter."
134
Id. at 270-271.
135
G.R. No. L-25246, September 12, 1974, 59 SCRA
54. See also Basa v. Federacion Obrera, G.R. No. L-
27113, November 19, 1974, 61 SCRA 93; Gonzalez v.
Central Azucarera de Tarlac Labor Union, G.R. No. L-
38178, October 3, 1985, 139 SCRA 30.
136
Victoriano v. Elizalde Rope Workers Union, G.R.
No. L-25246, September 12, 1974, 59 SCRA 54, 74-75.
The Court stressed that "(a)lthough the exemption
may benefit those who are members of religious sects
that prohibit their members from joining labor
unions, the benefit upon the religious sects is merely
incidental and indirect." In enacting Republic Act No.
3350, Congress merely relieved the exercise of
religion by certain persons of a burden imposed by
union security agreements which Congress itself also
imposed through the Industrial Peace Act. The Court
concluded the issue of exemption by citing Sherbert
which laid down the rule that when general laws
conflict with scruples of conscience, exemptions
ought to be granted unless some "compelling state
interest" intervenes. The Court then abruptly added
that "(i)n the instant case, We see no compelling state
interest to withhold exemption." Id.
137
Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).
138
Id. at 529-531.
139
98 U.S. 145 (1878).
140
See Kmiec, Douglas, W, & Presser, Stephen B,
Individual Rights and the American Constitution 105
(1998). In this case, the issue was whether a general
federal law criminalizing polygamy can be applied to
a Mormon whose religion included that practice. The
U.S. Court, in affirming Reynold’s conviction, ruled
that the prohibition of polygamy was justified by the
importance of monogamous, heterosexual marriage,
a practice upon which society may be said to be built,
and perhaps even upon which democratic traditions
depend. Thus, according to the U.S. Court, this
important societal interest prevails over the
countervailing religious practice of the Mormons.
141
A.M. No. MTJ-92-691, September 10, 1993, 226
SCRA 193.
142
494 U.S. 872 (1990). (O’Connor, J. concurring)
According to Justice O’Connor:
…Even if, as an empirical matter, a government’s
criminal laws might usually serve a compelling
interest in health, safety, or public order, the First
Amendment at least requires a case-by-case
determination of the question, sensitive to the facts
of each particular claim… Given the range of conduct
that a State might legitimately make criminal, we
cannot assume, merely because a law carries criminal
sanctions and is generally applicable, that the First
Amendment never requires the State to grant a
limited exemption for religiously motivated conduct.
Parenthetically, J. Brennan, J. Marshall, and J.
Blackmun joined Parts I and II of Justice O’Connor’s
 157
opinion, including the above-cited portions, but did Rule 1.01 of the Code of Professional
not concur in the judgment. Responsibility provides that, "(a) lawyer shall not
engage in unlawful, dishonest, immoral or deceitful
143
See Pepper, Stephen, Conflicting Paradigms of conduct. (emphasis supplied)
Religious Freedom: Liberty Versus Equality, 1993 B. Y.
158
U. L. Rev. 7, 12-13 (1993). Title Six of the Revised Penal Codeis entitled
Crimes against Public Morals and includes therein
144
Estrada v. Escritor, 455 Phil. 411, 574-575 (2003). provisions on gambling and betting. (emphasis
145 supplied)
Id., citing McConnell, M., Religious Freedom at a
Crossroads, 59(1) Univ. of Chicago Law Review 115, 159
The New Civil Code provides, viz:
169 (1992).
"Article 6. Rights may be waived, unless the waiver is
146
Dated May 6, 2005, by retired Associate Justice contrary to law, public order, public policy, morals, or
Romulo S. Quimbo, rollo, p. 714. good ustoms or prejudicial to a third person with a
147 right recognized by law.
Rollo, pp. 687-689.

148 Article 21. Any person who willfully causes loss or

OSG Memorandum-In-Intervention, rollo, pp. 20-
injury to another in manner that is contrary to morals,
21, citing Constitution, Art. II, Sec. 12, which provides:
good customs or public policy shall compensate the
"The State recognizes the sanctity of family life and
latter for the damage.
shall protect and strengthen the family as a basic
autonomous social institution." Article 1306. The contran/a>blish such stipulations,
149 clauses, terms and conditions as they may deem
Id. at 21, citing the Family Code, Art. 149, which
convenient, provided that are not contrary to law,
provides: "The family, being the foundation of the
morals, good customs, public order, or public policy.
nation, is a basic social institution which public policy
cherishes and protects. Consequently, family Article 1409. The following contracts are inexistent
relations are governed by law and no custom, practice and void from the beginning:
or agreement destructive of the family shall be
recognized or given effect." (1) Those whose cause, object or purpose is contrary
to law, morals, good customs, public order or public
150
Id. at 21-22. policy; x x x" (emphases supplied)
151
See Estrada v. Escritor, 455 Phil. 411, 529-531 160
Article XIV, Section 3 provides in relevant part, viz:
(2003).
(1)All educational institutions shall include the study
152
OSG Memorandum-In-Intervention, rollo, p. 23. of the Constitution as part of the curricula.
153
Id. at 26. (2)They shall inculcate patriotism and nationalism,
154 foster love of humanity, respect for human rights,
Estrada v. Escritor, 455 Phil. 411, 580-595 (2003).
appreciation of the role of national heroes in the
This part of the decision addressed the issue of
historical development of the country, teach the
morality raised by Mme. Justice Ynares-Santiago and
rights and duties of citizenship, strengthen ethical
Mr. Justice Vitug, who also had a separate opinion,
and spiritual values, develop moral character and
albeit differing in conclusion.
personal discipline, encourage critical and creative
155
Id. at 580. thinking, broaden scientific and technological
knowledge, and promote vocational efficiency.
156
Id. at 586-588. (emphasis supplied)
161
Estrada v. Escritor, 455 Phil. 411, 586 (2003). be applied by the Supreme Court in disciplinary cases
involving court personnel?
162
Id. at 589-590.
The degree of morality required of every employee or
163
Id. at 591. official in the public service has been consistently
164 high. The rules are particularly strict when the
Id. at 592.
respondent is a Judge or a court employee. 1 Even
165
Id. at 593. where the Court has viewed certain cases with human
understanding and compassion, it has insisted that no
166
Id. at 593-595. untoward conduct involving public officers should be
167
left without proper and commensurate
Id. at 594-595.
sanction.2 The compassion is shown through
168
Id. at 595-596. relatively light penalties. Never, however, has this
Court justified, condoned, or blessed the
169
Pepper, Stephen, Conflicting Paradigms of continuation of an adulterous or illicit relationship
Religious Freedom: Liberty Versus Equality, 1993 B. Y. such as the one in this case, after the same has been
U. L. Rev. 7, 12 (1993). brought to its attention.

170
Id. at 51. Is it time to adopt a more liberal approach, a more
"modern" view and a more permissive pragmatism
171
Estrada v. Escritor, 455 Phil. 411, 574 (2003). which allow adulterous or illicit relations to continue
172 provided the job performance of the court employee
OSG Memorandum-In-Intervention, rollo, p. 708.
concerned is not affected and the place and order in
173
See Estrada v. Escritor, 455 Phil. 411, 536-554 the workplace are not compromised? When does
(2003). private morality involving a court employee become
a matter of public concern?
174
Id. at 529-531.
The Civil Service Law punishes public officers and
employees for disgraceful and immoral
3
conduct. Whether an act is immoral within the
meaning of the statute is not to be determined by
respondent’s concept of morality. The law provides
the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act
DISSENTING OPINION which it condemns.4

YNARES-SANTIAGO, J.: The ascertainment of what is moral or immoral calls

With due respect, I am unable to agree with the
finding of the majority that "in this particular case and
under these particular circumstances, respondent
Escritor’s conjugal arrangement does not constitute
disgraceful and immoral conduct" and its decision to
dismiss the administrative complaint filed by
petitioner against respondent Soledad S. Escritor.
The issue in this case is simple. What is the meaning
or standard of "disgraceful and immoral conduct" to
for the discovery of contemporary community
standards. For those in the service of the
Government, provisions of law and court precedents
also have to be considered. The task is elusive.
The layman’s definition of what is "moral" pertains to
excellence of character or disposition. It relates to the
distinction between right and wrong; virtue and vice;
ethical praise or blame. Moral law refers to the body
of requirements in conformity to which virtuous
action consists. Applied to persons, it is conformity to
the rules of morality, being virtuous with regards to
moral conduct.5
That which is not consistent with or not conforming
to moral law, opposed to or violating morality, and
now, more often, morally evil or impure, is immoral.
Immoral is the state of not being virtuous with regard
to sexual conduct.6
The term begs the definition. Hence, anything
contrary to the standards of moral conduct is
immoral. A grossly immoral act must be so corrupt
and false as to constitute a criminal act or so
unprincipled as to be reprehensible to a high degree.7
Anything plainly evil or dissolute is, of course,
unchangingly immoral. However, at the fringes or
boundary limits of what is morally acceptable and
what is unacceptably wrong, the concept of
immorality tends to shift according to circumstances
of time, person, and place. When a case involving the
concept of immorality comes to court, the applicable
provisions of law and jurisprudence take center stage.
Those who choose to tolerate the situation where a
man and a woman separated from their legitimate
spouses decide to live together in an "ideal" and yet
unlawful union state – or more specifically, those who
argue that respondent’s cohabiting with a man
married to another woman is not something which is
willful, flagrant, or shameless – show a moral
indifference to the opinion of the good and
respectable members of the community in a manner
prejudicial to the public service.
Insofar as concepts of morality are concerned, various
individuals or cultures may indeed differ. In certain
countries, a woman who does not cover herself with
a burka from head to foot may be arrested for
immoral behavior. In other countries, near nudity in
beaches passes by unnoticed. In the present case, the
perceived fixation of our society over sex is criticized.
The lesser degree of condemnation on the sins of
laziness, gluttony, vanity, selfishness, avarice and
cowardice is decried as discriminatory.
The issue in this case is legal and not philosophical. It
is a limited one. Is respondent Soledad S. Escritor
guilty of "disgraceful and immoral" conduct in the
context of the Civil Service Law? Are there any
sanctions that must be imposed?
We cannot overlook the fact that respondent Escritor
would have been convicted for a criminal offense if
the offended party had been inclined and justified to
prosecute her prior to his death in 1998. Even now,
she is a co-principal in the crime of concubinage. A
married woman who has sexual intercourse with a
man not her husband, and the man who has carnal
knowledge of her knowing her to be married, commit
the crime of adultery.8Abandonment by the legal
husband without justification does not exculpate the
offender; it merely mitigates the penalty.
The concubine with whom a married man cohabits
suffers the penalty of destierro.9 It is true that
criminal proceedings cannot be instituted against
persons charged with adultery or concubinage except
upon complaint of the offended party.10 This does not
mean that no actionable offense has been committed
if the offended party does not press charges. It simply
cannot be prosecuted. The conduct is not thereby
approved, endorsed or commended. It is merely
tolerated.
The inescapable fact in this case is that acts defined
as criminal under penal law have been committed.
There are experts in Criminal Law who believe that
the codal provisions on adultery and concubinage are
terribly outmoded and should be drastically revised.
However, the task of amendment or revision belongs
to Congress, and not to the Supreme Court.
Our existing rule is that an act so corrupt or false as to
constitute a criminal act is "grossly immoral."11 It is
not merely "immoral." Respondent now asks the
Court to go all the way to the opposite extreme and
condone her illicit relations with not even an
admonition or a slight tap on the wrist.
I do not think the Court is ready to render a
precedent-setting decision to the effect that, under
exceptional circumstances, employees of the
judiciary may live in a relationship of adultery or
concubinage with no fear of any penalty or sanction
and that after being discovered and charged, they
may continue the adulterous relationship until death
ends it. Indeed, the decision in this case is not limited
to court interpreter Soledad Escritor. It is not a pro
hac vice ruling. It applies to court employees all over
the country and to everybody in the civil service. It is
not a private ruling but one which is public and far-
reaching in its consequences.
In the 1975 case of De Dios v. Alejo,12 the Court
applied compassion and empathy but nonetheless
recognized as most important a mending of ways
through a total breaking of relationships. The facts in
that case are strikingly similar to those in this case.
Yet, the Court required a high degree of morality even
in the presence of apparently exculpating
circumstances. It was stated:
While it is permissible to view with human
understanding and compassion a situation like that in
which respondents find themselves, the good of the
service and the degree of morality which every official
and employee in the public service must observe, if
respect and confidence are to be maintained by the
government in the enforcement of the law, demand
that no untoward conduct on his part, affecting
morality, integrity and efficiency, while holding office
should be left without proper and commensurate
sanction, all attendant circumstances taken into
account. In the instant case, We cannot close our eyes
to the important considerations that respondents
have rendered government service for more than
thirty-three and twenty-five years, respectively, and
that there is no showing that they have ever been
found guilty of any administrative misconduct during
all those periods. In the case of respondent Alejo, it
seems rather sadistic to make her suffer the extreme
penalty of dismissal from the service after she had
taken care of her co-respondent’s four children,
giving them the needed love and attention of a foster
mother after they were completely abandoned by
their errant and unfaithful natural mother. Even
respondent Marfil, if to a lesser degree, is deserving
of compassion. Most importantly, respondents have
amply demonstrated that they recognize their
mistake and have, therefore, actually mended their
ways by totally breaking their relationship
complained of, in order to conform with the
imperatives of public interest. (Emphasis supplied)
The standards for those in the judicial service are
quite exacting.
The Court has ruled that in the case of public servants
who are in the judiciary, their conduct and
behavior, from the presiding judge to the lowliest
clerk, must not only be characterized by propriety
and decorum, but above all else, must be above
suspicion.13
In Burgos v. Aquino,14 it was ruled:
The Code of Judicial Ethics mandates that the conduct
of court personnel must be free from any whiff of
impropriety, not only with respect to his duties in the
judicial branch but also to his behavior outside the
court as a private individual. There is no dichotomy of
morality; a court employee is also judged by his
private morals. These exacting standards of morality
and decency have been strictly adhered to and laid
down by the Court to those in the service of the
judiciary. Respondent, as a court stenographer, did
not live up to her commitment to lead a moral life.
Her act of maintaining relations with Atty. Burgos
speaks for itself.
Respondent Aquino was a court stenographer who
was suspended for six months for maintaining illicit
relations with the husband of complainant Virginia E.
Burgos. The Court therein stated that a second
offense shall result in dismissal.
We should not lose sight of the fact that the judicial
system over which it presides is essentially composed
of human beings who, as such, are naturally prey to
weakness and prone to errors. Nonetheless, in Ecube-
Badel v. Badel,15we imposed on respondent a
suspension for six months and one day to one year
with warning of dismissal should the illicit relations be
repeated or continued.
In Nalupta v. Tapec,16 a deputy sheriff was
suspended, also for six months, for having illicit
relations with a certain Cristian Dalida who begot a
son by him. His wife complained and neighbors
confirmed that Tapec was frequently seen leaving the
house of Consolacion Inocencio in the morning and
returning to it in the afternoon. Tapec and Inocencio
begot two children. Consistently with the other cases,
we imposed the penalty of suspension for the first
offense with the graver penalty of dismissal for a
second offense.
The earlier case of Aquino v. Navarro17 involved an
officer in the Ministry of Education, Culture and
Sports who was abandoned by her husband a year
after their marriage and who lived alone for eighteen
years with their child. Pretending that she sincerely
believed her husband to have died, she entered into
a marital relationship with Gonzalo Aquino and had
children by him in 1968 and 1969. Eighteen days
before their third child was born on May 25, 1975, the
two decided to get married. Notwithstanding the
illicit relationship which blossomed into a bigamous
marriage, the full force of the law was not applied on
her, "considering the exceptional circumstances that
befell her in her quest for a better life." Still, a penalty
of six months suspension was imposed with a warning
that "any moral relapse on her part will be severely
dealt with."
Times are changing. Illicit sex is now looked upon
more kindly. However, we should not completely
disregard or overlook a relationship of adultery or
concubinage involving a court employee and not
order it to be terminated. It should not ignore what
people will say about our moral standards and how a
permissive approach will be used by other court
employees to freely engage in similarly illicit
relationship with no fear of disciplinary punishment.
As earlier mentioned, respondent Escritor and
Luciano Quilapio, Jr. had existing marriages with their
respective legitimate spouses when they decided to
live together. To give an aura of regularity and
respectability to what was undeniably an adulterous
and, therefore, immoral relationship, the two decided
to acquire through a religious ceremony what they
could not accomplish legally. They executed on July
28, 1991 the "Declaration of Pledging Faithfulness" to
make their relationship what they alleged it would be
– a binding tie before Jehovah God.
In this case, respondent is charged not as a Jehovah’s
Witness but in her capacity as a court employee. It is
contended that respected elders of the Jehovah’s
Witnesses sanction "an informal conjugal
relationship" between respondent and her marital
partner for more than two decades, provided it is
characterized by faithfulness and devotion to one
another. However, the "informal conjugal
relationship" is not between two single and otherwise
eligible persons where all that is missing is a valid
wedding ceremony. The two persons who started to
live together in an ostensible marital relationship are
married to other persons.
We must be concerned not with the dogmas or rules
of any church or religious sect but with the legal
effects under the Civil Service Law of an illicit or
adulterous relationship characterized by the facts of
this case.
There is no conflict in this case between the dogmas
or doctrines of the Roman Catholic Church and those
of the Jehovah’s Witnesses or any other church or
denomination. The perceived conflict is non-existing
and irrelevant.
The issue is legal and not religious. The terms
"disgraceful" and "immoral" may be religious
concepts, but we are concerned with conduct which
under the law and jurisprudence is proscribed and, if
perpetrated, how it should be punished.
Respondent cannot legally justify her conduct by
showing that it was morally right by the standards of
the congregation to which she belongs. Her defense
of freedom of religion is unavailing. Her relationship
with Mr. Quilapio is illicit and immoral, both under
the Revised Administrative Code18 and the Revised
Penal Code,19notwithstanding the
supposed imprimatur given to them by their religion.
The peculiar religious standards alleged to be those of
the sect to which respondent belongs can not shield
her from the effects of the law. Neither can her illicit
relationship be condoned on the basis of a written
agreement approved by their religious community. To
condone what is inherently wrong in the face of the
standards set by law is to render nugatory the
safeguards set to protect the civil service and, in this
case, the judiciary.
The Court cannot be the instrument by which one
group of people is exempted from the effects of these
laws just because they belong to a particular religion.
Moreover, it is the sworn mandate of the Court to
supervise the conduct of an employee of the
judiciary, and it must do so with an even hand
regardless of her religious affiliation.
I find that respondent’s "Declaration of Pledging
Faithfulness" does nothing for her insofar as this
administrative matter is concerned, for written
therein are admissions regarding the legal
impediments to her marrying Quilapio. In the said
document, she even pledged to seek all avenues to
obtain legal recognition by civil authorities of her
union with Quilapio.20 However, the record is silent as
to any effort on respondent’s part to effect this
covenant.
The evidence shows that respondent repeatedly
admitted the existence of the legal infirmities that
plague her relationship with Quilapio.21 As a court
interpreter, she is an integral member of the judiciary
and her service as such is crucial to the administration
of justice. Her acts and omissions constitute a
possible violation of the law – the very same law that
she is sworn to uphold as an employee of the
judiciary. How can she work under the pretense of
being a contributing force to the judicial system if she
herself is committing acts that may constitute
breaking the law?
Respondent invokes her constitutional right to
religious freedom. The separation of church and state
has been inviolable in this jurisdiction for a century.
However, the doctrine is not involved in this
case.22 Furthermore, the legislature made
cohabitation with a woman who is not one’s wife a
crime through the enactment of the Revised Penal
Code.23 The legislative power has also seen fit to
enact the Civil Service Law and has given said law
general application.
The argument that a marital relationship is the
concern of religious authorities and not the State has
no basis.
In Reynolds v. United States,24 the U.S. Supreme
Court stated:
It is impossible to believe that the constitutional
guaranty of religious freedom was intended to
prohibit legislation in respect to this most important
feature of social life. Marriage, while from its very
nature a sacred obligation, is, nevertheless, in most
civilized nations, a civil contract, and usually
regulated by law. Upon it society may be said to be
built, and out of its fruits spring social relations and
social obligations and duties, with which government
is necessarily required to deal.
The strengthening of marriage ties and the
concomitant hostility to adulterous or illicit marital
relations is a primary governmental concern. It has
nothing to do with the particular religious affiliations
of those affected by legislation in this field.
The relations, duties, obligations and consequences
of marriage are important to the morals and
civilization of a people and to the peace and welfare
of society.25 Any attempt to inject freedom of religion
in an effort to exempt oneself from the Civil Service
rules relating to the sanctity of the marriage tie must
fail.
The U.S. Supreme Court in the above-cited case of
Reynolds v. United States26 upheld federal legislation
prohibiting bigamy and polygamy in territories of the
United States, more specifically Utah. Members of
the Mormon Church asserted that the duty to
practice polygamy was an accepted doctrine of their
church. In fact, Mormons had trekked from the
regular States of the Union to what was then a mere
Territory in order to practice their religious beliefs,
among them polygamy. The Court declared that while
it protected religious belief and opinion, it did not
deprive Congress of the power to reach actions
violative of social duties or subversive of good order.
Polygamy was outlawed even for Mormons who
considered it a religious obligation.
We must not exempt illegal conduct or adulterous
relations from governmental regulation simply
because their practitioners claim it is part of their free
exercise of religious profession and worship.
Indeed, the Court distinguishes between religious
practices, including the seemingly bizarre, which may
not be regulated, and unacceptable religious conduct
which should be prevented despite claims that it
forms part of religious freedom.
In Ebralinag v. Division Superintendent of
Schools,27 we validated the exemption of Jehovah’s
Witnesses from coerced participation in flag
ceremonies of public schools. Following the ruling in
West Virginia v. Barnette,28 we declared that unity
and loyalty, the avowed objectives of flag
ceremonies, cannot be attained through coercion.
Enforced unity and loyalty is not a good that is
constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by
prohibited means.
The exemption from participation in flag ceremonies
cannot be applied to the tolerance of adulterous
relationships by court personnel in the name of
religious freedom.
A clear and present danger of a substantive evil,
destructive to public morals, is a ground for the
reasonable regulation of the free exercise and
enjoyment of religious profession.29 In addition to the
destruction of public morals, the substantive evil in
this case is the tearing down of morality, good order,
and discipline in the judiciary.
Jurisprudence on immoral conduct of employees in
the civil service has been consistent. There is nothing
in this case that warrants a departure from
precedents. We must not sanction or encourage illicit
or adulterous relations among government
employees.
Soledad S. Escritor and Luciano D. Quilapio are
devoted members of Jehovah’s Witness. Exemptions
granted under our Muslim Laws to legitimate
followers of Islam do not apply to them.30 The Court
has no legislative power to place Jehovah’s Witness in
the same legal category as Muslims.
In Bucatcat v. Bucatcat,31 it was held that conduct
such as that demonstrated by the respondent is
immoral and deserving of punishment. For such
conduct, the respondent, another court interpreter,
was dismissed from the service. It was held:
Every employee of the judiciary should be an example
of integrity, uprightness and honesty. Like any public
servant, he must exhibit the highest sense of honesty
and integrity not only in the performance of his
official duties but in his personal and private dealings
with other people, to preserve the court’s good name
and standing. It cannot be overstressed that the
image of a court of justice is mirrored in the conduct,
official and otherwise, of the personnel who work
thereat, from the judge to the lowest of its personnel.
Court employees have been enjoined to adhere to the
exacting standards of morality and decency in their
professional and private conduct in order to preserve
the good name and integrity of courts of justice.
All those who work in the judiciary are bound by the
most exacting standards of ethics and morality to
maintain the people’s faith in the courts as dispensers
of justice. In Liguid v. Camano,32 it was ruled:
Surely, respondent’s behavior of living openly and
scandalously for over two (2) decades with a woman
not his wife and siring a child by her is representative
of the gross and serious misconduct penalized by the
ultimate penalty of dismissal under Section 22 (c),
Rule XIV of the Omnibus Rules Implementing Book IV
of Executive Order No. 292 otherwise known as the
Revised Administrative Code of 1987. As defined,
misconduct is a transgression of some established or
definite rule of action, more particularly, unlawful
behavior or gross negligence by the public officer.
Respondent’s conduct is an example of the kind of
gross and flaunting misconduct that so quickly and
surely corrodes the respect for the courts without
which government cannot continue and that tears
apart the bonds of our polity.
Earlier, in Navarro v. Navarro,33 the penalty of
suspension was imposed on a court employee for
maintaining illicit relations with a woman not his wife,
thus:
Time and again we have stressed adherence to the
principle that public office is a public trust. All
government officials and employees must at all times
be accountable to the people, serve them with
utmost responsibility, integrity, loyalty and efficiency,
act with patriotism and justice, and lead modest lives.
This constitutional mandate should always be in the
minds of all public servants to guide them in their
actions during their entire tenure in the government
service. The good of the service and the degree of
morality which every official and employee in the
public service must observe, if respect and confidence
are to be maintained by the Government in the
enforcement of the law, demand that no untoward
conduct on his part, affecting morality, integrity and
efficiency while holding office should be left without
proper and commensurate sanction, all attendant
circumstances taken into account.
themselves to greater scrutiny of their conduct, all in
the pursuit of a professional civil service. The Court
has repeatedly applied these principles in analogous
cases.35
Immorality is punishable by suspension of six (6)
months and one day to one (1) year for the first
offense and dismissal for the second
36
offense. Considering that respondent’s misconduct
is in the nature of a continuing offense, it must be
treated as a first offense, and her continued
cohabitation with Luciano E. Quilapio, Jr. must be
deemed a second offense, which will warrant the
penalty of dismissal.
ACCORDINGLY, I vote that respondent Soledad S.
Escritor is GUILTY of immorality and disgraceful
conduct and should be SUSPENDED for a period of Six
(6) months and One day without pay, with a warning
that the continuance of her illicit cohabitation with
Luciano D. Quilapio, Jr. shall be deemed a second
offense which shall warrant the penalty of dismissal.
CONSUELO YNARES-SANTIAGO
Associate Justice

The exacting standards of ethics and morality

imposed upon court judges and court employees are
Footnotes
required to maintain the people’s faith in the courts
as dispensers of justice, and whose image is mirrored 1
Lacuata v. Bautista, A.M. No. P-94-1005, 12 August
by their actuations. As the Court eloquently stated 1994, 235 SCRA 290.
through Madame Justice Cecilia Muñoz-Palma:
2
De Dios v. Alejo, A.M. No. P-137, 15 December 1975,
[T]he image of the court of justice is necessarily 68 SCRA 354.
mirrored in the conduct, official or otherwise, of the
3
men and woman who work thereat, from the judge to Revised Administrative Code, Book V, Title I, Subtitle
the least and lowest of its personnel – hence, it A, Section 46 (b) (5).
becomes the imperative sacred duty of each and 4
Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct.
everyone in the court to maintain its good name and
13 (1946).
standing as a true temple of justice.34
5
Oxford Universal Dictionary, Vol. 2, p. 1280.
The high degree of moral uprightness that is
demanded of employees of the government entails 6
Id., p. 961.
many sacrifices that are peculiar to the civil service.
By aspiring to these positions, government
employees are deemed to have submitted
7 30
Sibal, Philippine Legal Encyclopedia, p. 406; Sulu Islamic Association of Masjid Lambayong v.
Soberano v. Villanueva, 116 Phil. 1208 (1962); Reyes Malik, A.M. No. MTJ-92-691, 10 September 1993, 226
v. Wong, A.M. No. 547, 29 January 1975, 63 SCRA 668. SCRA 193.

8 31
Revised Penal Code, Art. 333. 380 Phil. 555 (2000).

9 32
Revised Penal Code, Art. 334. A.M. No. RTJ-99-1509, 8 August 2002.

10 33
Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), A.M. No. OCA-00-61, 6 September 2000, 339 SCRA
Rules of Court, Rule 110, Section 5. 709.

11 34
Reyes v. Wong, supra. Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-
89-312, 9 January 1992, 205 SCRA 21 and Sy v. Cruz,
12
Supra. 321 Phil. 231 [1995].
13
Lacuata v. Bautista, supra. 35
Benavidez v. Vega, A.M. No. P-01-1530, 13
14 December 2001; Alday v. Cruz, A.M. No. RTJ-00-1530,
Supra.
14 March 2001, 354 SCRA 322.
15
339 Phil. 510 (1997). 36
Civil Service Rules, Rule XIV, Section 23 (o).
16
A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.

17
220 Phil. 49 (1985).

18
E.O. 292, Sec. 46 (5).

19
Art. 334.

20
Rollo, Exhibits "1" and "2", pp. 14-15. DISSENTING OPINION

21
TSN, October 12, 2000, pp. 11-15. CARPIO, J.:

22
Constitution, Art. II, Sec. 6; 1973 Constitution, Art. I maintain my dissent from the majority opinion as it
XV, Sec. 15. now orders the dismissal of the administrative
complaint filed by petitioner Alejandro Estrada
23
Art. 334. against respondent Soledad S. Escritor.
24
98 U.S. 145; 25 L.Ed. 244 (1879). The majority opinion relies heavily on Sherbert v.
25
Verner1 in upholding Escritor’s claim of exemption
Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.
from administrative liability grounded on her
26
Supra. religious belief as a member of the Jehovah’s
Witnesses. This religious sect allows Escritor’s
27
G.R. No. 95770, 1 March 1993, 219 SCRA 256. cohabitation with Luciano D. Quilapio, Jr., who has a
subsisting marriage with another woman.
28
319 U.S. 624 (1943).
The compelling state interest test espoused in
29
American Bible Society v. City of Manila, 101 Phil. Sherbert has been abandoned more than 15 years
386 (1957). ago by the U.S. Supreme Court in the Employment
Division v. Smith2 cases. In the Smith cases, the U.S.
Supreme Court set aside the balancing test for
religious minorities laid down in Sherbert. Instead,
the U.S. Supreme Court ruled categorically in the
Smith cases that the guarantee 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.
In the first Employment Division v. Smith (Smith
I),3 petitioner denied respondents’ application for
unemployment compensation benefits under an
Oregon statute declaring ineligible for benefits
employees discharged for work-related misconduct.
The misconduct for which respondents were
discharged from their jobs consisted of their ingesting
peyote, a hallucinogenic drug, for sacramental
purposes at a ceremony of their Native American
Church. The Oregon Supreme Court ruled that
although the denials of benefits were proper under
Oregon law, Sherbert required the Oregon Supreme
Court to hold that the denials significantly burdened
respondents’ religious freedom in violation of the
Free Exercise Clause. The Oregon Supreme Court did
not attach significance to the fact that peyote
possession is a felony in Oregon.
The U.S. Supreme Court vacated the Oregon Supreme
Court’s judgment and ordered the remand of the case
for a definitive ruling on whether the religious use of
peyote is legal in Oregon. The U.S. Supreme Court
deemed the legality or illegality of the questioned
conduct critical in its analysis of respondents’ claim
for protection under the Free Exercise Clause.
In Smith I, the U.S. Supreme Court distinguished
respondents’ conduct with that involved in Sherbert,
thus:
x x x In Sherbert, as in Thomas and Hobbie v.
Unemployment Appeals Comm’n of Fla.,4 the conduct
that gave rise to the termination of employment was
perfectly legal; indeed, the Court assumed that it was
immune from state regulation.5 The results we
reached in Sherbert, Thomas and Hobbie might well
have been different if the employees had been
discharged for engaging in criminal conduct. x x x The
protection that the First Amendment provides to
"legitimate claims to the free exercise of religion"
does not extend to conduct that a State has validly
proscribed.6 (Emphasis supplied)
In the second Employment Division v. Smith (Smith
II),7 the Oregon Supreme Court held on remand that
respondents’ religiously inspired use of peyote fell
within the prohibition of the Oregon statute
classifying peyote as a "controlled substance" and
punishing its possession as a felony. Although the
Oregon Supreme Court noted that the statute makes
no exception for the sacramental use of peyote, it still
concluded that the prohibition was not valid under
the Free Exercise Clause.
The U.S. Supreme Court reversed the Oregon
Supreme Court. The U.S. Supreme Court ruled that a
claim of exemption from a generally applicable law
grounded on the right of free exercise could not be
evaluated under the compelling state interest test of
Sherbert, particularly where such law does not violate
other constitutional protections. The U.S. Supreme
Court expressly declared:
x x x We have never held that an individual’s religious
beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State
is free to regulate. x x x8
xxxx
The only decisions in which we have held that the First
Amendment bars application of a neutral, generally
applicable law to religiously motivated action have
involved not the Free Exercise Clause alone, but the
Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech
and of the press. x x x9
Respondents argue that even though exemption from
generally applicable criminal laws need not
automatically be extended to religiously motivated
conduct, at least the claim for a religious exemption
must be evaluated under the balancing test set forth
in Sherbert v. Verner. x x x In recent years we have
abstained from applying the Sherbert test (outside
the unemployment compensation field) at all. x x x10
Even if we were inclined to breathe into Sherbert
some life beyond the unemployment compensation
field, we would not apply it to require exemptions
from a generally applicable criminal law. x x
x11 (Emphasis supplied)
What the Smith cases teach us is that the compelling
state interest test in Sherbert is not the correct test in
determining the legitimacy of a claim of exemption
from generally applicable, religion-neutral laws that
have the incidental effect of burdening particular
religious practice. Any such claim for exemption
should be analyzed by considering whether the
conduct in question is one that "the State has validly
proscribed," irrespective of the sincerity or centrality
of an individual’s religious beliefs.
Here, Escritor is indisputably engaged in criminal
conduct. Escritor’s continued cohabitation with
Quilapio is patently in violation of Article 334 of the
Revised Penal Code on concubinage. Article 334
makes no exception for religiously sanctioned
cohabitation such as that existing between Escritor
and Quilapio. The majority opinion in fact concedes
that the present case involves a claim of exemption
"from a law of general applicability that inadvertently
burdens religious exercise."12 The majority opinion
even concedes further that the conduct in question is
one "which Philippine law and jurisprudence consider
both immoral and illegal."13 And yet, the majority
opinion expediently brushes aside the illegality of
Escritor’s questioned conduct using the obsolete
compelling state interest test in Sherbert.
The majority opinion mentions two "opposing strains
of jurisprudence on the religion clauses" in U.S.
history, namely, separation or strict neutrality and
benevolent neutrality or accommodation. The
majority opinion asserts that the framers of our 1935,
1973, and 1987 Constitutions intended to adopt a
benevolent neutrality approach in interpreting the
religion clauses, i.e., the Establishment and Free
Exercise Clauses. The majority opinion then reasons
that in determining claims of exemption based on
freedom of religion, this Court must adopt the
compelling state interest test laid down by the U.S.
Supreme Court in Sherbert, which according to the
majority, best exemplifies the benevolent neutrality
approach. Hence, even as the majority opinion
acknowledges that the U.S. Supreme Court in the
Smith cases has abandoned the compelling state
interest test espoused in Sherbert, the majority
opinion dismisses this abandonment in its analysis of
Escritor’s free exercise exemption claim by simply
labeling the Smith cases as exemplifying the strict
neutrality approach.
The majority opinion blatantly ignores that whatever
theory may be current in the United States —
whether strict neutrality, benevolent neutrality or
some other theory — the undeniable fact is what is
clearly stated in Smith II:
x x x We have never held that an individual’s religious
beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the State
is free to regulate. x x x14
Thus, from the 1879 case of Reynolds v. U.S. 15 on the
practice of polygamy by Mormons to the 1988 and
1990 Smith cases on the use of prohibited drugs by
native American Indians, the U.S. Supreme Court has
consistently held that religious beliefs do not excuse
any person from liability for violation of a valid
criminal law of general application. The majority
opinion simply refuses to face and accept this reality.
The present case involves conduct that violates
Article 334 of the Revised Penal Code, a provision of
law that no one challenges as unconstitutional.
Clearly, the theories invoked in the majority opinion
have no application to the present case based on an
unbroken line of U.S. Supreme Court decisions. In any
event, we shall discuss for academic purposes the
merits of the theories advanced in the majority
opinion.
While the majority opinion only mentions separation
and benevolent neutrality, a close reading of the
major U.S. Supreme Court opinions specifically
relating to the religion clauses presents three
principal theories at play, namely, (a) the strict
separation or "no aid" theory, (b) the governmental
neutrality theory, and (c) the accommodation or
benevolent neutrality theory.16
The strict separation or "no aid" theory holds that the
establishment clause viewed in conjunction with the
free exercise clause requires a strict separation of
church and state and that government can do nothing
which involves governmental support of religion or
which is favorable to the cultivation of religious
interests.17 This theory found its first expression in
the case of Everson v. Board of Education,18 which
espoused the "no aid" principle. Thus, the
government cannot by its programs, policies, or laws
do anything to aid or support religion or religious
activities.19
Everson upheld the validity of a New Jersey statute
authorizing bus fare reimbursement to parents of
parochial, as well as public school children.
Apparently, the strict interpretation or "no aid"
theory prohibits state benefits to a particular sect or
sects only, but does not prohibit benefits that accrue
to all, including one or more sects. Eversondid not
involve religiously motivated conduct that
constituted a violation of a criminal statute.
Under the governmental neutrality theory, the
establishment clause requires government to be
neutral on religious matters.20 This theory was
articulated by Mr. Justice Clark in the case of Abington
School District v. Schempp,21where he stated that
what the Constitution requires is "wholesome
neutrality," i.e., laws and governmental programs
must be directed to secular ends and must have a
primary effect that neither advances nor inhibits
religion.22 This test as stated by Mr. Justice Clark
embodies a theory of strict neutrality23 — thus, the
government may not use the religious factor as a
basis for classification with the purpose of advancing
or inhibiting religion:
The place of religion in our society is an exalted one,
achieved through a long tradition of reliance on the
home, the church and the inviolable citadel of the
individual heart and mind. We have come to
recognize through bitter experience that it is not
within the power of government to invade that
citadel, whether its purpose or effect be to aid or
oppose, to advance or retard. In the relationship
between man and religion, the state is firmly
committed to a position of neutrality.24 (Italics
supplied)
However, the concept of governmental neutrality can
be interpreted in various ways — to some, anything
but total neutrality is anathema; to others, "neutrality
can only mean that government policy must place
religion at neither a special advantage nor a special
disadvantage."25
Schempp struck down a Pennsylvania law allowing
the recitation of the Lord’s Prayer and the reading of
the Bible without comment in public schools,
although the recitation and reading were voluntary
and did not favor any sect. Schempp did not involve
religiously motivated conduct that constituted a
violation of a criminal statute.
The accommodation theory provides that any
limitation derived from the establishment clause on
cannot be rigidly applied so as to preclude all aid to
religion and that in some situations government
must, and in other situations may, accommodate its
policies and laws in the furtherance of religious
freedom.26 The accommodation theory found its first
expression in Zorach v. Clauson.27 The U.S. Supreme
Court held in Zorach that a state could authorize an
arrangement whereby public school children could be
released one hour a week for religious instruction off
the school premises. Zorach did not involve
religiously motivated conduct that constituted a
violation of a criminal statute.
In his book Religion and the Constitution published in
1964, Professor Paul G. Kauper used the term
"benevolent neutrality" in the following context:
It would be a mistake, however, to suggest that the
theory of accommodation x x x is unrelated to other
ideas and theories that have been developed, notably
the no-aid and neutrality concepts. Rather,
accommodation, instead of being viewed as a wholly
independent theory of interpretation, should be seen
as a modification of the no-aid or neutrality concepts.
xxx
These ideas cannot be pressed to their absolute limit.
Not only must the no-aid or neutrality concept be
subordinated to the necessities of free exercise, but
an area of legislative discretion must be allowed
where a state may choose to advance the cause of
religious freedom even at the expense of not being
completely neutral. Indeed, this may be described as
the larger or benevolent neutrality.28 (Emphasis and
italics supplied)
Six years later, the U.S. Supreme Court used the term
"benevolent neutrality" for the first time in Walz v.
Tax Commission.29 In Walz, the U.S. Supreme Court
sustained the constitutionality of tax exemption of
property used exclusively for religious purposes on
the basis of "benevolent neutrality," as follows:
The Court has struggled to find a neutral course
between the two Religion Clauses, both of which are
cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash
with the other. x x x
xxxx
The course of constitutional neutrality in this area
cannot be an absolutely straight line; rigidity could
well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored or
favored, none commanded, and none inhibited. The
general principle deducible from the First
Amendment and all that has been said by the Court is
this: that we will not tolerate either governmentally
established religion or governmental interference
with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints
productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship
and without interference.30(Emphasis and italics
supplied)
At issue in Walz was a provision in New York’s
Constitution authorizing property tax exemptions to
religious organizations for religious properties used
solely for religious worship. Walz did not involve
religiously motivated conduct that constituted a
violation of a criminal statute.
The majority opinion cited the case of Walz in
support of its assertion that the framers of the 1935
Constitution intended to adopt the benevolent
neutrality approach in the interpretation of the
religion clauses, viz.:
x x x With the inclusion of the church property tax
exemption in the body of the 1935 Constitution and
not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in
the Walz case was given constitutional imprimatur
under the regime of the 1935 Constitution. x x x
The U.S. Supreme Court decided Walz only in 1970,
more than three decades after the adoption of our
1935 Constitution. It is certainly doubtful whether the
framers of our 1935 Constitution intended to give
"constitutional imprimatur" to a theory of
interpretation espoused in a case that was yet to be
formulated. Moreover, when the U.S. Supreme Court
upheld the constitutionality of church property tax
exemption on the basis of "benevolent neutrality," it
did so on grounds that no particular religion is singled
out for favorable treatment, and partly on historical
grounds that church tax exemptions have been
accepted without challenge in all states for most of
the nation’s history.31
The majority opinion vigorously argues the merits of
adopting the theory of accommodation in the
interpretation of our Constitution's religion clauses.
However, the majority opinion fails to mention that a
distinction is often drawn by courts and
commentators between mandatory
accommodation and permissive accommodation.
Mandatory accommodation is exemplified by the key
idea in Sherbert that exemptions from generally
applicable laws are required by force of the Free
Exercise Clause,32 which the majority opinion adheres
to in granting Escritor’s claim of free exercise
exemption.
Permissive accommodation refers to exercises of
political discretion that benefit religion, and that the
Constitution neither requires nor forbids.33 The U.S.
Supreme Court recognized in Smith II that although
the Free Exercise Clause did not require permissive
accommodation, the political branches could shield
religious exercise through legislative
accommodation,34 for example, by making an
exception to proscriptive drug laws for sacramental
peyote use.
Professor Michael W. McConnell, whose views on the
accommodation theory were frequently quoted by
the majority opinion, defends mandatory
accommodation.35 However, Prof. Kauper, likewise
an accommodationist, favors permissive
accommodation, stating that "as a general
proposition, no person should be allowed to claim
that because of his religion he is entitled as a matter
of constitutional right to claim an exemption from
general regulatory and tax laws."36 Prof. Kauper
further explains his position that religious liberty
furnishes no ground for claiming immunity to laws
which place reasonable restrictions on overt conduct
in the furtherance of public interests protected by the
state’s police power,37 as follows:
Where the issue is not the use of governmental power
to sanction religious belief and practices by some
positive program but the granting of exemption on
religious grounds from laws of general operation,
what determines whether the government is
required, or permitted, to make the accommodation?
While a state may appropriately grant exemptions
from its general police and tax laws, it should not be
constitutionally required to do so unless this
immunity can properly be claimed as part of the
constitutional guarantee of religious liberty. Thus,
exemptions from property tax and military service,
health and labor laws should be at the discretion of
government. Whether Sherbert carried the principle
of required accommodation too far is debatable. It
may well be that the court here undertook a
determination of questions better left to the
legislature and that in this area, x x x the policy of
granting exemptions on religious grounds should be
left to legislative discretion.38 (Emphasis supplied)
It 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. The compelling
state interest test in Sherbert pushes the limits of
religious liberty too far, and so too does the majority
opinion insofar as it grants Escritor immunity to a law
of general operation on the ground of religious
liberty. Making a distinction between permissive
accommodation and mandatory accommodation is
more critically important in analyzing free exercise
exemption claims. Such limitations 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 cases) just because
it does not espouse the theory selected.
Theories are only guideposts and "there is no magic
formula to settle all disputes between religion and
the law, no legal pill to ease the pain of perceived
injustice and religious oppression, and certainly no
perfect theory to bind judges or
legislators."39 The Smith cases, particularly Smith II,
cannot be so easily dismissed by the majority opinion
and labeled as "best exemplifying the strict neutrality
approach." The Smith Court affirmed the power and
the discretion of legislatures to enact statutory
protection beyond what the Free Exercise Clause
required. The U.S. Supreme Court indicated in Smith
II that legislatures could enact accommodations to
protect religion beyond the Free Exercise Clause
minimum without "establishing" religion and thereby
running afoul of the Establishment Clause.40 What
the Smith cases espouse, therefore, is not really the
strict neutrality approach, but more of permissive
accommodation.41
Even assuming that the theory of benevolent
neutrality and the compelling state interest test are
applicable, the State has a compelling interest in
exacting from everyone connected with the
dispensation of justice, from the highest magistrate
to the lowest of its personnel, the highest standard of
conduct. This Court has repeatedly held that "the
image of a court of justice is necessarily mirrored in
the conduct, official or otherwise, of the men and
women who work thereat."42 While arguably not
constituting "disgraceful and immoral
43
conduct," Escritor’s cohabitation with Quilapio is a
patent violation of our penal law on concubinage that
vitiates "the integrity of court personnel and the court
itself."44 The public’s faith and confidence in the
administration of justice would certainly be eroded
and undermined if tolerated within the judiciary’s
ranks are court employees blatantly violating our
criminal laws.
I therefore maintain that Escritor’s admitted
cohabitation with Quilapio is sufficient basis to hold
her guilty of conduct prejudicial to the best interest of
the service and to impose upon her the appropriate
penalty.
Equally compelling is the State’s interest in the
preservation of marriage and the family as basic social
institutions,45which is ultimately the public policy
underlying Articles 334 and 349 of the Revised Penal
Code. This Court has recognized in countless cases
that marriage and the family are basic social
institutions in which the State is vitally
interested46 and in the protection of which the State
has the strongest interest.47 In Domingo v. Court of
Appeals,48 the Court stressed that:
Marriage, a sacrosanct institution, declared by the
Constitution as an "inviolable social institution, is the
foundation of the family;" as such, it "shall be
protected by the State." x x x So crucial are marriage
and the family to the stability and peace of the nation
that their "nature, consequences, and incidents are
governed by law and not subject to stipulation.
The same sentiment has been expressed in Article
149 of the Family Code:
The family, being the foundation of the nation, is a
basic social institution which public policy cherishes
and protects. Consequently, family relations are
governed by law and no custom, practice or
agreement destructive of the family shall be
recognized or given effect. (Emphasis supplied)
And yet, notwithstanding the foregoing compelling
state interests at stake, the majority all too willingly
and easily places them in jeopardy by upholding
Escritor’s claim of exemption. On this point, Professor
William P. Marshall aptly observes that one of the
problems involved in free exercise exemption analysis
is that it requires the Court to weigh the state interest
against the interest of the narrower class comprised
only of those seeking exemption. On the other hand,
in other doctrinal areas, the Court balances the state
interest in the regulation at issue against the interests
of the regulated class taken as a whole. Prof. Marshall
persuasively argues that this leads to both
unpredictability in the exemption balancing process
and potential inconsistency in result "as each
regulation may be subject to limitless challenges
based upon the peculiar identity of the
challenger."49 Moreover, Prof. Marshall notes that
the exemption balancing process necessarily leads to
underestimating the strength of the countervailing
state interest.50 Indeed, the state interest in a
challenged regulation will seldom be seriously
threatened if only a few persons seek exemption from
it.51
In dismissing the administrative complaint against
Escritor, the majority opinion effectively condones
and accords a semblance of legitimacy to her patently
unlawful cohabitation with Quilapio, while in the eyes
of the law, Quilapio remains married to his legal wife.
This condonation in fact facilitates the circumvention
by Escritor and Quilapio of Articles 334 and 349 of the
Revised Penal Code on concubinage and
bigamy.52 Without having his first marriage legally
dissolved, Quilapio can now continue to cohabit with
Escritor with impunity. How do we reconcile this
scenario with the Constitution’s emphatic declaration
that marriage is "an inviolable social institution"?53
By choosing to turn a blind eye to Escritor’s criminal
conduct, the majority is in fact recognizing and
according judicial imprimatur to a practice, custom or
agreement that subverts marriage, albeit one that is
sanctioned by a particular religious sect. The
majority’s opinion here bestows "a credibility and
legitimacy upon the religious belief in question simply
by its being judicially recognized as constitutionally
sacrosanct."54 This is another problem that arises in
free exercise exemption analysis — the benevolent
neutrality approach fails to take into account the role
that equality plays in free exercise theory.55 While the
text of the Free Exercise Clause is consistent with
protecting religion from discrimination, it does not
compel discrimination in favor of religion.56 However,
the benevolent neutrality approach promotes its own
form of inequality when under it, exemptions are
granted only to religious claimants like Escritor,
whose religiously-sanctioned but otherwise illegal
conjugal arrangement with Quilapio acquires a
veneer of "special judicial reinforcement."57
Catholics may secure a church annulment of their
marriage. A church annulment does not exempt
Catholics from criminal or administrative liability if
they cohabit with someone other than their legal
spouse before their marriage is finally annulled by a
civil court. Catholics cannot legally justify before civil
courts such act of concubinage on the ground that the
act conforms to their religious beliefs because they
have a secured a church annulment which freed them
from their marital vows. If this Court condones
Escritor’s act of concubinage on religious grounds,
then it will have to condone acts of concubinage by
Catholics who have secured church annulment of
their marriage even without a final annulment from a
civil court. The majority pushes their opinion on a
slippery slope.
It may well be asked how, under a well-meaning but
overly solicitous grant of exemption based on the
Freedom of Exercise Clause of our Constitution, an
individual can be given the private right to ignore a
generally applicable, religion-neutral law. For this is
what the majority opinion has effectually granted
Escritor in dismissing the administrative complaint
against her. The accommodation of Escritor’s
religious beliefs under the benevolent neutrality
approach is too high a price to pay when weighed
against its prejudicial effect on the sound
administration of justice and the protection of
marriage and the family as basic social institutions.
Finally, there is even no claim here that concubinage
is central to the religious belief of the Jehovah’s
Witnesses, or even a part of the religious belief of the
Jehovah’s Witnesses. Escritor merely claims that her
live-in arrangement with a married man is, in the
words of the majority opinion, "in conformity with
her and her partner’s religious belief." This case is not
an issue of a statute colliding with centrally or vitally
held beliefs of a religious denomination, as in the case
of Sherbert. This case is about a religious cover for an
obviously criminal act.
In Sherbert, the conduct in question was the refusal
of a member of the Seventh Day Adventist Church to
work on the Sabbath Day or on Saturdays, which
prevented prospective employers from giving
petitioner in Sherbert employment. Petitioner in
Sherbert then claimed unemployment benefits,
which the State denied because the law withheld
benefits to those who failed without good cause to
accept available suitable work. In Sherbert, the
questioned conduct — the refusal to work on
Saturdays — was part of the religious tenets of the
Seventh Day Adventists. The questioned conduct in
Sherbert was not a criminal conduct, unlike the
questioned conduct of Escritor in this case. Clearly,
even assuming for the sake of argument that Sherbert
remains good law in the United States and thus has
some persuasive force here, still Sherbert is patently
inapplicable to the present case.
The positive law and the institutions of government
are concerned not with correct belief but with overt
conduct related to good order, peace, justice,
freedom, and community welfare.58 Hence, while
there are times when government must adapt to, or
acquiesce to meet the needs of religious exercise,
there are also times when the exercises a religion
wishes to pursue must be adapted or even prohibited
in order to meet the needs of public policy.59 For
indeed, even religious liberty has its limits. And
certainly, "there is a price to be paid, even by religion,
for living in a constitutional democracy."60
Certainly, observance of provisions of the Revised
Penal Code, whose validity or constitutionality are not
even challenged, is a price that all religions in the
 8
Philippines must willingly pay for the sake of good Id. at 878-879.
order and peace in the community. To hold otherwise
9
would, as aptly stated in Reynolds v. U.S.,61 "make the Id. at 881.
professed doctrines of religious belief superior to the 10
Id. at 882-883.
law of the land," and in effect "permit every citizen to
become a law unto himself." The majority opinion will 11
Id at 884.
make every religion a separate republic, making
12
religion a haven for criminal conduct that otherwise Estrada v. Escritor, 455 Phil. 574 (2003).
would be punishable under the laws of the land. 13
Id. at 593.
Today concubinage, tomorrow bigamy, will enjoy
protection from criminal sanction under the new 14
Employment Division v. Smith, supra note 7 at 878-
doctrine foisted by the majority opinion. 879.

Accordingly, I vote to suspend respondent Soledad S. 15

98 U.S. 145 (1878).
Escritor for six months and one day without pay for
16
conduct prejudicial to the best interest of the service. Kauper, P., Religion and the Constitution 59 (1964).
However, the suspension shall be lifted immediately See also Abraham, H. and Perry, B., Freedom and the
upon Escritor’s manifestation to this Court that she Court: Civil Rights and Liberties in the United States
has ceased cohabiting with Luciano D. Quilapio, Jr. 270 (7th ed., 1998).
Moreover, respondent Escritor is warned that her
17
continued cohabitation with Quilapio, during or after Id.
her suspension and while Quilapio’s marriage with his 18
330 U.S. 1 (1947).
legal wife still subsists, shall merit the penalty of
dismissal from the service. 19
Kauper, op. cit., at 61.

ANTONIO T. CARPIO 20
Abraham, H. and Perry, B., Freedom and the Court:
Associate Justice Civil Rights and Liberties in the United States 272-73
(7th ed., 1998).

21
374 U.S. 203 (1963).

Footnotes 22
Kauper, op. cit., at 64.
1
374 U.S. 398 (1963). 23
Id. at 65.
2
485 U.S. 660 (1988) and 494 U.S. 872 (1990). 24
Abington School District v. Schempp, supra note 15
3
at 226.
485 U.S. 660 (1988).
25
4
Abraham, H. and Perry, B., op. cit., at 280.
Citations omitted.
26
5
Kauper, op. cit., at 59.
In Sherbert, the appellant was discharged because
she would not work on Saturday, the Sabbath Day of 27
343 U.S. 306 (1952).
her faith.
28
Id. at 75.
6
Employment Division v. Smith, supra note 3 at 670-
29
671. 397 U.S. 664 (1970).

30
7
494 U.S. 872 (1990). Id. at 668-669.
31 49
Abraham, H. and Perry, B., op. cit., at Table 6.3. William P. Marshall, In Defense of Smith and Free
Exercise Revisionism, 58 U. Chi. L. Rev. 308, 311-312
32
Ira C. Lupu, The Trouble with Accommodation, (1991).
60(3) Geo. Wash. L. Rev. 743, 751 (1992).
50
Id.
33
Id.
51
Id.
34
Anne Y. Chiu, When Prisoners Are Weary and Their
52
Religious Exercise Burdened, RLUIPA Provides Some Bigamy is an illegal marriage by contracting a
Rest for their Souls, 79 Wash. L. Rev. 999 (2004). In second or subsequent marriage before the first
this article, Chiu defines "legislative accommodation" marriage has been legally dissolved. It is interesting to
as a statute enacted by the legislature to lift a neutral, note that, while Escritor and Quilapio both executed
generally applicable burden on religion imposed by a "Declaration of Pledging Faithfulness," such
the government. execution was unaccompanied by any religious
ceremony officiated by a presiding minister of the
35
Michael W. McConnell, Accommodation of Jehovah’s Witnesses. Precisely, such ceremony would
Religion: An Update and a Response to the Critics, have constituted a violation of Article 352 of the
60(3) Geo. Wash. L. Rev. 685, 687-688 (1992). Revised Penal Code prohibiting the performance of an
36 illegal marriage ceremony by priests or ministers of
Kauper, op. cit., at 17.
any religious denomination or sect.
37
Id. at 38. 53
Section 2, Article XV, 1987 Constitution.
38
Id. at 78-79. 54
William P. Marshall, op. cit., at 322-23.
39
Weber, P., Equal Separation: Understanding the 55
Id. at 319.
Religion Clauses of the First Amendment 154 (1990).
56
40 Id. at 325.
Anne Y. Chiu, op. cit.
57
41 Id.
Ira C. Lupu, op. cit., at 751, note 33.
58
42 Kauper, op. cit., at 83.
Villaraza v. Atienza, 195 Phil. 383, 390 (1981).
59
43 Weber, P., op. cit., at 150.
See Dissenting Opinion, J. Carpio in Escritor v.
Estrada, op. cit., see note 12. 60
Id. at 47.
44
Ganaden v. Bolasco, 64 SCRA 50, 53 (1975). 61
98 U.S. 145, 167 (1878).
45
Section 2, Article XV and Section 12, Article II, 1987 EN BANC
Constitution.

46
Goitia v. Campos-Rueda, 35 Phil. 252 (1919); Brown
v. Yambao, 102 Phil. 168, 172 (1957). 5. G.R. No. 117472 February 7, 1997

47
Arroyo, Jr. v. Court of Appeals, G.R. Nos. 96602 and PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
96715, 203 SCRA 750,761 (1991). vs.
LEO ECHEGARAY y PILO, accused-appellant.
48
G.R. No. 104818, 226 SCRA 572, 584 (1993).
PER CURIAM:
On June 25, 1996, we rendered our decision in the
instant case affirming the conviction of the accused-
appellant for the crime of raping his ten-year old
daughter. The crime having been committed
sometime in April, 1994, during which time Republic
Act (R.A) No. 7659, commonly known as the Death
Penalty Law, was already in effect, accused-appellant
was inevitably meted out the supreme penalty of
death.
On July 9, 1996, the accused-appellant timely filed a
Motion for Reconsideration which focused on the
sinister motive of the victim's grandmother that
precipitated the filing of the alleged false accusation
of rape against the accused. We find no substantial
arguments on the said motion that can disturb our
verdict.
On August 6, 1996, accused-appellant discharged the
defense counsel, Atty. Julian R. Vitug, and retained
the services of the Anti-Death Penalty Task Force of
the Free Legal Assistance Group of the Philippines
(FLAG).
On August 23, 1996, we received the Supplemental
Motion for Reconsideration prepared by the FLAG on
behalf of accused-appellant. The motion raises the
following grounds for the reversal of the death
sentence:
[1] Accused-appellant should not have been
prosecuted since the pardon by the offended party
and her mother before the filing of the complaint
acted as a bar to his criminal prosecution.
[2] The lack of a definite allegation of the date of the
commission of the offense in the Complaint and
throughout trial prevented the accused-appellant
from preparing an adequate defense.
[3] The guilt of the accused was not proved beyond a
reasonable doubt.
[4] The Honorable Court erred in finding that the
accused-appellant was the father or stepfather of the
complainant and in affirming the sentence of death
against him on this basis.
[5] The trial court denied the accused-appellant of
due process and manifested bias in the conduct of the
trial.
[6] The accused-appellant was denied his
constitutional right to effective assistance of counsel
and to due process, due to the incompetence of
counsel.
[7] R.A. [No.] 7659, reimposing the death penalty is
unconstitutional per se:
a. For crimes where no death results from the
offense, the death penalty is a severe and excessive
penalty in violation of Article III, Sec. 19(1) of the 1987
Constitution.
b. The death penalty is cruel and unusual punishment
in violation of Article III, Sec. 11 of the 1987
Constitution.
In sum, the Supplemental Motion for Reconsideration
raises three (3) main issues: (1) mixed factual and
legal matters relating to the trial proceedings and
findings; (2) alleged incompetence of accused-
appellant's former counsel; and (3) purely legal
question of the constitutionality of R.A. No. 7659.
I
It is a rudimentary principle of law that matters
neither alleged in the pleadings nor raised during the
proceedings below cannot be ventilated for the first
time on appeal before the Supreme Court. Moreover,
as we have stated in our Resolution in Manila Bay
Club Corporation v. Court of Appeals:1
If well-recognized jurisprudence precludes raising an
issue only for the first time on appeal proper, with
more reason should such issue be disallowed or
disregarded when initially raised only in a motion for
reconsideration of the decision of the appellate court.
It is to be remembered that during the proceedings of
the rape case against the accused-appellant before
the sala of then presiding judge Maximiano C.
Asuncion, the defense attempted to prove that:
a) the rape case was motivated by greed, hence, a
mere concoction of the alleged victim's maternal
grandmother;
b) the accused is not the real father of the
complainant;
c) the size of the penis of the accused cannot have
possibly penetrated the alleged victim's private part;
and
d) the accused was in Parañaque during the time of
the alleged rape.
In his Brief before us when the rape case was elevated
for automatic review, the accused-appellant
reiterated as grounds for exculpation:
a) the ill-motive of the victim's maternal grandmother
in prompting her grandchild to file the rape case;
b) the defense of denial relative to the size of his penis
which could not have caused the healed hymenal
lacerations of the victim; and
c) the defense of alibi.
Thus, a second hard look at the issues raised by the
new counsel of the accused-appellant reveals that in
their messianic appeal for a reversal of our judgment
of conviction, we are asked to consider for the first
time, by way of a Supplemental Motion for
Reconsideration, the following matters:
a) the affidavit of desistance written by the victim
which acted as a bar to the criminal prosecution for
rape against the accused-appellant;
b) the vagueness attributed to the date of the
commission of the offense in the Complaint which
deprived the accused-appellant from adequately
defending himself;
c) the failure of this Court to clearly establish the
qualifying circumstance that placed the accused-
appellant within the coverage of the Death Penalty
Law;
d) the denial of due process and the manifest bias
exhibited by the trial court during the trial of the rape
case.
Apparently, after a careful scrutiny of the foregoing
points for reconsideration, the only legitimate issue
that we can tackle relates to the Affidavit of
Desistance which touches on the lack of jurisdiction
of the trial court to have proceeded with the
prosecution of the accused-appellant considering
that the issue of jurisdiction over the subject matter
may be raised at any time, even during appeal.2
It must be stressed that during the trial proceedings
of the rape case against the accused-appellant, it
appeared that despite the admission made by the
victim herself in open court that she had signed an
Affidavit of Desistance, she, nevertheless, "strongly
pointed out that she is not withdrawing the charge
against the accused because the latter might do the
same sexual assaults to other women."3 Thus, this is
one occasion where an affidavit of desistance must be
regarded with disfavor inasmuch as the victim, in her
tender age, manifested in court that she was pursuing
the rape charges against the accused-appellant.
We have explained in the case of People v. Gerry
Ballabare,4 that:
As pointed out in People v. Lim (24 190 SCRA 706
[1990], which is also cited by the accused-appellant,
an affidavit of desistance is merely an additional
ground to buttress the accused's defenses, not the
sole consideration that can result in acquittal. There
must be other circumstances which, when coupled
with the retraction or desistance, create doubts as to
the truth of the testimony given by the witnesses at
the trial and accepted by the judge. 5
In the case at bar, all that the accused-appellant
offered as defenses mainly consisted of denial and
alibi which cannot outweigh the positive
identification and convincing testimonies given by the
prosecution. Hence, the affidavit of desistance, which
the victim herself intended to disregard as earlier
discussed, must have no bearing on the criminal
prosecution against the accused-appellant,
particularly on the trial court's jurisdiction over the
case.
II
The settled rule is that the client is bound by the
negligence or mistakes of his counsel.6 One of the
recognized exceptions to this rule is gross
incompetency in a way that the defendant is highly
prejudiced and prevented, in effect, from having his
day in court to defend himself.7
In the instant case, we believe that the former
counsel of the accused-appellant to whom the FLAG
lawyers now impute incompetency had amply
exercised the required ordinary diligence or that
reasonable decree of care and skill expected of him
relative to his client's defense. As the rape case was
being tried on the merits, Atty. Vitug, from the time
he was assigned to handle the case, dutifully attended
the hearings thereof. Moreover, he had seasonably
submitted the Accused-Appellant's Brief and the
Motion for Reconsideration of our June 25, 1996
Decision with extensive discussion in support of his
line of defense. There is no indication of gross
incompetency that could have resulted from a failure
to present any argument or any witness to defend his
client. Neither has he acted haphazardly in the
preparation of his case against the prosecution
evidence. The main reason for his failure to exculpate
his client, the accused-appellant, is the overwhelming
evidence of the prosecution. The alleged errors
committed by the previous counsel as enumerated by
the new counsel could not have overturned the
judgment of conviction against the accused-
appellant.
III
Although its origins seem lost in obscurity, the
imposition of death as punishment for violation of law
or custom, religious or secular, is an ancient practice.
We do know that our forefathers killed to avenge
themselves and heir akin and that initially, the
criminal law was used to compensate for a wrong
done to a private party or his family, not to punish in
the name of the state.
The dawning of civilization brought with it both the
increasing sensitization throughout the later
generations against past barbarity and the
institutionalization of state power under the rule of
law. Today every man or woman is both an individual
person with inherent human rights recognized and
protected by the state and a citizen with the duty to
serve the common weal and defend and preserve
society.
One of the indispensable powers of the state is the
power to secure society against threatened and
actual evil. Pursuant to this, the legislative arm of
government enacts criminal laws that define and
punish illegal acts that may be committed by its own
subjects, the executive agencies enforce these laws,
and the judiciary tries and sentences the criminals in
accordance with these laws.
Although penologists, throughout history, have not
stopped debating on the causes of criminal behavior
and the purposes of criminal punishment, our
criminal laws have been perceived as relatively stable
and functional since the enforcement of the Revised
Penal Code on January 1, 1932, this notwithstanding
occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally
promulgated, provided for the death penalty in
specified crimes under specific circumstances. As
early as 1886, though, capital punishment had
entered our legal system through the old Penal Code,
which was a modified version of the Spanish Penal
Code of 1870.
The opposition to the death penalty uniformly took
the form of a constitutional question of whether or
not the death penalty is a cruel, unjust, excessive or
unusual punishment in violation of the constitutional
proscription against cruel and unusual punishments.
We unchangingly answered this question in the
negative in the cases of Harden v. Director of
Prison,8 People v. Limaco,9 People
v. Camano, 10 People v. Puda 11 and People
12
v. Marcos. In Harden, we ruled:
The penalty complained of is neither cruel, unjust nor
excessive. In Ex-parte Kemmler, 136 U.S., 436, the
United States Supreme Court said that 'punishments
are cruel when they involve torture or a lingering
death, but the punishment of death is not cruel,
within the meaning of that word as used in the
constitution. It implies there something inhuman and
barbarous, something more than the mere
extinguishment of life. 13
Consequently, we have time and again emphasized
that our courts are not the for a for a protracted
debate on the morality or propriety of the death
sentence where the law itself provides therefor in
specific and well-defined criminal acts. Thus we had
ruled in the 1951 case of Limaco that:
. . . there are quite a number of people who honestly
believe that the supreme penalty is either morally
wrong or unwise or ineffective. However, as long as
that penalty remains in the statute books, and as long
as our criminal law provides for its imposition in
certain cases, it is the duty of judicial officers to
respect and apply the law regardless of their private
opinions. 14
and this we have reiterated in the 1995 case of People
v. Veneracion. 15
Under the Revised Penal Code, death is the penalty
for the crimes of treason, correspondence with the
enemy during times of war, qualified piracy, parricide,
murder, infanticide, kidnapping, rape with homicide
or with the use of deadly weapon or by two or more
persons resulting in insanity, robbery with homicide,
and arson resulting in death. The list of capital
offenses lengthened as the legislature responded to
the emergencies of the times. In 1941,
Commonwealth Act (C.A.) No. 616 added espionage
to the list. In the 1950s, at the height of the Huk
rebellion, the government enacted Republic Act (R.A.)
No. 1700, otherwise known as the Anti-Subversion
Law, which carried the death penalty for leaders of
the rebellion. From 1971 to 1972, more capital
offenses were created by more laws, among them,
the Anti-Hijacking Law, the Dangerous Drugs Act, and
the Anti-Carnapping Law. During martial law,
Presidential Decree (P.D.) No. 1866 was enacted
penalizing with death, among others, crimes involving
homicide committed with an unlicensed firearm.
In the aftermath of the 1986 revolution that
dismantled the Marcos regime and led to the
nullification of the 1973 Constitution, a Constitutional
Commission was convened following appointments
thereto by Corazon Aquino who was catapulted to
power by the people.
Tasked with formulating a charter that echoes the
new found freedom of a rejuvenated people, the
Constitutional Commissioners grouped themselves
into working committees among which is the Bill of
Rights Committee with Jose B. Laurel, Jr. as Chairman
and Father Joaquin G. Bernas, S.J., as Vice-Chairman.
On July 17, 1986, Father Bernas presented the
committee draft of the proposed bill of rights to the
rest of the commission. What is now Article III,
Section 19 (1) of the 1987 Constitution was first
denominated as Section 22 and was originally worded
as follows:
Excessive fines shall not be imposed nor cruel,
degrading or inhuman punishment or the death
penalty inflicted. Death penalty already imposed shall
be commuted to reclusion perpetua.
Father Bernas explained that the foregoing provision
was the result of a consensus among the members of
the Bill of Rights Committee that the death penalty
should be abolished. Having agreed to abolish the
death penalty, they proceeded to deliberate on how
the abolition was to be done--whether the abolition
should be done by the Constitution or by the
legislature-and the majority voted for a constitutional
abolition of the death penalty. Father Bernas
explained:
. . . [T]here was a division in the Committee not on
whether the death penalty should be abolished or
not, but rather on whether the abolition should be
done by the Constitution — in which case it cannot be
restored by the legislature — or left to the legislature.
The majority voted for the constitutional abolition of
the death penalty. And the reason is that capital
punishment is inhuman for the convict and his family
who are traumatized by the waiting, even if it is never
carried out. There is no evidence that the death
penalty deterred deadly criminals, hence, life should
not be destroyed just in the hope that other lives
might be saved. Assuming mastery over the life of
another man is just too presumptuous for any man.
The fact that the death penalty as an institution has
been there from time immemorial should not deter
us from reviewing it. Human life is more valuable than
an institution intended precisely to serve human life.
So, basically, this is the summary of the reasons which
were presented in support of the constitutional
abolition of the death penalty. 16
The original wording of Article III, Section 19 (1),
however, did not survive the debate that it instigated.
Commissioner Napoleon G. Rama first pointed out
that "never in our history has there been a higher
incidence of crime" and that "criminality was at its
zenith during the last decade". 17 Ultimately, the
dissent defined itself to an unwillingness to absolutely
excise the death penalty from our legal system and
leave society helpless in the face of a future upsurge
of crimes or other similar emergencies. As
Commissioner Rustico F. de los Reyes, Jr. suggested,
"although we abolish the death penalty in the
Constitution, we should afford some amount of
flexibility to future legislation", 18 and his concern was
amplified by the interpellatory remarks of
Commissioner Lugum L. Commissioner and now
Associate Justice Florenz Regalado, Commissioner
Crispino M. de Castro, Commissioner Ambrosio B.
Padilla, Commissioner Christian Monsod,
Commissioner Francisco A. Rodrigo, and
Commissioner Ricardo Romulo. Commissioner Padilla
put it succinctly in the following exchange with
Commissioner Teodoro C. Bacani:
BISHOP BACANI. . . . At present, they explicitly make
it clear that the church has never condemned the
right of the state to inflict capital punishment.
MR. PADILLA. . . . So it is granted that the state is not
deprived of the right even from a moral standpoint of
imposing or prescribing capital punishment.
BISHOP BACANI. Yes. What I am saying is that from
the Catholic point of view, that right of the state is not
forbidden.
MR. PADILLA. In fact . . . we have to accept that the
state has the delegated authority from the Creator to
impose the death penalty under certain
circumstances.
BISHOP BACANI. The state has the delegation from
God for it to do what is needed for the sake of the
common good but the issue at stake is whether or not
under the present circumstances that will be for the
common good.
MR. PADILLA. But the delegated power of the state
cannot be denied.
BISHOP BACANI. Yes, the state can be delegated by
God at a particular stage in history, but it is not clear
whether or not that delegation is forever under all
circumstances.
MR. PADILLA. So this matter should be left to the
legislature to determine, under certain specified
conditions or circumstances, whether the retention
of the death penalty or its abolition would be for the
common good. I do not believe this Commission can
a priori, and as was remarked within a few days or
even a month, determine a positive provision in the
Constitution that would prohibit even the legislature
to prescribe the death penalty for the most heinous
crimes, the most grievous offenses attended by many
qualifying and aggravating circumstances. 19
What followed, thus, were proposed amendments to
the beleaguered provision. The move to add the
phrase, "unless for compelling reasons involving
heinous crimes, the national assembly provides for
the death penalty," came from Commissioners
Monsod, Jose E. Suarez and de los Reyes.
Commissioner Rodrigo, however, expressed
reservations even as regards the proposed
amendment. He said:
. . . [T]he issue here is whether or not we should
provide this matter in the Constitution or leave it to
the discretion of our legislature. Arguments pro and
con have been given. . . . But my stand is, we should
leave this to the discretion of the legislature.
The proposed amendment is halfhearted. It is
awkward because we will, in effect repeal by our
Constitution a piece of legislation and after repealing
this piece of legislation tell the legislature that we
have repealed the law and that the legislature can go
ahead and enact it again. I think this is not worthy of
a constitutional body like ours. If we will leave the
matter of the death Penalty to the legislature, let us
leave it completely to the discretion of the legislature,
but let us not have this half-baked provision. We have
many provisions in the Revised Penal Code imposing
the death penalty. We will now revoke or repeal these
pieces of legislation by means of the Constitution, but
at the same time say that it is up to the legislature to
impose this again.
. . . The temper and condition of the times change . . .
and so we, I think we should leave this matter to the
legislature to enact statutes depending on the
changing needs of the times. Let us entrust this
completely to the legislature composed of
representatives elected by the people.
I do not say that we are not competent. But we have
to admit the fact that we are not elected by the
people and if we are going to entrust this to the
legislature, let us not be half-baked nor halfhearted
about it. Let us entrust it to the legislature 100
percent. 20
Nonetheless, the proposed amendment was
approved with twenty-three (23) commissioners
voting in favor of the amendment and twelve (12)
voting against it, followed by more revisions, hence
the present wording of Article III, Section 19(1) of the
1987 Constitution in the following tenor:
Excessive fines shall not be imposed nor cruel,
degrading or inhuman punishment inflicted. Neither
shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion
perpetua.
The implications of the foregoing provision on the
effectivity of the death penalty provisions in the
Revised Penal Code and certain special criminal laws
and the state of the scale of penalties thereunder,
were tremendous.
The immediate problem pertained to the applicable
penalty for what used to be capital crimes. In People
v. Gavarra, 21 we stated that "in view of the abolition
of the death penalty under Section 19, Article III of the
1987 Constitution, the penalty that may be imposed
for murder is reclusion temporal in its maximum
period to reclusion perpetua" 22thereby eliminating
death as the original maximum period. The
constitutional abolition of the death penalty, it
seemed, limited the penalty for murder to only the
remaining periods, to wit, the minimum and the
medium, which we then, in People
v. Masangkay, 23 People v. Atencio 24 and People
v. Intino 25 divided into three new periods, to wit, the
lower half of reclusion temporal maximum as the
minimum; the upper half of reclusion temporal
maximum as the medium; and reclusion perpetua as
the maximum, in keeping with the three-grade
scheme under the Revised Penal Code. In People
v. Munoz, 26 however, we reconsidered these
aforecited cases and after extended discussion, we
concluded that the doctrine announced therein did
not reflect the intention of the framers. The crux of
the issue was whether or not Article III, Section 19 (1)
absolutely abolished the death penalty, for if it did,
then, the aforementioned new three-grade penalty
should replace the old one where the death penalty
constituted the maximum period. But if no total
abolition can be read from said constitutional
provision and the death penalty is only suspended, it
cannot as yet be negated by the institution of a new
three-grade penalty premised on the total
inexistence of the death penalty in our statute books.
We thus ruled in Munoz:
The advocates of the Masangkay ruling argue that the
Constitution abolished the death penalty and thereby
limited the penalty for murder to the remaining
periods, to wit, the minimum and the medium. These
should now be divided into three new periods in
keeping with the three-grade scheme intended by the
legislature. Those who disagree feel that Article III,
Section 19 (1) merely prohibits the imposition of the
death penalty and has not, by reducing it to reclusion
perpetua, also correspondingly reduced the
remaining penalties. These should be maintained
intact.
A reading of Section 19 (1) of Article III will readily
show that there is really nothing therein which
expressly declares the abolition of the death penalty.
The provision merely says that the death penalty shall
not be imposed unless for compelling reasons
involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be
reduced to reclusion perpetua. The language, while
rather awkward, is still plain enough. 27
Nothing is more defining of the true content of Article
III, Section 19 (1) of the 1987 Constitution than the
form in which the legislature took the initiative in re-
imposing the death penalty.
The Senate never doubted its power as vested in it by
the constitution, to enact legislation re-imposing the
death penalty for compelling reasons involving
heinous crimes. Pursuant to this constitutional
mandate, the Senate proceeded to a two-step
process consisting of: first, the decision, as a matter
of policy, to re-impose the death penalty or not; and
second, the vote to pass on the third reading the bill
re-imposing the death penalty for compelling reasons
involving heinous crimes.
On February 15, 1993, after a fierce and fiery
exchange of arguments for and against capital
punishment, the Members of the Senate voted on the
policy issue of death penalty. The vote was explained,
thus:
SUSPENSION OF THE RULES
Upon motion of Senator Romulo, there being no
objection, the Body suspended the Rules of the
Senate.
Thereafter, upon motion of Senator Romulo, there
being no objection, the Chair directed that a nominal
voting be conducted on the policy issue of death
penalty.
INQUIRY OF SENATOR TOLENTINO
Asked by Senator Tolentino on how the Members of
the Senate would vote on this policy question,
Senator Romulo stated that a vote of Yes would mean
a vote in favor of death as a penalty to be
reincorporated in the scale of penalties as provided in
the Revised Penal Code, and a vote of No would be a
vote against the reincorporation of death penalty in
the scale of penalties in the Revised Penal Code.
INQUIRY OF SENATOR ALVAREZ
xxx xxx xxx
The Chair explained that it was agreed upon that the
Body would first decide the question whether or not
death penalty should be reimposed, and thereafter, a
seven-man committee would be formed to draft the
compromise bill in accordance with the result of the
voting. If the Body decides in favor of the death
penalty, the Chair said that the committee would
specify the crimes on which death penalty would be
imposed. It affirmed that a vote of Yes in the nominal
voting would mean a vote in favor of death penalty
on at least one crime, and that certain refinements on
how the penalty would be imposed would be left to
the discretion of the seven-man committee.
xxx xxx xxx
INQUIRY OF SENATOR TANADA
In reply to Senator Tanada's query, the Chair affirmed
that even if a senator would vote "yes" on the basic
policy issue, he could still vote "no" on the imposition
of the death penalty on a particular crime.
REMARKS OF SENATOR TOLENTINO
Senator Tolentino observed that the Body would be
voting on the basic policy issue of whether or not the
death penalty would be included in the scale of
penalties found in Article 27 of the Revised Penal
Code. so that if it is voted down, the Body would
discontinue discussing Senate Bill No. 891 pursuant to
the Rules, but if approved, a special committee, as Committee had to consider that the death penalty
agreed upon in the caucus, is going to be appointed was imposed originally in the Revised Penal Code.
and whatever course it will take will depend upon the
mandate given to it by the Body later on. So, when the Constitution was approved in order to
do away with the death penalty, unless Congress
The Chair affirmed Senator Tolentino's observations. should, for compelling reasons reimpose that penalty
on heinous crimes, it was obvious that it was the
REMARKS OF SENATOR ROCO Revised Penal Code that was affected by that
provision of the Constitution. The death penalty, as
Senator Roco stated that the Body would vote
provided in the Revised Penal Code, would be
whether or not death as a penalty will be
considered as having been repealed-all provisions on
reincorporated in the scale of penalties provided by
the death penalty would be considered as having
the Revised Penal Code. However, he pointed out that
been repealed by the Constitution, until Congress
if the Body decides in favor of death penalty, the Body
should, for compelling reasons, reimpose such
would still have to address two issues: 1) Is the crime
penalty on heinous crimes. Therefore, it was not only
for which the death penalty is supposed to be
one article but many articles of the Revised Penal
imposed heinous pursuant to the constitutional
Code that were actually affected by the Constitution.
mandate? 2) And, if so, is there a compelling reason
to impose the death penalty for it? The death penalty, And it is in consideration of this consequence of the
he stressed, cannot be imposed simply because the constitutional provision that our Special Committee
crime is heinous. 28 had to consider the Revised Penal Code itself in
making this compromise bill or text of the bill. That is
With seventeen (17) affirmative votes and seven (7)
why, in the proposed draft now under consideration
negative votes and no abstention, the Chair declared
which we are sponsoring, the specific provisions of
that the Senate has voted to re-incorporate death as
the Revised Penal Code are actually either reenacted
a penalty in the scale of penalties as provided in the
or amended or both. Because by the effect of the
Revised Penal Code. A nine-person committee was
Constitution, some provisions were totally repealed,
subsequently created to draft the compromise bill
and they had to be reenacted so that the provisions
pursuant to said vote. The mandate of the committee
could be retained. And some of them had to be
was to retain the death penalty, while the main
amended because the Committee thought that
debate in the committee would be the determination
amendments were proper. 29
of the crimes to be considered heinous.
In response to a query by Senator Gloria Macapagal-
On March 17, 1993, Senator Arturo Tolentino,
Arroyo as to whether or not it would have been better
Chairman of the Special Committee on the Death
if the Senate were to enact a special law which merely
Penalty, delivered his Sponsorship Speech. He began
defined and imposed the death penalty for heinous
with an explanation as to why the Senate Bill No. 891
crimes, Senator Tolentino explicated, thus:
re-imposes the death penalty by amending the
Revised Penal Code and other special penal laws and . . . [T]hat may be a way presenting the bill. But we
includes provisions that do not define or punish must bear in mind that the death penalty is imposed
crimes but serve purposes allied to the re-imposition in the Revised Penal Code. Therefore, when the
of the death penalty. Senator Tolentino stated: Constitution abolished the death penalty, it actually
was amending the Revised Penal Code to such an
. . . [W]hen the Senate approved the policy of
extent that the Constitution provides that where the
reimposing the death penalty on heinous crimes and
death penalty has already been imposed but not yet
delegated to the Special Committee the work of
carried out, then the penalty shall be reclusion
drafting a bill, a compromise bill that would be the
perpetua, that is the penalty in the Revised Penal
subject for future deliberations of this Body, the
Code. So we thought that it would be best to just
amend the provisions of the Revised Penal Code,
restoring the death penalty for some crimes that may
be considered as heinous. That is why the bill is in this
form amending the provisions of the Revised Penal
Code.
Of course, if some people want to present a special
bill . . . the whole trouble is, when a special bill is
presented and we want to punish in the special bill
the case of murder, for instance, we will have to
reproduce the provisions of the Revised Penal Code
on murder in order to define the crime for which the
death penalty shall be imposed. Or if we want to
impose the death penalty in the case of kidnapping
which is punished in the Revised Penal Code, we will
do the same — merely reproduce. Why will we do
that? So we just followed the simpler method of
keeping the definition of the crime as the same and
merely adding some aggravating circumstances and
reimposing the death penalty in these offenses
originally punished in the Revised Penal Code. 30
From March 17, 1993, when the death penalty bill
was presented for discussion until August 16, 1993,
the Members of the Senate debated on its provisions.
The stiffest opposition thereto was bannered by
Senator Lina who kept prodding the sponsors of the
bill to state the compelling reason for each and every
crime for which the supreme penalty of death was
sought. Zeroing in on the statement in the preamble
of the death penalty bill that the same is warranted in
the face of "the alarming upsurge of [heinous]
crimes", Senator Lina demanded for solid statistics
showing that in the case of each and every crime in
the death penalty bill, there was a significantly higher
incidence of each crime after the suspension of the
death penalty on February 2, 1987 when the 1987
Constitution was ratified by the majority of the
Filipino people, than before such
31
ratification. Inasmuch as the re-impositionists could
not satisfy the abolitionists with sufficient statistical
data for the latter to accept the alarming upsurge of
heinous crimes as a compelling reason justifying the
re-imposition of the death penalty, Senator Lina
concluded that there were, in fact, no compelling
reasons therefor. In the alternative, Senator Lina
argued that the compelling reason required by the
constitution was that "the State has done everything
in its command so that it can be justified to use an
inhuman punishment called death penalty". 32 The
problem, Senator Lina emphasized, was that even the
re-impositionists admit that there were still
numerous reforms in the criminal justice system that
may and must be put in place, and so clearly, the
recourse to the enactment of a death penalty bill was
not in the nature of a last resort, hence,
unconstitutional in the absence of compelling
reasons. As an initial reaction to Senator Lina's
contentions, Senator Tolentino explained that the
statement in the preamble is a general one and refers
to all the crimes covered by the bill and not to specific
crimes. He added that one crime may not have the
same degree of increase in incidence as the other
crimes and that the public demand to impose the
death penalty is enough compelling reason. 33
Equally fit to the task was Senator Wigberto Tanada
to whom the battle lines were clearly drawn. He put
to issue two things: first, the definition of "heinous
crimes" as provided for in the death penalty bill; and
second, the statement of compelling reasons for each
and every capital crime. His interpellation of Senator
Tolentino clearly showed his objections to the bill:
Senator Tanada. . . . But what would make crimes
heinous, Mr. President? Are crimes heinous by their
nature or elements as they are described in the bill or
are crimes heinous because they are punished by
death, as bribery and malversation are proposed to
be punished in the bill?
Senator Tolentino. They are heinous by their nature,
Mr. President, but that is not supposed to be the
exclusive criterion. The nature of the offense is the
most important element in considering it heinous but
at the same time, we should consider the relation of
the offense to society in order to have a complete
idea of the heinous nature of these offenses.
In the case of malversation or bribery, for instance,
these offenses by themselves connected with the
effect upon society and the government have made
them fall under the classification of heinous crimes.
The compelling reason for imposing the death penalty
is when the offenses of malversation and bribery
becomes so grave and so serious as indicated in the
substitute bill itself, then there is a compelling reason
for the death penalty.
Senator Tanada. With respect to the compelling
reasons. Mr. President, does the Gentleman believe
that these compelling reasons, which would call for
the reimposition of the death penalty, should be
separately, distinctly and clearly stated for each crime
so that it will be very clear to one and all that not only
are these crimes heinous but also one can see the
compelling reasons for the reimposition of the death
penalty therefor?
Senator Tolentino. Mr. President that matter was
actually considered by the Committee. But the
decision of the Committee was to avoid stating the
compelling reason for each and every offense that is
included in the substitute measure. That is why in the
preamble, general statements were made to show
these compelling reasons. And that we believe,
included in the bill, when converted into law, would
be sufficient notice as to what were considered
compelling reasons by the Congress, in providing the
death penalty for these different offenses.
If a matter like this is questioned before the Supreme
Court, I would suppose that with the preamble
already in general terms, the Supreme Court would
feel that it was the sense of Congress that this
preamble would be applicable to each and every
offense described or punishable in the measure.
So we felt that it was not necessary to repeat these
compelling reasons for each and every offense.
Senator Tanada. Mr. President, I am thinking about
the constitutional limitations upon the power of
Congress to enact criminal legislation, especially the
provisions on the Bill of Rights, particularly the one
which says that no person shall be held to answer for
a criminal offense without due process of law.
Can we not say that under this provision, it is required
that the compelling reasons be so stated in the bill so
that the bill, when it becomes a law, will clearly define
the acts and the omissions punished as crimes?
Senator Tolentino. Mr. President I believe that in
itself, as substantive law, this is sufficient. The
question of whether there is due process will more or
less be a matter of procedure in the compliance with
the requirements of the Constitution with respect to
due process itself which is a separate matter from the
substantive law as to the definition and penalty for
crimes.
Senator Tanada. Under the Constitution, Mr.
President, it appears that the reimposition of the
death penalty is subject to three conditions and these
are:
1. Congress should so provide such reimposition of
the death penalty;
2. There are compelling reasons; and
3. These involve heinous crimes.
Under these provision of the Constitution, paragraph
1, Section 13, does the distinguished Gentleman not
feel that Congress is bound to state clearly the
compelling reasons for the reimposition of the death
penalty for each crime, as well as the elements that
make each of the crimes heinous included in the bill?
Senator Tolentino. Mr. President, that is a matter of
opinion already. I believe that whether we state the
compelling reasons or not, whether we state why a
certain offense is heinous, is not very important. If the
question is raised in the Supreme court, it is not what
we say in the bill that will be controlling but what the
Supreme Court will fell as a sufficient compelling
reason or as to the heinous nature whether the crime
is heinous or not. The accused can certainly raise the
matter of constitutionality but it will not go into the
matter of due process. It will go into the very power
of Congress to enact a bill imposing the death penalty.
So that would be entirely separate from the matter of
due process. 34
Senator Francisco Tatad, on his part, pointed out that
the death penalty bill violated our international
commitment in support of the worldwide abolition of
capital punishment, the Philippines being a signatory
to the International Covenant on Civil and Political
Rights and its Second Optional Protocol. Senator
Ernesto Herrera clarified, however, that in the United
Nations, subject matters are submitted to the
different committees which vote on them for
consideration in the plenary session. He stressed that
unless approved in the plenary session, a declaration
would have no binding effect on signatory countries.
In this respect, the Philippines cannot be deemed
irrevocably bound by said covenant and protocol
considering that these agreements have reached only
the committee level. 35
After the protracted debate, the Members of the
Senate voted on Senate Bill No. 891 on third reading.
With seventeen (17) affirmative votes, four (4)
negative votes, and one abstention, the death penalty
bill was approved on third reading on August 16,
1993.
The Senate's vote to pass Senate Bill No. 891 on third
reading on August 16, 1993 was a vindication of, the
House of Representatives. The House had, in the Eight
Congress, earlier approved on third reading House Bill
No. 295 on the restoration of the death penalty for
certain heinous crimes. The House was in effect
rebuffed by the Senate when the Senate killed House
Bill No. 295 along with other bills coming from the
House. House Bill No. 295 was resurrected during the
Ninth Congress in the form of House Bill No. 62 which
was introduced by twenty one (21) Members of the
House of Representatives on October 27, 1992.
House Bill No. 62 was a merger of House Bill Nos. 125,
187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238,
3576 and 3632 authored by various Members of the
Lower House.
In his Sponsorship Speech, Representative Manuel R.
Sanchez of Rizal ably essayed the constitutional
vesting in Congress of the power to re-impose the
death penalty for compelling reasons invoking
heinous crimes as well as the nature of this
constitutional pre-requisite to the exercise of such
power.
"Mr. Speaker, in Article III, Section 19(1) of
Constitution reads, a I quote:
Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress shall thereafter provide for it. . .
The phrase "unless, for compelling reasons involving
heinous crimes, the Congress shall thereafter provide
for it was introduced as an amendment by then
Comm. Christian Monsod.
The import of this amendment is unmistakable. By
this amendment, the death penalty was not
completely abolished by the 1987 Constitution.
Rather, it merely suspended the death penalty and
gave Congress the discretion to review it at the
propitious time.
Arguing for the inclusion of said amendment in the
fine provision, Comm. Ricardo Romulo said, and I
quote:
"The people should have the final say on the subject,
because, at some future time, the people might want
to restore death penalty through initiative and
referendum.
Commissioner Monsod further argued, and I quote:
We cannot presume to have the wisdom of the ages.
Therefore, it is entirely possible in the future that
circumstances may arise which we should not
preclude today.
xxx xxx xxx
I believe that [there] are enough compelling reasons
that merit the reimposition of the capital
punishment. The violent manner and the viciousness
in which crimes are now committed with alarming
regularity, show very clearly a patent disregard of the
law and a mockery of public peace and order.
In the public gallery section today are the relatives of
the vict ims of heinous crimes — the Hultmans, the
Maguans, the Vizcondes, the Castanoses, and many
more, and they are all crying for justice. We ought to
listen to them because their lives, their hopes, their
dreams, their future have fallen asunder by the cruel
and vicious criminality of a few who put their selfish
interest above that of society.
Heinous crime is an act or series of acts which, by the
flagrantly violent manner in which the same was
committed or by the reason of its inherent
viciousness, shows a patent disregard and mockery of
the law, public peace and order, or public morals. It is
an offense whose essential and inherent viciousness
and atrocity are repugnant and outrageous to a
civilized society and hence, shock the moral self of a
people.
Of late, we are witness to such kind of barbaric
crimes.
The Vizconde massacre that took the lives of a mother
and her two lovely daughters, will stand in the
people's memory for many long years as the epitome
of viciousness and atrocity that are repugnant to
civilized society.
The senseless murder of Eldon Maguan, and up-and-
coming young business executive, was and still is an
outrage that shocks the moral self of our people.
The mind-boggling death of Maureen Hultmann, a
comely 16 year-old high school student who dreamt
of becoming a commercial model someday, at the
hands of a crazed man was so repulsive, so brutal that
it offends the sensibilities of Christians and non-
Christians alike.
The cold-blooded double murder of Cochise Bernabe
and Beebom Castanos, the lovely and promising
couple from the University of the Philippines, is
eternally lodged in the recesses of our minds and still
makes our stomach turn in utter disgust.
xxx xxx xxx
The seriousness of the situation is such that if no
radical action is taken by this body in restoring death
penalty as a positive response to the overwhelming
clamor of the people, then, as Professor Esteban
Bautista of the Philippine Law Center said and I quote:
"When people begin to believe that organized society
is unwilling or unable to impose upon criminal
offenders the punishment they deserve, there are
sown the seeds of anarchy — of self-help, of vigilante
justice and lynch law. The people will take the law
upon their hands and exact vengeance in the nature
of personal vendetta."
It is for this reason, Mr. Speaker, that I stand here and
support House Bill No. 62.
As duly elected Representatives of our people,
collectively, we ought to listen to our constitutents
and heed their plea — a plea for life, liberty and
pursuit of their happiness under a regime of justice
and democracy, and without threat that their loves
ones will be kidnapped, raped or butchered.
But if such a misfortune befalls them, there is the law
they could rely on for justice. A law that will exact
retribution for the victims. A law that will deter future
animalistic behavior of the criminal who take their
selfish interest over and above that of society. A law
that will deal a deathblow upon all heinous crimes.
Mr. Speaker, my distinguished colleagues, for the
preservation of all that we hold dear and sacred, let
us retore the death penalty. 36
A studious comparison of the legislative proceedings
in the Senate and in the House of Representatives
reveals that, while both Chambers were not wanting
of oppositors to the death penalty, the Lower House
seemed less quarrelsome about the form of the death
penalty bill as a special law specifying certain heinous
crimes without regard to the provisions of the
Revised penal Code and more unified in the
perception of what crimes are heinous and that the
fact of their very heinousness involves the
compulsion and the imperative to suppress, if not
completely eradicate, their occurrence. Be it the
foregoing general statement of Representative
Sanchez or the following details of the nature of the
heinous crimes enumerated in House Bill No. 62 by
Representative Miguel L. Romero of Negros Oriental,
there was clearly, among the hundred or so re-
impositionists in the Lower House, no doubt as to
their cause:
My friends, this bill provides for the imposition of the
death penalty not only for the importation,
manufacture and sale of dangerous drugs, but also far
other heinous crimes such as reason; parricide;
murder; kidnapping; robbery; rape as defined by the
Revised Penal Code with or without additionally
defined circumstances; plunder, as defined in R.A.
7080; piracy, as defined under Section 2 of PD 532:
carnapping, as defined in Section 2 of RA 6539, when
the owner, driver or occupant is killed; hijacking as
defined in . . . RA 6235; and arson resulting in the
death of any occupants.
All these crimes have a common denominator which
qualifies them to the level of heinous crimes. A
heinous crime is one which by reason of its inherent
or manifest wickedness, viciousness, atrocity or
perversity, is repugnant and outrageous to the
common standards of decency and morality in a just
and civilized society.
For instance, the crime of treason is defined as a
breach of allegiance to a government, committed by
a person who owes allegiance to it (U.S. v. Abad I Phil.
437). By the "allegiance" is meant the obligation of
fidelity and obedience which individuals owe to the
government under which they live or to their
sovereign in return for the protection which they
receive (52 Arm Jur 797).
In kidnapping, the though alone of one's loved one
being held against his or her own will in some
unidentified xxx house by a group of scoundrels who
are strangers is enough terrify and send shivers of
fear through the spine of any person, even scoundrels
themselves.
In robbery accompanied by rape, intentional
mutilation or arson, what is being punished by death
is the fact that the perpetrator, at the time of the
commission of the crime, thinks nothing of the other
crime he commits and sees it merely as a form of self-
amusement. When a homicide is committed by
reason of the robbery, the culprits are perceived as
willing to take human life in exchange for money or
other personal property.
In the crime of rape, not only do we speak of the pain
and agony of the parents over the personal shock and
suffering of their child but the stigma of the traumatic
and degrading incident which has shattered the
victim's life and permanently destroyed her
reputation, not to mention the ordeal of having to
undergo the shameful experience of police
interrogation and court hearings.
Piracy, which is merely a higher form of robbery, is
punished for the universal hostility of the
perpetrators against their victims who are passengers
and complement of the vessel, and because of the
fact that, in the high seas, no one may be expected to
be able to come to the rescue of the helpless victims.
For the same reason, Mr. Speaker, the crime of air
piracy is punished due to the evil motive of the
hijackers in making unreasonable demands upon the
sovereignty of an entire nation or nations, coupled
with the attendant circumstance of subjecting the
passengers to terrorism. 37
The debate on House Bill No. 62 lasted from October
27, 1992 to February 11, 1993. On February 11, 1993,
the Members of the House of Representatives
overwhelmingly approved the death penalty bill on
second reading.
On February 23, 1993, after explaining their votes, the
Members of the House of Representatives cast their
vote on House Bill No. 62 when it was up for
consideration on third reading. 38 The results were
123 votes in favor, 26 votes against, and 2
abstentions.
After the approval on third reading of House Bill No.
62 on February 23, 1993 and of Senate Bill No. 891 on
August 16, 1993, the Bicameral Conference
Committee convened to incorporate and consolidate
them.
On December 31, 1993, Republic Act (R.A.) No. 7659,
entitled, "An Act to Impose the Death Penalty on
Certain Heinous Crimes, Amending for that Purpose
the Revised Penal Code, as Amended, Other Special
Penal Laws, and for Other Purposes," took effect. 39
Between December 31, 1993, when R.A No. 7659
took effect, and the present time, criminal offenders
have been prosecuted under said law, and one of
them, herein accused-appellant has been, pursuant
to said law, meted out the supreme penalty of death
for raping his ten-year old daughter. Upon his
conviction his case was elevated to us on automatic
review. On June 25, 1996, we affirmed his conviction
and the death sentence.
Now, accused-appellant comes to us in the heels of
this court's affirmation of his death sentence and
raises for the first time the issue of the
constitutionality of R.A. 7659. His thesis is two-fold:
(1) that the death penalty law is unconstitutional per
se for having been enacted in the absence of
compelling reasons therefor; and (2) that the death
penalty for rape is a cruel, excessive and inhuman
punishment in violation of the constitutional
proscription against punishment of such nature.
We reject accused-appellant's proposition.
Three justices interposed their dissent hereto,
agreeing with accused-appellant's view that Congress
enacted R.A No. 7659 without complying with the
twin requirements of compelling reasons and heinous
crimes.
At this juncture, the detailed events leading to the
enactment of R.A. No. 7659 as unfurled in the
beginning of this disquisition, necessarily provide the
context for the following analysis.
Article III, Section 19 (1) of the 1987 Constitution
plainly vests in Congress the power to re-impose the
death penalty "for compelling reasons involving
heinous crimes". This power is not subsumed in the
plenary legislative power of Congress, for it is subject
to a clear showing of "compelling reasons involving
heinous crimes."
The constitutional exercise of this limited power to re-
impose the death penalty entails (1) that Congress
define or describe what is meant by heinous crimes;
(2) that Congress specify and penalize by death, only
crimes that qualify as heinous in accordance with the
definition or description set in the death penalty bill
and/or designate crimes punishable by reclusion
perpetua to death in which latter case, death can only
be imposed upon the attendance of circumstances
duly proven in court that characterize the crime to be
heinous in accordance with the definition or
description set in the death penalty bill; and (3) that
Congress, in enacting this death penalty bill be
singularly motivated by "compelling reasons involving
heinous crimes."
In the second whereas clause of the preamble of R.A.
No. 7659, we find the definition or description of
heinous crimes. Said clause provides that:
. . . the crimes punishable by death under this Act are
heinous for being grievous, odious and hateful
offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the
common standards and norms of decency and
morality in a just civilized and ordered society.
Justice Santiago Kapunan, in his dissenting opinion
in People v. Alicando, 40 traced the etymological root
of the word "heinous" to the Early Spartans' word,
"haineus", meaning hateful and abominable, which in
turn, was from the Greek prefix "haton", denoting
acts so hatefully or shockingly evil.
We find the foregoing definition or description to be
a sufficient criterion of what is to be considered a
heinous crime. This criterion is deliberately
undetailed as to the circumstances of the victim, the
accused, place, time, the manner of commission of
crime, its proximate consequences and effects on the
victim as well as on society, to afford the sentencing
authority sufficient leeway to exercise his discretion
in imposing the appropriate penalty in cases where
R.A. No 7659 imposes not a mandatory penalty of
death but the more flexible penalty of reclusion
perpetua to death.
During the debates on the proposed death penalty
bill, Senators Lina and Tañada grilled the sponsors of
the bill as regards what they perceived as a mere
enumeration of capital crimes without a specification
of the elements that make them heinous. They were
oblivious to the fact that there were two types of
crimes in the death penalty bill: first, there were
crimes penalized by reclusion perpetua to death; and
second, there were crimes penalized by mandatory
capital punishment upon the attendance of certain
specified qualifying circumstances.
Under R.A. No. 7659, the following crimes are
penalized by reclusion perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if
attended by any of the following four circumstances:
(a) the victim was detained for more than three days;
(6) it was committed simulating public authority; (c)
serious physical injuries were inflicted on the victim
or threats to kill him were made; and (d) if the victim
is a minor, except when the accused is any of the
parents, female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional
mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or
more buildings or edifice; (b) a building where people
usually gather; (c) a train, ship or airplane for public
use: (d) a building or factory in the service of public
utilities: (e) a building for the purpose of concealing
or destroying evidence of a crime: (f) an arsenal,
fireworks factory, or government museum: and (g) a
storehouse or factory of explosive materials located
in an inhabited place; or regardless of what is burned
if the arson is perpetrated by two or more
persons(Sec. 10);
(9) Rape attended by any of the following
circumstances: (a) the rape is committed with a
deadly weapon; (b) the rape is committed by two or
more persons: and (c) the rape is attempted or
frustrated and committed with homicide (Sec. 11);
(10) Plunder involving at least P50 million(Sec. 12);
(11) Importation of prohibited drugs (Sec. 13),
(12) Sale, administration delivery, distribution, and
transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of
prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain
specified amounts (id.)
(16) Cultivation of plants which are sources of
prohibited drugs (id.)
(17) Importation of regulated drugs (Sec. 1J):
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery,
transportation, and distribution of regulated drugs
(id.):
(20) Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15),
(21) Possession or use of regulated drugs in specified
amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to
account dangerous drugs confiscated by the arresting
officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person
or immediate vicinity of another to implicate the
latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant
of the carnapped motor vehicle is killed or raped (Sec.
20).
All the foregoing crimes are not capital crimes per se,
the uniform penalty for all of them being not
mandatory death but the flexible penalty of reclusion
perpetua to death. In other words, it is premature to
demand for a specification of the heinous elements in
each of the foregoing crimes because they are not
anyway mandatorily penalized with death. The
elements that call for the imposition of the supreme
penalty of death in these crimes, would only be
relevant when the trial court, given the prerogative to
impose reclusion perpetua, instead actually imposes
the death penalty because it has, in appreciating the
evidence proffered before it, found the attendance of
certain circumstances in the manner by which the
crime was committed, or in the person of the accused
on his own or in relation to the victim, or in any other
matter of significance to the commission of the crime
or its effects on the victim or on society, which
circumstances characterize the criminal acts as
grievous, odious, or hateful, or inherently or
manifestly wicked, vicious, atrocious or perverse as to
be repugnant and outrageous to the common
standards and norms of decency and morality in a
just, civilized and ordered society.
On the other hand. under R.A. No 7659, the
mandatory penalty of death is imposed in the
following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law
enforcement and he refrains from arresting or
prosecuting an offender who has committed a come
punishable by reclusion perpetua and/or death in
consideration of any offer, promise, gift or present,
he shall suffer the penalty for the offense which was
not prosecuted
If it is the public officer who asks or demands such gift
or present, he shall suffer the penalty of death. (Sec.
4)
(2) Kidnapping and serious illegal detention for
ransom resulting in the death of the victim or the
victim is raped tortured or subjected to dehumanizing
acts
"The penalty shall be death where the kidnapping or
detention was committed for the purpose of ransom
from the victim or any other person, even if none of
the circumstances above-mentioned were present in
the commission of the offense.
When the victim is killed or dies as a consequence of
the detention " is raped, or is subject to torture or
dehumanizing acts, the maximum penalty [of death]
shall be imposed. (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the
acts penalized under this Article, death results, the
mandatory penalty of death shall be imposed." (Sec.
10)
(4) Rape with the victim becoming insane, rape with
homicide and qualified rape
"When by reason or on the occasion of the rape, the
victim has become insane, the penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a
homicide is committed, the penalty shall be death.
The death penalty shall also be Imposed if the crime
of rape is committed with any of the following
attendant circumstances:
1. When the victim is under eighteen (18) years of age
and the offender is parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of
the parent of the victim.
2. when the victim is under the custody of the police
or military authorities.
3. when the rape is committed in full new of the
husband, parent, any of the children or other relatives
within the third degree of consanguinity.
4. when the victim is a religious or a child below seven
(7) years old.
5. when the offender that he is afflicted with Acquired
Immune Deficiency Syndrome (AIDS) disease.
6. when committal by any member of the Armed
Forces of the Philippines or the Philippine National
Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the
victim has suffered permanent physical mutilation.
(Sec. 11)
(5) Sale, administration, delivery, distribution and
transportation of prohibited drugs where the victim is
a minor or the victim dies
"Notwithstanding, the provision of Section 20 of this
Act to the contrary, if the victim of the offense is a
minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of
the death of victim thereof; the maximum penalty [of
death] herein provided shall be imposed." (Sec. 13)
(6) Maintenance of den, dive, or resort for users of
prohibited drugs where the victim is a minor or the
victim dies
"Notwithstanding the provisions of Section 20 of this
Act to the contrary, the maximum of the penalty (of
death) shall be imposed in every case where a
prohibited drug is administered, delivered or sold to
a minor who is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the
death of a person using the same in such den, dive or
resort, the maximum penalty herein provided shall be
imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary."
(Sec. 13)
(7) Sale, administration, dispensation, delivery,
distribution and transportation of regulated drugs
where the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this
Act to the contrary, if the victim of the offense is a
minor, or should a regulated drug involved in any
offense under this Section be the proximate cause of
the death of a victim thereof, the maximum penalty
[of death] herein provided shall be imposed." (Sec.
14)
(8) Maintenance of den, dive. or resort for users of
regulated drugs where the victim is a minor or the
victim dies
'Notwithstanding the provisions of Section 20 of this
Act to the contrary, the maximum penalty [of death]
herein provided shall be imposed in every case where
a regulated drug is administered, delivered or sold to
a minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of
death of a person using the same in such den, dive or
resort, the maximum penalty herein provided shall be
imposed on the maintainer notwithstanding the
provisions of Section 20 of this Act to the contrary."
(Sec. 15)
(9) Drug offenses if convicted are government
officials, employees or officers including members of
police agencies and armed forces
"The maximum penalties [of death] provided for in
Section 3, 4 (1), 5 (1 ), 6, 7, 8. R, 9 1 1, 12 and 13 of
Article II and Sections 14, 14-A, 14 ( 1), 15A (1), 16,
and 19 of Article III [of the Dangerous Drugs Act of
1972] shall be imposed, if those found guilty of any of
the same offenses are government officials,
employees or officers including members of police
agencies and the armed forces. " (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug
offenses with the mandatory death penalty if
convicted are government officials, employees or
officers
"Any such above government official, employee or
officer who is round guilty of planting any dangerous
drugs punished in Section s 3, 4, 7, 8, 9 and 13 of
Article II and Sections 14, 14-A, 15, and 16 of Article
III (of the Dangerous Drugs Act of 1972) in the person
or in the immediate vicinity of another as evidence to
implicate the latter, shall suffer the same penalty as
therein provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified
form
"When in the commission of the crime, advantage
was taken by the offends of his public position, the
penalty to be imposed shall be in its maximum [of
death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if
the offense was committed by any person who
belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group
of two or more persons collaborating, confederating
or mutually helping one another for purposes of gain
in the commission of any crime." (Sec. 23)
It is specifically against the foregoing capital crimes
that the test of heinousness must be squarely applied.
The evil of a crime may take various forms. There are
crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is
treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her
growth as a human being. The right of a person is not
only to live but to live a quality life, and this means
that the rest of society is obligated to respect his or
her individual personality, the integrity and the
sanctity of his or her own physical body, and the value
he or she puts in his or her own spiritual,
psychological, material and social preferences and
needs. Seen in this light, the capital crimes of
kidnapping and serious illegal detention for ransom
resulting in the death of the victim or the victim is
raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug
offenses involving minors or resulting in the death of
the victim in the case of other crimes; as well as
murder, rape, parricide, infanticide, kidnapping and
serious illegal detention where the victim is detained
for more than three days or serious physical injuries
were indicted on the victim or threats to kill him were
made or the victim is a minor, robbery with homicide
rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of
the carnapped vehicle is killed or raped, which are
penalized by reclusion perpetua to death, are clearly
heinous by their very nature.
There are crimes, however, in which the abomination
lies in the significance and implications of the subject
criminal acts in the scheme of the larger socio-
political and economic context in which the state
finds itself to be struggling to develop and provide for
its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted
the government and impoverished the population,
the Philippine Government must muster the political
will to dismantle the culture of corruption dishonesty,
greed and Syndicated criminality that so deeply
entrenched itself in the structures of society and the
psyche of the populace. Terribly lacking the money to
provide even the most basic services to its people,
any form of misappropriation or misapplication of
government funds translates to an actual threat to
the very existence of government, and in turn, the
very survival of the people it governs over. Viewed in
this context, no less heinous are the effects and
repercussions of crimes like qualified bribery,
destructive arson resulting in death, and drug
offenses involving government officials, employees or
officers, that their perpetrators must not be allowed
to cause further destruction and damage to society.
We have no doubt, therefore, that insofar as the
element of heinousness is concerned, R.A. No. 7659
has correctly identified crimes warranting the
mandatory penalty of death. As to the other crimes in
R.A No 7659 punished by reclusion perpetua to death,
they are admittingly no less abominable than those
mandatorily penalized by death. The proper time to
determine their heinousness in contemplation of law,
is when on automatic review, we are called to pass on
a death Sentence involving crimes punishable
by reclusion perpetua to death under R.A. No. 7659,
with the trial court meting out the death sentence in
exercise of judicial discretion. This is not to say,
however, that the aggravating circumstances under
the Revised Penal Code need be additionally alleged
as establishing the heinousness of the crime for the
trial Court to validly impose the death penalty in the
crimes under R.A. No. 7659 which are punished with
the flexible penalty of reclusion perpetua to death.
In the first place, the 1987 Constitution did not amend
or repeal the provisions of the Revised Penal Code
relating to aggravating circumstances Secondly, R.A.
No. 7659, while it specifies circumstances that
generally qualify a crime provided therein to be
punished by the maximum penalty of death, neither
amends nor repeals the aggravating circumstances
under the Revised Penal Code. Thus, construing R.A.
No. 7659 in pari materia with the Revised Penal Code,
death may be imposed when (1) aggravating
circumstances attend the commission of the crime as
to make operative the provision of the Revised Penal
Code regarding the imposition of the maximum
penalty; and (2) other circumstances attend the
commission of the crime which indubitably
characterize the same as heinous in contemplation of
R.A. No. 7659 that justify the imposition of death,
albeit the imposable penalty is reclusion perpetua to
death. Without difficulty, we understand the
rationale for the guided discretion granted in the trial
court to cognize circumstances that characterize the
commission of the crime as heinous. Certainly there
is an infinity of circumstances that may attend the
commission of a crime to the same extent that there
is no telling the evil that man is capable of. The
legislature cannot and need not foresee and inscribe
in law each and every loathsome act man is capable
of. It is sufficient thus that R.A. No. 7659 provides the
test and yardstick for the determination of the legal
situation warranting the imposition of the supreme
penalty of death. Needless to say, we are not
unaware of the ever existing danger of abuse of
discretion on the part of the trial court in meting out
the death sentence. Precisely to reduce to nil the
possibility of executing an innocent man or one
criminal but not heinously criminal, R.A. No. 7659 is
replete with both procedural and substantive
safeguards that ensure only the correct application of
the mandate of R.A. No. 7659.
In the course of the congressional debates on the
constitutional requirement that the death penalty be
re-imposed for compelling reasons involving heinous
crimes, we note that the main objection to the death
penalty bill revolved around the persistent demand of
the abolitionists for a statement of the compelling
reason in each and every heinous crime and statistical
proof that such compelling reason actually exists.
We believe, however, that the elements of
heinousness and compulsion are inseparable and are,
in fact, interspersed with each other. Because the
subject crimes are either so revolting and debasing as
to violate the most minimum of the human standards
of decency or its effects, repercussions, implications
and consequences so destructive, destabilizing,
debilitating, or aggravating in the context of our
socio-political and economic agenda as a developing
nation, these crimes must be frustrated, curtailed and
altogether eradicated. There can be no its or buts in
the face of evil, and we cannot afford to wait until we
rub elbows with it before grasping it by the ears and
thrashing it to its demission.
The abolitionists in congress insisted that all criminal
reforms first be pursued and implemented before the
death penalty be re-imposed in case such reforms
prove unsuccessful They claimed that the only
compelling reason contemplated of by the
constitution is that nothing else but the death penalty
is left for the government to resort to that could
check the chaos and the destruction that is being
caused by unbridled criminality. Three of our
colleagues, are of the opinion that the compelling
reason required by the constitution is that there
occurred a dramatic and significant change in the
socio-cultural milieu after the suspension of the
death penalty on February 2, 1987 such as an
unprecedented rise in the incidence of criminality.
Such are, however, interpretations only of the phrase
"compelling; reasons" but not of the conjunctive
phrase "compelling reasons involving heinous
crimes". The imposition of the requirement that there
be a rise in the incidence of criminality because of the
suspension of the death penalty, moreover, is an
unfair and misplaced demand, for what it amounts to,
in fact, is a requirement that the death penalty first
proves itself to be a truly deterrent factor in criminal
behavior. If there was a dramatically higher incidence
of criminality during the time that the death penalty
was suspended, that would have proven that the
death penalty was indeed a deterrent during the
years before its suspension. Suffice it to say that the
constitution in the first place did not require that the
death penalty be first proven to be a deterrent; what
it requires is that there be compelling reasons
involving heinous crimes.
Article III, Section 19(1) of the 1987 Constitution
simply states that congress, for compelling reasons
involving heinous crimes, may re-impose the death
penalty. Nothing in the said provision imposes a
requirement that for a death penalty bill to be valid,
a positive manifestation in the form of a higher
incidence of crime should first be perceived and
statistically proven following the suspension of the
death penalty. Neither does the said provision require
that the death penalty be resorted to as a last
recourse when all other criminal reforms have failed
to abate criminality in society It is immaterial and
irrelevant that R.A. No. 7659 cites that there has been
an "alarming upsurge of such crimes", for the same
was never intended by said law to be the yardstick to
determine the existence of compelling reasons
involving heinous crimes. Fittingly, thus, what R.A.
No. 7659 states is that "the Congress, in the interest
of justice, public order and rule of law, and the need
to rationalize and harmonize the penal sanctions for
heinous crimes, finds compelling reasons to impose
the death penalty for said crimes."
We now proceed to answer accused-appellant's other
ground for attacking the constitutionality of R.A. No.
7659, i.e., that the death penalty imposed in rape is
violative of the constitutional proscription against
cruel, degrading or inhuman punishment.
Accused-appellant first claims that the death penalty
is per se a cruel, degrading or inhuman punishment as
ruled by the United States (U.S.) Supreme Court in
Furman v. Georgia. 41 To state, however, that the U.S.
Supreme Court, in Furman, categorically ruled that
the death penalty is a cruel, degrading or inhuman
punishment, is misleading and inaccurate.
The issue in Furman was not so much death penalty
itself but the arbitrariness pervading the procedures
by which the death penalty was imposed on the
accused by the sentencing jury. Thus, the defense
theory in Furman centered not so much on the nature
of the death penalty as a criminal sanction but on the
discrimination against the black accused who is
meted out the death penalty by a white jury that is
given the unconditional discretion to determine
whether or not to impose the death penalty. In fact,
the long road of the American abolitionist movement
leading to the landmark case of Furman was trekked
by American civil rights advocates zealously fighting
against racial discrimination. Thus, the U.S. Supreme
Court stated in Furman:
We cannot say from facts disclosed in these records
that these defendants were sentenced to death
because they were black. Yet our task is not restricted
to an effort to divine what motives impelled these
death penalties. Rather, we deal with a system of law
and of justice that leaves to the uncontrolled
discretion of judges or juries the determination
whether defendants committing these crimes should
die . . . .
xxx xxx xxx
In a Nation committed to equal protection of the laws
there is no permissible caste' aspect of law
enforcement. Yet we know that the discretion of
judges and juries in imposing the death penalty
enables the penalty to be selectively applied feeding
prejudices against the accused if he is poor and
despised . . .
xxx xxx xxx
Thus, these discretionary statutes are
unconstitutional in their operation. They are
pregnant with discrimination and discrimination is an
ingredient not compatible with the idea of equal
protection of the laws that is implicit in the ban on
cruel and unusual punishments.
Furman, thus, did not outlaw the death penalty
because it was cruel and unusual per se. While the
U.S. Supreme Court nullified all discretionary death
penalty statutes in Furman, it did so because the
discretion which these statutes vested in the trial
judges and sentencing juries was uncontrolled and
without any parameters, guidelines, or standards
intended to lessen, if not altogether eliminate, the
intervention of personal biases, prejudices and
discriminatory acts on the part of the trial judges and
sentencing juries.
Consequently, in the aftermath of Furman when
most of the states re-enacted their death penalty
statutes now bearing the procedural checks that were
required by the U.S. Supreme Court, said court
affirmed the constitutionality of the new death
penalty statutes in the cases of Gregg
v. Georgia, 42 Jurek v.
43 44
Texas, and Profitt v. Florida .
Next, accused-appellant asseverates that the death
penalty is a cruel, inhuman or degrading punishment
for the crime of rape mainly because the latter, unlike
murder, does not involve the taking of life. In support
of his contention, accused-appellant largely relies on
the ruling of the U.S. Supreme Court in Coker
v. Georgia. 45
In Coker, the U.S Supreme Court ruled as follows:
. . . It is now settled that the death penalty is not
invariably cruel and punishment within the meaning
of Eight Amendment; it is not inherently
unacceptable mode of punishment for crime; neither
is it always disproportionate to the crime for which it
is imposed. It is also established that imposing capital
punishment at least for murder, in accordance with
the procedures provided under the Georgia Statutes
saves the sentence from the infirmities which led the
Court to invalidate the prior Georgia capital
punishment statute in Furman v. Georgia . . .
xxx xxx xxx
In Gregg [v. Georgia] . . . the Court's judgment was
that the death penalty for deliberate murder was
neither the purposeless Imposition of severe
punishment nor a punishment grossly
disproportionate to the crime. But the Court reserved
the question of the constitutionality of the death
penalty when imposed for other crimes. . . .
That question, with respect to rape of an adult
woman, is now before us.
xxx xxx xxx
. . . [T]he public judgment with respect to rape. as
reflected in the statutes providing the punishment for
that crime, has been dramatically different. In
reviving death penalty laws to satisfy Furman's
mandate, none of the states that had not previously
authorized death for rape chose to include rape
among capital felonies. Of the 16 States in which rape
had been a capital offense, only three provided the
death penalty for rape of an adult woman in their
revised statutes-Georgia, North Carolina and
Louisiana. In the latter two States, the death penalty
was mandatory for those found guilty, and those laws
were invalidated by Woodson and Roberts. When
Louisiana and North Carolina respondent to those
decisions, again revised their capital punishment
laws, they reenacted the death penalty for murder
but not for rape; none of the seven other legislatures
that to our knowledge have amended or replaced
their death penalty statutes since July 2, 1976,
including four States (in addition to Louisiana and
North Carolina) that had authorized the death
sentence for rape prior to 1972 and had reacted to
Furman with mandatory statutes, included rape
among the crimes for which death was an authorized
punishment.
xxx xxx xxx
It should be noted that Florida. Mississippi, and
Tennessee also authorized the death penalty in some
rape cases, but only where the victim was a child and
the rapist an adult. the Tennessee statute has since
been invalidated because the death sentence was
mandatory. x x x The upshot is that Georgia is the sole
jurisdiction in the United States at the present time
that authorizes a sentence of death when the rape
victim is an adult woman, and only two other
jurisdictions provide capital punishment when the
victim is a child.
The current judgment with respect to the death
penalty for rape is not wholly unanimous among state
legislatures, but it obviously weighs very heavily on
the side of rejecting capital punishment as a suitable
penalty for raping an adult woman.
. . . [T]he legislative rejection of capital punishment
for rape strongly confirms our own judgment, which
is that death is indeed a disproportionate penalty for
the crime of raping an adult woman.
We do not discount the seriousness of rape as a
crime. It is highly reprehensible, both in a moral sense
and in its almost total contempt for the personal
integrity and autonomy of the female victim and for
the latter's privilege of choosing those with whom
intimate relationships are to be established. Short of
homicide, it is the ultimate violation of self. It is also a
violent crime because it normally involves force, or
the threat of force or intimidation, to over come the
will and the capacity of the victim to resist. Rape is
very often accompanied by physical injury to the
female and can also inflict mental and psychological
damage. Because it undermines the community's
sense of security. there is public injury as well.
Rape is without doubt deserving of serious
punishment; but in terms of moral depravity and of
the injury to the person and to the public. it does not
compare with murder, which does involve the
unjustified taking of human life. Although it may be
accompanied by another crime, rape by definition
does not include the death of or even the serious
injury to another person. The murderer kills; the
rapist, if no more than that does not. Life is over for
the victim of the murderer; for the rape victim, life
may not be nearly so happy as it was, but it is not over
and normally is not beyond repair. We have the
abiding conviction that the death penalty, which "is
unique in its severity and irrevocability" . . . is an
excessive penalty for the rapist who, as such does not
take human life.
The U.S. Supreme Court based its foregoing ruling on
two grounds: first, that the public has manifested its
rejection of the death penalty an a proper
punishment for the crime of rape through the willful
omission by the state legislatures to include rape in
their in the aftermath of Furman; and second, that
rape, while concededly a dastardly contemptuous
violation of a woman's spiritual integrity, physical
privacy, and psychological balance, does not involve
the taking of life.
Anent the first ground, we fail to see how this could
have any bearing on the Philippine experience and in
the context of our own culture.
Anent the second ground, we disagree with the
court's predicate that the gauge of whether or not a
crime warrants the death penalty or not, is the
attendance of the circumstance of death on the part
of the victim. Such a premise is in fact an ennobling of
the biblical notion of retributive justice of "an eye for
an eye, a tooth for a tooth". We have already
demonstrated earlier in our discussion of heinous
crimes that the forfeiture of life simply because life
was taken, never was a defining essence of the death
penalty in the context of our legal history and cultural
experience; rather, the death penalty is imposed in
heinous crimes because the perpetrators thereof
have committed unforgivably execrable acts that
have so deeply dehumanized a person or criminal acts
with severely destructive effects on the national
efforts to lift the masses from abject poverty through
organized governmental strategies based on a
disciplined and honest citizenry, and because they
have so caused irreparable and substantial injury to
both their victim and the society and a repetition of
their acts would pose actual threat to the safety of
individuals and the survival of government, they must
be permanently prevented from doing so. At any rate,
this court has no doubts as to the innate heinousness
of the crime of rape, as we have held in the case
of People v. Cristobal: 46
Rape is the forcible violation of the sexual intimacy of
another person. It does injury to justice and charity.
Rape deeply wounds the respect, Freedom, and
physical and moral integrity to which every person
has a right. It causes grave damage that can mark the
victim for life. It is always an intrinsically evil act . . .
an outrage upon decency and dignity that hurts not
only the victim but the society itself
We are not unaware that for all the legal posturings
we have so essayed here, at the heart of the issue of
capital punishment is the wistful, sentimental life-
and-death question to which all of us, without
thinking, would answer, "life, of course, over death".
But dealing with the fundamental question of death
provides a context for struggling with even more basic
questions, for to grapple with the meaning of death
is, in an indirect way to ask the meaning of life.
Otherwise put, to ask what the rights are of the dying
is to ask what the rights are of the living.
Capital punishment ought not to be abolished solely
because it is substantially repulsive, if infinitely less
repulsive than the acts which invoke it. Yet the
mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to
expunge from the society all that appears harsh and
suppressive. If we are to preserve the humane society
we will have to retain sufficient strength of character
and will to do the unpleasant in order that tranquility
and civility may rule comprehensively. It seems very
likely that capital punishment is a . . . necessary, if
limited factor in that maintenance of social tranquility
and ought to be retained on this ground. To do
otherwise is to indulge in the luxury of permitting a
sense of false delicacy to reign over the necessity of
social survival. 47
WHEREFORE, in view of all the foregoing, the Motion
for Reconsideration and Supplemental Motion for
Reconsideration are hereby DENIED 48 for LACK OF
MERIT.
SO ORDERED
Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., Panganiban and Torres, Jr., JJ.,
concur.
Separate Opinions
Time has transformed man into a highly intellectual
and civilized, as well as, I wish to believe, a humane
and compassionate, being. The ancient edict of "an
eye for an eye, a tooth for a tooth" has since been
abandoned by a society that recognizes the good in
every man and gives a transgressor an opportunity to
reform. Somehow, however, certain vestiges of
savage retribution still remain; indeed, the taking of a
human life continues, at least in some penal systems,
to be an acceptable punishment.
In this country, the issue of whether or not the State
should impose the death penalty has recently been
resolved with the ratification, on 02 February 1987, of
the Constitution by 76.29% of the electorate. Section
19, Article III, thereof, states:
Sec. 19. (1) Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion
perpetua.
Ours is a rule of law. The Supreme Court is not a
political entity; it can merely apply and interpret the
law. It cannot. and it will not, spare itself from this
constitutionally-mandated duty. Death penalty cases
are not excepted. In the discharge of its grave
responsibility, nevertheless, the Court must act with
greatest caution and strictest circumspection for
there can be no stake that can be higher, and no
penalty that can be graver, than the extinction by the
State of human life.
The determination of when to prescribe the death
penalty now lies with the sound discretion of the law-
making authority, the Congress of the Philippines,
subject to the conditions that the fundamental law
has set forth; viz:
(1) That there must be compelling reasons to justify
the imposition of the death penalty; and
(2) That the capital offense must involve a heinous
crime.
It appears to me that the Constitution did not
contemplate a simple "reimposition" of the death
penalty to offenses theretofore already provided in
the Revised Penal Code or just because of it.
The term "compelling reasons" should be enough to
indicate that there must be a marked change in the
milieu from that which has prevailed at the time of
adoption of the 1987 Constitution, on the one hand,
to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand,
that would make it distinctively inexorable to
mandate the death penalty. That milieu must have
turned from bad to worse.
Most importantly, the circumstances that would
characterize the "heinous nature" of the crime and
make it so exceptionally offensive as to warrant the
death penalty must be spelled out with great clarity
in the law. To venture, in the case of murder, the
crime could become "heinous" within the
Constitutional concept when, to exemplify, the victim
is unnecessarily subjected to a painful-and
excruciating death, or in the crime of rape when the
offended party is callously humiliated or even brutally
killed by the accused.
I submit that, given the circumstances and the law
before us, the Constitutional fiat (now being raised
for the first time in the instant Motion for
Reconsideration) in the imposition of the death
penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty
of reclusion perpetua (the next lower penalty than
death).
Death Penalty Law Unconstitutional
In his Supplemental Motion for
1 framers of our Constitution. As Comm. Bernas
Reconsideration dated August 22, 1996 filed by his
newly-retained counsel,2 the accused raises for the
first time a very crucial ground for his defense: that
Republic Act No. 7659, the law reimposing the death
penalty, is unconstitutional. In the Brief and (original)
Motion for Reconsideration filed by his previous
counsel,3 this transcendental issue was not brought
up. Hence, it was not passed upon by this Court in its
Decision affirming the trial court's sentence of death.4
The Constitution Abolished Death Penalty
Section 19, Article III of the 1987 Constitution
provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless
for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion
perpetua. (Emphasis supplied)
The second and third sentences of the above
provision are new and had nor been written in the
1935, 1973 or even in the 1986 "Freedom
Constitution." They proscribe the imposition5 of the
death penalty "unless for compelling reasons
involving heinous crimes, Congress provides for it,"
and reduced "any death penalty already imposed"
to reclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of
the penalty) and a retroactive one (it reduces
imposed capital sentence to the lesser penalty of
imprisonment).
This two-fold aspect is significant. It stresses that the
Constitution did not merely suspend the imposition of
the death penalty, but in fact completely abolished it
from the statute books. The automatic commutation
or reduction to reclusion perpetua of any death
penalty extant as of the effectivity of the Constitution
clearly recognizes that, while the conviction of an
accused for a capital crime remains, death as penalty
ceased to exist in our penal laws and thus may no
longer be carried out. This is the clear intent of the
exclaimed,6 "(t)he majority voted for the
constitutional abolition of the death penalty."
Citing this and other similar pronouncements of the
distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized,7 "It is thus
clear that when Fr. Bernas sponsored the provision
regarding the non-imposition of the death penalty,
what he had in mind was the total abolition and
removal from the statute books of the death penalty.
This became the intent of the framers of the
Constitution when they approved the provision and
made it a part of the Bill of Rights." With such
abolition as a premise, restoration thereof becomes
an exception to a constitutional mandate. Being an
exception and thus in derogation of the Constitution,
it must then be strictly construed against the State
and liber- ally in favor of the people.8 In this light, RA
7659 enjoys no presumption of constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1)
effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to
restore it at some future time to enable or empower
courts to reimpose it on condition that it
(Congress)9 finds "compelling reasons, involving
heinous crimes." The language of the Constitution is
emphatic (even if "awkward" 10): the authority of
Congress to "provide for it" is not absolute. Rather, it
is strictly limited:
(1) by "compelling reasons" that may arise after the
Constitution became effective; and
(2) to crimes which Congress should identify or define
or characterize as "heinous."
The Constitution inexorably placed upon Congress
the burden of determining the existence of
"compelling reasons and of defining what crimes are
"heinous" before it could exercise its law-making
prerogative to restore the death penalty. For clarity's
sake, may I emphasize that Congress, by
law, prescribes the death penalty an certain crimes:
and courts, by their decisions, impose it on individual
offenders found guilty beyond reasonable doubt of
committing said crimes.
In the exercise of this fundamental mandate,
Congress enacted RA 7659 11 to "Provide for it" (the
death penalty) (1) by amending certain provisions of
the Revised Penal Code; 12 (2) by incorporating a new
article therein; 13 and (3) by amending certain special
laws. 14
But RA 7659 did not change the nature or the
elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more
severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or
justify the reasons for the more severe sanction,
either collectively for all the offenses or individually
for each of them.
Generally, it merely reinstated the concept of and the
method by which the death penalty had been
imposed until February 2, 1987, when the
Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission
of which was accompanied by aggravating
circumstances not outweighed by mitigating
circumstances.
The basic question then is: In enacting RA 7659, did
Congress exceed the limited authority granted it by
the Constitution? More legally put: In reviving the
death penalty, did Congress act with grave abuse of
discretion or in excess of the very limited power or
jurisdiction conferred on it by Art. III, Sec. 19? The
answer, I respectfully submit, is YES.
Heinous Crimes
To repeat, while the Constitution limited the power of
Congress to prescribe the death penalty ONLY to
"heinous" crimes, it did not define or characterize the
meaning of "heinous". Neither did Congress. As
already stated, RA 7659 itself merely selected
some existing crimes for which it prescribed death as
an applicable penalty. It did not give a standard or a
characterization by which courts may be able to
appreciate the heinousness of a crime. I concede that
Congress was only too well aware of its
constitutionally limited power. In deference thereto,
it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:
WHEREAS, the crimes punishable by death under this
Act are heinous for being grievous, odious and hateful
offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the
common standards and norms of decency and
morality in a just, civilized and ordered society.
In my humble view, however, the foregoing clause is
clearly an insufficient definition or characterization of
what a heinous crime is. It simply and gratuitously
declared certain crimes to be "heinous" without
adequately justifying its bases therefor. It supplies no
useful, workable, clear and unambiguous standard by
which the presence of heinousness can be
determined. Calling the crimes "grievous, odious and
hateful" is not a substitute for an objective juridical
definition. Neither is the description "inherent or
manifest wickedness, viciousness, atrocity and
perversity." Describing blood as blue does not detract
from its being crimson in fact; and renaming
gumamela as rose will not arm it with thorns.
Besides, a preamble is really not. an integral part of a
law. It is merely an introduction to show its intent or
purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear
and unambiguous, the preamble can neither expand
nor restrict its operation, much less prevail over its
text. 15 In this case, it cannot be the authoritative
source to show compliance with the Constitution.
As already alluded to, RA 7659 merely amended
certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the
presence or absence of aggravating
circumstances. 16 There's nothing really new that
Congress did which it could not have otherwise done
had such provision not been included in our
fundamental law.
In other words, it just reinstated capital punishment
for crimes which were already punishable with death
prior to the effectivity of the 1987 Constitution. With
the possible exception of plunder and qualified
bribery, 17 no new crimes were introduced by RA
7659. The offenses punished by death under said law
were already so punishable by the Revised Penal
Code 18 and by special laws. In short, Sec. 19, Article
III of the Constitution did nor have any impact upon
the legislative action. It was effectively ignored by
Congress in enacting the capital punishment law.
During the debate on Senate Bill No. 891 which later
became RA 7659, Sen. Jose Lina, in answer to a
question of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code,
Mr. President, and from existing special laws which,
before abolition of the death penalty, had already
death as the maximum penalty.
By merely reimposing capital punishment on the very
same crimes which were already penalized with
death prior to the charter's effectivity, Congress I
submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission
intended merely to allow Congress to prescribe death
for these very same crimes, it would not have written
Sec. 19 of Article III into the fundamental law. But the
stubborn fact is it did. Verily, the intention to 1) delete
the death penalty from our criminal laws and 2) make
its restoration possible only under and subject to
stringent conditions is evident not only from the
language of the Constitution but also from the charter
debates on this matter.
The critical phrase "unless for compelling reasons
involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining
what possible crimes could qualify as heinous, he and
Comm. Jose Suarez agreed on "organized murder" or
"brutal murder of a rape victim". 20 Note that the
honorable commissioners did not just say "murder"
but organized murder; not just rape but brutal
murder of a rape victim. While the debates were
admittedly rather scanty, I believe that the available
information shows that, when deliberating on
"heinousness", the Constitutional Commission did
nor have in mind the offenses already existing and
already penalized with death. I also believe that the
heinousness clause requires that:
1) the crimes should be entirely new offenses, the
elements of which have an inherent quality, degree
or level of perversity, depravity or viciousness
unheard of until then; or
2) even existing crimes, provided some new element
or essential ingredient like "organized" or "brutal" is
added to show their utter perversity, odiousness or
malevolence; or
3) the means or method by which the crime, whether
new or old, is carried our evinces a degree or
magnitude of extreme violence, evil, cruelty, atrocity,
viciousness as to demonstrate its heinousness. 21
For this purpose, Congress could enact an entirely
new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of
treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.
Compelling Reasons
Quite apart from requiring the attendant element of
heinousness, the Constitution also directs Congress to
determine "compelling reasons" for the revival of the
capital penalty. It is true that paragraphs 3 and 4 of
the preamble of RA 7659 22 made some attempt at
meeting this requirement. But such effort was at best
feeble and inconsequential. It should be remembered
that every word or phrase in the Constitution is
sacred and should never be ignored, cavalierly-
treated or brushed aside. Thus, I believe that the
compelling reasons and the characterization of
heinousness cannot be done wholesale but must
shown for each and every crime, individually and
separately.
The words "compelling reasons" were included in the
Charter because, in the words of Comm. Monsod, "in
the future, circumstances may arise which we should
not preclude today . . . and that the conditions and
the situation (during the deliberations of the
Constitutional Commission) might change for very
specific reasons" requiring the return of the
constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later
evolved into RA 7659, Congressman Pablo Garcia, in
answer to questions raised by Representative Edcel
Lagman tried to explain these compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons
now, Mr.
Speaker? . . .
MR. GARCIA (P.) The worsening peace and order
condition in the country, Mr. Speaker. That is one.
MR. LAGMAN. So the compelling reason which the
distinguished sponsor would like to justify or serve as
an anchor for the justification of the reimposition of
the death penalty is the alleged worsening peace and
order situation. The Gentleman claims that that is one
of the compelling reasons. But before we dissect this
particular "compelling reason," may we know what
are the other compelling reasons, Mr. Speaker?
MR. GARCIA(P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr.
Speaker? Could the Gentleman kindly elaborate on
that answer? Why is justice a compelling reason as if
justice was not obtained at the time the Constitution
abolished the death penalty? Any compelling reason
should be a supervening circumstances after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said
again and again that if one lives in an organized
society governed by law, justice demands that crime
be punished and that the penalty imposed be
commensurate with the offense committed.
MR. LAGMAN. The Gentleman would agree with me
that when the Constitution speaks of the compelling
reasons to justify the reimposition of death penalty, it
refers to reasons which would supervene or come
after the approval of the 1987 Constitution. Is he
submitting that justice, in his own concept of a
commensurate penalty for the offense committed,
was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified
it?
MR. GARCIA (P.). That is precisely why we are saying
that now, under present conditions, because of the
seriousness of the offenses being committed at this
time, justice demands that the appropriate penalty
must be meted out for those who have committed
heinous crimes.
xxx xxx xxx
In short, Congressman Garcia invoked the preambular
justifications of "worsening peace and order" and
"justice". With all due respect I submit that these
grounds are not "compelling" enough to justify the
revival of state-decreed deaths. In fact, I dare say that
these "reasons" were even non-existent. Statistics
from the Philippine National Police show that the
crime volume and crime rate particularly on those
legislated capital offenses did not worsen but in fact
declined between 1987, the date when the
Constitution took effect, and 1993, the year when RA
7659 was enacted.
Witness the following debate 24 also between
Representatives Garcia and Lagman:
MR. LAGMAN. Very good, Mr. Speaker.
Now, can we go to 1987. Could the Gentleman from
Cebu inform us the volume of the crime of murder in
1987?
MR. GARCIA (P.). The volume of the crime of murder
in 1987 is 12,305.
MR. LAGMAN. So, the corresponding crime rate was
21 percent.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. That was in 1987. Mr. Speaker, could
the distinguished chairman inform us the volume of
murder in 1988?
MR. GARCIA (P.). It was 10,521, Mr. Speaker.
MR. LAGMAN. Or it was a reduction from 12.305 in
1987 to 10.521 in 1988.Correspondingly, the crime
rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is
that correct, Mr. Speaker?
MR. GARCIA (P.). That is correct, Mr. Speaker. Those
are the statistics supplied by the PC.
MR. LAGMAN. Now can we go again to 1987 when the
Constitution abolished the death penalty? May we
know from the distinguished Gentleman the volume
of robbery in 1987?
MR. GARCIA (P.). Will the Gentleman state the figure?
I will confirm it.
MR. LAGMAN. No. Mr. Speaker, I am asking the
question.
MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the
crime rate was 40 percent.
MR. LAGMAN. This was the year immediately after
the abolition of the death penalty. Could the
Gentleman tell us the volume of robbery cases in
1988?
MR. GARCIA (P.). It was 16,926, Mr. Speaker.
MR. LAGMAN. Obviously, the Gentleman would agree
with me, Mr. Speaker that the volume of robbery
cases declined from 22.942 in 1987 or crime rate of 40
percent to 16.926 or a crime rate of 29 percent. Would
the Gentleman confirm that, Mr. Speaker?
MR. GARCIA (P.). This is what the statistics say. I
understand we are reading now from the same
document.
MR. LAGMAN. Now, going to homicide, the volume
1987 was 12,870 or a crime rate of 22 percent. The
volume in 1988 was 11,132 or a crime rate of 19
percent. Would the Gentleman confirm that, Mr.
Speaker?
MR. GARCIA(P.). As I Said, Mr. Speaker, we are
reading from the same document and I would not
want to say that the Gentleman is misreading the
document that I have here.
MR. LAGMAN. But would the Gentleman confirm
that?
MR. GARCIA (P.). The document speaks for itself".
When interpellated by Sen. Arturo Tolentino, Sen.
Jose Lina gave some figures on the number of persons
arrested in regard to drug-related offenses in the year
1987 as compared to 1991: 25
Let me cite this concrete statistics by the Dangerous
Drug Board.
In 1987 — this was the year when the death penalty
was abolished — the persons arrested in drug-related
cases were 3,062, and the figure dropped to 2,686 in
1988.
By the way, I will furnish my Colleagues with a photo
copy of this report.
From 3,062 in 1987, it dropped to 2,686. Again, it
increased a bit to 2,862 in 1989. It still decreased to
2,202 in 1990, and it increased again to 2,862 in 1991.
But in 1987, when the death penalty was abolished,
as far as the drug-related cases are concerned, the
figure continued a downward trend, and there was no
death penalty in this time from, 1988 to 1991.
In a further attempt to show compelling reasons, the
proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent
against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have
been submitted to show with any conclusiveness the
relationship between the prescription of the death
penalty for certain offenses and the commission or
non-commission thereof. This is a theory that can be
debated on and on, 27 in the same manner that
another proposition — that the real deterrent to
crime is the certainty of immediate arrest,
prosecution and conviction of the culprit without
unnecessary risk, expense and inconvenience to the
victim, his heirs or his witnesses — can be argued
indefinitely, 28 This debate can last till the academics
grow weary of the spoken word, but it would not
lessen the constitutionally-imposed burden of
Congress to act within the "heinousness" and
"compelling reasons" limits of its death-prescribing
power.
Other Constitutional Rights
Militate Against RA 7659
It should be emphasized that the constitutional ban
against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee
in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously
screened. Any doubt should be resolved in favor of
the people, particularly where the right pertains to
persons accused of crimes. 30 Here the issue is not just
crimes — but capital crimes!
So too, all our previous Constitutions, including the
first one ordained at Malolos, guarantee that "(n)o
person shall be deprived of life, liberty or property
without due process of law." 31 This primary right of
the people to enjoy life — life at its fullest, life in
dignity and honor — is not only reiterated by the 1987
Charter but is in fact fortified by its other pro- life and
pro-human rights provisions. Hence, the Constitution
values the dignity of every human person and
guarantees full respect for human rights, 32 expressly
prohibits any form of torture33 which is arguably a
lesser penalty than death, emphasizes the individual
right to life by giving protection to the life of the
mother and the unborn from the moment of
conception 34 and establishes the people's rights to
health, a balanced ecology and education. 35
This Constitutional explosion of concern for man
more than property, for people more than the stare,
and for life more than mere existence augurs well for
the strict application of the constitutional limits
against the revival of death penalty as the final and
irreversible exaction of society against its perceived
enemies.
Indeed, volumes have been written about individual
rights to free speech, assembly and even religion. But
the most basic and most important of these rights is
the right to life. Without life, the other rights cease in
their enjoyment, utility and expression.
This opinion would not be complete without a word
on the wrenching fact that the death penalty militates
against the poor, the powerless and the marginalized.
The "Profile of 165 Death Row Convicts" submitted by
the Free Legal Assistance Group 36 highlights this sad
fact:
(1) Since the reimposition. of the death penalty, 186
persons 37 have been sentenced to death. At the end
of 1994, there were 24 death penalty convicts, at the
end of 1995, the number rose to 90; an average of
seven (7) convicts per month, double the monthly
average of capital sentences imposed the prior year.
From January to June 1996, the number of death
penalty convicts reached 72 an average of 12 convicts
per month, almost double the monthly average of
capital sentences imposed in 1995.
(2) Of the 165 convicts polled, approximately twenty
one percent (21%) earn between P200 to P2,900
monthly; while approximately twenty seven percent
(27%) earn between P3,000 to P3,999 monthly. Those
earning above P4,000 monthly are exceedingly few:
seven percent (7%) earn between P4,000 to P4,999,
four percent (4%) earn between P5,000 to P5,999,
seven percent (7%) earn between P6,000 to P6,999,
those earning between P7,000 to P15,000 comprise
only four percent (4%), those earning P15,000 and
above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while
approximately two percent (2%) earn subsistence
wages with another five percent (5%) earning variable
income. Approximately nine percent (9%) do not
know how much they earn in a month.
(3) Thus, approximately two-thirds of the convicts,
about 112 of them, earn below the government-
mandated minimum monthly wage of P4,290; ten
(10) of these earn below the official poverty line set
by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they
belong to the middle class; only one (1) earns
P30,000.00 monthly. Nine (9) convicts earn variable
income or earn on a percentage or allowance basis;
fifteen (15) con- victs do not know or are unsure of
their monthly income. Twenty two (22) convicts earn
nothing at all.
(4) In terms of occupation, approximately twenty one
percent (21%) are agricultural workers or workers in
animal husbandry; of these, thirty (30), or almost one-
fifth thereof, are farmers. Thirty five percent (35%)
are in the transport and construction industry, with
thirty one (31) construction workers or workers in
allied fields (carpentry, painting, welding) while
twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with
sixteen (16) of them drivers. Eighteen percent (18%)
are in clerical, sales and service industries, with
fourteen (14) sales workers (engaged in buy and sell
or fish, cigarette or rice vendors), twelve (12) service
workers (butchers, beauticians, security guards,
shoemakers, tour guides, computer programmers,
radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk). About four percent
(4%) are government workers, with six (6) persons
belonging to the armed services (AFP, PNP and even
CAFGU). Professionals, administrative employee and
executives comprise only three percent (3%), nine
percent (9%) are unemployed.
(5) None of the DRC's use English as their medium of
communication. About forty four percent (44%), or
slightly less than half speak and understand Tagalog;
twenty six percent (26%), or about one-fourth, speak
and understand Cebuano. The rest speak and
understand Bicolano, Ilocano, Ilonggo,
Kapampangan, Pangasinense and Waray. One (1)
convict is a foreign national and speaks and
understand Niponggo.
(6) Approximately twelve percent (12%) graduated
from college, about forty seven percent (47%)
finished varying levels of elementary education with
twenty seven (27) graduating from elementary.
About thirty five percent (35%), fifty eight (58)
convicts, finished varying levels of high school, with
more than half of them graduating from high school.
Two (2) convicts finished vocational education; nine
(9) convicts did not study at all.
The foregoing profile based on age, language and
socio-economic situations sufficiently demonstrates
that RA 7659 has militated against the poor and the
powerless in society — those who cannot afford the
legal services necessary in capital crimes, where
extensive preparation, investigation; research and
presentation are required. The best example to show
the sad plight of the underprivileged is this very case
where the crucial issue of constitutionality was
woefully omitted in the proceedings in the trial court
and even before this Court until the Free Legal
Assistance Group belatedly brought it up in the
Supplemental Motion for Reconsideration.
To the poor and unlettered, it is bad enough that the
law is complex and written in a strange,
incomprehensible language. Worse still, judicial
proceedings are themselves complicated,
intimidating and damning. The net effect of having a
death penalty that is imposed more often than not
upon the impecunious is to engender in the minds of
the latter, a sense unfounded, to be sure, but
unhealthy nevertheless — of the unequal balance of
the scales of justice.
Most assuredly, it may be contended that the
foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be
misleading, and that regardless of the socio-economic
profile of the DRCs, the law reviving capital
punishment does not in any way single out or
discriminate against the poor, the unlettered or the
underprivileged. To put it in another way, as far as the
disadvantaged are concerned, the law would still be
complex and written in a strange and
incomprehensible language, and judicial proceedings
complicated and intimidating, whether the ultimate
penalty involved be life (sentence) or death. Another
aspect of the whole controversy is that, whatever the
penalties set by law, it seems to me that there will
always be a certain class or classes of people in our
society who, by reason of their poverty, lack of
educational attainment and employment
opportunities, are consequently confined to living,
working and subsisting in less-than-ideal
environments, amidst less-than- genteel neighbors
similarly situated as themselves, and are therefore
inherently more prone to be involved (as victims or
perpetrators) in vices, violence and crime. So from
that perspective, the law reviving the death penalty
neither improves nor worsens their lot substantially.
Or, to be more precise, such law may even be said to
help improve their situation (at least in theory) by
posing a much stronger deterrent to the commission
of heinous crimes.
However, such a viewpoint simply ignores the very
basic differences that exist in the situations of the
poor and the non-poor. Precisely because the
underprivileged are what they are, they require and
deserve a greater degree of protection and assistance
from our laws and Constitution, and from the courts
and the State, so that in spite of themselves, they can
be empowered to rise above themselves and their
situation. The basic postulates for such a position are,
I think, simply that everyone ultimately wants to
better himself and that we cannot better ourselves
individually to any significant degree if we are unable
to advance as an entire people and nation. All the pro-
poor provisions of the Constitution point in this
direction. Yet we are faced with this law that
effectively inflicts the ultimate punishment on none
other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so
obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law,
I submit, has no place in our legal, judicial and
constitutional firmament .
Epilogue
In sum, I respectfully submit that:
(1) The 1987 Constitution abolished the death penalty
from our statute books. It did not merely suspend or
prohibit its imposition.
(2) The Charter effectively granted a new right: the
constitutional right against the death penalty, which
is really a species of the right to life.
(3) Any law reviving the capital penalty must be
strictly construed against the Stare and liberally in
favor of the accused because such a statute
denigrates the Constitution, impinges on a basic right
and tends to deny equal justice to the
underprivileged.
(4) Every word or phrase in the Constitution is sacred
and should never be ignored, cavalierly-treated or
brushed aside.
(5) Congressional power to prescribe death is severely
limited by two concurrent requirements:
(a) First, Congress must provide a set of attendant "absolute necessity" involving crimes of "extreme
circumstances which the prosecution must prove gravity", which are very rare and practically non-
beyond reasonable doubt, apart from the elements of existent.
the crime and itself. Congress must explain why and
how these circumstances define or characterize the In the face of these evident truisms, I ask: Has
crime as "heinous" Congress, in enacting RA 7659, amply discharged its
constitutional burden of proving the existence of
(b) Second, Congress has also the duty of laying out "compelling reasons" to prescribe death against well-
clear and specific reasons which arose after the defined "heinous" crimes?
effectivity of the Constitution compelling the
enactment of the law. It bears repeating that these I respectfully submit it has not.
requirements are Inseparable. They must both be
WHEREFORE, premises considered, I respectfully vote
present in view of the specific constitutional mandate
to grant partially the Supplemental Motion for
- "for compelling reasons involving heinous crimes."
Reconsideration and to modify the dispositive portion
The compelling reason must flow from the heinous
of the decision of the trial court by deleting the words
nature of the offense,
"DEATH, as provided for under RA 7659," and
(6) In every law reviving the capital penalty, the substitute therefor reclusion perpetua.
heinousness and compelling reasons must be set out
I further vote to declare RA 7659 unconstitutional
for each and every crime, and nor just for all crimes
insofar as it prescribes the penalty of death for the
generally and collectively.
crimes mentioned in its text.
"Thou shall not kill" is a fundamental commandment
to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty Separate Opinions
God. 38 While the Catholic Church, to which the vast
majority of our people belong, acknowledges the SEPARATE OPINION
power of public authorities to prescribe the death
Time has transformed man into a highly intellectual
penalty, it advisedly limits such prerogative only to
and civilized, as well as, I wish to believe, a humane
"cases of extreme gravity."39 To quote Pope John Paul
and compassionate, being. The ancient edict of "an
II in his encyclical Evangelium Vitae (A Hymn to
eye for an eye, a tooth for a tooth" has since been
Life),40 "punishment, must be carefully evaluated and
abandoned by a society that recognizes the good in
decided upon, and ought not go to the extreme of
every man and gives a transgressor an opportunity to
executing the offender except in cases of absolute
reform. Somehow, however, certain vestiges of
necessity: in other words, when it would not be
savage retribution still remain; indeed, the taking of a
possible otherwise to defend society . . . (which is) very
human life continues, at least in some penal systems,
rare, if not practically non-existent."
to be an acceptable punishment.
Although not absolutely banning it, both the
In this country, the issue of whether or not the State
Constitution and the Church indubitably abhor the
should impose the death penalty has recently been
death penalty. Both are pro-people and pro-life. Both
resolved with the ratification, on 02 February 1987, of
clearly recognize the primacy of human life over and
the Constitution by 76.29% of the electorate. Section
above even the state which man created precisely to
19, Article III, thereof, states:
protect, cherish and defend him. The Constitution
reluctantly allows capital punishment only for Sec. 19. (1) Excessive fines shall not be imposed, nor
"compelling reasons involving heinous crimes" just as cruel, degrading or inhuman punishment inflicted.
the Church grudgingly permits it only for reasons of Neither shall death penalty be imposed, unless, for
compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion
perpetua.
Ours is a rule of law. The Supreme Court is not a
political entity; it can merely apply and interpret the
law. It cannot. and it will not, spare itself from this
constitutionally-mandated duty. Death penalty cases
are not excepted. In the discharge of its grave
responsibility, nevertheless, the Court must act with
greatest caution and strictest circumspection for
there can be no stake that can be higher, and no
penalty that can be graver, than the extinction by the
State of human life.
The determination of when to prescribe the death
penalty now lies with the sound discretion of the law-
making authority, the Congress of the Philippines,
subject to the conditions that the fundamental law
has set forth; viz:
(1) That there must be compelling reasons to justify
the imposition of the death penalty; and
(2) That the capital offense must involve a heinous
crime.
It appears to me that the Constitution did not
contemplate a simple "reimposition" of the death
penalty to offenses theretofore already provided in
the Revised Penal Code or just because of it.
The term "compelling reasons" should be enough to
indicate that there must be a marked change in the
milieu from that which has prevailed at the time of
adoption of the 1987 Constitution, on the one hand,
to that which exists at the enactment of the statute
prescribing the death penalty, upon the other hand,
that would make it distinctively inexorable to
mandate the death penalty. That milieu must have
turned from bad to worse.
Most importantly, the circumstances that would
characterize the "heinous nature" of the crime and
make it so exceptionally offensive as to warrant the
death penalty must be spelled out with great clarity
in the law. To venture, in the case of murder, the
crime could become "heinous" within the
Constitutional concept when, to exemplify, the victim
is unnecessarily subjected to a painful-and
excruciating death, or in the crime of rape when the
offended party is callously humiliated or even brutally
killed by the accused.
I submit that, given the circumstances and the law
before us, the Constitutional fiat (now being raised
for the first time in the instant Motion for
Reconsideration) in the imposition of the death
penalty has not been satisfied.
I, therefore, vote for imposing instead the penalty
of reclusion perpetua (the next lower penalty than
death).
SEPARATE OPINION
Death Penalty Law Unconstitutional
In his Supplemental Motion for
Reconsideration1 dated August 22, 1996 filed by his
newly-retained counsel,2 the accused raises for the
first time a very crucial ground for his defense: that
Republic Act No. 7659, the law reimposing the death
penalty, is unconstitutional. In the Brief and (original)
Motion for Reconsideration filed by his previous
counsel,3 this transcendental issue was not brought
up. Hence, it was not passed upon by this Court in its
Decision affirming the trial court's sentence of death.4
The Constitution Abolished Death Penalty
Section 19, Article III of the 1987 Constitution
provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor
cruel, degrading or inhuman punishment inflicted.
Neither shall death penalty be imposed, unless
for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion
perpetua. (Emphasis supplied)
The second and third sentences of the above
provision are new and had nor been written in the
1935, 1973 or even in the 1986 "Freedom
Constitution." They proscribe the imposition5 of the
death penalty "unless for compelling reasons
involving heinous crimes, Congress provides for it,"
and reduced "any death penalty already imposed"
to reclusion perpetua. The provision has both a
prospective aspect (it bars the future imposition of
the penalty) and a retroactive one (it reduces
imposed capital sentence to the lesser penalty of
imprisonment).
This two-fold aspect is significant. It stresses that the
Constitution did not merely suspend the imposition of
the death penalty, but in fact completely abolished it
from the statute books. The automatic commutation
or reduction to reclusion perpetua of any death
penalty extant as of the effectivity of the Constitution
clearly recognizes that, while the conviction of an
accused for a capital crime remains, death as penalty
ceased to exist in our penal laws and thus may no
longer be carried out. This is the clear intent of the
framers of our Constitution. As Comm. Bernas
exclaimed,6 "(t)he majority voted for the
constitutional abolition of the death penalty."
Citing this and other similar pronouncements of the
distinguished Concom delegate, Mme. Justice
Ameurfina Melencio-Herrera emphasized,7 "It is thus
clear that when Fr. Bernas sponsored the provision
regarding the non-imposition of the death penalty,
what he had in mind was the total abolition and
removal from the statute books of the death penalty.
This became the intent of the framers of the
Constitution when they approved the provision and
made it a part of the Bill of Rights." With such
abolition as a premise, restoration thereof becomes
an exception to a constitutional mandate. Being an
exception and thus in derogation of the Constitution,
it must then be strictly construed against the State
and liber- ally in favor of the people.8 In this light, RA
7659 enjoys no presumption of constitutionality.
The Constitution Strictly Limits
Congressional Prerogative to Prescribe Death
To me, it is very clear that the Constitution (1)
effectively removed the death penalty from the then
existing statutes but (2) authorized Congress to
restore it at some future time to enable or empower
courts to reimpose it on condition that it
(Congress)9 finds "compelling reasons, involving
heinous crimes." The language of the Constitution is
emphatic (even if "awkward" 10): the authority of
Congress to "provide for it" is not absolute. Rather, it
is strictly limited:
(1) by "compelling reasons" that may arise after the
Constitution became effective; and
(2) to crimes which Congress should identify or define
or characterize as "heinous."
The Constitution inexorably placed upon Congress
the burden of determining the existence of
"compelling reasons and of defining what crimes are
"heinous" before it could exercise its law-making
prerogative to restore the death penalty. For clarity's
sake, may I emphasize that Congress, by
law, prescribes the death penalty an certain crimes:
and courts, by their decisions, impose it on individual
offenders found guilty beyond reasonable doubt of
committing said crimes.
In the exercise of this fundamental mandate,
Congress enacted RA 7659 11 to "Provide for it" (the
death penalty) (1) by amending certain provisions of
the Revised Penal Code; 12 (2) by incorporating a new
article therein; 13 and (3) by amending certain special
laws. 14
But RA 7659 did not change the nature or the
elements of the crimes stated in the Penal Code and
in the special laws. It merely made the penalty more
severe. Neither did its provisions (other than the
preamble, which was cast in general terms) discuss or
justify the reasons for the more severe sanction,
either collectively for all the offenses or individually
for each of them.
Generally, it merely reinstated the concept of and the
method by which the death penalty had been
imposed until February 2, 1987, when the
Constitution took effect as follows: (1) a person is
convicted of a capital offense; and (2) the commission
of which was accompanied by aggravating
circumstances not outweighed by mitigating
circumstances.
The basic question then is: In enacting RA 7659, did
Congress exceed the limited authority granted it by
the Constitution? More legally put: In reviving the
death penalty, did Congress act with grave abuse of
discretion or in excess of the very limited power or
jurisdiction conferred on it by Art. III, Sec. 19? The
answer, I respectfully submit, is YES.
Heinous Crimes
To repeat, while the Constitution limited the power of
Congress to prescribe the death penalty ONLY to
"heinous" crimes, it did not define or characterize the
meaning of "heinous". Neither did Congress. As
already stated, RA 7659 itself merely selected
some existing crimes for which it prescribed death as
an applicable penalty. It did not give a standard or a
characterization by which courts may be able to
appreciate the heinousness of a crime. I concede that
Congress was only too well aware of its
constitutionally limited power. In deference thereto,
it included a paragraph in the preambular or
"whereas" clauses of RA 7659, as follows:
WHEREAS, the crimes punishable by death under this
Act are heinous for being grievous, odious and hateful
offenses and which, by reason of their inherent or
manifest wickedness, viciousness, atrocity and
perversity are repugnant and outrageous to the
common standards and norms of decency and
morality in a just, civilized and ordered society.
In my humble view, however, the foregoing clause is
clearly an insufficient definition or characterization of
what a heinous crime is. It simply and gratuitously
declared certain crimes to be "heinous" without
adequately justifying its bases therefor. It supplies no
useful, workable, clear and unambiguous standard by
which the presence of heinousness can be
determined. Calling the crimes "grievous, odious and
hateful" is not a substitute for an objective juridical
definition. Neither is the description "inherent or
manifest wickedness, viciousness, atrocity and
perversity." Describing blood as blue does not detract
from its being crimson in fact; and renaming
gumamela as rose will not arm it with thorns.
Besides, a preamble is really not. an integral part of a
law. It is merely an introduction to show its intent or
purposes. It cannot be the origin of rights and
obligations. Where the meaning of a statute is clear
and unambiguous, the preamble can neither expand
nor restrict its operation, much less prevail over its
text. 15 In this case, it cannot be the authoritative
source to show compliance with the Constitution.
As already alluded to, RA 7659 merely amended
certain laws to prescribe death as the maximum
imposable penalty once the court appreciates the
presence or absence of aggravating
16
circumstances. There's nothing really new that
Congress did which it could not have otherwise done
had such provision not been included in our
fundamental law.
In other words, it just reinstated capital punishment
for crimes which were already punishable with death
prior to the effectivity of the 1987 Constitution. With
the possible exception of plunder and qualified
bribery, 17 no new crimes were introduced by RA
7659. The offenses punished by death under said law
were already so punishable by the Revised Penal
Code 18 and by special laws. In short, Sec. 19, Article
III of the Constitution did nor have any impact upon
the legislative action. It was effectively ignored by
Congress in enacting the capital punishment law.
During the debate on Senate Bill No. 891 which later
became RA 7659, Sen. Jose Lina, in answer to a
question of Sen. Ernesto Maceda, wryly said: 19
So we did not go that far from the Revised Penal Code,
Mr. President, and from existing special laws which,
before abolition of the death penalty, had already
death as the maximum penalty.
By merely reimposing capital punishment on the very
same crimes which were already penalized with
death prior to the charter's effectivity, Congress I
submit has not fulfilled its specific and positive
constitutional duty. If the Constitutional Commission
intended merely to allow Congress to prescribe death
for these very same crimes, it would not have written
Sec. 19 of Article III into the fundamental law. But the
stubborn fact is it did. Verily, the intention to 1) delete
the death penalty from our criminal laws and 2) make
its restoration possible only under and subject to
stringent conditions is evident not only from the
language of the Constitution but also from the charter
debates on this matter.
The critical phrase "unless for compelling reasons
involving heinous crimes" was an amendment
introduced by Comm. Christian Monsod. In explaining
what possible crimes could qualify as heinous, he and
Comm. Jose Suarez agreed on "organized murder" or
"brutal murder of a rape victim". 20 Note that the
honorable commissioners did not just say "murder"
but organized murder; not just rape but brutal
murder of a rape victim. While the debates were
admittedly rather scanty, I believe that the available
information shows that, when deliberating on
"heinousness", the Constitutional Commission did
nor have in mind the offenses already existing and
already penalized with death. I also believe that the
heinousness clause requires that:
1) the crimes should be entirely new offenses, the
elements of which have an inherent quality, degree
or level of perversity, depravity or viciousness
unheard of until then; or
2) even existing crimes, provided some new element
or essential ingredient like "organized" or "brutal" is
added to show their utter perversity, odiousness or
malevolence; or
3) the means or method by which the crime, whether
new or old, is carried our evinces a degree or
magnitude of extreme violence, evil, cruelty, atrocity,
viciousness as to demonstrate its heinousness. 21
For this purpose, Congress could enact an entirely
new set of circumstances to qualify the crime as
"heinous", in the same manner that the presence of
treachery in a homicide aggravates the crime to
murder for which a heavier penalty is prescribed.
Compelling Reasons
Quite apart from requiring the attendant element of
heinousness, the Constitution also directs Congress to
determine "compelling reasons" for the revival of the
capital penalty. It is true that paragraphs 3 and 4 of
the preamble of RA 7659 22 made some attempt at
meeting this requirement. But such effort was at best
feeble and inconsequential. It should be remembered
that every word or phrase in the Constitution is
sacred and should never be ignored, cavalierly-
treated or brushed aside. Thus, I believe that the
compelling reasons and the characterization of
heinousness cannot be done wholesale but must
shown for each and every crime, individually and
separately.
The words "compelling reasons" were included in the
Charter because, in the words of Comm. Monsod, "in
the future, circumstances may arise which we should
not preclude today . . . and that the conditions and
the situation (during the deliberations of the
Constitutional Commission) might change for very
specific reasons" requiring the return of the
constitutionally-abhorred penalty.
In his sponsorship of House Bill No. 62 which later
evolved into RA 7659, Congressman Pablo Garcia, in
answer to questions raised by Representative Edcel
Lagman tried to explain these compelling reasons: 23
MR. LAGMAN: So what are the compelling reasons
now, Mr.
Speaker? . . .
MR. GARCIA (P.) The worsening peace and order
condition in the country, Mr. Speaker. That is one.
MR. LAGMAN. So the compelling reason which the
distinguished sponsor would like to justify or serve as
an anchor for the justification of the reimposition of
the death penalty is the alleged worsening peace and
order situation. The Gentleman claims that that is one
of the compelling reasons. But before we dissect this
particular "compelling reason," may we know what
are the other compelling reasons, Mr. Speaker?
MR. GARCIA(P.) Justice, Mr. Speaker.
MR. LAGMAN. Justice.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. Justice is a compelling reason, Mr.
Speaker? Could the Gentleman kindly elaborate on
that answer? Why is justice a compelling reason as if
justice was not obtained at the time the Constitution
abolished the death penalty? Any compelling reason
should be a supervening circumstances after 1987.
MR. GARCIA (P.). Mr. Speaker, I have repeatedly said
again and again that if one lives in an organized
society governed by law, justice demands that crime
be punished and that the penalty imposed be
commensurate with the offense committed.
MR. LAGMAN. The Gentleman would agree with me
that when the Constitution speaks of the compelling
reasons to justify the reimposition of death penalty, it
refers to reasons which would supervene or come
after the approval of the 1987 Constitution. Is he
submitting that justice, in his own concept of a
commensurate penalty for the offense committed,
was not obtained in 1987 when the Constitution
abolished the death penalty and the people ratified
it?
MR. GARCIA (P.). That is precisely why we are saying
that now, under present conditions, because of the
seriousness of the offenses being committed at this
time, justice demands that the appropriate penalty
must be meted out for those who have committed
heinous crimes.
xxx xxx xxx
In short, Congressman Garcia invoked the preambular
justifications of "worsening peace and order" and
"justice". With all due respect I submit that these
grounds are not "compelling" enough to justify the
revival of state-decreed deaths. In fact, I dare say that
these "reasons" were even non-existent. Statistics
from the Philippine National Police show that the
crime volume and crime rate particularly on those
legislated capital offenses did not worsen but in fact
declined between 1987, the date when the
Constitution took effect, and 1993, the year when RA
7659 was enacted.
Witness the following debate 24 also between
Representatives Garcia and Lagman:
MR. LAGMAN. Very good, Mr. Speaker.
Now, can we go to 1987. Could the Gentleman from
Cebu inform us the volume of the crime of murder in
1987?
MR. GARCIA (P.). The volume of the crime of murder
in 1987 is 12,305.
MR. LAGMAN. So, the corresponding crime rate was
21 percent.
MR. GARCIA (P.). Yes, Mr. Speaker.
MR. LAGMAN. That was in 1987. Mr. Speaker, could
the distinguished chairman inform us the volume of
murder in 1988?
MR. GARCIA (P.). It was 10,521, Mr. Speaker.
MR. LAGMAN. Or it was a reduction from 12.305 in
1987 to 10.521 in 1988.Correspondingly, the crime
rate in the very year after the abolition of the death
penalty was reduced from 21 percent to 18 percent. Is
that correct, Mr. Speaker?
MR. GARCIA (P.). That is correct, Mr. Speaker. Those
are the statistics supplied by the PC.
MR. LAGMAN. Now can we go again to 1987 when the
Constitution abolished the death penalty? May we
know from the distinguished Gentleman the volume
of robbery in 1987?
MR. GARCIA (P.). Will the Gentleman state the figure?
I will confirm it.
MR. LAGMAN. No. Mr. Speaker, I am asking the
question.
MR. GARCIA (P.). It was 22,942, Mr. Speaker, and the
crime rate was 40 percent.
MR. LAGMAN. This was the year immediately after
the abolition of the death penalty. Could the
Gentleman tell us the volume of robbery cases in
1988?
MR. GARCIA (P.). It was 16,926, Mr. Speaker.
MR. LAGMAN. Obviously, the Gentleman would agree
with me, Mr. Speaker that the volume of robbery
cases declined from 22.942 in 1987 or crime rate of 40
percent to 16.926 or a crime rate of 29 percent. Would
the Gentleman confirm that, Mr. Speaker?
MR. GARCIA (P.). This is what the statistics say. I
understand we are reading now from the same
document.
MR. LAGMAN. Now, going to homicide, the volume
1987 was 12,870 or a crime rate of 22 percent. The
volume in 1988 was 11,132 or a crime rate of 19
percent. Would the Gentleman confirm that, Mr.
Speaker?
MR. GARCIA(P.). As I Said, Mr. Speaker, we are
reading from the same document and I would not
want to say that the Gentleman is misreading the
document that I have here.
MR. LAGMAN. But would the Gentleman confirm
that?
MR. GARCIA (P.). The document speaks for itself".
When interpellated by Sen. Arturo Tolentino, Sen.
Jose Lina gave some figures on the number of persons
arrested in regard to drug-related offenses in the year
1987 as compared to 1991: 25
Let me cite this concrete statistics by the Dangerous
Drug Board.
In 1987 — this was the year when the death penalty
was abolished — the persons arrested in drug-related
cases were 3,062, and the figure dropped to 2,686 in
1988.
By the way, I will furnish my Colleagues with a photo
copy of this report.
From 3,062 in 1987, it dropped to 2,686. Again, it
increased a bit to 2,862 in 1989. It still decreased to
2,202 in 1990, and it increased again to 2,862 in 1991.
But in 1987, when the death penalty was abolished,
as far as the drug-related cases are concerned, the
figure continued a downward trend, and there was no
death penalty in this time from, 1988 to 1991.
In a further attempt to show compelling reasons, the
proponents of the death penalty argue that its
reimposition "would pose as an effective deterrent
against heinous crimes." 26 However no statistical
data, no sufficient proof, empirical or otherwise, have
been submitted to show with any conclusiveness the
relationship between the prescription of the death
penalty for certain offenses and the commission or
non-commission thereof. This is a theory that can be
debated on and on, 27 in the same manner that
another proposition — that the real deterrent to
crime is the certainty of immediate arrest,
prosecution and conviction of the culprit without
unnecessary risk, expense and inconvenience to the
victim, his heirs or his witnesses — can be argued
indefinitely, 28 This debate can last till the academics
grow weary of the spoken word, but it would not
lessen the constitutionally-imposed burden of
Congress to act within the "heinousness" and
"compelling reasons" limits of its death-prescribing
power.
Other Constitutional Rights
Militate Against RA 7659
It should be emphasized that the constitutional ban
against the death penalty is included in our Bill of
Rights. As such, it should — like any other guarantee
in favor of the accused — be zealously
protected, 29 and any exception thereto meticulously
screened. Any doubt should be resolved in favor of
the people, particularly where the right pertains to
persons accused of crimes. 30 Here the issue is not just
crimes — but capital crimes!
So too, all our previous Constitutions, including the
first one ordained at Malolos, guarantee that "(n)o
person shall be deprived of life, liberty or property
without due process of law." 31 This primary right of
the people to enjoy life — life at its fullest, life in
dignity and honor — is not only reiterated by the 1987
Charter but is in fact fortified by its other pro- life and
pro-human rights provisions. Hence, the Constitution
values the dignity of every human person and
guarantees full respect for human rights, 32 expressly
prohibits any form of torture33 which is arguably a
lesser penalty than death, emphasizes the individual
right to life by giving protection to the life of the
mother and the unborn from the moment of
conception 34 and establishes the people's rights to
health, a balanced ecology and education. 35
This Constitutional explosion of concern for man
more than property, for people more than the stare,
and for life more than mere existence augurs well for
the strict application of the constitutional limits
against the revival of death penalty as the final and
irreversible exaction of society against its perceived
enemies.
Indeed, volumes have been written about individual
rights to free speech, assembly and even religion. But
the most basic and most important of these rights is
the right to life. Without life, the other rights cease in
their enjoyment, utility and expression.
This opinion would not be complete without a word
on the wrenching fact that the death penalty militates
against the poor, the powerless and the marginalized.
The "Profile of 165 Death Row Convicts" submitted by
the Free Legal Assistance Group 36 highlights this sad
fact:
(1) Since the reimposition. of the death penalty, 186
persons 37 have been sentenced to death. At the end
of 1994, there were 24 death penalty convicts, at the
end of 1995, the number rose to 90; an average of
seven (7) convicts per month, double the monthly
average of capital sentences imposed the prior year.
From January to June 1996, the number of death
penalty convicts reached 72 an average of 12 convicts
per month, almost double the monthly average of
capital sentences imposed in 1995.
(2) Of the 165 convicts polled, approximately twenty
one percent (21%) earn between P200 to P2,900
monthly; while approximately twenty seven percent
(27%) earn between P3,000 to P3,999 monthly. Those
earning above P4,000 monthly are exceedingly few:
seven percent (7%) earn between P4,000 to P4,999,
four percent (4%) earn between P5,000 to P5,999,
seven percent (7%) earn between P6,000 to P6,999,
those earning between P7,000 to P15,000 comprise
only four percent (4%), those earning P15,000 and
above only one percent (1%). Approximately thirteen
percent (13%) earn nothing at all, while
approximately two percent (2%) earn subsistence
wages with another five percent (5%) earning variable
income. Approximately nine percent (9%) do not
know how much they earn in a month.
(3) Thus, approximately two-thirds of the convicts,
about 112 of them, earn below the government-
mandated minimum monthly wage of P4,290; ten
(10) of these earn below the official poverty line set
by government. Twenty six (26) earn between
P4,500.00 and P11,0000.00 monthly, indicating they
belong to the middle class; only one (1) earns
P30,000.00 monthly. Nine (9) convicts earn variable
income or earn on a percentage or allowance basis;
fifteen (15) con- victs do not know or are unsure of
their monthly income. Twenty two (22) convicts earn
nothing at all.
(4) In terms of occupation, approximately twenty one
percent (21%) are agricultural workers or workers in
animal husbandry; of these, thirty (30), or almost one-
fifth thereof, are farmers. Thirty five percent (35%)
are in the transport and construction industry, with
thirty one (31) construction workers or workers in
allied fields (carpentry, painting, welding) while
twenty seven (27) are transport workers (delivery,
dispatcher, mechanic, tire man, truck helper) with
sixteen (16) of them drivers. Eighteen percent (18%)
are in clerical, sales and service industries, with
fourteen (14) sales workers (engaged in buy and sell
or fish, cigarette or rice vendors), twelve (12) service
workers (butchers, beauticians, security guards,
shoemakers, tour guides, computer programmers,
radio technicians) and four (4) clerks (janitors,
MERALCO employee and clerk). About four percent
(4%) are government workers, with six (6) persons
belonging to the armed services (AFP, PNP and even
CAFGU). Professionals, administrative employee and
executives comprise only three percent (3%), nine
percent (9%) are unemployed.
(5) None of the DRC's use English as their medium of
communication. About forty four percent (44%), or
slightly less than half speak and understand Tagalog;
twenty six percent (26%), or about one-fourth, speak
and understand Cebuano. The rest speak and
understand Bicolano, Ilocano, Ilonggo,
Kapampangan, Pangasinense and Waray. One (1)
convict is a foreign national and speaks and
understand Niponggo.
(6) Approximately twelve percent (12%) graduated
from college, about forty seven percent (47%)
finished varying levels of elementary education with
twenty seven (27) graduating from elementary.
About thirty five percent (35%), fifty eight (58)
convicts, finished varying levels of high school, with
more than half of them graduating from high school.
Two (2) convicts finished vocational education; nine
(9) convicts did not study at all.
The foregoing profile based on age, language and
socio-economic situations sufficiently demonstrates
that RA 7659 has militated against the poor and the
powerless in society — those who cannot afford the
legal services necessary in capital crimes, where
extensive preparation, investigation; research and
presentation are required. The best example to show
the sad plight of the underprivileged is this very case
where the crucial issue of constitutionality was
woefully omitted in the proceedings in the trial court
and even before this Court until the Free Legal
Assistance Group belatedly brought it up in the
Supplemental Motion for Reconsideration.
To the poor and unlettered, it is bad enough that the
law is complex and written in a strange,
incomprehensible language. Worse still, judicial
proceedings are themselves complicated,
intimidating and damning. The net effect of having a
death penalty that is imposed more often than not
upon the impecunious is to engender in the minds of
the latter, a sense unfounded, to be sure, but
unhealthy nevertheless — of the unequal balance of
the scales of justice.
Most assuredly, it may be contended that the
foregoing arguments, and in particular, the statistics
above-cited, are in a very real sense prone to be
misleading, and that regardless of the socio-economic
profile of the DRCs, the law reviving capital
punishment does not in any way single out or
discriminate against the poor, the unlettered or the
underprivileged. To put it in another way, as far as the
disadvantaged are concerned, the law would still be
complex and written in a strange and
incomprehensible language, and judicial proceedings
complicated and intimidating, whether the ultimate
penalty involved be life (sentence) or death. Another
aspect of the whole controversy is that, whatever the
penalties set by law, it seems to me that there will
always be a certain class or classes of people in our
society who, by reason of their poverty, lack of
educational attainment and employment
opportunities, are consequently confined to living,
working and subsisting in less-than-ideal
environments, amidst less-than- genteel neighbors
similarly situated as themselves, and are therefore
inherently more prone to be involved (as victims or
perpetrators) in vices, violence and crime. So from
that perspective, the law reviving the death penalty
neither improves nor worsens their lot substantially.
Or, to be more precise, such law may even be said to
help improve their situation (at least in theory) by
posing a much stronger deterrent to the commission
of heinous crimes.
However, such a viewpoint simply ignores the very
basic differences that exist in the situations of the
poor and the non-poor. Precisely because the
underprivileged are what they are, they require and
deserve a greater degree of protection and assistance
from our laws and Constitution, and from the courts
and the State, so that in spite of themselves, they can
be empowered to rise above themselves and their
situation. The basic postulates for such a position are,
I think, simply that everyone ultimately wants to
better himself and that we cannot better ourselves
individually to any significant degree if we are unable
to advance as an entire people and nation. All the pro-
poor provisions of the Constitution point in this
direction. Yet we are faced with this law that
effectively inflicts the ultimate punishment on none
other than the poor and disadvantaged in the greater
majority of cases, and which penalty, being so
obviously final and so irreversibly permanent, erases
all hope of reform, of change for the better. This law,
I submit, has no place in our legal, judicial and
constitutional firmament .
Epilogue
In sum, I respectfully submit that:
(1) The 1987 Constitution abolished the death penalty
from our statute books. It did not merely suspend or
prohibit its imposition.
(2) The Charter effectively granted a new right: the
constitutional right against the death penalty, which
is really a species of the right to life.
(3) Any law reviving the capital penalty must be
strictly construed against the Stare and liberally in
favor of the accused because such a statute
denigrates the Constitution, impinges on a basic right
and tends to deny equal justice to the
underprivileged.
(4) Every word or phrase in the Constitution is sacred
and should never be ignored, cavalierly-treated or
brushed aside.
(5) Congressional power to prescribe death is severely
limited by two concurrent requirements:
(a) First, Congress must provide a set of attendant
circumstances which the prosecution must prove
beyond reasonable doubt, apart from the elements of
the crime and itself. Congress must explain why and
how these circumstances define or characterize the
crime as "heinous"
(b) Second, Congress has also the duty of laying out
clear and specific reasons which arose after the
effectivity of the Constitution compelling the
enactment of the law. It bears repeating that these
requirements are Inseparable. They must both be
present in view of the specific constitutional mandate
- "for compelling reasons involving heinous crimes."
The compelling reason must flow from the heinous
nature of the offense,
(6) In every law reviving the capital penalty, the
heinousness and compelling reasons must be set out
for each and every crime, and nor just for all crimes
generally and collectively.
"Thou shall not kill" is a fundamental commandment
to all Christians, as well as to the rest of the
"sovereign Filipino people" who believe in Almighty
God. 38 While the Catholic Church, to which the vast
majority of our people belong, acknowledges the
power of public authorities to prescribe the death
penalty, it advisedly limits such prerogative only to
"cases of extreme gravity."39 To quote Pope John Paul
II in his encyclical Evangelium Vitae (A Hymn to
Life),40 "punishment, must be carefully evaluated and
decided upon, and ought not go to the extreme of
executing the offender except in cases of absolute
necessity: in other words, when it would not be
possible otherwise to defend society . . . (which is) very
rare, if not practically non-existent."
Although not absolutely banning it, both the
Constitution and the Church indubitably abhor the
death penalty. Both are pro-people and pro-life. Both
clearly recognize the primacy of human life over and
above even the state which man created precisely to
protect, cherish and defend him. The Constitution
reluctantly allows capital punishment only for
"compelling reasons involving heinous crimes" just as
the Church grudgingly permits it only for reasons of
"absolute necessity" involving crimes of "extreme
gravity", which are very rare and practically non-
existent.
In the face of these evident truisms, I ask: Has
Congress, in enacting RA 7659, amply discharged its
constitutional burden of proving the existence of
"compelling reasons" to prescribe death against well-
defined "heinous" crimes?
I respectfully submit it has not.
WHEREFORE, premises considered, I respectfully vote
to grant partially the Supplemental Motion for
Reconsideration and to modify the dispositive portion
of the decision of the trial court by deleting the words
"DEATH, as provided for under RA 7659," and
substitute therefor reclusion perpetua.
I further vote to declare RA 7659 unconstitutional
insofar as it prescribes the penalty of death for the
crimes mentioned in its text.
Footnotes
1 249 SCRA 303, 307-308.
2 See Amigo v. Court of Appeals, 253 SCRA 382, 390
[1996]; De Leon v. Court of Appeals, 245 SCRA 166,
172 [1995].
3 RTC Decision, p. 3; Rollo, p. 19.
4 G.R. No. 108871 promulgated on November 19,
1996.
5 People v. Pimentel, 118 SCRA 695
[1982]; citing People v. Manigbas, 109 Phil. 469
[1960].
6 Greenhills Airconditioning and Services, Inc. v.
National Labor Relations Commission, 245 SCRA 384,
389 [1995]; Arambulo v. Court of Appeals, 226 SCRA
589, 601 [1993]; Que v. Court of Appeals, 101 SCRA
13 [1980].
7 Suarez v. Court of Appeals, 220 SCRA 274, 279-280
[1993].
8 81 Phil. 741 [1948).
9 88 Phil. 36 [1951].
10 115 SCRA 688 [1982].
11 133 SCRA 1 [1984].
12 147 SCRA 204 [1987].
13 81 Phil. 741, 747 [1948].
14 88 Phil. 36, 43 [1951].
15 249 SCRA 246, 253 [1995].
16 Record, CONCOM, July 17, 1986, Vol. I, p. 676
17 Id., p. 678.
18 Id., p. 680.
19 Record, CONCOM, July 17, 1986, Vol. I, p. 712.
20 Id., p. 744.
21 155 SCRA 327 [1987].
22 Id., p. 335.
23 155 SCRA 113 [1987].
24 156 SCRA 242 [1987].
25 165 SCRA 637 [1988].
26 170 SCRA 107 [1989].
27 Id., p. 121.
28 Journal, Senate, February 15, 1993, Vol. 2, p. 1246.
29 Record, Senate, March 17, 1993, Vol. IV, p. 77.
30 Id., May 18, 1993, Vol. IV, p. 596.
31 Record, Senate, March 18, 1993, Vol. IV, pp. 106-
112.
32 Journal, February 10 & 11, 1993, Vol. II, p. 1223.
33 Journal, Senate, March 22, 1993, Vol. II, pp. 1574-
1575.
34 Record, Senate, May 11, 1993, Vol. IV, pp. 500-501.
35 Journal, Senate, February 2, 1993, Vol. II, p. 1161.
36 Record House of Representatives, Vol. III,
November 9, 1992, pp. 417-418.
37 Record House of Representatives. Vol. III,
November 9, 1992, pp. 419-420.
38 Record House of Representatives, Vol. V, February
23, 1993, p. 98.
39 People v. Simon, 234 SCRA 555 [1994]; People v.
Timple. 237 SCRA 52 [1994].].
40 251 SCRA 293 [1995].
41 408 US 238, 33 L Ed 2d 346, 92 S Ct 2726.
42 428 US 153 49 L Ed 2d 859, 96 S Ct 2909.
43 428 US 262, 49 L Ed 2d 929, 96 S Ct 2950
44 428 US 242, 49 L Ed 2d 913, 96 S Ct 2960.
45 433 US 584, 53 L Ed 2d 982, 97 S Ct 286.
46 G.R No. 116279, promulgated on January 29, 1996.
47 Donald Atwell Zoll, "A Wistful Goodbye to Capital
Punishment," National Review, December 3, 1971,
pp. 1351-1354.
48 Three members of the Court voted to declare R.A.
7659 unconstitutional insofar as it reimposes the
death penalty. Two of than wrote Separate Opinions,
which are attached as annexes hereto, without
indicating the names of the authors consistent with
the Court's policy that, in death cases, ponentes of
opinions — whether majority or minority-are not to
be indicated.
SEPARATE OPINION
1 It is called "Supplemental" because there was a
(main) Motion for Reconsideration filed by the
previous counsel of the accused, which this Court
already denied.
2 The Anti Death Penalty Task Force of the Free Legal
Assistance Group — Pablito V. Sanidad, Jose Manuel
I. Diokno, Arno V. Sanidad, Efren Moncupa, Eduardo
R. Abaya and Ma. Victoria I. Diokno — filed its Notice
of Appearance dated August 22, 1996 only on August
23, 1996, after the Per CuriamDecision of this Court
was promulgated on June 25, 1996.
3 Atty. Julian R. Vitug, Jr.
4 The bulk of jurisprudence precludes raising an issue
for the first time only on appeal. See, for instance,
Manila Bay Club Corporation vs. Court of Appeals, 249
SCRA 303, October 13, 1995; Manila Bay Club
Corporation vs. Court of Appeals, 245 SCRA 715, July
11, 1995; Securities and Exchange Commission vs.
Court of Appeals, 246 SCRA 738, July 21, 1995.
However, the Court resolved to tackle the question of
constitutionality of Republic Act No. 7659 in this case,
anticipating that the same question would be raised
anyway in many other subsequent instances. The
Court resolved to determine and dispose of the issue
once and for all, at the first opportunity To let the
issue pass unresolved just because it was raised after
the promulgation of the decision affirming conviction
may result in grave injustice.
5 In People vs. Munoz, 170 SCRA 107, February 9,
1989; the Court, prior to the enactment and
effectivity of RA 7659, ruled by a vote of 9-6 (J.
Cruz, ponente, C.J. Fernan, JJ. Gutierrez, Jr., Feliciano,
Gancayco, Padilla, Bidin, Griño-Aquino and
Medialdea, concurring) that the death penalty was
not abolished but: only prohibited from being
imposed But see also the persuasive Dissenting
Opinion of Mme. Justice Ameurfina Melencio-Herrera
(joined by JJ. Narvasa, Paras, Sarmiento, Cortes and
Regalado) who contended that the Constitution
totally abolished the death penalty and removed it
from the statute books. People vs. Munoz reversed
the earlier "abolition" doctrine uniformly held in
People vs. Gavarra, 155 SCRA 327, October 30, 1987,
(per C.J. Yap); People vs. Masangkay, 155 SCRA 113,
October 27, 1987, (per J. Melencio-Herrera) and
People vs. Atencio 156 SCRA 242, December 10, 1987
(per C.J. Narvasa). It is time that these cases are
revisited by this Court.
6 This quote is taken from I Record of the
Constitutional Commission, p. 676 (July 17, 1986) as
follows:
Fr. Bernas:
xxx xxx xxx
"My recollection on this is that there was a division in
the Committee not on whether the death penalty
should be abolished or not, but rather on whether the
abolition should be done by the Constitution in which
case it can not be restored by the legislature or left to
the legislature. The majority voted for the
constitutional abolition of the death penalty. And the
reason is that capital punishment is inhuman for the
convict and his family who are traumatized by the
waiting, even if it is never carried out. There is no
evidence that the death penalty deterred deadly
criminals, hence, life should not be destroyed just in
the hope that other lives might be saved. Assuming
mastery over the life of another man is just too
presumptuous for any man. The fact that the death
penalty as an institution has been there from time
Immemorial should not deter us from reviewing it.
Human life is more valuable than an institution
intended precisely to serve human life. So basically,
this is the summary of the reasons which were
presented in support of the constitutional abolition of
the death penalty. (emphasis supplied)
7 Dissenting Opinion in People vs. Munoz, supra, p.
129.
8 Thus in People vs. Burgos, 144 SCRA 1, September
4, 1986, we held that a statute which allows an
exception to a constitutional right (against
warrantless arrests) should be strictly construed.
9 In his scholarly Memorandum, Fr. Joaquin G.
Bernas, S.J. as amicus curiae in Pople vs. Pedro V.
Malabago (G.R. No. 115686, December 2, 1996),
vigorously argues that RA 7659 has validly restored
the death penalty which may now be imposed
provided that the prosecution proves, and the court
is convinced, that (a) the accused is guilty of a crime
designated by RA 7659 as capital, (b) whose
commission is accompanied by aggravating
circumstances as defined by Arts. 14 and 15 of the
Revised Penal Code, (c) the accompanying
aggravating circumstance must be one which can be
characterized by the court as making the crime
"heinous", and (d) that the execution of the offender
is demanded by "compelling reasons" related to the
offense. In other words, according to him, it is the
courts — not Congress — that have the responsibility
of determining the heinousness of a crime and the
compelling reason for its imposition upon a particular
offender, depending on the facts of each case. I
cannot however subscribe to this view. The
Constitution clearly identifies Congress as the
sovereig nentity which is given the onus of fulfilling
these two constitutional limitations.
10 People vs. Munoz, supra, p. 121.
11 Which became effective on December 31, 1993,
per People vs. Burgos, 234 SCRA 555, 569, July 29,
1994; People vs. Godoy, 250 SCRA 676, December 6,
1995; People vs. Albert, 251 SCRA 136, December 11,
1995.
12 Art. 114 - Treason; Art. 123 - Qualified Piracy; Art.
246 - Parricide; Art. 248 - Murder; Art. 255 -
Infanticide; Art. 267 — Kidnapping and Serious Illegal
Detention; Art. 294 - Robbery with violence against or
intimidation of persons; 1, Art. 320 - Destructive
Arson; Art. 335 - Rape.
13 Art. 211-A on Qualified Bribery.
14 Section 2, RA 7080 - Plunder; Sees. 3,4,5,7,8 and 9
of Article II of RA 6125 - Prohibited Drugs; Secs. 14,
14-A and 15 of Article III of said RA 6425 - Carnapping.
15 A preamble is not an essential part of a statute.
(Agpalo, Statutory Construction, Second Edition 1990;
Martin, Statutory Construction, Sixth Edition, 1984).
The function of the preamble is to supply reasons and
explanation and not to confer power or determine
rights. Hence it cannot be given the effect of enlarging
the scope or effect of a statute. (C. Dallas
Sands, Statutes and Statutory Construction, Fourth
Edition, Volume IA, §20.03).
16 Under Sec. 11, RA 7659, it appears that death is the
mandatory penalty for rape, regardless of the
presence or absence of aggravating or mitigating
circumstances, "(w)hen by reason or on the occasion
of the rape, a homicide is committed," or when it is
"committed with any of the attendant circumstances
enumerated" in said section.
17 While plunder and qualified bribery are "new"
capital offenses, RA 7659 nonetheless fails to justify
why they are considered heinous. In addition, the
specific compelling reasons for the prescribed penalty
of death are not laid out by the statute.
18 In the case of rape, RA 7659 provided certain
attendant circumstances which the prosecution must
prove before courts can impose the extreme penalty.
Just the same however, the law did not explain why
said circumstances would make the crimes heinous.
Neither did it set forth the compelling reasons
therefor.
19 Record of the Senate, First Regular Session,
January 18 to March 11, 1993, Volume III, No. 48,
January 25, 1993, p. 122.
20 I Record of the Constitutional Commission, July 18,
1986, pp. 742-743:
"MR. SUAREZ. The Gentleman advisedly used the
words 'heinous crimes', whatever is the
pronunciation. Will the Gentleman give examples of
'heinous crimes'? For example, would the head of an
organized syndicate in dope distribution or dope
smuggling fall within the qualification of a heinous
offender such as to preclude the application of the
principle of abolition of death penalty?
MR. MONSOD. Yes, Madam President. That is one of
the possible crimes that would qualify for a heinous
crime. Another would be organized murder. In other
words, yesterday there were many arguments for and
against, and they all had merit. But in the
contemporary society, we recognize the sacredness
of human life and — I think it was Honorable Laurel
who said this yesterday — it is only God who gives and
takes life. However, the voice of the people is also the
voice of God, and we cannot presume to have the
wisdom of the ages. Therefore, it is entirely possible
in the future that circumstances may arise which we
should not preclude today. We know that this is very
difficult question. The fact that the arguments
yesterday were quite impassioned and meritorious
merely tell us that this is far from a well-settled issue.
At least in my personal opinion, we would like the
death penalty to be abolished. However, in the future
we should allow the National Assembly, in its wisdom
and as representatives of the people, to still impose
the death penalty for the common good, in specific
cases.
MR. SUAREZ. Thank you.
I would like to pursue some more the Gentleman's
definition of 'heinous crimes.' Would the brutal
murder of a rape victim be considered as falling
within that classification?
MR. MONSOD. Madam President, yes, particularly, if
it is a person in authority. He would, therefore, add as
an aggravating circumstance to the crime the abuse
of his position in authority.
MR.SUAREZ. Thank you
21 Some examples of this may be taken by Congress
from Richmond vs. Lewis, 506 US 40, like "gratuitous
violence" or "needless mutilation" of the victim.
22 Paragraph 3 & 4 of the preamble reads:
"WHEREAS, due to the alarming upsurge of such
crimes which has resulted not only in the loss of
human lives and wanton destruction of property but
has also affected the nation's efforts towards
sustainable economic development and prosperity
while at the same time has undermined the people's
faith in the Government and the latter's ability to
maintain peace and order in the country;
WHEREAS, the Congress, in the interest of justice,
public order and the rule of law, and the need to
rationalize and harmonize the penal sanctions for
heinous crimes, finds compelling masons to impose
the death penalty for said crimes;"
23 Record of the House of Representatives, First
Regular Session, 1992-1993, Volume IV, February 10,
1993, p. 674, emphasis supplied.
24 Record of the House of Representatives, First
Regular Session, 1992-1993, Vol. III, November 10,
1992, p. 448; emphasis supplied.
25 Record of the Senate, First Regular Session,
January 18 to March 11, 1993, Volume III, No. 50,
January 27, 1993, pp. 176-177.
26 See "Sponsorship Remarks" of Rep.
Manuel.Sanchez, Record of the House of
Representatives, November 9, 1992, pp. 40-42.
27 Witness, for instance, this interesting exchange
between Commissioners Joaquin Bernas and
Napoleon Rama (I Record of the Constitutional
Commission, p. 678):
"FR. BERNAS. When some experts appeared before us
and we asked them if there was evidence to show
that the death penalty had deterred the commission
of deadly crimes, none of them was able to say that
there was evidence, conclusive evidence, for that.
MR. RAMA. I am curious. Who are these experts then
— social scientist or penologists or what?
FR. BERNAS. Penologists.
MR. RAMA. Of course, we are aware that there is also
another school of thought here, another set of
experts, who would swear that the death penalty
discourages crimes or criminality. Of course,
Commissioner Bernas knows that never in our history
has there been a higher incidence of crime. I say that
criminality was at its zenith during the last decade.
FR. BERNAS. Correct, in spite of the existence of the
death penalty.
MR. RAMA. Yes, but not necessarily in spite of the
existence of the death penalty. At any rate, does the
sponsor think that in removing the death penalty, it
would not affect, one way or another, the crime rate
of the country?
FR. BERNAS. The position taken by the majority of
those who voted in favor of this provision is that
means other than the death penalty should be used
for the prevention of crime.
28 Cf. Report to the United Nations Committee on
Crime Prosecution and Control, United Nations Social
Affairs Division, Crime Prevention and Criminal Justice
Branch, Vienna, 1988, p. 110.
29 Former Chief Justice Enrique M. Fernando, in his
book The Bill of Rights, (Second Edition, 1972, p. 4)
states: "A regime of constitutionalism is thus
unthinkable without an assurance of the primacy of a
bill of rights. Precisely a constitution exists to assure
that in the discharge of the governmental functions,
the dignity that is the birthright of every human being
is duly safeguarded. . . ." In the context of the role of
a bill of rights the vast powers of government are
clearly to be exercise within the limits set by the
constitution, particularly the bill of rights. In Ermita-
Malate Hotel and Motel Operators vs. City Mayor of
Manila, (L-24693, July 31, 1967), it was held that the
exercise of police power, insofar as it may affect the
life, liberty or property of any person is subject to
judicial inquiry. The guarantee in Sec. 1 of Article III of
the Constitution embraces life, liberty and property.
In the words of Justice Roberto Concepcion in People
vs. Hernandez, (99 Phil. 515, 551-2 [1956]), ". . .
individual freedom is too basic, too transcendental
and vital in a republican state, like ours, to be denied
upon mere general principles and abstract
consideration of public safety. Indeed, the
preservation of liberty is such a major preoccupation
of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph
of section (1) of the Bill of Rights, the framers of our
Constitution devoted paragraphs (3), (4), (5), (6), (7),
(8), (11), (12), (13), (14), (15), (16), (17), (18), and (21)
of said section (1) to the protection of several aspects
of freedom. . . ." These guarantees are preserved in
the 1987 Constitution, according to Fr. Bernas.
30 See, for instance, People vs. Sinatao, 249 SCRA
554, 571, October 25, 1995, and People vs. Pidia, 249
SCRA 687, 702-703, November 10, 1995.
31 Art III, Sec. 1.
32 Art.III, Sec. 11.
33 Art. III, Sec. 12 (2).
34 Art. III, Sec. 12.
35 Art. III, Secs. 15, 16 & 17.
36 For details, see Annex A of the Memorandum for
the Accused-Appellant dated September 26, 1996
filed by the Free Legal Assistance Group in People vs.
Malabago, G.R. No. 115686, December 2, 1996.
37 The FLAG-submitted Profile states that 186 have
been sentenced to death by trial courts since the
effectivity of RA 7659. The Philippine Star issue of
December 9, 1996, page 17, however reports that,
quoting Sen. Ernesto Herrera, the total number of
death row inmates has gone up to 267, as of
November, 1996, of whom more than one half (139)
are rape convicts. Some major dailies (Philippine Daily
Inquirer, Philippine Star, Manila Standard) in their
February 3, 1997 issue up the death row figure to 300,
as of the end of January 1997, with 450 as the
probable number at the end of 1997.
38 The preamble of the Constitution is theistic. It
declares the "sovereign Filipino people's" imploration
of the "aid of Almighty God".
39 Catechism of the Catholic Church, P. 512, Word
and Life Publications:
"2266. Preserving the common good of society
requires rendering the aggressor unable to inflict
harm. For this reason the traditional teaching of the
Church has acknowledged as well-founded the right
and duty of legitimate public authority to punish
malefactors by means of penalties commensurate
with the gravity of the crime, not excluding, in cases
of extreme gravity, the death penalty. For analogous
reasons those holding authority have the right to
repel by armed force aggressors against the
community in their charge.
40 Evangelium Vitae, items no. 55 and 56, states:
"55. This should not cause surprise: to kill a human
being, in whom the image of God is present, is a
particularly serious sin. Only God is the master of life!
Yet from the beginning, faced with the many and
often tragic cases which occur in the life of individuals
and society, Christian reflection has sought fuller and
deeper understanding of what God's commandment
prohibits and prescribes. There are, in fact, situations
in which values proposed by God's Law seem to
involve a genuine paradox. This happens for example
in the case of legitimate defence, in which the right to
protect one's own life and the duty not to harm
someone else's life are difficult to reconcile in
practice. Certainly, the intrinsic value of life and the
duty to love oneself no less than others are the basis
of a true right to self-defence. The demanding
commandment of love of neighbor, set forth in the
Old Testament and confirmed by Jesus, itself
presupposes love of oneself as the basis of
comparison: "You shall love your neighbor as
yourself; (Mk 12:31). Consequently, no one can
renounce the right to self-defence out of lack of love
for life or for self. This can only be done in virtue of a
heroic love which deepens and transfigures the love
of self into a radical self-offering, according to the
spirit of the Gospel Beatitudes (cf. Mt. 5:38-40). The
sublime example of this self-offering is the Lord Jesus
himself.
Moreover, 'legitimate defence can be not only a right
but a grave duty for someone responsible for
another's life, the common good of the family or of
the State.' Unfortunately it happens that the need to
render the aggressor incapable of causing harm
sometimes involves taking his life. In this case, the
fatal outcome is attributable to the aggressor whose
action brought it about, even though he may not be
morally responsible because of a lack of the use of
reason.
56. This is the context in which to place the problem
of the death penalty. On this matter there is a
growing tendency, both in the Church and in civil
society, to demand that it be applied in a very limited
way or even that it be abolished completely. The
problem must be viewed in the context of a system of
penal justice even more in line with human dignity
and thus, in the end with God's plan for man and
society. The primary purpose of the punishment
which society inflicts is "to redress the disorder
caused by the offence." Public authority must redress
the violation of personal and social rights by imposing
on the offender an adequate punishment for the
crime, as a condition for the offender to regain the
exercise of his or her freedom. In this way authority
also fulfills the purpose of defending public order and
ensuring people's safety, while at the same time
offering the offender an incentive and help to change
his or her behavior and be rehabilitated.
Its is clear that, for these purposes to be achieved, the
nature and extent of the punishment must be
carefully evaluated and decided upon, and ought not
go to the extreme of executing the offender except in
cases of absolute necessity: in other words, when it
would not be possible other wise to defend society.
Today however, as a result of steady improvements
in the organization of the penal system, such cases
are very rare, if not practically non-existent.
In any event, the principle set forth in the
new Catechism of the Catholic Church remains valid:
"If bloodless means are sufficient to defend human
lives against an aggressor and to protect public order
and the safety of persons, public authority must limit
itself to such means, because they better correspond
to the concrete conditions of the common good and
are more in conformity to the dignity of the human
person."
EN BANC
6. G.R. No. 180016 April 29,
2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on
Certiorari, under Rule 45 of the Rules of Court,
dated November 5, 2007, of petitioner Lito
Corpuz (petitioner), seeking to reverse and set
aside the Decision1 dated March 22, 2007 and
Resolution2 dated September 5, 2007 of the
Court of Appeals (CA), which affirmed with
modification the Decision3 dated July 30, 2004 of
the Regional Trial Court (RTC), Branch 46, San
Fernando City, finding the petitioner guilty beyond
reasonable doubt of the crime of Estafa under
Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and
petitioner met at the Admiral Royale Casino in
Olongapo City sometime in 1990. Private
complainant was then engaged in the business of
lending money to casino players and, upon
hearing that the former had some pieces of
jewelry for sale, petitioner approached him on
May 2, 1991 at the same casino and offered to
sell the said pieces of jewelry on commission
basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the
following items: an 18k diamond ring for men; a
woman's bracelet; one (1) men's necklace and
another men's bracelet, with an aggregate value
of ₱98,000.00, as evidenced by a receipt of even
date. They both agreed that petitioner shall remit
the proceeds of the sale, and/or, if unsold, to
return the same items, within a period of 60 days.
The period expired without petitioner remitting the
proceeds of the sale or returning the pieces of
jewelry. When private complainant was able to
meet petitioner, the latter promised the former
that he will pay the value of the said items
entrusted to him, but to no avail.
Thus, an Information was filed against petitioner
for the crime of estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991,
in the City of Olongapo, Philippines, and within
the jurisdiction of this Honorable Court, the
above-named accused, after having received
from one Danilo Tangcoy, one (1) men's diamond
ring, 18k, worth ₱45,000.00; one (1) three-baht
men's bracelet, 22k, worth ₱25,000.00; one (1)
two-baht ladies' bracelet, 22k, worth ₱12,000.00,
or in the total amount of Ninety-Eight Thousand
Pesos (₱98,000.00), Philippine currency, under
expressed obligation on the part of said accused
to remit the proceeds of the sale of the said items
or to return the same, if not sold, said accused,
once in possession of the said items, with intent
to defraud, and with unfaithfulness and abuse of
confidence, and far from complying with his
aforestated obligation, did then and there wilfully,
unlawfully and feloniously misappropriate,
misapply and convert to his own personal use
and benefit the aforesaid jewelries (sic) or the
proceeds of the sale thereof, and despite
repeated demands, the accused failed and
refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos
(₱98,000.00), Philippine currency, to the damage
and prejudice of said Danilo Tangcoy in the
aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the
assistance of his counsel, entered a plea of not
guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts,
presented the lone testimony of Danilo Tangcoy.
On the other hand, the defense presented the
lone testimony of petitioner, which can be
summarized, as follows:
Petitioner and private complainant were
collecting agents of Antonio Balajadia, who is
engaged in the financing business of extending
loans to Base employees. For every collection
made, they earn a commission. Petitioner denied
having transacted any business with private
complainant.
However, he admitted obtaining a loan from
Balajadia sometime in 1989 for which he was
made to sign a blank receipt. He claimed that the
same receipt was then dated May 2, 1991 and
used as evidence against him for the supposed
agreement to sell the subject pieces of jewelry,
which he did not even see.
After trial, the RTC found petitioner guilty beyond
reasonable doubt of the crime charged in the
Information. The dispositive portion of the
decision states:
WHEREFORE, finding accused LITO CORPUZ
GUILTY beyond reasonable doubt of the felony
of Estafa under Article 315, paragraph one (1),
subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor
ordinary mitigating circumstance/s to vary the
penalty imposable;
accordingly, the accused is hereby sentenced to
suffer the penalty of deprivation of liberty
consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4)
YEARS AND TWO (2) MONTHS of Prision
Correccional in its medium period AS MINIMUM,
to FOURTEEN (14) YEARS AND EIGHT (8)
MONTHS of Reclusion Temporal in its minimum
period AS MAXIMUM; to indemnify private
complainant Danilo Tangcoy the amount of
₱98,000.00 as actual damages, and to pay the
costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the
latter denied the appeal of petitioner and affirmed
the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED.
The assailed Judgment dated July 30, 2004 of the
RTC of San Fernando City (P), Branch 46, is
hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-
appellant shall suffer the indeterminate penalty of
4 years and 2 months of prision correccional, as
minimum, to 8 years of prision mayor, as
maximum, plus 1 year for each additional
₱10,000.00, or a total of 7 years. The rest of the
decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for
reconsideration, filed with this Court the present
petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS
ERRED IN CONFIRMING THE ADMISSION
AND APPRECIATION BY THE LOWER COURT
OF PROSECUTION EVIDENCE, INCLUDING
ITS EXHIBITS, WHICH ARE MERE MACHINE
COPIES, AS THIS VIOLATES THE BEST
EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS
ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT THE CRIMINAL INFORMATION
FOR ESTAFA WAS NOT FATALLY DEFECTIVE
ALTHOUGH THE SAME DID NOT CHARGE
THE OFFENSE UNDER ARTICLE 315 (1) (B) OF
THE REVISED PENAL CODE IN THAT -
1. THE INFORMATION DID
NOT FIX A PERIOD WITHIN
WHICH THE SUBJECT
[PIECES OF] JEWELRY
SHOULD BE RETURNED, IF
UNSOLD, OR THE MONEY TO
BE REMITTED, IF SOLD;
 2. THE DATE OF THE
OCCURRENCE OF THE
CRIME ALLEGED IN THE
INFORMATION AS OF 05 JULY
1991 WAS MATERIALLY
DIFFERENT FROM THE ONE
TESTIFIED TO BY THE
PRIVATE COMPLAINANT
WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS
ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT DEMAND TO RETURN THE
SUBJECT [PIECES OF] JEWELRY, IF UNSOLD,
OR REMIT THE PROCEEDS, IF SOLD – AN
ELEMENT OF THE OFFENSE – WAS PROVED;
D. THE HONORABLE COURT OF APPEALS
ERRED IN AFFIRMING THE LOWER COURT'S
FINDING THAT THE PROSECUTION'S CASE
WAS PROVEN BEYOND REASONABLE
DOUBT ALTHOUGH -
1. THE PRIVATE
COMPLAINANT TESTIFIED ON
TWO (2) VERSIONS OF THE
INCIDENT;
2. THE VERSION OF THE
PETITIONER – ACCUSED IS
MORE STRAIGHTFORWARD
AND LOGICAL, CONSISTENT
WITH HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS
NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4. PENAL STATUTES ARE
STRICTLY CONSTRUED
AGAINST THE STATE.
In its Comment dated May 5, 2008, the Office of
the Solicitor General (OSG) stated the following
counter-arguments:
The exhibits were properly admitted inasmuch as
petitioner failed to object to their admissibility.
The information was not defective inasmuch as it
sufficiently established the designation of the
offense and the acts complained of.
The prosecution sufficiently established all the
elements of the crime charged.
This Court finds the present petition devoid of any
merit.
The factual findings of the appellate court
generally are conclusive, and carry even more
weight when said court affirms the findings of the
trial court, absent any showing that the findings
are totally devoid of support in the records, or that
they are so glaringly erroneous as to constitute
grave abuse of discretion.4 Petitioner is of the
opinion that the CA erred in affirming the factual
findings of the trial court. He now comes to this
Court raising both procedural and substantive
issues.
According to petitioner, the CA erred in affirming
the ruling of the trial court, admitting in evidence
a receipt dated May 2, 1991 marked as Exhibit
"A" and its submarkings, although the same was
merely a photocopy, thus, violating the best
evidence rule. However, the records show that
petitioner never objected to the admissibility of
the said evidence at the time it was identified,
marked and testified upon in court by private
complainant. The CA also correctly pointed out
that petitioner also failed to raise an objection in
his Comment to the prosecution's formal offer of
evidence and even admitted having signed the
said receipt. The established doctrine is that
when a party failed to interpose a timely objection
to evidence at the time they were offered in
evidence, such objection shall be considered as
waived.5
Another procedural issue raised is, as claimed by
petitioner, the formally defective Information filed
against him. He contends that the Information
does not contain the period when the pieces of
jewelry were supposed to be returned and that
the date when the crime occurred was different
from the one testified to by private complainant.
This argument is untenable. The CA did not err in
finding that the Information was substantially
complete and in reiterating that objections as to
the matters of form and substance in the
Information cannot be made for the first time on
appeal. It is true that the gravamen of the crime
of estafa under Article 315, paragraph 1,
subparagraph (b) of the RPC is the appropriation
or conversion of money or property received to
the prejudice of the owner6 and that the time of
occurrence is not a material ingredient of the
crime, hence, the exclusion of the period and the
wrong date of the occurrence of the crime, as
reflected in the Information, do not make the latter
fatally defective. The CA ruled:
x x x An information is legally viable as long as it
distinctly states the statutory designation of the
offense and the acts or omissions constitutive
thereof. Then Section 6, Rule 110 of the Rules of
Court provides that a complaint or information is
sufficient if it states the name of the accused;
the designation of the offense by the statute; the
acts or omissions complained of as constituting
the offense; the name of the offended party; the
approximate time of the commission of the
offense, and the place wherein the offense was
committed. In the case at bar, a reading of the
subject Information shows compliance with the
foregoing rule. That the time of the commission of
the offense was stated as " on or about the fifth
(5th) day of July, 1991" is not likewise fatal to the
prosecution's cause considering that Section 11
of the same Rule requires a statement of the
precise time only when the same is a material
ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b)
of the Revised Penal Code (RPC) is the
appropriation or conversion of money or property
received to the prejudice of the offender. Thus,
aside from the fact that the date of the
commission thereof is not an essential element of
the crime herein charged, the failure of the
prosecution to specify the exact date does not
render the Information ipso facto defective.
Moreover, the said date is also near the due date
within which accused-appellant should have
delivered the proceeds or returned the said
[pieces of jewelry] as testified upon by Tangkoy,
hence, there was sufficient compliance with the
rules. Accused-appellant, therefore, cannot now
be allowed to claim that he was not properly
apprised of the charges proferred against him.7
It must be remembered that petitioner was
convicted of the crime of Estafa under Article 315,
paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who
shall defraud another by any of the means
mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence,
namely:
xxxx
(b) By misappropriating or converting, to the
prejudice of another, money, goods, or any other
personal property received by the offender in trust
or on commission, or for administration, or under
any other obligation involving the duty to make
delivery of or to return the same, even though
such obligation be totally or partially guaranteed
by a bond; or by denying having received such
money, goods, or other property; x x x
The elements of estafa with abuse of confidence
are as follows: (a) that money, goods or other
personal property is received by the offender in
trust, or on commission, or for administration, or
under any other obligation involving the duty to
make delivery of, or to return the same; (b) that
there be misappropriation or conversion of such
money or property by the offender or denial on his
part of such receipt; (c) that such
misappropriation or conversion or denial is to the
prejudice of another; and (d) that there is a
demand made by the offended party on the
offender.8
Petitioner argues that the last element, which is,
that there is a demand by the offended party on
the offender, was not proved. This Court
disagrees. In his testimony, private complainant
narrated how he was able to locate petitioner
after almost two (2) months from the time he gave
the pieces of jewelry and asked petitioner about
the same items with the latter promising to pay
them. Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May
1991, and this transaction could have been
finished on 5 July 1991, the question is what
happens (sic) when the deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his
obligation and I asked him where the items are
and he promised me that he will pay these
amount, sir.
q Up to this time that you were here, were you
able to collect from him partially or full?
a No, sir.9
No specific type of proof is required to show that
there was demand.10 Demand need not even be
formal; it may be verbal.11 The specific word
"demand" need not even be used to show that it
has indeed been made upon the person charged,
since even a mere query as to the whereabouts
of the money [in this case, property], would be
tantamount to a demand.12 As expounded in
Asejo v. People:13
With regard to the necessity of demand, we agree
with the CA that demand under this kind of estafa
need not be formal or written. The appellate court
observed that the law is silent with regard to the
form of demand in estafa under Art. 315 1(b),
thus:
When the law does not qualify, We should not
qualify. Should a written demand be necessary,
the law would have stated so. Otherwise, the
word "demand" should be interpreted in its
general meaning as to include both written and
oral demand. Thus, the failure of the prosecution
to present a written demand as evidence is not
fatal.
In Tubb v. People, where the complainant merely
verbally inquired about the money entrusted to
the accused, we held that the query was
tantamount to a demand, thus:
x x x [T]he law does not require a demand as a
condition precedent to the existence of the crime
of embezzlement. It so happens only that failure
to account, upon demand for funds or property
held in trust, is circumstantial evidence of
misappropriation. The same way, however, be
established by other proof, such as that
introduced in the case at bar.14
In view of the foregoing and based on the
records, the prosecution was able to prove the
existence of all the elements of the crime. Private
complainant gave petitioner the pieces of jewelry
in trust, or on commission basis, as shown in the
receipt dated May 2, 1991 with an obligation to
sell or return the same within sixty (60) days, if
unsold. There was misappropriation when
petitioner failed to remit the proceeds of those
pieces of jewelry sold, or if no sale took place,
failed to return the same pieces of jewelry within
or after the agreed period despite demand from
the private complainant, to the prejudice of the
latter.
Anent the credibility of the prosecution's sole
witness, which is questioned by petitioner, the
same is unmeritorious. Settled is the rule that in
assessing the credibility of witnesses, this Court
gives great respect to the evaluation of the trial
court for it had the unique opportunity to observe
the demeanor of witnesses and their deportment
on the witness stand, an opportunity denied the
appellate courts, which merely rely on the records
of the case.15 The assessment by the trial court is
even conclusive and binding if not tainted with
arbitrariness or oversight of some fact or
circumstance of weight and influence, especially
when such finding is affirmed by the CA.16 Truth
is established not by the number of witnesses, but
by the quality of their testimonies, for in
determining the value and credibility of evidence,
the witnesses are to be weighed not numbered.17
As regards the penalty, while this Court's Third
Division was deliberating on this case, the
question of the continued validity of imposing on
persons convicted of crimes involving property
came up. The legislature apparently pegged
these penalties to the value of the money and
property in 1930 when it enacted the Revised
Penal Code. Since the members of the division
reached no unanimity on this question and since
the issues are of first impression, they decided to
refer the case to the Court en banc for
consideration and resolution. Thus, several amici
curiae were invited at the behest of the Court to
give their academic opinions on the matter.
Among those that graciously complied were Dean
Jose Manuel Diokno, Dean Sedfrey M.
Candelaria, Professor Alfredo F. Tadiar, the
Senate President, and the Speaker of the House
of Representatives. The parties were later heard
on oral arguments before the Court en banc, with
Atty. Mario L. Bautista appearing as counsel de
oficio of the petitioner.
After a thorough consideration of the arguments
presented on the matter, this Court finds the
following:
There seems to be a perceived injustice brought
about by the range of penalties that the courts
continue to impose on crimes against property
committed today, based on the amount of
damage measured by the value of money eighty
years ago in 1932. However, this Court cannot
modify the said range of penalties because that
would constitute judicial legislation. What the
legislature's perceived failure in amending the
penalties provided for in the said crimes cannot
be remedied through this Court's decisions, as
that would be encroaching upon the power of
another branch of the government. This,
however, does not render the whole situation
without any remedy. It can be appropriately
presumed that the framers of the Revised Penal
Code (RPC) had anticipated this matter by
including Article 5, which reads:
ART. 5. Duty of the court in connection with acts
which should be repressed but which are not
covered by the law, and in cases of excessive
penalties. - Whenever a court has knowledge of
any act which it may deem proper to repress and
which is not punishable by law, it shall render the
proper decision, and shall report to the Chief
Executive, through the Department of Justice, the
reasons which induce the court to believe that
said act should be made the subject of penal
legislation.
In the same way, the court shall submit to the
Chief Executive, through the Department of
Justice, such statement as may be deemed
proper, without suspending the execution of the
sentence, when a strict enforcement of the
provisions of this Code would result in the
imposition of a clearly excessive penalty, taking
into consideration the degree of malice and the
injury caused by the offense.18
The first paragraph of the above provision clearly
states that for acts bourne out of a case which is
not punishable by law and the court finds it proper
to repress, the remedy is to render the proper
decision and thereafter, report to the Chief
Executive, through the Department of Justice, the
reasons why the same act should be the subject
of penal legislation. The premise here is that a
deplorable act is present but is not the subject of
any penal legislation, thus, the court is tasked to
inform the Chief Executive of the need to make
that act punishable by law through legislation.
The second paragraph is similar to the first except
for the situation wherein the act is already
punishable by law but the corresponding penalty
is deemed by the court as excessive. The remedy
therefore, as in the first paragraph is not to
suspend the execution of the sentence but to
submit to the Chief Executive the reasons why
the court considers the said penalty to be non-
commensurate with the act committed. Again, the
court is tasked to inform the Chief Executive, this
time, of the need for a legislation to provide the
proper penalty.
In his book, Commentaries on the Revised Penal
Code,19 Guillermo B. Guevara opined that in
Article 5, the duty of the court is merely to report
to the Chief Executive, with a recommendation for
an amendment or modification of the legal
provisions which it believes to be harsh. Thus:
This provision is based under the legal maxim
"nullum crimen, nulla poena sige lege," that is,
that there can exist no punishable act except
those previously and specifically provided for by
penal statute.
No matter how reprehensible an act is, if the law-
making body does not deem it necessary to
prohibit its perpetration with penal sanction, the
Court of justice will be entirely powerless to
punish such act.
Under the provisions of this article the Court
cannot suspend the execution of a sentence on
the ground that the strict enforcement of the
provisions of this Code would cause excessive or
harsh penalty. All that the Court could do in such
eventuality is to report the matter to the Chief
Executive with a recommendation for an
amendment or modification of the legal provisions
which it believes to be harsh.20
Anent the non-suspension of the execution of the
sentence, retired Chief Justice Ramon C. Aquino
and retired Associate Justice Carolina C. Griño-
Aquino, in their book, The Revised Penal
Code,21 echoed the above-cited commentary,
thus:
The second paragraph of Art. 5 is an application
of the humanitarian principle that justice must be
tempered with mercy. Generally, the courts have
nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the
penalties prescribed by law upon conviction of
violations of particular statutes are too severe or
are not severe enough, are questions as to which
commentators on the law may fairly differ; but it is
the duty of the courts to enforce the will of the
legislator in all cases unless it clearly appears
that a given penalty falls within the prohibited
class of excessive fines or cruel and unusual
punishment." A petition for clemency should be
addressed to the Chief Executive.22
There is an opinion that the penalties provided for
in crimes against property be based on the
current inflation rate or at the ratio of ₱1.00 is
equal to ₱100.00 . However, it would be
dangerous as this would result in uncertainties,
as opposed to the definite imposition of the
penalties. It must be remembered that the
economy fluctuates and if the proposed
imposition of the penalties in crimes against
property be adopted, the penalties will not cease
to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC
intended that to be so, it should have provided the
same, instead, it included the earlier cited Article
5 as a remedy. It is also improper to presume why
the present legislature has not made any moves
to amend the subject penalties in order to
conform with the present times. For all we know,
the legislature intends to retain the same
penalties in order to deter the further commission
of those punishable acts which have increased
tremendously through the years. In fact, in recent
moves of the legislature, it is apparent that it aims
to broaden the coverage of those who violate
penal laws. In the crime of Plunder, from its
original minimum amount of ₱100,000,000.00
plundered, the legislature lowered it to
₱50,000,000.00. In the same way, the legislature
lowered the threshold amount upon which the
Anti-Money Laundering Act may apply, from
₱1,000,000.00 to ₱500,000.00.
It is also worth noting that in the crimes of Theft
and Estafa, the present penalties do not seem to
be excessive compared to the proposed
imposition of their corresponding penalties. In
Theft, the provisions state that:
Art. 309. Penalties. — Any person guilty of theft
shall be punished by:
1. The penalty of prision mayor in its
minimum and medium periods, if the
value of the thing stolen is more than
12,000 pesos but does not exceed
22,000 pesos, but if the value of the thing
stolen exceeds the latter amount the
penalty shall be the maximum period of
the one prescribed in this paragraph, and
one year for each additional ten thousand
pesos, but the total of the penalty which
may be imposed shall not exceed twenty
years. In such cases, and in connection
with the accessory penalties which may
be imposed and for the purpose of the
other provisions of this Code, the penalty
shall be termed prision mayor or
reclusion temporal, as the case may be.
2. The penalty of prision correccional in
its medium and maximum periods, if the
value of the thing stolen is more than
6,000 pesos but does not exceed 12,000
pesos.
3. The penalty of prision correccional in
its minimum and medium periods, if the
value of the property stolen is more than
200 pesos but does not exceed 6,000
pesos.
 4. Arresto mayor in its medium period to
prision correccional in its minimum
period, if the value of the property stolen
is over 50 pesos but does not exceed 200
pesos.
5. Arresto mayor to its full extent, if such
value is over 5 pesos but does not
exceed 50 pesos.
6. Arresto mayor in its minimum and
medium periods, if such value does not
exceed 5 pesos.
7. Arresto menor or a fine not exceeding
200 pesos, if the theft is committed under
the circumstances enumerated in
paragraph 3 of the next preceding article
and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds
said amount, the provision of any of the
five preceding subdivisions shall be
made applicable.
8. Arresto menor in its minimum period or
a fine not exceeding 50 pesos, when the
value of the thing stolen is not over 5
pesos, and the offender shall have acted
under the impulse of hunger, poverty, or
the difficulty of earning a livelihood for the
support of himself or his family.
In a case wherein the value of the thing stolen is
₱6,000.00, the above-provision states that the
penalty is prision correccional in its minimum and
medium periods (6 months and 1 day to 4 years
and 2 months). Applying the proposal, if the value
of the thing stolen is ₱6,000.00, the penalty is
imprisonment of arresto mayor in its medium
period to prision correccional minimum period (2
months and 1 day to 2 years and 4 months). It
would seem that under the present law, the
penalty imposed is almost the same as the
penalty proposed. In fact, after the application of
the Indeterminate Sentence Law under the
existing law, the minimum penalty is still lowered
by one degree; hence, the minimum penalty is
arresto mayor in its medium period to maximum
period (2 months and 1 day to 6 months), making
the offender qualified for pardon or parole after
serving the said minimum period and may even
apply for probation. Moreover, under the
proposal, the minimum penalty after applying the
Indeterminate Sentence Law is arresto menor in
its maximum period to arresto mayor in its
minimum period (21 days to 2 months) is not too
far from the minimum period under the existing
law. Thus, it would seem that the present penalty
imposed under the law is not at all excessive. The
same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as
suggested to the value of the thing stolen in the
crime of Theft and the damage caused in the
crime of Estafa, the gap between the minimum
and the maximum amounts, which is the basis of
determining the proper penalty to be imposed,
would be too wide and the penalty imposable
would no longer be commensurate to the act
committed and the value of the thing stolen or the
damage caused:
I. Article 309, or the penalties for the crime of
Theft, the value would be modified but the
penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become
₱1,200,000.00 to ₱2,200,000.00,
punished by prision mayor minimum to
prision mayor medium (6 years and 1 day
to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become
₱600,000.00 to ₱1,200,000.00, punished
by prision correccional medium and to
prision correccional maximum (2 years, 4
months and 1 day to 6 years).24
3. ₱200.00 to ₱6,000.00 will become
₱20,000.00 to ₱600,000.00, punishable
by prision correccional minimum to
prision correccional medium (6 months
and 1 day to 4 years and 2 months).
4. ₱50.00 to ₱200.00 will become
₱5,000.00 to ₱20,000.00, punishable by
arresto mayor medium to prision
correccional minimum (2 months and 1
day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00
to ₱5,000.00, punishable by arresto
mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00,
punishable by arresto mayor minimum to
arresto mayor medium.
x x x x.
II. Article 315, or the penalties for the crime of
Estafa, the value would also be modified but the
penalties are not changed, as follows:
1st. ₱12,000.00 to ₱22,000.00, will
become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision
correccional maximum to prision mayor
minimum (4 years, 2 months and 1 day to
8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will
become ₱600,000.00 to ₱1,200,000.00,
punishable by prision correccional
minimum to prision correccional medium
(6 months and 1 day to 4 years and 2
months).26
3rd. ₱200.00 to ₱6,000.00 will become
₱20,000.00 to ₱600,000.00, punishable
by arresto mayor maximum to prision
correccional minimum (4 months and 1
day to 2 years and 4 months).
4th. ₱200.00 will become ₱20,000.00,
punishable by arresto mayor maximum
(4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I.
Diokno, one of our esteemed amici curiae, is that
the incremental penalty provided under Article
315 of the RPC violates the Equal Protection
Clause.
The equal protection clause requires equality
among equals, which is determined according to
a valid classification. The test developed by
jurisprudence here and yonder is that of
reasonableness,27 which has four requisites:
(1) The classification rests on substantial
distinctions;
(2) It is germane to the purposes of the
law;
(3) It is not limited to existing conditions
only; and
(4) It applies equally to all members of
the same class.28
According to Dean Diokno, the Incremental
Penalty Rule (IPR) does not rest on substantial
distinctions as ₱10,000.00 may have been
substantial in the past, but it is not so today, which
violates the first requisite; the IPR was devised so
that those who commit estafa involving higher
amounts would receive heavier penalties;
however, this is no longer achieved, because a
person who steals ₱142,000.00 would receive
the same penalty as someone who steals
hundreds of millions, which violates the second
requisite; and, the IPR violates requisite no. 3,
considering that the IPR is limited to existing
conditions at the time the law was promulgated,
conditions that no longer exist today.
Assuming that the Court submits to the argument
of Dean Diokno and declares the incremental
penalty in Article 315 unconstitutional for violating
the equal protection clause, what then is the
penalty that should be applied in case the amount
of the thing subject matter of the crime exceeds
₱22,000.00? It seems that the proposition poses
more questions than answers, which leads us
even more to conclude that the appropriate
remedy is to refer these matters to Congress for
them to exercise their inherent power to legislate
laws.
Even Dean Diokno was of the opinion that if the
Court declares the IPR unconstitutional, the
remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the
incremental penalty should be struck down as
unconstitutional because it is absurd.
DEAN DIOKNO:
Absurd, it violates equal protection, Your Honor,
and cruel and unusual punishment.
JUSTICE PERALTA:
Then what will be the penalty that we are going to
impose if the amount is more than Twenty-Two
Thousand (₱22,000.00) Pesos.
DEAN DIOKNO:
Well, that would be for Congress to ... if this Court No, Your Honor.
will declare the incremental penalty rule
unconstitutional, then that would ... the void JUSTICE PERALTA:
should be filled by Congress.
... as the equivalent of one, as an incremental
JUSTICE PERALTA: penalty in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.
But in your presentation, you were fixing the
amount at One Hundred Thousand DEAN DIOKNO:
(₱100,000.00) Pesos ...
No, Your Honor.
DEAN DIOKNO:
JUSTICE PERALTA:
Well, my presen ... (interrupted)
The Court cannot do that.
JUSTICE PERALTA:
DEAN DIOKNO:
For every One Hundred Thousand (₱100,000.00)
Pesos in excess of Twenty-Two Thousand
Could not be.
(₱22,000.00) Pesos you were suggesting an
additional penalty of one (1) year, did I get you
right? JUSTICE PERALTA:

DEAN DIOKNO: The only remedy is to go to Congress...

Yes, Your Honor, that is, if the court will take the DEAN DIOKNO:
route of statutory interpretation.
Yes, Your Honor.
JUSTICE PERALTA:
JUSTICE PERALTA:
Ah ...
... and determine the value or the amount.
DEAN DIOKNO:
DEAN DIOKNO:
If the Court will say that they can go beyond the
literal wording of the law... Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

But if we de ... (interrupted) That will be equivalent to the incremental penalty

of one (1) year in excess of Twenty-Two
DEAN DIOKNO: Thousand (₱22,000.00) Pesos.

....then.... DEAN DIOKNO:

JUSTICE PERALTA: Yes, Your Honor.

Ah, yeah. But if we declare the incremental JUSTICE PERALTA:

penalty as unsconstitutional, the court cannot fix
the amount ... The amount in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.
DEAN DIOKNO:
Thank you, Dean.
DEAN DIOKNO:
Thank you.
xxx x29
Dean Diokno also contends that Article 315 of the
Revised Penal Code constitutes cruel and
unusual punishment. Citing Solem v.
Helm,30 Dean Diokno avers that the United States
Federal Supreme Court has expanded the
application of a similar Constitutional provision
prohibiting cruel and unusual punishment, to the
duration of the penalty, and not just its form. The
court therein ruled that three things must be done
to decide whether a sentence is proportional to a
specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the
penalty; (2) Compare the sentences imposed on
other criminals in the same jurisdiction, i.e.,
whether more serious crimes are subject to the
same penalty or to less serious penalties; and (3)
Compare the sentences imposed for commission
of the same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be
applied in the present case, because in Solem
what respondent therein deemed cruel was the
penalty imposed by the state court of South
Dakota after it took into account the latter’s
recidivist statute and not the original penalty for
uttering a "no account" check. Normally, the
maximum punishment for the crime would have
been five years imprisonment and a $5,000.00
fine. Nonetheless, respondent was sentenced to
life imprisonment without the possibility of parole
under South Dakota’s recidivist statute because
of his six prior felony convictions. Surely, the
factual antecedents of Solem are different from
the present controversy.
With respect to the crime of Qualified Theft,
however, it is true that the imposable penalty for
the offense is high. Nevertheless, the rationale for
the imposition of a higher penalty against a
domestic servant is the fact that in the
commission of the crime, the helper will
essentially gravely abuse the trust and
confidence reposed upon her by her employer.
After accepting and allowing the helper to be a
member of the household, thus entrusting upon
such person the protection and safekeeping of
the employer’s loved ones and properties, a
subsequent betrayal of that trust is so repulsive
as to warrant the necessity of imposing a higher
penalty to deter the commission of such wrongful
acts.
There are other crimes where the penalty of fine
and/or imprisonment are dependent on the
subject matter of the crime and which, by
adopting the proposal, may create serious
implications. For example, in the crime of
Malversation, the penalty imposed depends on
the amount of the money malversed by the public
official, thus:
Art. 217. Malversation of public funds or property;
Presumption of malversation. — Any public
officer who, by reason of the duties of his office,
is accountable for public funds or property, shall
appropriate the same or shall take or
misappropriate or shall consent, through
abandonment or negligence, shall permit any
other person to take such public funds, or
property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of
such funds or property, shall suffer:
1. The penalty of prision correccional in
its medium and maximum periods, if the
amount involved in the misappropriation
or malversation does not exceed two
hundred pesos.
2. The penalty of prision mayor in its
minimum and medium periods, if the
amount involved is more than two
hundred pesos but does not exceed six
thousand pesos.
3. The penalty of prision mayor in its
maximum period to reclusion temporal in
its minimum period, if the amount
involved is more than six thousand pesos
but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in
its medium and maximum periods, if the
amount involved is more than twelve
thousand pesos but is less than twenty-
two thousand pesos. If the amount
exceeds the latter, the penalty shall be
reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall
also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of
the funds malversed or equal to the total value of
the property embezzled.
The failure of a public officer to have duly
forthcoming any public funds or property with
which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie
evidence that he has put such missing funds or
property to personal use.
The above-provisions contemplate a situation
wherein the Government loses money due to the
unlawful acts of the offender. Thus, following the
proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now
becomes ₱20,000.00 and the penalty is prision
correccional in its medium and maximum periods
(2 years 4 months and 1 day to 6 years). The
penalty may not be commensurate to the act of
embezzlement of ₱20,000.00 compared to the
acts committed by public officials punishable by a
special law, i.e., Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act, specifically
Section 3,31 wherein the injury caused to the
government is not generally defined by any
monetary amount, the penalty (6 years and 1
month to 15 years)32 under the Anti-Graft Law will
now become higher. This should not be the case,
because in the crime of malversation, the public
official takes advantage of his public position to
embezzle the fund or property of the government
entrusted to him.
The said inequity is also apparent in the crime of
Robbery with force upon things (inhabited or
uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are
the bases of the penalty imposable, and also, in
Malicious Mischief, where the penalty of
imprisonment or fine is dependent on the cost of
the damage caused.
In Robbery with force upon things (inhabited or
uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia,
the sole basis of the penalty will now be the value
of the thing unlawfully taken and no longer the
element of force employed in entering the
premises. It may likewise cause an inequity
between the crime of Qualified Trespass to
Dwelling under Article 280, and this kind of
robbery because the former is punishable by
prision correccional in its medium and maximum
periods (2 years, 4 months and 1 day to 6 years)
and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where
entrance to the premises is with violence or
intimidation, which is the main justification of the
penalty. Whereas in the crime of Robbery with
force upon things, it is punished with a penalty of
prision mayor (6 years and 1 day to 12 years) if
the intruder is unarmed without the penalty of
Fine despite the fact that it is not merely the illegal
entry that is the basis of the penalty but likewise
the unlawful taking.
Furthermore, in the crime of Other Mischiefs
under Article 329, the highest penalty that can be
imposed is arresto mayor in its medium and
maximum periods (2 months and 1 day to 6
months) if the value of the damage caused
exceeds ₱1,000.00, but under the proposal, the
value of the damage will now become
₱100,000.00 (1:100), and still punishable by
arresto mayor (1 month and 1 day to 6 months).
And, if the value of the damaged property does
not exceed ₱200.00, the penalty is arresto menor
or a fine of not less than the value of the damage
caused and not more than ₱200.00, if the amount
involved does not exceed ₱200.00 or cannot be
estimated. Under the proposal, ₱200.00 will now
become ₱20,000.00, which simply means that
the fine of ₱200.00 under the existing law will now
become ₱20,000.00. The amount of Fine under
this situation will now become excessive and
afflictive in nature despite the fact that the offense
is categorized as a light felony penalized with a
light penalty under Article 26 of the
RPC.33 Unless we also amend Article 26 of the
RPC, there will be grave implications on the
penalty of Fine, but changing the same through
Court decision, either expressly or impliedly, may
not be legally and constitutionally feasible.
There are other crimes against property and
swindling in the RPC that may also be affected by
the proposal, such as those that impose
imprisonment and/or Fine as a penalty based on
the value of the damage caused, to wit: Article
311 (Theft of the property of the National Library
and National Museum), Article 312 (Occupation
of real property or usurpation of real rights in
property), Article 313 (Altering boundaries or
landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article
318 (Other deceits), Article 328 (Special cases of
malicious mischief) and Article 331 (Destroying or
damaging statues, public monuments or
paintings). Other crimes that impose Fine as a
penalty will also be affected, such as: Article 213
(Frauds against the public treasury and similar
offenses), Article 215 (Prohibited Transactions),
Article 216 (Possession of prohibited interest by
a public officer), Article 218 (Failure of
accountable officer to render accounts), Article
219 (Failure of a responsible public officer to
render accounts before leaving the country).
In addition, the proposal will not only affect crimes
under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal
Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34The law treats
cutting, gathering, collecting and possessing
timber or other forest products without license as
an offense as grave as and equivalent to the
felony of qualified theft.35 Under the law, the
offender shall be punished with the penalties
imposed under Articles 309 and 31036 of the
Revised Penal Code, which means that the
penalty imposable for the offense is, again, based
on the value of the timber or forest products
involved in the offense. Now, if we accept the said
proposal in the crime of Theft, will this particular
crime of Illegal Logging be amended also in so far
as the penalty is concerned because the penalty
is dependent on Articles 309 and 310 of the
RPC? The answer is in the negative because the
soundness of this particular law is not in question.
With the numerous crimes defined and penalized
under the Revised Penal Code and Special Laws,
and other related provisions of these laws
affected by the proposal, a thorough study is
needed to determine its effectivity and necessity.
There may be some provisions of the law that
should be amended; nevertheless, this Court is in
no position to conclude as to the intentions of the
framers of the Revised Penal Code by merely
making a study of the applicability of the penalties
imposable in the present times. Such is not within
the competence of the Court but of the
Legislature which is empowered to conduct public
hearings on the matter, consult legal luminaries
and who, after due proceedings, can decide
whether or not to amend or to revise the
questioned law or other laws, or even create a
new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an
urgent need to amend the Revised Penal Code.
During the oral arguments, counsel for the
Senate informed the Court that at present, fifty-
six (56) bills are now pending in the Senate
seeking to amend the Revised Penal
Code,37 each one proposing much needed
change and updates to archaic laws that were
promulgated decades ago when the political,
socio-economic, and cultural settings were far
different from today’s conditions.
Verily, the primordial duty of the Court is merely
to apply the law in such a way that it shall not
usurp legislative powers by judicial legislation and
that in the course of such application or
construction, it should not make or supervise
legislation, or under the guise of interpretation,
modify, revise, amend, distort, remodel, or rewrite
the law, or give the law a construction which is
repugnant to its terms.38 The Court should apply
the law in a manner that would give effect to their
letter and spirit, especially when the law is clear
as to its intent and purpose. Succinctly put, the
Court should shy away from encroaching upon
the primary function of a co-equal branch of the
Government; otherwise, this would lead to an
inexcusable breach of the doctrine of separation
of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is,
technically, not a penalty or a Fine; hence, it can
be increased by the Court when appropriate.
Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death
caused by a crime or quasi-delict shall be at least
three thousand pesos, even though there may
have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the
loss of the earning capacity of the
deceased, and the indemnity shall be
paid to the heirs of the latter; such
indemnity shall in every case be
assessed and awarded by the court,
unless the deceased on account of
permanent physical disability not caused
by the defendant, had no earning
capacity at the time of his death;
(2) If the deceased was obliged to give
support according to the provisions of
Article 291, the recipient who is not an
heir called to the decedent's inheritance
by the law of testate or intestate
succession, may demand support from
 the person causing the death, for a
period not exceeding five years, the
exact duration to be fixed by the court;
(3) The spouse, legitimate and
illegitimate descendants and ascendants
of the deceased may demand moral
damages for mental anguish by reason of
the death of the deceased.
In our jurisdiction, civil indemnity is awarded to
the offended party as a kind of monetary
restitution or compensation to the victim for the
damage or infraction that was done to the latter
by the accused, which in a sense only covers the
civil aspect. Precisely, it is civil indemnity. Thus,
in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender,
the accused is also ordered to pay the victim a
sum of money as restitution. Clearly, this award
of civil indemnity due to the death of the victim
could not be contemplated as akin to the value of
a thing that is unlawfully taken which is the basis
in the imposition of the proper penalty in certain
crimes. Thus, the reasoning in increasing the
value of civil indemnity awarded in some offense
cannot be the same reasoning that would sustain
the adoption of the suggested ratio. Also, it is
apparent from Article 2206 that the law only
imposes a minimum amount for awards of civil
indemnity, which is ₱3,000.00. The law did not
provide for a ceiling. Thus, although the minimum
amount for the award cannot be changed,
increasing the amount awarded as civil indemnity
can be validly modified and increased when the
present circumstance warrants it. Corollarily,
moral damages under Article 222039 of the Civil
Code also does not fix the amount of damages
that can be awarded. It is discretionary upon the
court, depending on the mental anguish or the
suffering of the private offended party. The
amount of moral damages can, in relation to civil
indemnity, be adjusted so long as it does not
exceed the award of civil indemnity.
In addition, some may view the penalty provided
by law for the offense committed as tantamount
to cruel punishment. However, all penalties are
generally harsh, being punitive in nature.
Whether or not they are excessive or amount to
cruel punishment is a matter that should be left to
lawmakers. It is the prerogative of the courts to
apply the law, especially when they are clear and
not subject to any other interpretation than that
which is plainly written.
Similar to the argument of Dean Diokno, one of
Justice Antonio Carpio’s opinions is that the
incremental penalty provision should be declared
unconstitutional and that the courts should only
impose the penalty corresponding to the amount
of ₱22,000.00, regardless if the actual amount
involved exceeds ₱22,000.00. As suggested,
however, from now until the law is properly
amended by Congress, all crimes of Estafa will
no longer be punished by the appropriate penalty.
A conundrum in the regular course of criminal
justice would occur when every accused
convicted of the crime of estafa will be meted
penalties different from the proper penalty that
should be imposed. Such drastic twist in the
application of the law has no legal basis and
directly runs counter to what the law provides.
It should be noted that the death penalty was
reintroduced in the dispensation of criminal
justice by the Ramos Administration by virtue of
Republic Act No. 765940 in December 1993. The
said law has been questioned before this Court.
There is, arguably, no punishment more cruel
than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in
June 2006 by Republic Act No. 9346,41 the Court
did not impede the imposition of the death penalty
on the ground that it is a "cruel punishment" within
the purview of Section 19 (1),42 Article III of the
Constitution. Ultimately, it was through an act of
Congress suspending the imposition of the death
penalty that led to its non-imposition and not via
the intervention of the Court.
Even if the imposable penalty amounts to cruel
punishment, the Court cannot declare the
provision of the law from which the proper penalty
emanates unconstitutional in the present action.
Not only is it violative of due process, considering
that the State and the concerned parties were not
given the opportunity to comment on the subject
matter, it is settled that the constitutionality of a
statute cannot be attacked collaterally because
constitutionality issues must be pleaded directly
and not collaterally,43 more so in the present
controversy wherein the issues never touched
upon the constitutionality of any of the provisions
of the Revised Penal Code.
Besides, it has long been held that the prohibition
of cruel and unusual punishments is generally
aimed at the form or character of the punishment
rather than its severity in respect of duration or
amount, and applies to punishments which public
sentiment has regarded as cruel or obsolete, for JUSTICE PERALTA:
instance, those inflicted at the whipping post, or
in the pillory, burning at the stake, breaking on the Per capita income.
wheel, disemboweling, and the like. Fine and
imprisonment would not thus be within the
PROFESSOR TADIAR:
prohibition.44
Per capita income.
It takes more than merely being harsh, excessive,
out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the JUSTICE PERALTA:
punishment authorized by the statute is severe
does not make it cruel and unusual. Expressed in Consumer price index.
other terms, it has been held that to come under
the ban, the punishment must be "flagrantly and PROFESSOR TADIAR:
plainly oppressive," "wholly disproportionate to
the nature of the offense as to shock the moral Yeah.
sense of the community."45
JUSTICE PERALTA:
Cruel as it may be, as discussed above, it is for
the Congress to amend the law and adapt it to our
Inflation ...
modern time.

PROFESSOR TADIAR:
The solution to the present controversy could not
be solved by merely adjusting the questioned
monetary values to the present value of money Yes.
based only on the current inflation rate. There are
other factors and variables that need to be taken JUSTICE PERALTA:
into consideration, researched, and deliberated
upon before the said values could be accurately ... and so on. Is the Supreme Court equipped to
and properly adjusted. The effects on the society, determine those factors?
the injured party, the accused, its socio-economic
impact, and the likes must be painstakingly PROFESSOR TADIAR:
evaluated and weighed upon in order to arrive at
a wholistic change that all of us believe should be
made to our existing law. Dejectedly, the Court is There are many ways by which the value of the
ill-equipped, has no resources, and lacks Philippine Peso can be determined utilizing all of
sufficient personnel to conduct public hearings those economic terms.
and sponsor studies and surveys to validly effect
these changes in our Revised Penal Code. This JUSTICE PERALTA:
function clearly and appropriately belongs to
Congress. Even Professor Tadiar concedes to Yeah, but ...
this conclusion, to wit:
PROFESSOR TADIAR:
xxxx
And I don’t think it is within the power of the
JUSTICE PERALTA: Supreme Court to pass upon and peg the value
to One Hundred (₱100.00) Pesos to ...
Yeah, Just one question. You are suggesting that
in order to determine the value of Peso you have JUSTICE PERALTA:
to take into consideration several factors.
Yeah.
PROFESSOR TADIAR:
PROFESSOR TADIAR:
Yes.
... One (₱1.00.00) Peso in 1930.
JUSTICE PERALTA:
That is legislative in nature.
PROFESSOR TADIAR:
That is my position that the Supreme Court ...
JUSTICE PERALTA:
Yeah, okay.
PROFESSOR TADIAR:
... has no power to utilize the power of judicial
review to in order to adjust, to make the
adjustment that is a power that belongs to the
legislature.
JUSTICE PERALTA:
Thank you, Professor.
PROFESSOR TADIAR:
Thank you.46
Finally, the opinion advanced by Chief Justice
Maria Lourdes P. A. Sereno echoes the view that
the role of the Court is not merely to dispense
justice, but also the active duty to prevent
injustice. Thus, in order to prevent injustice in the
present controversy, the Court should not impose
an obsolete penalty pegged eighty three years
ago, but consider the proposed ratio of 1:100 as
simply compensating for inflation. Furthermore,
the Court has in the past taken into consideration
"changed conditions" or "significant changes in
circumstances" in its decisions.
Similarly, the Chief Justice is of the view that the
Court is not delving into the validity of the
substance of a statute. The issue is no different
from the Court’s adjustment of indemnity in
crimes against persons, which the Court had
previously adjusted in light of current times, like
in the case of People v. Pantoja.47 Besides,
Article 10 of the Civil Code mandates a
presumption that the lawmaking body intended
right and justice to prevail.
With due respect to the opinions and proposals
advanced by the Chief Justice and my
Colleagues, all the proposals ultimately lead to
prohibited judicial legislation. Short of being
repetitious and as extensively discussed above,
it is truly beyond the powers of the Court to
legislate laws, such immense power belongs to
Congress and the Court should refrain from
crossing this clear-cut divide. With regard to civil
indemnity, as elucidated before, this refers to civil
liability which is awarded to the offended party as
a kind of monetary restitution. It is truly based on
the value of money. The same cannot be said on
penalties because, as earlier stated, penalties are
not only based on the value of money, but on
several other factors. Further, since the law is
silent as to the maximum amount that can be
awarded and only pegged the minimum sum,
increasing the amount granted as civil indemnity
is not proscribed. Thus, it can be adjusted in light
of current conditions.
Now, with regard to the penalty imposed in the
present case, the CA modified the ruling of the
RTC. The RTC imposed the indeterminate
penalty of four (4) years and two (2) months of
prision correccional in its medium period, as
minimum, to fourteen (14) years and eight (8)
months of reclusion temporal in its minimum
period, as maximum. However, the CA imposed
the indeterminate penalty of four (4) years and
two (2) months of prision correccional, as
minimum, to eight (8) years of prision mayor, as
maximum, plus one (1) year for each additional
₱10,000.00, or a total of seven (7) years.
In computing the penalty for this type of estafa,
this Court's ruling in Cosme, Jr. v. People48 is
highly instructive, thus:
With respect to the imposable penalty, Article 315
of the Revised Penal Code provides:
ART. 315 Swindling (estafa). - Any person who
shall defraud another by any of the means
mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its
maximum period to prision mayor in its minimum
period, if the amount of the fraud is over 12,000
but does not exceed 22,000 pesos, and if such
amount exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its
maximum period, adding one year for each
additional 10,000 pesos; but the total penalty
which may be imposed shall not exceed twenty
years. In such case, and in connection with the
accessory penalties which may be imposed and
for the purpose of the other provisions of this
Code, the penalty shall be termed prision mayor
or reclusion temporal, as the case may be.
The penalty prescribed by Article 315 is
composed of only two, not three, periods, in
which case, Article 65 of the same Code requires
the division of the time included in the penalty into
three equal portions of time included in the
penalty prescribed, forming one period of each of
the three portions. Applying the latter provisions,
the maximum, medium and minimum periods of
the penalty prescribed are:
Maximum - 6 years, 8 months, 21 days to 8 years
Medium - 5 years, 5 months, 11 days to 6 years,
8 months, 20 days
Minimum - 4 years, 2 months, 1 day to 5 years, 5
months, 10 days49
To compute the maximum period of the
prescribed penalty, prisión correccional
maximum to prisión mayor minimum should be
divided into three equal portions of time each of
which portion shall be deemed to form one period
in accordance with Article 6550 of the RPC.51 In
the present case, the amount involved is
₱98,000.00, which exceeds ₱22,000.00, thus,
the maximum penalty imposable should be within
the maximum period of 6 years, 8 months and 21
days to 8 years of prision mayor. Article 315 also
states that a period of one year shall be added to
the penalty for every additional ₱10,000.00
defrauded in excess of ₱22,000.00, but in no
case shall the total penalty which may be
imposed exceed 20 years.
Considering that the amount of ₱98,000.00 is
₱76,000.00 more than the ₱22,000.00 ceiling set
by law, then, adding one year for each additional
₱10,000.00, the maximum period of 6 years, 8
months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking
the maximum of the prescribed penalty, which is
8 years, plus an additional 7 years, the maximum
of the indeterminate penalty is 15 years.
Applying the Indeterminate Sentence Law, since
the penalty prescribed by law for the estafa
charge against petitioner is prision correccional
maximum to prision mayor minimum, the penalty
next lower would then be prision correccional in
its minimum and medium periods.
Thus, the minimum term of the indeterminate
sentence should be anywhere from 6 months and
1 day to 4 years and 2 months.
One final note, the Court should give Congress a
chance to perform its primordial duty of
lawmaking. The Court should not pre-empt
Congress and usurp its inherent powers of
making and enacting laws. While it may be the
most expeditious approach, a short cut by judicial
fiat is a dangerous proposition, lest the Court dare
trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on
Certiorari dated November 5, 2007 of petitioner
Lito Corpuz is hereby DENIED. Consequently,
the Decision dated March 22, 2007 and
Resolution dated September 5, 2007 of the Court
of Appeals, which affirmed with modification the
Decision dated July 30, 2004 of the Regional Trial
Court, Branch 46, San Fernando City, finding
petitioner guilty beyond reasonable doubt of the
crime of Estafa under Article 315, paragraph (1),
sub-paragraph (b) of the Revised Penal Code,
are hereby AFFIRMED with MODIFICATION that
the penalty imposed is the indeterminate penalty
of imprisonment ranging from THREE (3)
YEARS, TWO (2) MONTHS and ELEVEN DAYS
of prision correccional, as minimum, to FIFTEEN
(15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code,
let a Copy of this Decision be furnished the
President of the Republic of the Philippines,
through the Department of Justice.
Also, let a copy of this Decision be furnished the
President of the Senate and the Speaker of the
House of Representatives.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
See Concurring and Dissenting Opinion MARIA LOURDES P. A. SERENO
MARIA LOURDES P.A. SERENO Chief Justice
Chief Justice

See Dissenting
Opinion PRESBITERO J.
Footnotes
ANTONIO T. VELASCO, JR.
CARPIO Associate Justice
Associate Justice * No part.

1Penned by Associate Justice Estela M.

See: Concurring Perlas-Bernabe (now a member of the
TERESITA J.
Opinion Supreme Court), with Associate Justices
LEONARDO-DE
ARTURO D.
CASTRO Rodrigo V. Cosico and Lucas P.
BRION
Associate Justice Bersamin (now a member of the
Associate Justice
Supreme Court), concurring; rollo, pp.
31-41.
I take no part due
I join the Dissent
to prior action in 2 Rollo, p. 43.
of J. Abad
the CA
MARIANO C.
LUCAS P. 3
DEL CASTILLO Id. at 48-52.
BERSAMIN*
Associate Justice
Associate Justice 4 Libuit v. People, 506 Phil. 591, 599
(2005).
See Dissenting
Opinion MARTIN S. 5Blas v. Angeles- Hutalla, 482 Phil. 485,
ROBERTO A. VILLARAMA, JR.
501 (2004).
ABAD Associate Justice
Associate Justice 6 Quinto v. People, 365 Phil. 259, 270
(1999).
JOSE
JOSE CATRAL
PORTUGAL 7
MENDOZA Rollo, p. 37. (Citations omitted.)
PEREZ
Associate Justice
Associate Justice 8 Diaz v. People, 585 Phil. 318, 332
(2008), citing Pangilinan v. Court of
No Part Appeals, 378 Phil. 670, 675 (1999).
BVIENVENIDO L. ESTELA M.
REYES PERLAS- 9TSN, December 17, 1992, pp. 9-10.
Associate Justice BERNABE*
(Emphasis supplied.)
Associate Justice
10Tan v. People, 542 Phil. 188, 201
MARVIC MARIO VICTOR F. LEONEN (2007).
Associate Justice
11Id., citing Lee v. People, 495 Phil. 239,
CERTIFICATION 250 (2005).

12 Id.
Pursuant to Section 13, Article VIII of the
Constitution, I certify that the conclusions in the
13 555 Phil. 106 (2007).
above Decision were reached in consultation
before the case was assigned to the writer of the
opinion of the Court. 14 Id. at 114. (Citations omitted.)
15Cosme, Jr. v. People, 538 Phil. 52, 66
(2006), citing People v. Garillo, 446 Phil.
163, 174-175 (2003).
16Id., citing Sullon v. People, 500 Phil.
39, 45 (2005) ; People v. Bulan, 498 Phil.
586, 598 (2005).
17Id. at 67, citing People v. Gaspar, 376
Phil. 762, 779 (1999).
18
Emphasis supplied.
19
Third Edition, 1940.
20 Id. at 16. (Emphasis supplied)
21 1997 Edition.
22Id. at 93, citing United States v. Valera
Ang Y, 26 Phil. 598 (1914); People v.
Salazar y Gabriel, 102 Phil. 1184 (1958);
Tiu Ua, 51 O.G. 1863; Limaco, 99 Phil.
35 (1956), and People v. Del Rosario y
Natividad, 62 Phil. 824 (1936).
(Emphasis supplied.)
23Art. 315. Swindling (estafa). — Any
person who shall defraud another by any
of the means mentioned hereinbelow
shall be punished by:
1st. The penalty of
prision correccional in its
maximum period to
prision mayor in its
minimum period, if the
amount of the fraud is
over 12,000 pesos but
does not exceed 22,000
pesos, and if such
amount exceeds the
latter sum, the penalty
provided in this
paragraph shall be
imposed in its maximum
period, adding one year
for each additional
10,000 pesos; but the
total penalty which may
be imposed shall not
exceed twenty years. In
such cases, and in
connection with the
accessory penalties
which may be imposed
under the provisions of
this Code, the penalty
shall be termed prision
mayor or reclusion
temporal, as the case
may be.
2nd. The penalty of
prision correccional in its
minimum and medium
periods, if the amount of
the fraud is over 6,000
pesos but does not
exceed 12,000 pesos;
3rd. The penalty of
arresto mayor in its
maximum period to
prision correccional in its
minimum period if such
amount is over 200
pesos but does not
exceed 6,000 pesos;
and
4th. By arresto mayor in
its maximum period, if
such amount does not
exceed 200 pesos,
provided that in the four
cases mentioned, the
fraud be committed by
any of the following
means:
1. With unfaithfulness or abuse
of confidence, namely:
(a) By altering the
substance, quantity, or
quality or anything of
value which the offender
shall deliver by virtue of
an obligation to do so,
even though such
obligation be based on
an immoral or illegal
consideration.
(b) By misappropriating
or converting, to the
prejudice of another,
money, goods, or any
 other personal property
received by the offender
in trust or on
commission, or for
administration, or under
any other obligation
involving the duty to
make delivery of or to
return the same, even
though such obligation
be totally or partially
guaranteed by a bond;
or by denying having
received such money,
goods, or other property.
(c) By taking undue
advantage of the
signature of the
offended party in blank,
and by writing any
document above such
signature in blank, to the
prejudice of the offended
party or of any third
person.
2. By means of any of the
following false pretenses or
fraudulent acts executed prior to
or simultaneously with the
commission of the fraud:
(a) By using fictitious
name, or falsely
pretending to possess
power, influence,
qualifications, property,
credit, agency, business
or imaginary
transactions, or by
means of other similar
deceits.
(b) By altering the
quality, fineness or
weight of anything
pertaining to his art or
business.
(c) By pretending to
have bribed any
Government employee,
without prejudice to the
action for calumny which
the offended party may
deem proper to bring
against the offender. In
this case, the offender
shall be punished by the
maximum period of the
penalty.
(d) [By post-dating a
check, or issuing a
check in payment of an
obligation when the
offender therein were
not sufficient to cover
the amount of the check.
The failure of the drawer
of the check to deposit
the amount necessary to
cover his check within
three (3) days from
receipt of notice from the
bank and/or the payee
or holder that said check
has been dishonored for
lack of insufficiency of
funds shall be prima
facie evidence of deceit
constituting false
pretense or fraudulent
act. (As amended by
R.A. 4885, approved
June 17, 1967.)]
(e) By obtaining any
food, refreshment or
accommodation at a
hotel, inn, restaurant,
boarding house, lodging
house, or apartment
house and the like
without paying therefor,
with intent to defraud the
proprietor or manager
thereof, or by obtaining
credit at hotel, inn,
restaurant, boarding
house, lodging house, or
apartment house by the
use of any false
pretense, or by
abandoning or
surreptitiously removing
any part of his baggage
from a hotel, inn,
restaurant, boarding
 house, lodging house or (a) Persuading, inducing or
apartment house after influencing another public officer
obtaining credit, food, to perform an act constituting a
refreshment or violation of rules and regulations
accommodation therein duly promulgated by competent
without paying for his authority or an offense in
food, refreshment or connection with the official duties
accommodation. of the latter, or allowing himself
to be persuaded, induced, or
3. Through any of the following influenced to commit such
fraudulent means: violation or offense.

(a) By inducing another, (b) Directly or indirectly

by means of deceit, to requesting or receiving any gift,
sign any document. present, share, percentage, or
benefit, for himself or for any
other person, in connection with
(b) By resorting to some
any contract or transaction
fraudulent practice to
insure success in a between the Government and
gambling game. any other part, wherein the
public officer in his official
capacity has to intervene under
(c) By removing, the law.
concealing or
destroying, in whole or in
(c) Directly or indirectly
part, any court record,
requesting or receiving any gift,
office files, document or
present or other pecuniary or
any other papers.
material benefit, for himself or for
24
another, from any person for
May be entitled to Probation. whom the public officer, in any
manner or capacity, has secured
25
May be entitled to Probation if the or obtained, or will secure or
maximum penalty imposed is 6 years. obtain, any Government permit
or license, in consideration for
26 May be entitled to Probation. the help given or to be given,
without prejudice to Section
27Quinto v. Commission on Elections, thirteen of this Act.
G.R. No. 189698, February 22, 2010,
613 SCRA 385, 414. (d) Accepting or having any
member of his family accept
28 People v. Cayat, 68 Phil. 12, 18 (1939). employment in a private
enterprise which has pending
29 official business with him during
TSN, Oral Arguments, February 25,
the pendency thereof or within
2014, pp. 192-195.
one year after its termination.
30 463 U.S. 277 (1983)
(e) Causing any undue injury to
any party, including the
31 Section 3. Corrupt practices of public Government, or giving any
officers. - In addition to acts or omissions private party any unwarranted
of public officers already penalized by benefits, advantage or
existing law, the following shall constitute preference in the discharge of
corrupt practices of any public officer and his official administrative or
are hereby declared to be unlawful: judicial functions through
manifest partiality, evident bad
faith or gross inexcusable
negligence. This provision shall
apply to officers and employees
of offices or government
corporations charged with the
grant of licenses or permits or
other concessions.
(f) Neglecting or refusing, after
due demand or request, without
sufficient justification, to act
within a reasonable time on any
matter pending before him for
the purpose of obtaining, directly
or indirectly, from any person
interested in the matter some
pecuniary or material benefit or
advantage, or for the purpose of
favoring his own interest or
giving undue advantage in favor
of or discriminating against any
other interested party.
(g) Entering, on behalf of the
Government, into any contract or
transaction manifestly and
grossly disadvantageous to the
same, whether or not the public
officer profited or will profit
thereby.
(h) Director or indirectly having
financing or pecuniary interest in
any business, contract or
transaction in connection with
which he intervenes or takes part
in his official capacity, or in which
he is prohibited by the
Constitution or by any law from
having any interest.
(i) Directly or indirectly becoming
interested, for personal gain, or
having a material interest in any
transaction or act requiring the
approval of a board, panel or
group of which he is a member,
and which exercises discretion in
such approval, even if he votes
against the same or does not
participate in the action of the
board, committee, panel or
group.
Interest for personal gain shall
be presumed against those
public officers responsible for the
approval of manifestly unlawful,
inequitable, or irregular
transaction or acts by the board,
panel or group to which they
belong.
(j) Knowingly approving or
granting any license, permit,
privilege or benefit in favor of any
person not qualified for or not
legally entitled to such license,
permit, privilege or advantage, or
of a mere representative or
dummy of one who is not so
qualified or entitled.
(k) Divulging valuable
information of a confidential
character, acquired by his office
or by him on account of his
official position to unauthorized
persons, or releasing such
information in advance of its
authorized release date.
The person giving the gift,
present, share, percentage or
benefit referred to in
subparagraphs (b) and (c); or
offering or giving to the public
officer the employment
mentioned in subparagraph (d);
or urging the divulging or
untimely release of the
confidential information referred
to in subparagraph (k) of this
section shall, together with the
offending public officer, be
punished under Section nine of
this Act and shall be permanently
or temporarily disqualified in the
discretion of the Court, from
transacting business in any form
with the Government.
32 R.A. No. 3019, Sec. 9.
33 Art. 26. When afflictive, correctional, or
light penalty. — A fine, whether imposed
as a single of as an alternative penalty,
shall be considered an afflictive penalty,
if it exceeds 6,000 pesos; a correctional
penalty, if it does not exceed 6,000 pesos
but is not less than 200 pesos; and a light
penalty if it less than 200 pesos.
34Revised Forestry Code, as amended
by E.O. No. 277, Series of 1987.
35Taopa v. People, 592 Phil. 341, 345
(2005).
36 Art. 310. Qualified theft. — The crime
of theft shall be punished by the penalties
next higher by two degrees than those
respectively specified in the next
preceding article, if committed by a
domestic servant, or with grave abuse of
confidence, or if the property stolen is
motor vehicle, mail matter or large cattle
or consists of coconuts taken from the
premises of the plantation or fish taken
from a fishpond or fishery, or if property
is taken on the occasion of fire,
earthquake, typhoon, volcanic erruption,
or any other calamity, vehicular accident
or civil disturbance.
37TSN, Oral Arguments, February 25,
2014, p. 167.
38People v. Quijada, 328 Phil. 505, 548
(1996).
39
Art. 2220. Willful injury to property may
be a legal ground for awarding moral
damages if the court should find that,
under the circumstances, such damages
are justly due. The same rule applies to
breaches of contract where the
defendant acted fraudulently or in bad
faith.
40AN ACT TO IMPOSE THE DEATH
PENALTY ON CERTAIN HEINOUS
CRIMES, AMENDING FOR THAT
PURPOSE THE REVISED PENAL
LAWS, AS AMENDED, OTHER
SPECIAL PENAL LAWS, AND FOR
OTHER PURPOSES.
EN BANC
41AN ACT PROHIBITING THE
IMPOSITION OF DEATH PENALTY IN
THE PHILIPPINES.
42 Section 19.
1. Excessive fines shall not be
imposed, nor cruel, degrading or
inhuman punishment inflicted. x
x x.
43Gutierrez v. Department of Budget and
Management, G.R. No. 153266, 159007,
159029, 170084, 172713, 173119,
176477, 177990, A.M. No. 06-4-02-SB,
March 18, 2010, 616 SCRA 1, 25.
44People v. De la Cruz, 92 Phil. 906, 908
(1953); People v. Tongko, 353 Phil. 37,
43 (1998).
45People v. Estoista, 93 Phil. 647, 655
(1953); People v. Dionisio, No. L-15513,
March 27, 1968, 22 SCRA 1299, 1301-
1302.
46TSN, Oral Arguments, February 25,
2014, pp. 183-185.
47
No. L-18793, October 11, 1968, 25
SCRA 468.
48 Supra note 15.
49 Id. at 71-72.
50 ART. 65. Rule in Cases in Which the
Penalty is Not Composed of Three
Periods. – In cases in which the penalty
prescribed by law is not composed of
three periods, the courts shall apply the
rules contained in the foregoing articles,
dividing into three equal portions the time
included in the penalty prescribed, and
forming one period of each of the three
portions.
51People v. Temporada, G.R. No.
173473, December 17, 2008, 574 SCRA
258, 284.
7. G.R. Nos. L-32613-14 December
27, 1972
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. SIMEON. FERRER (in his capacity as
Judge of the Court of First Instance of Tarlac,
Branch I), FELICIANO CO alias LEONCIO CO
alias "Bob," and NILO S. TAYAG alias Romy
Reyes alias "Taba," respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the
constitutionality of the Anti-Subversion
Act,1 which outlaws the Communist Party of the
Philippines and other "subversive associations,"
and punishes any person who "knowingly,
willfully and by overt acts affiliates himself with,
becomes or remains a member" of the Party or of
any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for
violation of section 4 of the Anti-Subversion Act
was filed against the respondent Feliciano Co in
the Court of First Instance of Tarlac. On March 10
Judge Jose C. de Guzman conducted a
preliminary investigation and, finding a prima
facie case against Co, directed the Government
prosecutors to file the corresponding information.
The twice-amended information, docketed as
Criminal Case No. 27, recites:
That on or about May 1969 to
December 5, 1969, in the
Municipality of Capas, Province
of Tarlac, Philippines, and within
the jurisdiction of this Honorable
Court, the abovenamed
accused, feloniously became an
officer and/or ranking leader of
the Communist Party of the
Philippines, an outlawed and
illegal organization aimed to
overthrow the Government of the
Philippines by means of force,
violence, deceit, subversion, or
any other illegal means for the
purpose of establishing in the
Philippines a totalitarian regime
and placing the government
under the control and domination
of an alien power, by being an
instructor in the Mao Tse Tung
University, the training school of
recruits of the New People's
Army, the military arm of the said
Communist Party of the
Philippines.
That in the commission of the
above offense, the following
aggravating circumstances are
present, to wit:
(a) That the crime has been
committed in contempt of or with
insult to public authorities;
(b) That the crime was
committed by a band; and afford
impunity.
(c) With the aid of armed men or
persons who insure or afford
impunity.
Co moved to quash on the ground that the Anti-
Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal
complaint was filed with the same court, sharing
the respondent Nilo Tayag and five others with
subversion. After preliminary investigation was
had, an information was filed, which, as
amended, reads:
The undersigned provincial
Fiscal of Tarlac and State
Prosecutors duly designated by
the Secretary of Justice to
collaborate with the Provincial
Fiscal of Tarlac, pursuant to the
Order dated June 5, above
entitled case, hereby accuse Nilo
S. Tayag, alias Romy Reyes
alias TABA, ARTHUR GARCIA,
RENATO (REY) CASIPE,
ABELARDO GARCIA, MANUEL
ALAVADO, BENJAMIN BIE alias
COMMANDER MELODY and
several JOHN DOES, whose
identities are still unknown, for
violation of REPUBLIC ACT No. accused conducted meetings
1700, otherwise known as the and/or seminars wherein the
Anti-Subversion Law, committed said accused delivered
as follows: speeches instigating and inciting
the people to unite, rise in arms
That in or about March 1969 and and overthrow the Government
for sometime prior thereto and of the Republic of the
thereafter, in the Province of Philippines, by force, violence,
Tarlac, within the jurisdiction of deceit, subversion and/or other
this Honorable Court, and illegal means; and toward this
elsewhere in the Philippines, the end, the said accused organized,
above-named accused among others a chapter of the
knowingly, willfully and by overt KABATAANG MAKABAYAN in
acts organized, joined and/or barrio Motrico, La Paz, Tarlac for
remained as offices and/or the avowed purpose of
ranking leaders, of the undertaking or promoting an
KABATAANG MAKABAYAN, a armed revolution, subversive
subversive organization as and/or seditious propaganda,
defined in Republic Act No. conspiracies, and/or riots and/or
1700; that BENJAMIN BIE and other illegal means to discredit
COMMANDER MELODY, in and overthrow the Government
addition thereto, knowingly, of the Republic of the Philippines
willfully and by over acts joined and to established in the
and/or remained as a member Philippines a Communist
and became an officer and/or regime.
ranking leader not only of the
Communist Party of the 2. The accused NILO TAYAG
Philippines but also of the New alias ROMY REYES alias TABA,
People's Army, the military arm together with FRANCISCO
of the Communist Party of the PORTEM alias KIKO Gonzales
Philippines; and that all the and others, pursued the above
above-named accused, as such subversive and/or seditious
officers and/or ranking leaders of activities in San Pablo City by
the aforestated subversive recruiting members for the New
organizations, conspiring, People's Army, and/or by
confederating and mutually instigating and inciting the
helping one another, did then people to organize and unite for
and there knowingly, willfully and the purpose of overthrowing the
feloniously commit subversive Government of the Republic of
and/or seditious acts, by inciting, the Philippines through armed
instigating and stirring the people revolution, deceit, subversion
to unite and rise publicly and and/or other illegal means, and
tumultuously and take up arms establishing in the Philippines a
against the government, and/or Communist Government.
engage in rebellious
conspiracies and riots to That the following aggravating
overthrow the government of the circumstances attended the
Republic of the Philippines by commission of the offense: (a)
force, violence, deceit, aid of armed men or persons to
subversion and/or other illegal insure or afford impunity; and (b)
means among which are the craft, fraud, or disguise was
following: employed.

1. On several occasions within On July 21, 1970 Tayag moved to quash,

the province of Tarlac, the impugning the validity of the statute on the
grounds that (1) it is a bill of attainder; (2) it is
vague; (3) it embraces more than one subject not
expressed in the title thereof; and (4) it denied
him the equal protection of the laws.
Resolving the constitutional issues raised, the
trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is
a bill of attainder and that it is vague and
overboard, and dismissed the informations
against the two accused. The Government
appealed. We resolved to treat its appeal as a
special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states
that "No bill of attainder or ex port facto law shall
be enacted."2 A bill of attainder is a legislative act
which inflicts punishment without trial.3 Its
essence is the substitution of a legislative for a
judicial determination of guilt.4 The constitutional
ban against bills of attainder serves to implement
the principle of separation of powers 5 by
confining legislatures to
rule-making 6 and thereby forestalling legislative
usurpation of the judicial function.7 History in
perspective, bills of attainder were employed to
suppress unpopular causes and political
minorities, 8 and it is against this evil that the
constitutional prohibition is directed. The singling
out of a definite class, the imposition of a burden
on it, and a legislative intent, suffice to
stigmatizea statute as a bill of attainder. 9
In the case at bar, the Anti-Subversion Act was
condemned by the court a quo as a bill of
attainder because it "tars and feathers" the
Communist Party of the Philippines as a
"continuing menace to the freedom and security
of the country; its existence, a 'clear, present and
grave danger to the security of the Philippines.'"
By means of the Act, the trial court said,
Congress usurped "the powers of the judge," and
assumed "judicial magistracy by pronouncing the
guilt of the CCP without any of the forms or
safeguards of judicial trial." Finally, according to
the trial court, "if the only issue [to be determined]
is whether or not the accused is a knowing and
voluntary member, the law is still a bill of attainder
because it has expressly created a presumption
of organizational guilt which the accused can
never hope to overthrow."
1. When the Act is viewed in its actual operation,
it will be seen that it does not specify the
Communist Party of the Philippines or the
members thereof for the purpose of punishment.
What it does is simply to declare the Party to be
an organized conspiracy for the overthrow of the
Government for the purposes of the prohibition,
stated in section 4, against membership in the
outlawed organization. The term "Communist
Party of the Philippines" issued solely for
definitional purposes. In fact the Act applies not
only to the Communist Party of the Philippines but
also to "any other organization having the same
purpose and their successors." Its focus is not on
individuals but on conduct. 10
This feature of the Act distinguishes it from
section 504 of the U.S. Federal Labor-
Management Reporting and Disclosure Act of
1959 11 which, in U.S. vs. Brown, 12 was held to
be a bill of attainder and therefore
unconstitutional. Section 504 provided in its
pertinent parts as follows:
(a) No person who is or has been
a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee,
member of any executive board
or similar governing body,
business agent, manager,
organizer, or other employee
(other than as an employee
performing exclusively clerical or
custodial duties) of any labor
organization.
during or for five years after the
termination of his membership in
the Communist Party....
(b) Any person who willfully
violates this section shall be
fined not more than $10,000 or
imprisoned for not more than one
year, or both.
This statute specified the Communist Party, and
imposes disability and penalties on its members.
Membership in the Party, without more, ipso
facto disqualifies a person from becoming an
officer or a member of the governing body of any
labor organization. As the Supreme Court of the
United States pointed out:
Under the line of cases just
outlined, sec. 504 of the Labor
Management Reporting and
Disclosure Act plainly constitutes
a bill of attainder. Congress
undoubtedly possesses power
under the Commerce Clause to
enact legislation designed to
keep from positions affecting
interstate commerce persons
who may use of such positions to
bring about political strikes. In
section 504, however, Congress
has exceeded the authority
granted it by the Constitution.
The statute does not set forth a
generally applicable rule
decreeing that any person who
commits certain acts or
possesses certain
characteristics (acts and
characteristics which, in
Congress' view, make them
likely to initiate political strikes)
shall not hold union office, and
leaves to courts and juries the
job of deciding what persons
have committed the specified
acts or possessed the specified
characteristics. Instead, it
designates in no uncertain terms
the persons who possess the
feared characteristics and
therefore cannot hold union
office without incurring criminal
liability — members of the
Communist Party.
Communist Party v. Subversive
Activities Control Board, 367 US
1, 6 L ed 2d 625, 81 S CT 1357,
lend a support to our conclusion.
That case involved an appeal
from an order by the Control
Board ordering the Communist
Party to register as a
"Communist-action
organization," under the
Subversive Activities Control Act
of 1950, 64 Stat 987, 50 USC
sec. 781 et seq. (1958 ed). The
definition of "Communist-action
organization" which the Board is
to apply is set forth in sec. 3 of
the Act:
[A]ny organization in the United
States ... which (i)is substantially
directed, dominated, or
controlled by the foreign
government or foreign
organization controlling the
world Communist movement
referred to in section 2 of this
title, and(ii) operates primarily to
advance the objectives of such
world Communist movement...
64 Stat 989, 50 USC sec. 782
(1958 ed.)
A majority of the Court rejected
the argument that the Act was a
bill of attainder, reasoning that
sec. 3 does not specify the
persons or groups upon which
the deprivations setforth in the
Act are to be imposed, but
instead sets forth a general
definition. Although the Board
has determined in 1953 that the
Communist Party was a
"Communist-action
organization," the Court found
the statutory definition not to be
so narrow as to insure that the
Party would always come within
it:
In this proceeding the Board had
found, and the Court of Appeals
has sustained its conclusion, that
the Communist Party, by virtud
of the activities in which it now
engages, comes within the terms
of the Act. If the Party should at
anytime choose to abandon
these activities, after it is once
registered pursuant to sec. 7, the
Act provides adequate means of
relief. (367 US, at 87, 6 L ed 2d
at 683)
Indeed, were the Anti-Subversion Act a bill of
attainder, it would be totally unnecessary to
charge Communists in court, as the law alone,
without more, would suffice to secure their
punishment. But the undeniable fact is that their
guilt still has to be judicially established. The
Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and
by overt acts, and that they joined the Party,
knowing its subversive character and with
specific intent to further its basic objective, i.e., to
overthrow the existing Government by force
deceit, and other illegal means and place the
country under the control and domination of a
foreign power.
As to the claim that under the statute
organizationl guilt is nonetheless imputed despite
the requirement of proof of knowing membership
in the Party, suffice it to say that is precisely the
nature of conspiracy, which has been referred to
as a "dragneet device" whereby all who
participate in the criminal covenant are liable. The
contention would be correct if the statute were
construed as punishing mere membership devoid
of any specific intent to further the unlawful goals
of the Party. 13 But the statute specifically
required that membership must be knowing or
active, with specific intent to further the illegal
objectives of the Party. That is what section 4
means when it requires that membership, to be
unlawful, must be shown to have been acquired
"knowingly, willfully and by overt acts." 14 The
ingredient of specific intent to pursue the unlawful
goals of the Party must be shown by "overt
acts." 15 This constitutes an element of
"membership" distinct from the ingredient of guilty
knowledge. The former requires proof of direct
participation in the organization's unlawful
activities, while the latter requires proof of mere
adherence to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies
individuals and not activities, this feature is not
enough to render it a bill of attainder. A statute
prohibiting partners or employees of securities
underwriting firms from serving as officers or
employees of national banks on the basis of a
legislative finding that the persons mentioned
would be subject to the temptation to commit acts
deemed inimical to the national economy, has
been declared not to be a bill of
attainder. 16 Similarly, a statute requiring every
secret, oath-bound society having a membership
of at least twenty to register, and punishing any
person who becomes a member of such society
which fails to register or remains a member
thereof, was declared valid even if in its operation
it was shown to apply only to the members of the
Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of
the Industrial Peace Act, 18 requiring labor unions
to file with the Department of Labor affidavits of
union officers "to the effect that they are not
members of the Communist Party and that they
are not members of any organization which
teaches the overthrow of the Government by
force or by any illegal or unconstitutional
method," was upheld by this Court. 19
Indeed, it is only when a statute applies either to
named individuals or to easily ascertainable
members of a group in such a way as to inflict
punishment on them without a judicial trial does it
become a bill of attainder. 20 It is upon this ground
that statutes which disqualified those who had
taken part in the rebellion against the
Government of the United States during the Civil
War from holding office, 21 or from exercising their
profession, 22 or which prohibited the payment of
further compensation to individuals named in the
Act on the basis of a finding that they had
engages in subversive activities, 23 or which
made it a crime for a member of the Communist
Party to serve as an officer or employee of a labor
union, 24 have been invalidated as bills of
attainder.
But when the judgment expressed in legislation is
so universally acknowledged to be certain as to
be "judicially noticeable," the legislature may
apply its own rules, and judicial hearing is not
needed fairly to make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the
New York legislature passed a law requiring
every secret, oath-bound society with a
membership of at least twenty to register, and
punishing any person who joined or remained a
member of such a society failing to register. While
the statute did not specify the Ku Klux Klan, in its
operation the law applied to the KKK exclusively.
In sustaining the statute against the claim that it
discriminated against the Ku Klux Klan while
exempting other secret, oath-bound
organizations like masonic societies and the
Knights of Columbus, the United States Supreme
Court relied on common knowledge of the nature
and activities of the Ku Klux Klan. The Court said:
The courts below recognized the
principle shown in the cases just
cited and reached the conclusion
that the classification was
justified by a difference between
the two classes of associations
shown by experience, and that
the difference consisted (a) in a
manifest tendency on the part of
one class to make the secrecy
surrounding its purpose and
membership a cloak for acts and
conduct inimical to personal
rights and public welfare, and (b)
in the absence of such a
tendency on the part of the other
class. In pointing out this
difference one of the courts said
of the Ku Klux Klan, the principal
association in the included class:
"It is a matter of common
knowledge that this organization
functions largely at night, its
members disguised by hoods
and gowns and doing things
calculated to strike terror into the
minds of the people;" and later
said of the other class: "These
organizations and their purposes
are well known, many of them
having been in existence for
many years. Many of them are
oath-bound and secret. But we
hear no complaint against them
regarding violation of the peace
or interfering with the rights of
others." Another of the courts
said: "It is a matter of common
knowledge that the association
or organization of which the
relator is concededly a member
exercises activities tending to the
prejudice and intimidation of
sundry classes of our citizens.
But the legislation is not confined
to this society;" and later said of
the other class: "Labor unions
have a recognized lawful
purpose. The benevolent orders
mentioned in the Benevolent
Orders Law have already
received legislative scrutiny and
have been granted special
privileges so that the legislature
may well consider them
beneficial rather than harmful
agencies." The third court, after
recognizing "the potentialities of
evil in secret societies," and
observing that "the danger of
certain organizations has been
judicially demonstrated," —
meaning in that state, — said:
"Benevolent orders, labor unions
and college fraternities have
existed for many years, and,
while not immune from hostile
criticism, have on the whole
justified their existence."
We assume that the legislature
had before it such information as
was readily available including
the published report of a hearing,
before a committee of the House
of Representatives of the 57th
Congress relating to the
formation, purposes and
activities of the Klu Klux Klan. If
so it was advised — putting
aside controverted evidence —
that the order was a revival of the
Ku Klux Klan of an earlier time
with additional features
borrowed from the Know Nothing
and the A. P. A. orders of other
periods; that its memberships
was limited to native-born,
gentile, protestant whites; that in
part of its constitution and printed
creed it proclaimed the widest
freedom for all and full
adherence to the Constitution of
the United States; in another
exacted of its member an oath to
shield and preserve "white
supremacy;" and in still another
declared any person actively
opposing its principles to be "a
dangerous ingredient in the body
politic of our country and an
enemy to the weal of our national
commonwealth;" that it was
conducting a crusade against
Catholics, Jews, and Negroes,
and stimulating hurtful religious
and race prejudices; that it was
striving for political power and
assuming a sort of guardianship
over the administration of local,
state and national affairs; and
that at times it was taking into its
own hands the punishment of
what some of its members
conceived to be crimes. 27
In the Philippines the character of the Communist
Party has been the object of continuing scrutiny
by this Court. In 1932 we found the Communist
Party of the Philippines to be an illegal group, society, association,
association. 28 In 1969 we again found that the organization or party which
objective of the Party was the "overthrow of the advises, advocates or teaches or
Philippine Government by armed struggle and to has within said period of five (5)
establish in the Philippines a communist form of years advised, advocated, or
government similar to that of Soviet Russia and taught the overthrow by force or
Red China." 29 More recently, in Lansang vs. violence of the Government of
Garcia, 30 we noted the growth of the Communist the United States of America or
Party of the Philippines and the organization of of the State of California.
Communist fronts among youth organizations
such as the Kabataang Makabayan (KM) and the In upholding the statute, the Court stressed the
emergence of the New People's Army. After prospective application of the Act to the petitioner
meticulously reviewing the evidence, we said: therein, thus:
"We entertain, therefore, no doubts about the
existence of a sizeable group of men who have ... Immaterial here is any opinion
publicly risen in arms to overthrow the
we might have as to the charter
government and have thus been and still are
provision insofar as it purported
engaged in rebellion against the Government of
to apply restrospectively for a
the Philippines.
five-year period to its effective
date. We assume that under the
3. Nor is it enough that the statute specify Federal Constitution the Charter
persons or groups in order that it may fall within Amendment is valid to the extent
the ambit of the prohibition against bills of that it bars from the city's public
attainder. It is also necessary that it must apply service persons who,
retroactively and reach past conduct. This subsequently to its adoption in
requirement follows from the nature of a bill of 1941, advise, advocate, or reach
attainder as a legislative adjudication of guilt. As the violent overthrow of the
Justice Frankfurter observed, "frequently a bill of Government or who are or
attainder was ... doubly objectionable because of become affiliated with any group
its ex post facto features. This is the historic doing so. The provisions
explanation for uniting the two mischiefs in one operating thus prospectively
clause — 'No Bill of Attainder or ex post facto law were a reasonable regulation to
shall be passed.' ... Therefore, if [a statute] is a protect the municipal service by
bill of attainder it is also an ex post facto law. But establishing an employment
if it is not an ex post facto law, the reasons that qualification of loyalty to the
establish that it is not are persuasive that it cannot State and the United States.
be a bill of attainder." 31
... Unlike the provisions of the
Thus in Gardner vs. Board of Public Works, 32 the charter and ordinance under
U.S. Supreme Court upheld the validity of the which petitioners were removed,
Charter of the City of Los Angeles which the statute in the Lovett case did
provided: not declare general and
prospectively operative
... [N]o person shall hold or retain standards of qualification and
or be eligible for any public office eligibility for public employment.
or employment in the service of Rather, by its terms it prohibited
the City of Los Angeles, in any any further payment of
office or department thereof, compensationto named
either elective or appointive, who individuals or employees. Under
has within five (5) years prior to these circumstances, viewed
the effective date of this section against the legislative
advised, advocated, or taught, or background, the statutewas held
who may, after this section to have imposed penalties
becomes effective, become a without judicial trial.
member of or affiliated with any
Indeed, if one objection to the bill of attainder is
thatCongress thereby assumed judicial
magistracy, them it mustbe demonstrated that the
statute claimed to be a bill of attainderreaches
past conduct and that the penalties it imposesare
inescapable. As the U.S. Supreme Court
observedwith respect to the U.S. Federal
Subversive Activities ControlAct of 1950:
Nor is the statute made an act of
"outlawry" or of attainderby the
fact that the conduct which it
regulates is describedwith such
particularity that, in probability,
few organizationswill come
within the statutory terms.
Legislatures may act tocurb
behaviour which they regard as
harmful to the public
welfare,whether that conduct is
found to be engaged in by
manypersons or by one. So long
as the incidence of legislation
issuch that the persons who
engage in the regulated conduct,
bethey many or few, can escape
regulation merely by altering
thecourse of their own present
activities, there can be no
complaintof an attainder. 33
This statement, mutatis mutandis, may be said of
theAnti-Subversion Act. Section 4 thereof
expressly statesthat the prohibition therein
applies only to acts committed"After the approval
of this Act." Only those who "knowingly,willfully
and by overt acts affiliate themselves
with,become or remain members of the
Communist Party of thePhilippines and/or its
successors or of any subversive association"after
June 20, 1957, are punished. Those whowere
members of the Party or of any other subversive
associationat the time of the enactment of the
law, weregiven the opportunity of purging
themselves of liability byrenouncing in writing and
under oath their membershipin the Party. The law
expressly provides that such renunciationshall
operate to exempt such persons from
penalliability. 34 The penalties prescribed by the
Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in
section 2 of the Act that the Communist Party of
the Philippinesis an organized conspiracy for the
overthrow of theGovernment is inteded not to
provide the basis for a legislativefinding of guilt of
the members of the Party butrather to justify the
proscription spelled out in section 4. Freedom of
expression and freedom of association are
sofundamental that they are thought by some to
occupy a"preferred position" in the hierarchy of
constitutional values. 35 Accordingly, any
limitation on their exercise mustbe justified by the
existence of a substantive evil. This isthe reason
why before enacting the statute in question
Congressconducted careful investigations and
then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the
Philippines althoughpurportedly
a political party, is in fact an
organized conspiracyto
overthrow the Government of the
Republic of the Philippinesnot
only by force and violence but
also by deceit, subversionand
other illegal means, for the
purpose of establishing in
thePhilippines a totalitarian
regime subject to alien
dominationand control;
... [T]he continued existence and
activities of the CommunistParty
of the Philippines constitutes a
clear, present andgrave danger
to the security of the Philippines;
... [I]n the face of the organized,
systematice and
persistentsubversion, national in
scope but international in
direction,posed by the
Communist Party of the
Philippines and its
activities,there is urgent need for
special legislation to cope
withthis continuing menace to
the freedom and security of the
country.
In truth, the constitutionality of the Act would be
opento question if, instead of making these
findings in enactingthe statute, Congress omitted
to do so.
In saying that by means of the Act Congress has
assumed judicial magistracy, the trial courd failed
to takeproper account of the distinction
between legislative fact and adjudicative fact.
Professor Paul Freund elucidatesthe crucial
distinction, thus:
... A law forbidding the sale of
beverages containingmore than
3.2 per cent of alcohol would
raise a question of
legislativefact, i.e., whether this
standard has a reasonable
relationto public health, morals,
and the enforcement problem.
Alaw forbidding the sale of
intoxicating beverages
(assuming itis not so vague as to
require supplementation by rule-
making)would raise a question of
adjudicative fact, i.e., whether
thisor that beverage is
intoxicating within the meaning
of the statuteand the limits on
governmental action imposed by
the Constitution. Of course what
we mean by fact in each case is
itselfan ultimate conclusion
founded on underlying facts and
oncriteria of judgment for
weighing them.
A conventional formulation is
that legislative facts — those
facts which are relevant to the
legislative judgment — will not
be canvassed save to determine
whether there is a rationalbasis
for believing that they exist, while
adjudicativefacts — those which
tie the legislative enactment to
the litigant — are to be
demonstrated and found
according to the
ordinarystandards prevailing for
judicial trials. 36
The test formulated in Nebbia vs. new
York, 37 andadopted by this Court in Lansang vs.
Garcia, 38 is that 'if laws are seen to have a
reasonable relation to a proper legislative
purpose, and are neither arbitrary nor
discriminatory, the requirements of due process
are satisfied, and judicial determination to that
effect renders a court functus officio." The recital
of legislative findings implements this test.
With respect to a similar statement of legislative
findingsin the U.S. Federal Subversive Activities
Control Actof 1950 (that "Communist-action
organizations" are controlledby the foreign
government controlling the worldCommunist
movement and that they operate primarily
to"advance the objectives of such world
Communist movement"),the U.S. Supreme Court
said:
It is not for the courts to
reexamine the validity of
theselegislative findings and
reject them....They are the
productof extensive investigation
by Committes of Congress over
morethan a decade and a half.
Cf. Nebbia v. New York, 291
U.S.502, 516, 530. We certainly
cannot dismiss them as
unfoundedirrational imaginings.
... And if we accept them, as we
mustas a not unentertainable
appraisal by Congress of the
threatwhich Communist
organizations pose not only to
existing governmentin the United
States, but to the United States
as asovereign, independent
Nation. ...we must recognize that
thepower of Congress to
regulate Communist
organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of
thelegislative findings articulated in the Anti-
Subversion Act.
That the Government has a right to protect itself
againstsubversion is a proposition too plain to
require elaboration.Self-preservation is the
"ultimate value" of society. It surpasses and
transcendes every other value, "forif a society
cannot protect its very structure from
armedinternal attack, ...no subordinate value can
be protected" 40 As Chief Justice Vinson so aptly
said in Dennis vs. United States: 41
Whatever theoretical merit there
may be to the argumentthat
there is a 'right' to rebellion
against dictatorial
governmentsis without force
where the existing structure of
 government provides for the first "whereas" clause makes clear thatthe
peaceful and orderly change. We overthrow contemplated is "overthrow not only by
rejectany principle of forceand violence but also be deceit, subversion
governmental helplessness in and other illegalmeans." The absence of this
the face of preparationfor qualificatio in section 2 appearsto be due more to
revolution, which principle, an oversight rather than to deliberateomission.
carried to its logical
conclusion,must lead to anarchy. Moreover, the word "overthrow' sufficiently
No one could conceive that it connotesthe use of violent and other illegal
isnot within the power of means. Only in a metaphoricalsense may one
Congress to prohibit acts speak of peaceful overthrow ofgovernments, and
intended tooverthrow the certainly the law does not speak in metaphors.In
government by force and the case of the Anti-Subversion Act, the use ofthe
violence. word "overthrow" in a metaphorical sense is
hardlyconsistent with the clearly delineated
2. By carefully delimiting the reach of the Act to objective of the "overthrow,"namely, "establishing
conduct (as explicitly described in sectin 4 in the Philippines a totalitarianregime and place
thereof), Congressreaffirmed its respect for the [sic] the Government under thecontrol and
rule that "even throughthe governmental purpose domination of an alien power." What thisCourt
be legitimate and substantial,that purpose cannot once said in a prosecution for sedition
be pursued by means that broadly is appropos: "The language used by the appellant
stiflefundamental personal liberties when the end clearly imported anoverthrow of the Government
can be more narrowly achieved." 42 The by violence, and it should beinterpreted in the
requirement of knowing membership,as plain and obvious sense in which it wasevidently
distinguished from nominal membership, intended to be understood. The word
hasbeen held as a sufficient basis for penalizing 'overthrow'could not have been intended as
membershipin a subversive organization. 43 For, referring to an ordinarychange by the exercise of
as has been stated: the elective franchise. The useof the whip [which
the accused exhorted his audience to useagainst
Membership in an organization the Constabulary], an instrument designed
renders aid and encouragement toleave marks on the sides of adversaries, is
to the organization; and when inconsistentwith the mild interpretation which the
membership is acceptedor appellant wouldhave us impute to the
retained with knowledge that the language." 45
organization is engaged inan
unlawful purpose, the one IV. The Act and the Guaranty of Free Expression
accepting or retaining
membershipwith such As already pointed out, the Act is aimed against
knowledge makes himself a conspiracies to overthrow the Government by
party to the unlawfulenterprise in force, violence orother illegal means. Whatever
which it is engaged. 44 interest in freedom of speechand freedom of
association is infringed by the prohibitionagainst
3. The argument that the Act is knowing membership in the Communist Party
unconstitutionallyoverbroad because section 2 ofthe Philippines, is so indirect and so
merely speaks of "overthrow"of the Government insubstantial as to beclearly and heavily
and overthrow may be achieved outweighed by the overriding considerationsof
by peaceful means, misconceives the function of national security and the preservartion of
the phrase"knowingly, willfully and by overt acts" democraticinstitutions in his country.
in section 4. Section 2 is merely a legislative
declaration; the definitionsof and the penalties The membership clause of the U.S. Federal
prescribed for the different acts prescribedare Smith Actis similar in many respects to the
stated in section 4 which requires that membership provision ofthe Anti-Subversion Act.
membershipin the Communist Party of the The former provides:
Philippines, to be unlawful, must be acquired
"knowingly, willfully and by overt acts." Indeed,
 Whoever organizes or helps or
attempts to organize anysociety,
group, or assembly of persons
who teach, advocate,
orencourage the overthrow or
destruction of any such
governmentby force or violence;
or becomes or is a member of, or
affiliatedwith, any such society,
group or assembly of persons,
knowingthe purpose thereof —
Shall be fined not more than
$20,000 or imprisoned notmore
than twenty years, or both, and
shall be ineligible for
emplymentby the United States
or any department or
agencythereof, for the five years
next following his conviction.... 46
In sustaining the validity of this provision, the
"Court said in Scales vs. United States: 47
It was settled in Dennis that
advocacy with which we arehere
concerned is not constitutionally
protected speech, and itwas
further established that a
combination to promote
suchadvocacy, albeit under the
aegis of what purports to be a
politicalparty, is not such
association as is protected by
the firstAmendment. We can
discern no reason why
membership, whenit constitutes
a purposeful form of complicity in
a group engagingin this same
forbidden advocacy, should
receive anygreater degree of
protection from the guarantees
of that Amendment.
Moreover, as was held in another case, where the
problemsof accommodating the exigencies of
self-preservationand the values of liberty are as
complex and intricate as inthe situation described
in the legislative findings stated inthe U.S.
Federal Subversive Activities Control Act of
1950,the legislative judgment as to how that
threat may best bemet consistently with the
safeguards of personal freedomsis not to be set
aside merely because the judgment of
judgeswould, in the first instance, have chosen
other methods. 48 For in truth, legislation,
"whether it restrains freedom tohire or freedom to
speak, is itself an effort at compromisebetween
the claims of the social order and individual
freedom,and when the legislative compromise in
either case isbrought to the judicial test the court
stands one step removedfrom the conflict and its
resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional
commandthat "no bill which may be enacted into
law shall embrace more than one subject which
shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced
in thetitle of the Act is the last proviso of section
4 which reads:
And provided, finally, That one
who conspires with anyother
person to overthrow the
Government of the Republic
ofthe Philippines, or the
government of any of its political
subdivisionsby force, violence,
deceit, subversion or illegal
means,for the purpose of placing
such Government or political
subdivisionunder the control and
domination of any lien power,
shallbe punished by prision
correccional to prision
mayor with allthe accessory
penalties provided therefor in the
same code.
It is argued that the said proviso, in reality,
punishes notonly membership in the Communist
Party of the Philippinesor similar associations, but
as well "any conspiracyby two persons to
overthrow the national or any local governmentby
illegal means, even if their intent is not to
establisha totalitarian regime, burt a democratic
regime, evenif their purpose is not to place the
nation under an aliencommunist power, but under
an alien democratic power likethe United States
or England or Malaysia or even an anti-
communistpower like Spain, Japan, Thailand or
Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to
Outlawthe Communist Party of the Philippines
and SimilarAssociations, Penalizing Membership
Therein, and forOther Purposes"), has a short
title. Section 1 providesthat "This Act shall be
known as the
Anti-Subversion Act."Together with the main title,
the short title of the statuteunequivocally
indicates that the subject matter is subversionin
general which has for its fundamental purpose
the substitutionof a foreign totalitarian regime in
place of theexisting Government and not merely
subversion by Communistconspiracies..
The title of a bill need not be a catalogue or an
indexof its contents, and need not recite the
details of the Act. 51 It is a valid title if it indicates
in broad but clear termsthe nature, scope, and
consequences of the proposed lawand its
operation. 52 A narrow or technical construction
isto be avoided, and the statute will be read fairly
and reasonablyin order not to thwart the
legislative intent. We holdthat the Anti-
Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of
theAnti-Subversion Act, we cannot
overemphasize the needfor prudence and
circumspection in its enforcement, operatingas it
does in the sensitive area of freedom of
expressionand belief. Accordingly, we set the
following basic guidelines to be observed in any
prosecution under the Act.The Government, in
addition to proving such circumstancesas may
affect liability, must establish the following
elementsof the crime of joining the Communist
Party of the Philippinesor any other subversive
association:
(1) In the case of subversive organizations other
thanthe Communist Party of the Philippines, (a)
that thepurpose of the organization is to
overthrow the presentGovernment of the
Philippines and to establish in thiscountry a
totalitarian regime under the domination of
aforeign power; (b) that the accused joined such
organization;and (c) that he did so knowingly,
willfully and byovert acts; and
(2) In the case of the Communist Party of the
Philippines,(a) that the CPP continues to pursue
the objectiveswhich led Congress in 1957 to
declare it to be an organizedconspiracy for the
overthrow of the Government by illegalmeans for
the purpose of placing the country under
thecontrol of a foreign power; (b) that the accused
joined theCPP; and (c) that he did so willfully,
knowingly and byovert acts.
We refrain from making any pronouncement as to
thecrime or remaining a member of the
Communist Party ofthe Philippines or of any other
subversive association: weleave this matter to
future determination.
ACCORDINGLY, the questioned resolution of
September15, 1970 is set aside, and these two
cases are herebyremanded to the court a quo for
trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and
Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join
therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion
Act.1 It is to be admittedthat the learned and
scholarly opinbion of Justice Castro hasthe
impress of conscientious and painstaking
scrutiny ofthe constitutional issues raised. What
is more, the stressin the concluding portion
thereof on basic guidelines thatwill assure in the
trial of those prosecuted under suchAct respect
for their constitutional rights is to be
commended.Nonetheless, my own reading of the
decisionscited, interpreting the bill of attainder
clause2 coupled withthe fears, perhaps induced
by a too-latitudinarian constructionof the
guarantees of freedom of belief and
expression3 as well as freedom of
association 4 as to impermissible inroadsto which
they may be exposed, compels a
differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that
theequally pressing concern of state safety and
security shouldbe ignored. The political branches
of the governmentwould lay themselves oepn to
a justifiable indictment fornegligence had they
been remiss in their obligation tosafeguard the
nation against its sworn enemies. In a simplerera,
where the overthrow of the government
wasusually through the rising up in arms, with
weapons farless sophisticated than those now in
existence, there wasno constitutional issue of the
magnitude that now confrontsus. Force has to be
met with force. It was as clearcutas that.
Advances in science as well as more
subtlemethods of inducing disloyalty and
weakening the senseof allegiance have
introduced complexities in coping withsuch
problems. There must be then, and I am the firstto
recognize it, a greater understanding for the
governmentalresponde to situations of that
character. It is inthat light that the validity of the
Anti-Subversion Act isto be appraised. From ny
standpoint, and I am not presumptuousenough to
claim that it is the only perspectiveor that is the
most realistic, I feel that there was an
insufficientappreciation of the compulsion of the
constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by
the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more
in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to
be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to
legitilate state effortsto stem the tide of
subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the
significanceof the bill of attainder clause is the
meaning attachedto it by the Constitutional
Convention of 1934 and by the people who
adopted it. As was explained by the then
Delegate, later Justice, Jose P. Laurel in his
address on November19, 1934 as Chairman of
the Committee on the Bill of Rights quoted in the
opinion of the Court: "A billof attainder is a
legislative act which inflicts punishment without
judicial trial. (Cummings v. United States, 4Wall.
277, 18 L ed 356). In England, the Bill of Attainder
was an act of Parliament by which a man was
tried, convictedand sentenced to death without a
jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the
rules of evidence. His bloodwas attainted or
corrupted, rendering him devoid of allheritable
quality — of acquiring and disposing property
bydescent. (Ex parteGarland, 4 Wall. 333, 18 L
ed. 366) If the penalty imposed was less than
death, the act wasknown as a 'bill of pains and
penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of
Stuartoppression. Once, the name of Thomas
Jefferson was includedin a bill of attainder
presented to Parliament becauseof his reform
activities."5 Two American SupremeCourt
decision were thus in the minds of the
framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally.
Legislative acts, no matter whattheir form, that
apply either to named individuals or
easilyascertainable members of a group in such
a way as to inflicton them punishment amounting
to a deprivation ofany right, civil or political,
without judicial trial are billsof attainder prohibited
by the Constitution. 8
Cummings v. Missouri 9 was a criminal
prosecution ofa Catholic priest for refusing to take
the loyalty oath requiredby the state Constitution
of Missouri of 1865. Undersuch a provision,
lawyers, doctors, ministers, and
otherprofessionals must disavow that they had
ever, "by act orword," manifested a "desire" for
the success of the nation'senemies or a
sympathy" with the rebels of the AmericanCivil
War. If they swore falsely, they were guilty of
perjury.If they engaged in their professions
without theoath, they were criminally liable. The
United States Supreme Court condemned the
provision as a bill of attainder,identified as any
legislative act inflicting punishment withoutjudicial
trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a
punishment.Why such a conclusion was
unavoidable was explained inthe opinion of
Justice Field thus: "A bill of attainder isa
legislative act, which inflicts punishment without a
judicialtrial. If the punishment be less than death,
the actis termed a bill of pains and penalties.
Within the meaningof the Constitution, bills of
attainder include bills ofpains and penalties. In
these cases the legislative body, inaddition to its
legitimate functions, exercises the powersand
office of judge; it assumes, in the language of
thetextbooks, judicial magistracy; it pronounces
upon theguilt of the party, without any of the forms
or safeguardsof trial; it determines the sufficiency
of the proofs produced,whether conformable to
the rules of evidence orotherwise; and it fixes the
degree of punishment in accordancewith its own
notions of the enormity of the offense. ... If the
clauses of the 2d article of the Constitutionof
Missouri, to which we have referred, had in
termsdeclared that Mr. Cummings was guilty, or
should be heldguilty, of having been in armed
hostility to the UnitedStates, or of having entered
that state to avoid beingenrolled or drafted into
the military service of the UnitedStates, and,
therefore, should be deprived of the right
topreach as a priest of the Catholic church, or to
teach inany institution of learning, there could be
no question thatthe clauses would constitute a bill
of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof
mentioning his name, had declared that all
priestsand clergymen within the state of Missouri
were guiltyof these acts, or should be held guilty
of them, and hencebe subjected to the like
deprivation, the clause would beequally open to
objection. And further, it these clauseshad
declared that all such priests and clergymen
shouldbe so held guilty, and be thus deprived,
provided they didnot, by a day designated, do
certain specified acts, theywould be no less within
the inhibition of the Federal Constitution.In all
these cases there would be the
legislativeenactment creating the deprivation,
without any of theordinary forms and guards
provided for the security ofthe citizen in the
administration of justice by the
establishedtribunales." 10
On the very same day that the ruling in
Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a
motion for leave to practrice as an attorney
beforethe American Supreme Court. Petitioner
Garland wasadmitted to such bar at the
December term of 1860. Underthe previous rules
of such Court, all that was necessarywas that the
applicant have three years practice in the
statecourts to which he belonged. In March 1865,
the rule waschanged by the addition of a clause
requiring that an oathbe taken under the
Congressional acts of 1862 and 1865to the effect
that such candidate for admission to the barhad
never voluntarily borne arms against the
UnitedStates. Petitioner Garland could not in
conscience subscribeto such an oath, but he was
able to show a presidentialpardon extended on
July 15, 1865. With such actof clemency, he
moved that he be allowed to continue inpractice
contending that the test oath requirement
wasunconstitutional as a bill of attainder and that
at any rate,he was pardoned. The same ruling
was announced by theCourt again through
Justice Field. Thus: "In the exclusionwhich the
statute adjudges, it imposes a punishmentfor
some of the acts specified which were not
punishableat the time they were committedl; and
for other of the actsit adds a new punishment to
that before prescribed, andit is thus brought
within the further inhibition of the
Consitutionagainst the passage of an ex post
facto law. Inthe case of Cummings v. Missouri,
just decided, ... wehave had occasion to consider
at length the meaning of abill of attainder and of
an ex post facto law in the clauseof the
Constitution forbidding their passage by the
states,and it is unnecessary to repeat here what
we there said.A like prohibition is contained in the
Constitution againstenactments of this kind by
Congress; and the argumentpresented in that
case against certain clauses of the Constitutionof
Missouri is equally applicable to the act
ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and
Garlanddoctrine in United States v.
Lovett, 13 decided in 1946.There it was shown
that in 1943 the respondents, Lovett,Watson, and
Dodd, were and had been for several
yearsworking for the government. The
government agencies,which had lawfully
employed them, were fully satisfiedwith the
quality of their work and wished to keep
thememployed on their jobs. Over their protest,
Congress providedin Section 304 of the Urgent
Deficiency AppropriationAct of 1943, by way of an
amendment attached to theHouse Bill, that after
November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen
or thereafter appropriated except for services as
jurorsor members of the armed forces, unless
they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide
and consent of the Senate.Notwithstanding such
Congressional enactment, and thefailure of the
President to reappoint the respondents,
theagencies, kept all the respondents at work on
their jobs forvarying periods after November 15,
1943, but their compensationwas discontinued
after that date. Respondentsbrought this action in
the Court of Claims for the salariesto which they
felt entitled. The Ameican Supreme Courtstated
that its inquiry was thus confined to whether
theaction in the light of proper construction of the
Act presenteda justificiable controversy, and, if
so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view
theAmerican Supreme Court in an opinion by
Justice Blackcategorically affirmed: "We hold that
Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution
barred by providing that 'No Billof Attainder or ex
post Law shall be passed.' InCummings v. State
of Missouri, ... this Court said, 'Abill of attainder is
a legislative act which inflicts punishmentwithout
a judicial trial. If the punishment be lessthan
death, the act is termed a bill of pains and
penalties.Within the meaning of the Constitution,
bills of attainderinclude bills of pains and
penalties.' ... On the sameday the Cummings
case was decided, the Court, in Exparte Garland,
also held invalid on the same grounds anAct of
Congress which required attorneys practicing
beforethis Court to take a similar oath. Neither of
thesecases has ever been overruled. They stand
for the propositionthat legislative acts, no matter
what their form,that apply either to named
individuals or to easily ascertainablemembers of
a group in such a way as to inflictpunishment on
them without a judicial trial are billsof attainder
prohibited by the Constitution. Adherenceto this
principle requires invalidation of Section 304.
Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was
the firstcase to review a conviction under the
Labor-ManagementReporting and Disclosure Act
of 1959, making it a crimefor a member of the
Communist Party to serve as anofficer ir, except
in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a personswho possess the fearec characteristics
longshoremanon the San Francisco docks, and
an open andavowed Communist, for more than a
quarter of a centurywas elected to the Executive
Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor
consecutive one-year terms in 1959, 1960, and
1961.On May 24, 1961, respondent was charged
in a one-countindictment returned in a district
court of California withservicing as a member of
an executive board of a labororganization while a
member of the Communist Party, inwillful
violation of the above provision. The question
ofits validity under the bill of attainder clause was
thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals
for the Ninth Circuitreversed. It was sustained by
the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide
variation in form, purpose and effect of ante-
Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and
its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the
reasons for its inclusion in theConstitution, and
the evils it was desinged to eliminate.The best
available evidence, the writings of the architectsof
our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded)
prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard
against legislative exercise of the judicialfunction,
or more simply — trial by legislature." 16 Then
after referring to Cummings, Garland, and
Lovett,Chief Justice Warren continued: "Under
the line of casesjust outlined, Sec. 504 of the
Labor Management Reportingand Disclosure Act
plainly constitutes a bill of attainder. Congress
undoubtedly possesses power under
theCommerce Clause to enact legislation
designed to keepfrom positions affecting
interstate commerce persons whomay use such
positions to bring about political strikes. In Sec.
504, however, Congress has exceeded the
authoritygranted it by the Constitution. The
statute does not setforth a generally applicable
rule decreeing that any personwho commits
certain acts or possesses certain characteristics
(acts and characteristics whhich, in
Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and
leave to courts and juries thejob of deciding what
persons have committed the specifiedacts or
possessed the specified characteristics.
Instead,it designates in no uncertain terms the
and therefore cannothold union office without
incurring criminal liability — members of the
Communist Party." 17
Even Communist Party v. Subversive Activities
ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring
the Communist Party ofthe United States to
register was sustained, the opinionof Justice
Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the
Cummingsprinciple. Had the American
Communist Party been outlawed,the outcome
certainly would have been different.Thus: "The
Act is not a bill of attainder. It attaches notto
specified organizations but to described activities
inwhich an organization may or may not engage.
The singlingout of an individual for legislatively
prescribed punishmentconstitutes an attainder
whether the individualis called by name or
described in terms of conduct which,because it is
past conduct, operates only as a designationof
particular persons. ... The Subversive Activities
ControlAct is not of that king. It requires the
registrationonly of organizations which, after the
date of the Act,are found to be under the
direction, domination, or controlof certain foreign
powers and to operate primarily toadvance
certain objectives. This finding must be madeafter
full administrative hearing, subject to judicial
reviewwhich opens the record for the reviewing
court'sdetermination whether the administrative
findings as tofact are supported by the
preponderance of the evidence.Present activity
constitutes an operative element to whichthe
statute attaches legal consequences, not merely
a pointof reference for the ascertainment of
particularly personsineluctably designated by the
legislature." 19
The teaching of the above cases, which I find
highlypersuasive considering what appeared to
be in the mindsof the framers of the 1934
Constitutional Conventionyields for me the
conclusion that the Anti-SubversionAct falls
within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases
upholding theCummings and Garland doctrine
were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is,
of course, different but I am unable togo along
with them especially in the light of the
categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them
could deprive such aholding of its explicit
character as shown by this excerptfrom the
opinion of the Court: "Indeed, were the Anti-
SubversionAct a bill of attainder it would be totally
unnecessaryto charge communists in court, as
the law alone,without more, would suffice to
secure their conviction andpunishment. But the
fact is that their guilt still has to bejudicially
estblished. The Government has yet to proveat
the trial that the accused joined the Party
knowingly,willfully and by overt acts, and that they
joined the Partyknowing its subversive character
and with specific intentto further its objective, i.e.,
to overthrow the existing Governmentby force,
deceit, and other illegal means and placeit under
the control and domination of a foreign power.
20While not implausible, I find difficulty in yielding
acceptance.In Cummings, there was a criminal
prosecution ofthe Catholic priest who refused to
take the loyalty oath.Again in Brown, there was
an indictment of the laborleader who, judging by
his membership in the CommunistParty, did
transgress the statutory provision
subsequentlyfound offensive to the bill attainder
clause. If the constructionI would place on theoff-
repeated pronouncementof the American
Supreme Court is correct, then the merefact that
a criminal case would have to be instituted
wouldnot save the statute. It does seem clear to
me that fromthe very title of the Anti-Subversion
Act, "to outlaw the Communist Party of the
Philippines and similar associations,"not to
mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to
concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the
Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged
repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution
in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time
of the enactment of Republic Act No. 1700,the
threat that Communism, the Russian brand then,
didpose was a painful reality for Congressional
leaders andthe then President. Its shadow fell
squarely across thelives of all. Subversion then
could neither be denied notdisparaged. There
was, in the expert opinion of those
conversantwith such mattes, a danger to out
national existenceof no mean character.
Nonetheless, the remedies toward off such
menace must not be repugnant to our
Constitution.We are legally precluded from acting
in anyother way. The apprehension justly felt is
no warrant forthrowing to the discard fundamental
guarantees. Vigilantwe had to be, but not at the
expense of constitutional ideals.
One of them, certainly highly-prized of the utmost
significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with
things as theyare. There are timew when one not
only can but must.Such dissent can take the form
of the most critical andthe most disparaging
remarks. They may give offense tothose in
authority, to those who wield powe and
influence.Nevertheless, they are entitled to
constitutional protection.Insofar as the content of
such dissent is concerned, thelimits are hardly
discernible. It cannot be confined totrivial matters
or to such as are devoid of too much
significance.It can reach the heart of things. Such
dissentmay, for those not so adventurous in the
realm of ideas,possess a subversive tinge. Even
those who oppose a democraticform of
government cannot be silenced. This is
trueespecially in centers of learning where
scholars competentin their line may, as a result of
their studies, assert thata future is bleak for the
system of government now favoredby Western
democracies. There may be doubts
entertainedby some as to the lawfulness of their
exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen
may do so without fear thatthereby he incurs the
risk of a penal sanction. That ismerely to affirm
the truth of this ringing declaration fromJefferson:
"If there be any among us who would wish
todissolve this union or to change its republican
form, letthem stand undisturbed as monuments of
the safety withwhich error of opinion may be
tolerated where reason isleft free to combat
it." 22 As was so well put by the
philosopher,Sidney Hook: "Without holding the
right to theexpression of heresy at any time and
place to be absolute — for even the right to non-
heretical speech cannot beabsolute — it still
seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in
outlawingthem we include other kings of
heresies, and deprive ourselvesof the opportunity
to acquite possibly sounder ideasthan our
own." 23
The line is to be drawn, however, where the
wordsamount to an incitement to commit the
crime of seditionor rebellion. The state has been
reached, to follow theformulation of Cardozo,
where thought merges into action.Thus is loyalty
shown to the freedom of speech or pressordained
by the Constitution. It does not bar the
expressionof views affecting the very life of the
state, even ifopposed to its fundamental
presuppositions. It allows, ifit does not require as
a matter of fact, that unorthodoxideas be freely
ventilated and fully heard. Dissent is
notdisloyalty.
Such an approach is reinforced by the well-
settled constitutionalprinciple "that even though
the governmental purposesbe legitimate and
substantial, they cannot be pursuedby means
that broadly stifle fundamental personalliberties
when the end can be more narrowly achieved.For
precision of regulation is the touchstone in an
areaso closely related to our most precious
freedoms." 24 This is so for "a governmental
purpose to control or prevent activities
constitutionally subject to state regulation may
notbe achieved by means which sweep
unnecessarily broadlyand thereby invade the
area of protected freedoms." 25 It isindispensable
then that "an over breadth" in the applicabilityof
the statute be avoided. If such be the case, then
theline dividing the valid from the constitutionally
infirm hasbeen crossed. That for me is the
conclusion to be drawnfrom the wording of the
Anti-Subversion Act.
There is to my mind support for the stand I take
inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in
view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious
Communist problem was found inthe opinion of
this noted jurist offensive to the FirstAmendment
of the American Constitution safeguardingfree
speech. Thus: "If there is one thing certain
aboutthe First Amendment it is that this
Amendment was designedto guarantee the freest
interchange of ideas aboutall public matters and
that, of course, means the
interchangeof all ideas, however such ideas may
be viewed inother countries and whatever change
in the existing structureof government it may be
hoped that these ideas willbring about. Now,
when this country is trying to spreadthe high
ideals of democracy all over the world — ideals
that are revolutionary in many countries — seems
to be aparticularly inappropriate time to stifle First
Amendmentfreedoms in this country. The same
arguments that areused to justify the outlawry of
Communist ideas here couldbe used to justify an
outlawry of the ideas of democracyin other
countries." 26 Further he stated: "I believe with
theFramers of the First Amendment that the
internal securityof a nation like ours does not and
cannot be made todepend upon the use of force
by Government to make allthe beliefs and
opinions of the people fit into a commonmold on
any single subject. Such enforced conformity
ofthought would tend only to deprive our people
of the boldspirit of adventure and progress which
has brought thisNation to its present greatness.
The creation of publicopinion by groups,
organizations, societies, clubs, and partieshas
been and is a necessary part of our
democraticsociety. Such groups, like the Sons of
Liberty and theAmerican Corresponding
Societies, played a large part increating
sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father
ofthe Constitution — James Madison — said, in
speakingof the Sedition Act aimed at crushing the
Jefferson Party,that had that law been in effect
during the period beforethe Revolution, the
United States might well have continuedto be
'miserable colonies, groaning under a foreign
yoke.'In my judgment, this country's internal
security can betterbe served by depending upon
the affection of the peoplethan by attempting to
instill them with fear and dreadof the power of
Government. The Communist Party hasnever
been more than a small group in this country.
Andits numbers had been dwindling even before
the Governmentbegan its campaign to destroy
the Party by force oflaw. This was because a vast
majority of the Americanpeople were against the
Party's policies and overwhelminglyrejected its
candidates year after year. That is the
trueAmerican way of securing this Nation against
dangerousideas. Of course that is not the way to
protect the Nationagainst actions of violence and
treason. The Foundersdrew a distinction in our
Constitution which we would bewise to follow.
They gave the Government the fullest powerto
prosecute overt actions in violation of valid
lawsbut withheld any power to punish people for
nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in
mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my
breathren as to the Anti-Subversion Act
successfully meeting the test of validity onfree
speech and freedom of association grounds.
4. It could be that this approach to the
constitutionalquestions involved arises from an
appraisal of the challengedstatute which for me is
susceptible of an interpretationthat it does
represent a defeatist attitude on thepart of those
of us, who are devotees at the shrine of aliberal-
democratic state. That certainly could not
havebeen the thought of its framers; nonetheless,
such an assumptionis not devoid of plausibility for
why resort tothis extreme measure susceptible as
it is to what apparentlyare not unfounded attacks
on constitutional grounds?Is this not to ignore
what previously was accepted as anobvious truth,
namely that the light of liberalism sendsits shafts
in many directions? It can illuminate, and itcan
win the hearts and minds of men. It if difficult
forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the
only answer to whatis an admitted evil. There
could have been a greater exposureof the
undesirability of the communist creed,
itscontradictions and arbitrarines, its lack of fealty
to reason,its inculcation of disloyalty, and its
subservience tocentralized dictation that brooks
no opposition. It is thus,in a realistic sense, a
manifestation of the fear of freethought and the
will to suppress it. For better, of course,is the
propaganda of the deed. What the communists
promise,this government can fulfill. It is up to it
then to takeremedial measures to alleviate the
condition of our countrymenwhose lives are in a
condition of destitution andmisery. It may not be
able to change matters radically.At least, it should
take earnest steps in that direction.What is
important for those at the bottom of the
economicpyramid is that they are not denied the
opportunity for abetter life. If they, or at least their
children, cannot evenlook forward to that, then a
constitutional regime is nothingbut a mockery and
a tragic illusion. Such a response,I am optimistic
enough to believe, has the merit of thinning,if not
completely eliminating, the embattled ranksand
outposts of ignorance, fanaticism and error. That
forme would be more in accordance with the
basic propositionof our polity. This is not therefore
to preach a doctrine of object surrender to the
forces apparently bent on the adoption of a way
of life so totally opposed to the deeply felt
traditions of our people. This is, for me at least,
an affirmation of the vitality of the democratic
creed, with an expression of regret that it could
not have been more impressively set forth in
language worthy of the subject.
It is in the light of the views above expressed that
I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the
Court sustaining the validity of the Anti-
Subversion Act.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join
therest of my brethren in the decision reached
upholding thevalidity of the Anti-Subversion
Act.1 It is to be admittedthat the learned and
scholarly opinbion of Justice Castro hasthe
impress of conscientious and painstaking
scrutiny ofthe constitutional issues raised. What
is more, the stressin the concluding portion
thereof on basic guidelines thatwill assure in the
trial of those prosecuted under suchAct respect
for their constitutional rights is to be
commended.Nonetheless, my own reading of the
decisionscited, interpreting the bill of attainder
clause2 coupled withthe fears, perhaps induced
by a too-latitudinarian constructionof the
guarantees of freedom of belief and
expression3 as well as freedom of
association 4 as to impermissible inroadsto which
they may be exposed, compels a jury, without ahearing in court, without hearing the
differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that
theequally pressing concern of state safety and
security shouldbe ignored. The political branches
of the governmentwould lay themselves oepn to
a justifiable indictment fornegligence had they
been remiss in their obligation tosafeguard the
nation against its sworn enemies. In a simplerera,
where the overthrow of the government
wasusually through the rising up in arms, with
weapons farless sophisticated than those now in
existence, there wasno constitutional issue of the
magnitude that now confrontsus. Force has to be
met with force. It was as clearcutas that.
Advances in science as well as more
subtlemethods of inducing disloyalty and
weakening the senseof allegiance have
introduced complexities in coping withsuch
problems. There must be then, and I am the firstto
recognize it, a greater understanding for the
governmentalresponde to situations of that
character. It is inthat light that the validity of the
Anti-Subversion Act isto be appraised. From ny
standpoint, and I am not presumptuousenough to
claim that it is the only perspectiveor that is the
most realistic, I feel that there was an
insufficientappreciation of the compulsion of the
constitutionalcommands against bills of attainder
and abridgmentof free speech. I am comforted by
the thought that evenhad my view prevailed, all
that it would mean is that anew legislation, more
in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to
be enacted. No valid fear need be entertained
thenthat a setback would be occasioned to
legitilate state effortsto stem the tide of
subversive activities, in whateverform
manifested.
2. The starting point in any inquiry as to the
significanceof the bill of attainder clause is the
meaning attachedto it by the Constitutional
Convention of 1934 and by the people who
adopted it. As was explained by the then
Delegate, later Justice, Jose P. Laurel in his
address on November19, 1934 as Chairman of
the Committee on the Bill of Rights quoted in the
opinion of the Court: "A billof attainder is a
legislative act which inflicts punishment without
judicial trial. (Cummings v. United States, 4Wall.
277, 18 L ed 356). In England, the Bill of Attainder
was an act of Parliament by which a man was
tried, convictedand sentenced to death without a
witnesses againsthim and without regard to the
rules of evidence. His bloodwas attainted or
corrupted, rendering him devoid of allheritable
quality — of acquiring and disposing property
bydescent. (Ex parteGarland, 4 Wall. 333, 18 L
ed. 366) If the penalty imposed was less than
death, the act wasknown as a 'bill of pains and
penalties.' Bills of attainder, like ex post
facto laws, were favorite methods of
Stuartoppression. Once, the name of Thomas
Jefferson was includedin a bill of attainder
presented to Parliament becauseof his reform
activities."5 Two American SupremeCourt
decision were thus in the minds of the
framers.They are Cummings v. Missouri 6 and Ex
parte Garland. 7 They speak unequivocally.
Legislative acts, no matter whattheir form, that
apply either to named individuals or
easilyascertainable members of a group in such
a way as to inflicton them punishment amounting
to a deprivation ofany right, civil or political,
without judicial trial are billsof attainder prohibited
by the Constitution. 8
Cummings v. Missouri 9 was a criminal
prosecution ofa Catholic priest for refusing to take
the loyalty oath requiredby the state Constitution
of Missouri of 1865. Undersuch a provision,
lawyers, doctors, ministers, and
otherprofessionals must disavow that they had
ever, "by act orword," manifested a "desire" for
the success of the nation'senemies or a
sympathy" with the rebels of the AmericanCivil
War. If they swore falsely, they were guilty of
perjury.If they engaged in their professions
without theoath, they were criminally liable. The
United States Supreme Court condemned the
provision as a bill of attainder,identified as any
legislative act inflicting punishment withoutjudicial
trial. The deprivation of any right, civil orpolitical,
previously enjoyed, amounted to a
punishment.Why such a conclusion was
unavoidable was explained inthe opinion of
Justice Field thus: "A bill of attainder isa
legislative act, which inflicts punishment without a
judicialtrial. If the punishment be less than death,
the actis termed a bill of pains and penalties.
Within the meaningof the Constitution, bills of
attainder include bills ofpains and penalties. In
these cases the legislative body, inaddition to its
legitimate functions, exercises the powersand
office of judge; it assumes, in the language of
thetextbooks, judicial magistracy; it pronounces
upon theguilt of the party, without any of the forms
or safeguardsof trial; it determines the sufficiency
of the proofs produced,whether conformable to
the rules of evidence orotherwise; and it fixes the
degree of punishment in accordancewith its own
notions of the enormity of the offense. ... If the
clauses of the 2d article of the Constitutionof
Missouri, to which we have referred, had in
termsdeclared that Mr. Cummings was guilty, or
should be heldguilty, of having been in armed
hostility to the UnitedStates, or of having entered
that state to avoid beingenrolled or drafted into
the military service of the UnitedStates, and,
therefore, should be deprived of the right
topreach as a priest of the Catholic church, or to
teach inany institution of learning, there could be
no question thatthe clauses would constitute a bill
of attainder within themeaning of the Federal
Constitution. If these clauses, insteadof
mentioning his name, had declared that all
priestsand clergymen within the state of Missouri
were guiltyof these acts, or should be held guilty
of them, and hencebe subjected to the like
deprivation, the clause would beequally open to
objection. And further, it these clauseshad
declared that all such priests and clergymen
shouldbe so held guilty, and be thus deprived,
provided they didnot, by a day designated, do
certain specified acts, theywould be no less within
the inhibition of the Federal Constitution.In all
these cases there would be the
legislativeenactment creating the deprivation,
without any of theordinary forms and guards
provided for the security ofthe citizen in the
administration of justice by the
establishedtribunales." 10
On the very same day that the ruling in
Cummings washanded down, Ex
parte Garland 11 was also decided. Thatwas a
motion for leave to practrice as an attorney
beforethe American Supreme Court. Petitioner
Garland wasadmitted to such bar at the
December term of 1860. Underthe previous rules
of such Court, all that was necessarywas that the
applicant have three years practice in the
statecourts to which he belonged. In March 1865,
the rule waschanged by the addition of a clause
requiring that an oathbe taken under the
Congressional acts of 1862 and 1865to the effect
that such candidate for admission to the barhad
never voluntarily borne arms against the
UnitedStates. Petitioner Garland could not in
conscience subscribeto such an oath, but he was
able to show a presidentialpardon extended on
July 15, 1865. With such actof clemency, he
moved that he be allowed to continue inpractice
contending that the test oath requirement
wasunconstitutional as a bill of attainder and that
at any rate,he was pardoned. The same ruling
was announced by theCourt again through
Justice Field. Thus: "In the exclusionwhich the
statute adjudges, it imposes a punishmentfor
some of the acts specified which were not
punishableat the time they were committedl; and
for other of the actsit adds a new punishment to
that before prescribed, andit is thus brought
within the further inhibition of the
Consitutionagainst the passage of an ex post
facto law. Inthe case of Cummings v. Missouri,
just decided, ... wehave had occasion to consider
at length the meaning of abill of attainder and of
an ex post facto law in the clauseof the
Constitution forbidding their passage by the
states,and it is unnecessary to repeat here what
we there said.A like prohibition is contained in the
Constitution againstenactments of this kind by
Congress; and the argumentpresented in that
case against certain clauses of the Constitutionof
Missouri is equally applicable to the act
ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and
Garlanddoctrine in United States v.
Lovett, 13 decided in 1946.There it was shown
that in 1943 the respondents, Lovett,Watson, and
Dodd, were and had been for several
yearsworking for the government. The
government agencies,which had lawfully
employed them, were fully satisfiedwith the
quality of their work and wished to keep
thememployed on their jobs. Over their protest,
Congress providedin Section 304 of the Urgent
Deficiency AppropriationAct of 1943, by way of an
amendment attached to theHouse Bill, that after
November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen
or thereafter appropriated except for services as
jurorsor members of the armed forces, unless
they wereprior to November 15, 1943, again
appointed to jobs bythe President with the advide
and consent of the Senate.Notwithstanding such
Congressional enactment, and thefailure of the
President to reappoint the respondents,
theagencies, kept all the respondents at work on
their jobs forvarying periods after November 15,
1943, but their compensationwas discontinued
after that date. Respondentsbrought this action in
the Court of Claims for the salariesto which they
felt entitled. The Ameican Supreme Courtstated
that its inquiry was thus confined to whether
theaction in the light of proper construction of the
Act presenteda justificiable controversy, and, if
so, whether Section304 is a bill of attainder
insofar as the respondents wereconcerned.
After holding that there was a juditiciable, view
theAmerican Supreme Court in an opinion by
Justice Blackcategorically affirmed: "We hold that
Section 304 fallsprecisely within the category of
Congressional actionswhich the Constitution
barred by providing that 'No Billof Attainder or ex
post Law shall be passed.' InCummings v. State
of Missouri, ... this Court said, 'Abill of attainder is
a legislative act which inflicts punishmentwithout
a judicial trial. If the punishment be lessthan
death, the act is termed a bill of pains and
penalties.Within the meaning of the Constitution,
bills of attainderinclude bills of pains and
penalties.' ... On the sameday the Cummings
case was decided, the Court, in Exparte Garland,
also held invalid on the same grounds anAct of
Congress which required attorneys practicing
beforethis Court to take a similar oath. Neither of
thesecases has ever been overruled. They stand
for the propositionthat legislative acts, no matter
what their form,that apply either to named
individuals or to easily ascertainablemembers of
a group in such a way as to inflictpunishment on
them without a judicial trial are billsof attainder
prohibited by the Constitution. Adherenceto this
principle requires invalidation of Section 304.
Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was
the firstcase to review a conviction under the
Labor-ManagementReporting and Disclosure Act
of 1959, making it a crimefor a member of the
Communist Party to serve as anofficer ir, except
in clerical or custodial positions, anemployee of a
labor union. Respondent Brown, a Instead,it designates in no uncertain terms the
longshoremanon the San Francisco docks, and
an open andavowed Communist, for more than a
quarter of a centurywas elected to the Executive
Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor
consecutive one-year terms in 1959, 1960, and
1961.On May 24, 1961, respondent was charged
in a one-countindictment returned in a district
court of California withservicing as a member of
an executive board of a labororganization while a
member of the Communist Party, inwillful
violation of the above provision. The question
ofits validity under the bill of attainder clause was
thusproperly raised for adjudication. While
convicted in thelower court, the Court of Appeals
for the Ninth Circuitreversed. It was sustained by
the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide
variation in form, purpose and effect of ante-
Constitutionbills of attainder indicates that the
properscope of the Bill of Attainder Clause, and
its relevance tocontemporary problems, must
ultimately be sought by attemptingto discern the
reasons for its inclusion in theConstitution, and
the evils it was desinged to eliminate.The best
available evidence, the writings of the architectsof
our constitutional system, indicates that the Bill
ofAttainder Clause was inteded not as a narrow,
technical(and therefore soon to be outmoded)
prohibition, but ratheras an implementation of the
separation of powers, ageneral safeguard
against legislative exercise of the judicialfunction,
or more simply — trial by legislature." 16 Then
after referring to Cummings, Garland, and
Lovett,Chief Justice Warren continued: "Under
the line of casesjust outlined, Sec. 504 of the
Labor Management Reportingand Disclosure Act
plainly constitutes a bill of attainder. Congress
undoubtedly possesses power under
theCommerce Clause to enact legislation
designed to keepfrom positions affecting
interstate commerce persons whomay use such
positions to bring about political strikes. In Sec.
504, however, Congress has exceeded the
authoritygranted it by the Constitution. The
statute does not setforth a generally applicable
rule decreeing that any personwho commits
certain acts or possesses certain characteristics
(acts and characteristics whhich, in
Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and
leave to courts and juries thejob of deciding what
persons have committed the specifiedacts or
possessed the specified characteristics.
personswho possess the fearec characteristics
and therefore cannothold union office without
incurring criminal liability — members of the
Communist Party." 17
Even Communist Party v. Subversive Activities
ControlBoard, 18 where the provision of the
Subversive ActivitiesControl Act of 1950 requiring
the Communist Party ofthe United States to
register was sustained, the opinionof Justice
Frankfurter for the Court, speaking for a five-
manmajority, did indicate adherence to the
Cummingsprinciple. Had the American
Communist Party been outlawed,the outcome
certainly would have been different.Thus: "The
Act is not a bill of attainder. It attaches notto
specified organizations but to described activities
inwhich an organization may or may not engage.
The singlingout of an individual for legislatively
prescribed punishmentconstitutes an attainder
whether the individualis called by name or
described in terms of conduct which,because it is
past conduct, operates only as a designationof
particular persons. ... The Subversive Activities
ControlAct is not of that king. It requires the
registrationonly of organizations which, after the
date of the Act,are found to be under the
direction, domination, or controlof certain foreign
powers and to operate primarily toadvance
certain objectives. This finding must be madeafter
full administrative hearing, subject to judicial
reviewwhich opens the record for the reviewing
court'sdetermination whether the administrative
findings as tofact are supported by the
preponderance of the evidence.Present activity
constitutes an operative element to whichthe
statute attaches legal consequences, not merely
a pointof reference for the ascertainment of
particularly personsineluctably designated by the
legislature." 19
The teaching of the above cases, which I find
highlypersuasive considering what appeared to
be in the mindsof the framers of the 1934
Constitutional Conventionyields for me the
conclusion that the Anti-SubversionAct falls
within the ban of the bill of attainder clause.
Itshould be noted that three subsequent cases
upholding theCummings and Garland doctrine
were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is,
of course, different but I am unable togo along
with them especially in the light of the
categoricallanguage appearing in Lovett. This is
not to lose sightof the qualification that for them
could deprive such aholding of its explicit
character as shown by this excerptfrom the
opinion of the Court: "Indeed, were the Anti-
SubversionAct a bill of attainder it would be totally
unnecessaryto charge communists in court, as
the law alone,without more, would suffice to
secure their conviction andpunishment. But the
fact is that their guilt still has to bejudicially
estblished. The Government has yet to proveat
the trial that the accused joined the Party
knowingly,willfully and by overt acts, and that they
joined the Partyknowing its subversive character
and with specific intentto further its objective, i.e.,
to overthrow the existing Governmentby force,
deceit, and other illegal means and placeit under
the control and domination of a foreign power.
20While not implausible, I find difficulty in yielding
acceptance.In Cummings, there was a criminal
prosecution ofthe Catholic priest who refused to
take the loyalty oath.Again in Brown, there was
an indictment of the laborleader who, judging by
his membership in the CommunistParty, did
transgress the statutory provision
subsequentlyfound offensive to the bill attainder
clause. If the constructionI would place on theoff-
repeated pronouncementof the American
Supreme Court is correct, then the merefact that
a criminal case would have to be instituted
wouldnot save the statute. It does seem clear to
me that fromthe very title of the Anti-Subversion
Act, "to outlaw the Communist Party of the
Philippines and similar associations,"not to
mention other specific provisions, the taintof
invalidity is quite marked. Hence, my inability to
concurin the judgment reached as the statute not
suffering fromany fatal infirmity in view of the
Constitutional prohibitionagainst bills of attainder.
3. This brings me to the question of the alleged
repugnancyof the Anti-Subversion Act to the
intellectual libertysafeguarded by the Constitution
in terms of the free speechand free assocition
guarantees. 21 It is to be admitted thatat the time
of the enactment of Republic Act No. 1700,the
threat that Communism, the Russian brand then,
didpose was a painful reality for Congressional
leaders andthe then President. Its shadow fell
squarely across thelives of all. Subversion then
could neither be denied notdisparaged. There
was, in the expert opinion of those
conversantwith such mattes, a danger to out
national existenceof no mean character.
Nonetheless, the remedies toward off such
menace must not be repugnant to our
Constitution.We are legally precluded from acting
in anyother way. The apprehension justly felt is
no warrant forthrowing to the discard fundamental
guarantees. Vigilantwe had to be, but not at the
expense of constitutional ideals.
One of them, certainly highly-prized of the utmost
significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with
things as theyare. There are timew when one not
only can but must.Such dissent can take the form
of the most critical andthe most disparaging
remarks. They may give offense tothose in
authority, to those who wield powe and
influence.Nevertheless, they are entitled to
constitutional protection.Insofar as the content of
such dissent is concerned, thelimits are hardly
discernible. It cannot be confined totrivial matters
or to such as are devoid of too much
significance.It can reach the heart of things. Such
dissentmay, for those not so adventurous in the
realm of ideas,possess a subversive tinge. Even
those who oppose a democraticform of
government cannot be silenced. This is
trueespecially in centers of learning where
scholars competentin their line may, as a result of
their studies, assert thata future is bleak for the
system of government now favoredby Western
democracies. There may be doubts
entertainedby some as to the lawfulness of their
exercisingthis right to dissent to the point of
advocary of such adrastic change. Any citizen
may do so without fear thatthereby he incurs the
risk of a penal sanction. That ismerely to affirm
the truth of this ringing declaration fromJefferson:
"If there be any among us who would wish
todissolve this union or to change its republican
form, letthem stand undisturbed as monuments of
the safety withwhich error of opinion may be
tolerated where reason isleft free to combat
it." 22 As was so well put by the
philosopher,Sidney Hook: "Without holding the
right to theexpression of heresy at any time and
place to be absolute — for even the right to non-
heretical speech cannot beabsolute — it still
seems wise to tolerate the expression evenof
Communist, fascist and other heresies, lest in
outlawingthem we include other kings of
heresies, and deprive ourselvesof the opportunity
to acquite possibly sounder ideasthan our
own." 23
The line is to be drawn, however, where the
wordsamount to an incitement to commit the
crime of seditionor rebellion. The state has been
reached, to follow theformulation of Cardozo,
where thought merges into action.Thus is loyalty
shown to the freedom of speech or pressordained
by the Constitution. It does not bar the
expressionof views affecting the very life of the
state, even ifopposed to its fundamental
presuppositions. It allows, ifit does not require as
a matter of fact, that unorthodoxideas be freely
ventilated and fully heard. Dissent is
notdisloyalty.
Such an approach is reinforced by the well-
settled constitutionalprinciple "that even though
the governmental purposesbe legitimate and
substantial, they cannot be pursuedby means
that broadly stifle fundamental personalliberties
when the end can be more narrowly achieved.For
precision of regulation is the touchstone in an
areaso closely related to our most precious
freedoms." 24 This is so for "a governmental
purpose to control or prevent activities
constitutionally subject to state regulation may
notbe achieved by means which sweep
unnecessarily broadlyand thereby invade the
area of protected freedoms." 25 It isindispensable
then that "an over breadth" in the applicabilityof
the statute be avoided. If such be the case, then
theline dividing the valid from the constitutionally
infirm hasbeen crossed. That for me is the
conclusion to be drawnfrom the wording of the
Anti-Subversion Act.
There is to my mind support for the stand I take
inthe dissent of Justice Black in the Communist
Party casediscussed above. What is to be kept in
view is that a legislativemeasure certainly less
drastic in its treatment ofthe admittedly serious
Communist problem was found inthe opinion of
this noted jurist offensive to the FirstAmendment
of the American Constitution safeguardingfree
speech. Thus: "If there is one thing certain
aboutthe First Amendment it is that this
Amendment was designedto guarantee the freest
interchange of ideas aboutall public matters and
that, of course, means the
interchangeof all ideas, however such ideas may
be viewed inother countries and whatever change
in the existing structureof government it may be
hoped that these ideas willbring about. Now,
when this country is trying to spreadthe high
ideals of democracy all over the world — ideals
that are revolutionary in many countries — seems
to be aparticularly inappropriate time to stifle First
Amendmentfreedoms in this country. The same
arguments that areused to justify the outlawry of
Communist ideas here couldbe used to justify an
outlawry of the ideas of democracyin other
countries." 26 Further he stated: "I believe with
theFramers of the First Amendment that the
internal securityof a nation like ours does not and
cannot be made todepend upon the use of force
by Government to make allthe beliefs and
opinions of the people fit into a commonmold on
any single subject. Such enforced conformity
ofthought would tend only to deprive our people
of the boldspirit of adventure and progress which
has brought thisNation to its present greatness.
The creation of publicopinion by groups,
organizations, societies, clubs, and partieshas
been and is a necessary part of our
democraticsociety. Such groups, like the Sons of
Liberty and theAmerican Corresponding
Societies, played a large part increating
sentiment in this country that led the people ofthe
Colonies to want a nation of their own. The Father
ofthe Constitution — James Madison — said, in
speakingof the Sedition Act aimed at crushing the
Jefferson Party,that had that law been in effect
during the period beforethe Revolution, the
United States might well have continuedto be
'miserable colonies, groaning under a foreign
yoke.'In my judgment, this country's internal
security can betterbe served by depending upon
the affection of the peoplethan by attempting to
instill them with fear and dreadof the power of
Government. The Communist Party hasnever
been more than a small group in this country.
Andits numbers had been dwindling even before
the Governmentbegan its campaign to destroy
the Party by force oflaw. This was because a vast
majority of the Americanpeople were against the
Party's policies and overwhelminglyrejected its
candidates year after year. That is the
trueAmerican way of securing this Nation against
dangerousideas. Of course that is not the way to
protect the Nationagainst actions of violence and
treason. The Foundersdrew a distinction in our
Constitution which we would bewise to follow.
They gave the Government the fullest powerto
prosecute overt actions in violation of valid
lawsbut withheld any power to punish people for
nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in
mymind and congenial to my way of thinking, I
cannot sharethe conclusion reached by my
breathren as to the Anti-Subversion Act
successfully meeting the test of validity onfree
speech and freedom of association grounds.
4. It could be that this approach to the
constitutionalquestions involved arises from an
appraisal of the challengedstatute which for me is
susceptible of an interpretationthat it does
represent a defeatist attitude on thepart of those
of us, who are devotees at the shrine of aliberal-
democratic state. That certainly could not
havebeen the thought of its framers; nonetheless,
such an assumptionis not devoid of plausibility for
why resort tothis extreme measure susceptible as
it is to what apparentlyare not unfounded attacks
on constitutional grounds?Is this not to ignore
what previously was accepted as anobvious truth,
namely that the light of liberalism sendsits shafts
in many directions? It can illuminate, and itcan
win the hearts and minds of men. It if difficult
forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the
only answer to whatis an admitted evil. There
could have been a greater exposureof the
undesirability of the communist creed,
itscontradictions and arbitrarines, its lack of fealty
to reason,its inculcation of disloyalty, and its
subservience tocentralized dictation that brooks
no opposition. It is thus,in a realistic sense, a
manifestation of the fear of freethought and the
will to suppress it. For better, of course,is the
propaganda of the deed. What the communists
promise,this government can fulfill. It is up to it
then to takeremedial measures to alleviate the
condition of our countrymenwhose lives are in a
condition of destitution andmisery. It may not be
able to change matters radically.At least, it should
take earnest steps in that direction.What is
important for those at the bottom of the
economicpyramid is that they are not denied the
opportunity for abetter life. If they, or at least their
children, cannot evenlook forward to that, then a
constitutional regime is nothingbut a mockery and
a tragic illusion. Such a response,I am optimistic
enough to believe, has the merit of thinning,if not
completely eliminating, the embattled ranksand
outposts of ignorance, fanaticism and error. That
forme would be more in accordance with the
basic propositionof our polity. This is not therefore
to preach a doctrine of object surrender to the
forces apparently bent on the adoption of a way
of life so totally opposed to the deeply felt
traditions of our people. This is, for me at least,
an affirmation of the vitality of the democratic
creed, with an expression of regret that it could
not have been more impressively set forth in
language worthy of the subject.
It is in the light of the views above expressed that
I find myself unable to yield concurrence to the
ably-written opinion of Justice Castro for the
Court sustaining the validity of the Anti-
Subversion Act.
Footnotes
1 Rep. Act. No. 1700, 12 Laws &
Res. 102 (1957). The text of the
statute is hereunder reproduced
in full:
"AN ACT TO OUTLAW THE
COMMUNIST PARTY OF THE
PHILIPPINES AND SIMILAR
ASSOCIATIONS PENALIZING
MEMBERSHIP THEREIN, AND
FOR OTHER PURPOSES.
"WHEREAS, the Communist
Party of the Philippines, although
purportedly a political party, is in
fact an organized conspiracy to
overthrow the Government of the
Republic of the Philippines not
only by force and violence but
also by deceit, subversion and
other illegal means, for the
purpose of establishing in the
Philippines a totalitarian regime
subject to alien domination and
control;
"WHEREAS, the continued
existence and activities of the
Communist Party of the
Philippines constitutes a clear,
present and grave danger to the
security of the Philippines; and
"WHEREAS, in the face of the
organized, systematic and
persistent subversion, national in
scope but international in
direction, posed by the
Communist Party of the
Philippines and its activities,
there is urgent need for special
legislation to cope with this
continuing menace to the
freedom and security of the
country: Now, therefore,
"Be it enacted by the Senate and
House of Representatives of the
Philippines in Congress
assembled:
"Section 1. This Act shall be
known as Anti-Subversion Act.
"Section 2. The Congress
hereby declares the Communist
Party of the Philippines to be an
organized conspiracy to
overthrow the Government of the
Republic of the Philippines for
the purpose of establishing in the
Philippines a totalitarian regime
and place the Government under
the control and domination of an
alien power. The said party and
any other organization having
the same purpose and their
successors are hereby declared
illegal and outlawed.
Section 3. As used in this Act,
the term 'Communist Party of the
Philippines' shall me and and
include the organizations now
known as the Communist Party
of the Philippines and its military
arm, the Hukbong
Mapagpalayang Bayan, formerly
known as HUKBALAHAPS, and
any successors of such
organizations.
"Section 4. After the approval of
this Act, whoever knowingly,
willfully and by overt acts
affiliates himself with, becomes
or remains a member of the
Communist Party of the
Philippines and/or its successor
or of any subversive association
as defined in section two hereof
shall be punished by the penalty
of arresto mayor and shall be
disqualified permanently from
holding any public office,
appointive and elective, and from
exercising the right to vote; in
case of a second conviction, the
principal penalty shall be prision
correccional, and in all
subsequent convictions the
penalty of prision mayor shall be
imposed; and any alien
convicted under this Act shall be
deported immediately after he
shall have served the sentence
imposed upon him: Provided,
That if such member is an officer
or a ranking leader of the
Communist Party of the
Philippines or of any subversive
association as defined in section
two hereof, or if such member
takes up arms against the
Government he shall be
punished by prision mayor to
deal with all the accessory
penalties provided therefor in the
Revised Penal Code: And
provided, finally, That one who
conspires with any other person
to overthrow the Government of
the Republic of the Philippines or
the government of any of its
political subdivisions by force,
violence, deceit, subversion or
other illegal means, for the
purpose of placing such
Government or political
subdivision under the control and
domination of any alien power,
shall be punished by prision
correccional to prision
mayor with all the accessory
penalties provided therefor in the
same Code.
"Section 5. No prosecution under
this Act shall be made unless the
city or provincial fiscal, or any
special attorney or prosecutor
duly designated by the Secretary
of Justice as the case may be,
finds after due investigation of
the facts, that a prima facie case
for violation of this Act exists
against the accused, and
thereafter presents an
information in court against the
said accused in due form, and
certifies under oath that he has
conducted a proper preliminary
investigation thereof, with notice,
whenever it is possible to give
the same, to the party
concerned, who shall have the
right to be represented by
counsel, to testify, to have
compulsory process for
obtaining witness in his favor,
and to cross-examine witnesses
against him: Provided, That the
preliminary investigation of any
offense defined and penalized
herein by prision mayor to death
shall be conducted by the
property Court of First Instance.
"Section 6. Any person who
knowingly furnishes false
evidence in any action brought
under this Act shall be punished
by prision correccional.
"Section 7. No person shall be
convicted of any of the offenses
penalized herein with prision
mayor to death unless on the
testimony of at least two
witnesses to the same overt act
or on confession of the accused
in open court.
"Section 8. Within thirty days
after the approval of this Act, any
person who is a member of the
Communist Party of the
Philippines or of any such
association or conspiracy, who
desires to renounce such
membership may do so in writing
and under oath before a
municipal or city mayor, a
provincial governor, or a person
authorized by law to administer
oaths. Such renunciation shall
exempt such person or persons
from the penal sanction of this
Act, but the same shall in no way
exempt him from liability for
criminal acts or for any violation
of the existing laws of the
Republic of the Philippines
committed before this Act takes
effect.
"Section 9. Nothing in this Act
shall be interpreted as a
restriction to freedom of thought,
of assembly and of association
for purposes not contrary to law
as guaranteed by the
Constitution.
"Approved, June 20, 1957."
2 Delegate Jose P. Laurel (of the
1934 Constitutional Convention)
referred to the Anglo-American
origin of this right thus:
"No ex post facto law or bill of
attainder shall be enacted. This
provision is found in the
American Federal Constitution
(Art. 1, Sec. 9) and is applicable
to the States (id. Sec. 10). An ex
post facto law is a law which
makes an act punishable in a
manner in which it was not
punishable when committed. It
creates or aggravates the crime
or increases the punishment, or
changes the rules of evidence for
the purpose of conviction. The
prohibition against the passage
of ex post facto laws is an
additional bulwark of personal
security — protecting the citizen
from punishment by legislative
act which has a retrospective
operation.
"The phrase ex post facto has a
technical meaning and refers to
crimes and criminal
proceedings. It is in this sense
that it was used in England. It
was in this sense that the
convention of 1787 understood
it. (Calder v. Bull, supra; Watson
v. Mercer, 8 Pet. 88, 110;
Suterlee v. Mathewson, 2
Peters, 380; Kring v. Missouri,
107 U.S. 221.) This
interpretation was upheld by our
Supreme Court (U.S. vs. Ang
Ken Ko, 6 Phil. 376.).
"A bill of attainder is a legislative
act which inflicts punishment
without judicial trial. (Cummings
vs. United States, 4 Wall. 277, 18
L. ed. 356.) In England, the Bill of
Attainder was an act of
Parliament by which a man was
tried, convicted and sentenced to
death without a jury, without a
hearing in court, without hearing
the witnesses against him and
without regard to the rules of
evidence. His blood was attained
or corrupted, rendering him
devoid of all heritable quality —
of acquiring and disposing
property by descent. (Ex
parte Garland, 4 Wall. 333, 18 L.
ed 366.) If the penalty imposed
was less than death, the act was
known as a "bill of pains and
penalties." Bills of attainder,
like ex post factolaws, were
favorite methods of Stuart
oppression. Once, the name of
Thomas Jefferson was included
in a bill of attainder presented to
Parliament because of his reform
activities.
"Often, such bills were
'stimulated by ambition or
personal resentment, and
vindictive malice.' (Calder v.
Bull, supra.) A well known case
illustrating the ruthless manner in
which a bill of attainder was
resorted to was that of Thomas
Wentworth, chief adviser of
Charles I. He was brought to
impeachment charged with
attempting to subvert the
liberties of England. He
defended himself so ably that his
enemies, fearing his acquittal,
withdrew the impeachment and a
bill of attainder was passed
instead. Wentworth was
beheaded. Bills of attainder were
also passed in the Colonies
(North, The Constitution of the
U.S., its Sources and
Applications, p. 85.) The
prohibition in the Bill of Rights,
therefore, seeks to present acts
of violence and injustice brought
about the passage of such bills."
(3 J. Laurel, Proceedings of the
Constitutional Convention 661-
663 [1966]).
3 Cummings vs. United States, 4
Wall. (71 U.S.) 277
(1867); accord, Ex
parte Garland, 4 Wall. (71 U.S.)
333 (1867). This definition was
adopted by this Court in People
vs. Carlos, 78 Phil. 535, 544
(1947) and in People vs.
Montenegro, 91 Phil. 883,885
(1952).
4 De Veau vs. Braisted, 363 U.S.
144, 160 (1960); United States
vs. Lovett, 328 U.S. 303, 615,
(1946).
5 Chief Justice Warren referred
to the Bill of Attainder Chause as
an implementation of the
separation of powers, "a general
safeguard against legislative
exercise of judicial function, or
more simply, trial by legislature."
United States vs. Brown, 381
U.S. 437 (1964).
6 "It is the peculiar province of
the legislature to prescribe
general rules for the government
of society; the application of
those rules to individuals in
society would seem to be the
duty of other departments."
Fletcher vs. Peck, 6 Cranch (10
U.S.)87, 136 (1810).
7 "The legislative body in
enacting bills of attainder
exercises the powers and office
of judge, it pronounces upon the
guilt of the party, without any of
the forms or safeguards of
trial...it fixes the degree of
punishment in accordance with
its own notions of the enormity of
the offense." Cummings vs.
Missouri, supra note 3.
8 Bills of this sort, says Mr.
Justice Story, have been most
usually passed in England in
times of rebellion or gross
subserviency to the crown, or of
violent political excitements;
periods, in which all nations are
most liable (as well as free as the
enslabe) to forget their duties,
and to trample upon the rights
and liberties of others." Comm.
sec. 1344, in re Young Sing Hee,
36 Fed. 347, 440. During the
American revolution legislative
punishments had been
continued by state legislatures,
when numerous bills of attainder
were enacted against the
Torries. 1C. Antieu, Modern
Constitutional Law, 425.
9 C. Antieu, supra note 8 at 423.
10 The Supreme Court of the
United States said in Fleming vs.
Nestor, 363 U.S. 603, 613-14
(1960):
"In determining whether
legislation which bases a
disqualification on the happening
of a certain past event imposes a
punishment, the Court has
sought to discern the objects on
which the enactment in question
was focused. Where the source
of legislative concern can be
thought to be the activity or
status from which the individual
is barred, the disqualification is
not punishment even though it
may bear harshly upon one
affected."
11 73 Stat. 536, 29 U.S.C. sec.
504 (1958 ed. Supp. IV).
12 381 U.S. 437 (1965) (5-4
vote).
13 Keyishian vs. Board of
Regents, 385 U.S. 589
(1967);Elfbrandt vs. Russell, 384
U.S. 11 (1966).
14 Cf . Scales vs. United States,
367 U.S. 203 (1961); Noto vs.
United States, 367 U.S. 290
(1961).
15 During the Senate
deliberations on the bill, Senator
Cea remarked: "I have inserted
the words 'overt acts' because
we are punishing membership in
the Communist Party. I would
like that membership to be
proved by overt acts, by positive
acts, because it may happen that
one's name may appear in the
list of members." Senate Cong.
Rec. May 22, 1957, p. 1900.
16 Board of Governors of
Federal Reserve System vs.
Agnew, 329 U.S. 441.
17 New York ex rel. Bryant vs.
Zimmerman, 278 U.S. 63(1928).
18 Repealed by Rep. Act 4241.
19 Philippine Ass'n of Free Labor
Unions vs. Secretary of Labor,
Feb. 27, 1969, 27 SCRA 40.
20 United States vs. Lovett, 328
U.S. 303 (1946).
21 Cummings vs. Missouri, 4
Wall. (71 U.S.) 277 (1867).
22 Ex parte Garland, 4 Wall. (71
U.S.) 333 (1867).
23 United States vs. Lovett, 328
U.S. 303 (1946).
24 United States vs. Brown, 381
U.S. 437 (1965).
25 The Bounds of Legislative
Specification: A Suggested
Approach to the Bill of Attainder
Clause, 72 Yale L. J. 330, 351-
54(1962).
26 278 U.S. 63 (1928).
27 Id. at 75-77.
28 People vs. Evangelista, 57
Phil. 375 (1932); see
also People vs. Evangelista, 57
Phil., 372 (1932); People vs.
Capadocia, 57 Phil. 364 (1932);
People vs. Evangelista, 57 Phil.
354 (1932); People vs. Feleo, 57
Phil. 451 (1932); People vs.
nabong, 57 Phil. 455 (1932).
29 People vs. Lava, L-4974-78,
May 16, 1969.
30 L-33864, Dec. 11, 1971, 42
SCRA 448.
31 United States vs. Lovett, 328
U.S. 303, 318 (1946).
32 341 U.S. 716 (1951).
33 Communist Party vs.
Subversive Activities Control
Board, 367 U.S. 1 (1960).
34 Sec. 8.
35 E. g., Kovacs vs. Cooper, 336
U.S. 77 (1949); Vera vs. Arca, L-
25721, May 26, 1969, 28 SCRA
351.
36 Freund, Review of Facts in
Constitutional Cases, in
Supreme Court and Supreme
Law 47-48 (Cahn ed. 1954).
37 291 U.S. 502, 537 (1934).
38 L-33964, Dec. 11, 1971, 41
SCRA 448.
39 Communist Party vs. S.A.C.
Board, 367 U.S. 94 (1961).
40 Dennis vs. United States, 341
U.S. 494, 509 (1951).
41 Id. at 501.
42 Shelton vs. Tucker, 364 U.s.
479 (1960).
43 Scales vs. United States, 367
U.S. 203 (1961); see also Noto
vs. United States, 367 U.S. 290
(1961).
44 Frankfeld vs. United States,
198 F. 2d 879 (4th Cir. 1952).
45 People vs. nabong, 57 Phil.
455, 458 (1932).
46 18 U.S.C. sec. 2385.
(emphasis added).
47 367 U.S. 203 (1961).
48 Communist Party vs.
Subversive Activities Control
Board, 367 U.S. 1 (1961).
49 P. A. Freud, The Supreme 12 Ibid, 377-378.
Court of the United States 75
(1961). 13 328 US 303.

50 Const., art VI, Sec. 21 (1). 14 Ibid, 315-316.

51 Government vs. Hongkong & 15 381 US 437.

Shaihai Banking Corp., 66 Phil.
483 (1938). 16 Ibid, 442.

52 Lindasan vs. Commission on 17 Ibid, 449-450.

Elections, L-28089, Oct. 25,
1967, 21 SCRA 496.
FERNANDO, J., concurring:
1 Rep. Act No. 1700 (1957)..
2 According to Art. III, Sec. 1,
par. 11: "No ex post facto law or
bill of attainder shall be enacted."
3 According to Art. III, Sec. 1,
par. 8: "No law shall be passed
abridging the freedom of speech,
or of the press, or the right of the
people peacebly to assemble
and petition the Government for
redress of grievances."
4 According to Art. III, Sec. 1 par.
4: "The liberty of abode and of
changing the same within the
limits prescribed by law shall not
be impaired."
5 Footnote 2, p. 9 of Opinion of
the Court.
6 4 Wall. 277 (1867).
7 4 Wall. 333 (1867).
8 Cf. United States v. A Lovett,
328 US 303 )1946).
9 4 Wall. 277 (1867).
10 Ibid, 323, 325.
18 367 US 1 (1961).
19 Ibid, 86-87.
20 Opinion of the Court, p. 15.
21 According to Art. III, Sec. 1,
par. 6: "The right to form
associations or societies for
purposes not contrary to law
shall not be abridged."
Paragraph 8 of this section reads
as follows: "No law shall be
passed abridging the freedom of
speech, or of the press, or the
right of the people peacebly to
assemble and petition the
Government for redress of
grievances."
22 Jefferson's First Instance
Address, March 4, 1801, in
Padover, ed., The Complete
Jefferson, 385 (1943).
23 Hook, Heresy, Yes-
Conspiracy, No. 71 (1953).
24 Gonzalez v. Commission on
Elections, 27 SCRA
835,871(1969) citing Shelton v.
Tucker, 364 US 479 (1960) and
NAACP v. Button, 371 US 415
(1963).
25 NAACP vs. Alabama, 377 US
288 (1964).

11 4 Wall. 333 (1867). 26 Communist Party v.

Subversive Activities Control
Board, 367 US 1, 148.

EN BANC
8. G.R. No. L-18208 February
14, 1922
THE UNITED STATES, plaintiff-
appellee,
vs.
VICENTE DIAZ CONDE and
APOLINARIA R. DE
CONDE, defendants-appellants.
Araneta & Zaragoza for
appellants.
Attorney-General Villareal for
appellee.
JOHNSON, J.:
It appears from the record that
on the 6th day of May, 1921, a
complaint was presented in the
Court of First Instance of the city
of Manila, charging the
defendants with a violation of the
Usury Law (Act No. 2655). Upon
said complaint they were each
arrested, arraigned, and pleaded
not guilty. The cause was finally
brought on for trial on the 1st day
of September, 1921. At the close
of the trial, and after a
consideration of the evidence
adduced, the Honorable M. V.
del Rosario, judge, found that the
defendants were guilty of the
crime charged in the complaint
and sentenced each of them to
pay a fine of P120 and, in case
of insolvency, to suffer
subsidiary imprisonment in
accordance with the provisions
of the law. From that sentence
each of the defendants appealed
to this court.
The appellants now contend: (a)
That the contract upon which the
alleged usurious interest was
collected was executed before
Act No. 2655 was adopted; (b)
that at the time said contract was
made (December 30, 1915),
there was no usury law in force
in the Philippine Islands; (c) that
said Act No. 2655 did not
become effective until the 1st
day of May, 1916, or four months
and a half after the contract in
question was executed; (d) that
said law could have no
retroactive effect or operation,
and (e) that said law impairs the
obligation of a contract, and that
for all of said reasons the
judgment imposed by the lower
court should be revoked; that the
complaint should be dismissed,
and that they should each be
discharged from the custody of
the law.
The essential facts constituting
the basis of the criminal action
are not in dispute, and may be
stated as follows: (1) That on the
30th day of December, 1915, the
alleged offended persons
Bartolome Oliveros and
Engracia Lianco executed and
delivered to the defendants a
contract (Exhibit B) evidencing
the fact that the former had
borrowed from the latter the sum
of P300, and (2) that, by virtue of
the terms of said contract, the
said Bartolome Oliveros and
Engracia Lianco obligated
themselves to pay to the
defendants interest at the rate of
five per cent (5%) per month,
payable within the first ten days
of each and every month, the
first payment to be made on the
10th day of January, 1916. There
were other terms in the contract
which, however, are not
important for the decision in the
present case.
The lower court, in the course of
its opinion, stated that at the time
of the execution and delivery of
said contract (Exhibit B), there
was no law in force in the
Philippine Islands punishing
usury; but, inasmuch as the
defendants had collected a
usurious rate of interest after the
adoption of the Usury Law in the
Philippine Islands (Act No.
2655), they were guilty of a
violation of that law and should
be punished in accordance with
its provisions.
The law, we think, is well
established that when a contract
contains an obligation to pay
interest upon the principal, the
interest thereby becomes part of
the principal and is included
within the promise to pay. In
other words, the obligation to pay
interest on money due under a
contract, be it express or implied,
is a part of the obligation of the
contract. Laws adopted after the
execution of a contract, changing
or altering the rate of interest,
cannot be made to apply to such
contract without violating the
provisions of the constitution
which prohibit the adoption of a
law "impairing the obligation of
contract." (8 Cyc., 996; 12
Corpus Juris, 1058-1059.)
The obligation of the contract is
the law which binds the parties to
perform their agreement if it is
not contrary to the law of the
land, morals or public order. That
law must govern and control the
contract in every aspect in which
it is intended to bear upon it,
whether it affect its validity,
construction, or discharge. Any
law which enlarges, abridges, or
in any manner changes the
intention of the parties,
necessarily impairs the contract
itself. If a law impairs the
obligation of a contract, it is
prohibited by the Jones Law, and
is null and void. The laws in force
in the Philippine Islands prior to
any legislation by the American
sovereignty, prohibited the
Legislature from giving to any
penal law a retroactive effect
unless such law was favorable to
the person accused. (Articles 21
and 22, Penal Code.)
A law imposing a new penalty, or
a new liability or disability, or
giving a new right of action, must
not be construed as having a
retroactive effect. It is an
elementary rule of contract that
the laws in force at the time the
contract was made must govern
its interpretation and application.
Laws must be construed
prospectively and not
retrospectively. If a contract is
legal at its inception, it cannot be
rendered illegal by any
subsequent legislation. If that
were permitted then the
obligations of a contract might be
impaired, which is prohibited by
the organic law of the Philippine
Islands. (U.S. vs. Constantino
Tan Quingco Chua, 39 Phil.,
552; Aguilar vs. Rubiato and
Gonzales Vila, 40 Phil., 570.)
Ex post facto laws, unless they
are favorable to the defendant,
are prohibited in this jurisdiction.
Every law that makes an action,
done before the passage of the
law, and which was innocent
when done, criminal, and
punishes such action, is an ex
post facto law. In the present
case Act No. 2655 made an act
which had been done before the
law was adopted, a criminal act,
and to make said Act applicable
to the act complained of would
be to give it an ex post facto
operation. The Legislature is
prohibited from adopting a law
which will make an act done
before its adoption a crime. A law
may be given a retroactive effect
in civil action, providing it is
curative in character, but ex post
facto laws are absolutely
prohibited unless its retroactive
effect is favorable to the
defendant.
For the reason, therefore, that
the acts complained of in the
present case were legal at the
time of their occurrence, they
cannot be made criminal by any
subsequent or ex post facto
legislation. What the courts may
say, considering the provisions
of article 1255 of the Civil Code,
when a civil action is brought
upon said contract, cannot now
be determined. A contract may
be annulled by the courts when it
is shown that it is against morals
or public order.

For all of the foregoing reasons,

we are of the opinion, and so
decide, that the acts complained
of by the defendants did not
constitute a crime at the time
they were committed, and
therefore the sentence of the
lower court should be, and is
hereby, revoked; and it is hereby
ordered and decreed that the
complaint be dismissed, and that
the defendants be discharged
from the custody of the law, with
costs de oficio. So ordered.

Araullo, C.J., Street, Malcolm,

Avanceña, Ostrand, Johns and
Romualdez, JJ., concur.