H05.Mandatory Cases

8/13/2019 H05.Mandatory Cases

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Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 107383 February 20, 1!

CECI"I# $U"UET#,petitioner,vs.COURT OF #PPE#"S a%& #"FREDO M#RTIN, respondents.

D E C I S I O N

MENDO$#, J.'

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court ofManila (Branch ! which ordered petitioner to return documents and papers ta"en b# her from private respondent$sclinic without the latter$s "nowledge and consent.

The facts are as follows%

Petitioner Cecilia &ulueta is the wife of private respondent Alfredo Martin. 'n March ), *+, petitioner entered theclinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent$ssecretar#, forcibl# opened the drawers and cabinet in her husband$s clinic and too" *- documents consisting ofprivate correspondence between /r. Martin and his alleged paramours, greetings cards, cancelled chec"s, diaries,/r. Martin$s passport, and photographs. The documents and papers were sei0ed for use in evidence in a case forlegal separation and for dis1ualification from the practice of medicine which petitioner had filed against herhusband.

/r. Martin brought this action below for recover# of the documents and papers and for damages against petitioner.

The case was filed with the Regional Trial Court of Manila, Branch , which, after trial, rendered 2udgment forprivate respondent, /r. Alfredo Martin, declaring him 3the capital4e5clusive owner of the properties described inparagraph 6 of plaintiff$s Complaint or those further described in the Motion to Return and 7uppress3 and orderingCecilia &ulueta and an# person acting in her behalf to a immediatel# return the properties to /r. Martin and to pa#him P-,888.88, as nominal damages9 P-,888.88, as moral damages and attorne#$s fees9 and to pa# the costs of thesuit. The writ of preliminar# in2unction earlier issued was made final and petitioner Cecilia &ulueta and her attorne#sand representatives were en2oined from 3using or submitting4admitting as evidence3 the documents and papers in1uestion. 'n appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. :ence this petition.

There is no 1uestion that the documents and papers in 1uestion belong to private respondent, /r. Alfredo Martin,and that the# were ta"en b# his wife, the herein petitioner, without his "nowledge and consent. ;or that reason, thetrial court declared the documents and papers to be properties of private respondent, ordered petitioner to returnthem to private respondent and en2oined her from using them in evidence.


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. hen respondent refiled Cecilia$s case for legal separation before the Pasig Regional Trial Court, therewas admittedl# an order of the Manila Regional Trial Court prohibiting Cecilia from using the documentsAnne5 3A>* to =>.3 'n 7eptember ), *+6, however having appealed the said order to this Court on apetition for certiorari, this Court issued a restraining order on aforesaid date which order temporaril# setaside the order of the trial court. :ence, during the enforceabilit# of this Court$s order, respondent$s re1uestfor petitioner to admit the genuineness and authenticit# of the sub2ect anne5es cannot be loo"ed upon asmalpractice. otabl#, petitioner /r. Martin finall# admitted the truth and authenticit# of the 1uestionedanne5es, At that point in time, would it have been malpractice for respondent to use petitioner$s admission

as evidence against him in the legal separation case pending in the Regional Trial Court of Ma"atiDRespondent submits it is not malpractice.

7ignificantl#, petitioner$s admission was done not thru his counsel but b# /r. Martin himself under oath,7uch verified admission constitutes an affidavit, and, therefore, receivable in evidence against him.Petitioner became bound b# his admission. ;or Cecilia to avail herself of her husband$s admission and usethe same in her action for legal separation cannot be treated as malpractice.

Thus, the ac1uittal of Att#. ;eli5, =r. in the administrative case amounts to no more than a declaration that his use ofthe documents and papers for the purpose of securing /r. Martin$s admission as to their genuiness and authenticit#did not constitute a violation of the in2unctive order of the trial court. B# no means does the decision in that caseestablish the admissibilit# of the documents and papers in 1uestion.


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Id. at *8>**, *).

6*+6 C'7T., Art.


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Manila

E BAC

G.R. No. 127!8* +uy 23, 18

-"#S F. OP"E, petitioner,

vs.

RU-EN D. TORRES, #"E#NDER #GUIRRE, /ECTOR VI""#NUEV#, CIE"ITO /#-ITO, RO-ERT -#R-ERS,C#RMENCIT# REODIC#, CES#R S#RINO, REN#TO V#"ENCI#, TOM#S P. #FRIC#, /E#D OF T/EN#TION#" COMPUTER CENTER a%& C/#IRM#N OF T/E COMMISSION ON #UDIT, respondents.

PUNO, J.:

The petition at bar is a commendable effort on the part of 7enator Blas ;. 'ple to prevent the shrin"ing of the rightto privac#, which the revered Mr. =ustice Brandeis considered as 3the most comprehensive of rights and the rightmost valued b# civili0ed men.3 1Petitioner 'ple pra#s that we invalidate Administrative 'rder o. 68 entitled 3Adoptionof a ational Computeri0ed


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7ecretar#, ational Economic /evelopment Authorit#

7ecretar#, /epartment of the media information dissemination campaign toeducate and raise public awareness on the importance and use of the PR and the 7ocial 7ecurit#7i5.

(7K/.! ;


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C. T:E


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b# Congress, unless the Constitution has lodged it elsewhere. 12


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defining the traditional limits of administrative legislation. As well stated b# ;isher% 3. . . Man# regulations however,bear directl# on the public. ma"ing that Congress enacts in the form of apublic law. Although administrative regulations are entitled to respect, the authorit# to prescribe rules andregulations is not an independent source of power to ma"e laws.3 28


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7ec. . The right of the people to be secure in their persons, houses papers, and effects againstunreasonable searches and sei0ures of whatever nature and for an# purpose shall be inviolable,and no search warrant or warrant of arrest shall issue e5cept upon probable cause to be determinedpersonall# b# the 2udge after e5amination under oath or affirmation of the complainant and thewitnesses he ma# produce, and particularl# describing the place to be searched and the persons orthings to be sei0ed.

555 555 555

7ec. ). The libert# of abode and of changing the same within the limits prescribed b# law shall notbe impaired e5cept upon lawful order of the court. either shall the right to travel be impaired e5ceptin the interest of national securit#, public safet#, or public health as ma# be provided b# law.

555 555 555

7ec. . The right of the people, including those emplo#ed in the public and private sectors, to formunions, associations, or societies for purposes not contrar# to law shall not be abridged.

7ec. *. o person shall be compelled to be a witness against himself.

&ones of privac# are li"ewise recogni0ed and protected in our laws. The Civil Code provides that 3?e@ver# personshall respect the dignit#, personalit#, privac# and peace of mind of his neighbors and other persons3 and punishesas actionable torts several acts b# a person of meddling and pr#ing into the privac# of another. 3*iretapping Haw, 1the 7ecrec# of Ban" /epositsAct 2and the red cameras, a uni1ue heat distributionpattern is seen. The different densities of bone, s"in, fat and blood vessels all contribute to the individual$s personal 3heatsignature.3 *3


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customs, ph#sical surroundings and practices of a particular activit#, ma# serve to create or diminish thise5pectation. !The use of biometrics and computer technolog# in A.'. o. 68 does not assure the individual of areasonable e5pectation of privac#. 70As technolog# advances, the level of reasonabl# e5pected privac# decreases. 71Themeasure of protection granted b# the reasonable e5pectation diminishes as relevant technolog# becomes more widel#accepted. 72The securit# of the computer data file depends not onl# on the ph#sical inaccessibilit# of the file but also onthe advances in hardware and software computer technolog#. A.'. o. 68 is so widel# drawn that a minimum standardfor a reasonable e5pectation of privac#, regardless of technolog# used, cannot be inferred from its provisions.

The rules and regulations to be b# the


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Even while we stri"e down A.'. o. 68, we spell out in neon that the Court is notper seagains the use ofcomputers to accumulate, store, process, retvieve and transmit data to improve our bureaucrac#. Computers wor"wonders to achieve the efficienc# which both government and private industr# see". Man# information s#stem indifferent countries ma"e use of the computer to facilitate important social ob2ective, such as better law enforcement,faster deliver# of public services, more efficient management of credit and insurance programs, improvement oftelecommunications and streamlining of financial activities. 81Ised wisel#, data stored in the computer could help goodadministration b# ma"ing accurate and comprehensive information for those who have to frame polic# and ma"e "e#decisions. 82The benefits of the computer has revolutioni0ed information technolog#.


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Manila

7EC'/ /


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(h! P,888.88 attorne# s fees for Att#. Pintor. (tsn, August ), *+*, pp. >!.

Twent# minutes later, complainant called up again to as" Haconico if he was agreeable to theconditions. Haconico answered $Jes$. Complainant then told Haconico to wait for instructions onwhere to deliver the mone#. (tsn, March *8, *+6, pp. >*!.

Complainant called up again and instructed Haconico to give the mone# to his wife at the office ofthe then /epartment of Public :ighwa#s. Haconico who earlier alerted his friend Colonel &ulueta of

the Criminal 66!. hen he received the mone# at theiretapping Act.

After trial on the merits, the lower court, in a decision dated ovember , *+, found both Kaanan and Haconicoguilt# of violating 7ection * of Republic Act o. 88. The two were each sentenced to one (*! #ear imprisonment

with costs. ot satisfied with the decision, the petitioner appealed to the appellate court.

'n August *), *+, the recorder, or however otherwise described%


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from words between a spea"er and a public.


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provides that $the various stipulations of a contract shall be interpreted together, attributing to thedoubtful ones that sense which ma# result from all of them ta"en 2ointl#.

555 555 555

Conse1uentl#, the phrase $all liabilities or obligations of the decedent$ used in paragraph -(c! and(d! should be then restricted onl# to those listed in the **!.

:ence, the phrase 3device or arrangement3 in 7ection * of RA o. 88, although not e5clusive to that enumeratedtherein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the useof which would be tantamount to tapping the main line of a telephone. *6!%

Common e5perience tells us that a call to a particular telephone number ma# cause the bell to ringin more than one ordinaril# used instrument. Each part# to a telephone conversation ta"es the ris"that the other part# ma# have an e5tension telephone and ma# allow another to overhear theconversation. hen such ta"es place there has been no violation of an# privac# of which the parties

ma# complain. Conse1uentl#, one element of )8-, interception, has not occurred.

set so that another could hear out of it and that there is no distinction betweenthat sort of action and permitting an outsider to use an e5tension telephone for the same purpose.

;urthermore, it is a general rule that penal statutes must be construed strictl# in favor of the accused. Thus, in caseof doubt as in the case at bar, on whether or not an e5tension telephone is included in the phrase 3device orarrangement3, the penal statute must be construed as not including an e5tension telephone. *!.


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7enator TaOada. Another possible ob2ection to that is entrapment which is certainl#ob2ectionable.


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Manila

7EC'/ /


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As Hingan was about turn awa#, petitioner avarro hit him with the handle of the pistol above the left e#ebrow.Hingan fell on the floor, blood flowing down his face. :e tried to get up, but petitioner avarro gave him a fist blowon the forehead which floored him.*+

Petitioner avarro turned to =albuena and said% 3ita mo #an ha, buha# "ang testigo, si


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hinamon a"o. Pulis ta#o eh. Puta, buti nga, sunto" lang ang inabot n#an. 7a harap ni Ale5, ni =oe, ni7tanle#, hinamon a"o. Pare, hinamon a"o, "inig n#o ha. :inamon a"o n#an. 7ige, dalhin n#o sa hospital#an.

Petitioner ;elipe avarro claims that it was the deceased who tried to hit him twice, but he (petitioner! was able toduc" both times, and that Hingan was so drun" he fell on the floor twice, each time hitting his head on theconcrete.)

depth evaluation of the evidence adduced b# the prosecution and the defense, thiscourt finds that the evidence for the prosecution is the more credible, concrete and sufficient to create thatmoral certaint# in the mind of the court that accused herein is criminall# responsible.

The defense$s evidence which consists of outright denial could not under the circumstance overturn thestrength of the prosecution$s evidence.

This court finds that the prosecution witnesses, more particularl# 7tanle# =albuena, lac"ed an# motive toma"e false accusation, distort the truth, testif# falsehood or cause accusation of one who had neitherbrought him harm or in2ur#.

Koing over the evidence on record, thepostmortemreport issued b# /ra. Eva Jamamoto confirms thedetailed account given b# 7tanle# =albuena on how Hingan sustained head in2uries.

7aidpost!mortemreport together with the testimon# of =albuena sufficientl# belie the claim of the defensethat the head in2uries of deceased Hingan were caused b# the latter$s falling down on the concrete pavementhead first.

The Court of Appeals affirmed%

e are far from being convinced b# appellant$s aforesaid dis1uisition. e have carefull# evaluated the

conflicting versions of the incident as presented b# both parties, and we find the trial court$s factualconclusions to have better and stronger evidentiar# support.


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&irst. Petitioner avarro 1uestions the credibilit# of the testimon# of =albuena on the ground that he was a biasedwitness, having a grudge against him. The testimon# of a witness who has an interest in the conviction of theaccused is not, for this reason alone, unreliable.Trial courts, which have the opportunit# observe the faciale5pressions, gestures, and tones of voice of a witness while testif#ing, are competent to determine whether his orher testimon# should be given credence.recorder, or howeverotherwise described%

in depth, lateral e#ebrow, Heft

Q Hacerated wound, 8.- cm in length, superficial, between the left right e#ebrow


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Q Hacerated wound, cm in length, * cm in depth, forehead, Heft

Q C#anosis of the tips of fingers toes

CAI7E '; /EAT:%

Q CEREBRAH C'CI77


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A Cerebral concussion means in Tagalog 3naalog ang uta"3 or 2arring of the brain, sir.

L hat could have been the cause of 2arring of the brainD

A


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;urthermore, the mitigating circumstance that the offender had no intention to commit so grave a wrong as thatcommitted should also be appreciated in favor of petitioner. The frantic e5clamations of petitioner avarro after thescuffle that it was Hingan who provo"ed him shows that he had no intent to "ill the latter. Thus, this mitigatingcircumstance should be ta"en into account in determining the penalt# that should be imposed on petitioner avarro.The allowance of this mitigating circumstance is consistent with the rule that criminal liabilit# shall be incurred b#an# person committing a felon# although the wrongful act done be different from that which he intended. *


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Manila

E BAC

G.R. No. 88211 Se5(e6ber 1*, 18

FERDIN#ND E. M#RCOS, IME"D# R. M#RCOS, FERDIN#ND R. M#RCOS, +R., IRENE M. #R#NET#, IMEEM#NOTOC, TOM#S M#NOTOC, GREGORIO #R#NET#, P#CIFICO E. M#RCOS, NIC#NOR IGUE$ a%&P/I"IPPINE CONSTITUTION #SSOCI#TION 9P/I"CONS#:, re5re)e%(e& by ;() Pre);&e%(, CONR#DO F.ESTRE""#, petitioners,vs./ONOR#-"E R#U" M#NG"#PUS, C#T#"INO M#C#R#IG, SEDFRE ORDOE$, MIRI#M DEFENSORS#NTI#GO, FIDE" R#MOS, REN#TO DE VI""#, ;% (4e;r a5a;(y a) Sere(ary o< Fore;% #


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This case is uni1ue. 6).*

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines isguaranteed under the following provisions of the Bill of Rights, to wit%

7ection *. o person shall be deprived of life, libert#, or propert# without due process of law, norshall an# person be denied the e1ual protection of the laws.

555 555 555


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7ection ). The libert# of abode and of changing the same within the limits prescribed b# law shallnot be impaired e5cept upon lawful order of the court. either shall the right to travel be impairede5cept in the interest of national securit#, public safet#, or public health, as ma# be provided b# law.

The petitioners contend that the President is without power to impair the libert# of abode of the Marcoses becauseonl# a court ma# do so 3within the limits prescribed b# law.3 or ma# the President impair their right to travelbecause no law has authori0ed her to do so. The# advance the view that before the right to travel ma# be impairedb# an# authorit# or agenc# of the government, there must be legislation to that effect.

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

The Iniversal /eclaration of :uman Rights provides%

Article *6. (*! Ever#one has the right to freedom of movement and residence within the borders ofeach state.

(! Ever#one has the right to leave an# countr#, including his own, and to return to his countr#.

Hi"ewise, the mentioned rights shall not be sub2ect to an# restrictions e5cept those which areprovided b# law, are necessar# to protect national securit#, public order (order public!, public health

or morals or the rights and freedoms of others, and are consistent with the other rights recogni0ed inthe present Covenant.

! o one shall be arbitraril# deprived of the right to enter his own countr#.

'n the other hand, the respondents$ principal argument is that the issue in this case involves a political 1uestionwhich is non>2usticiable. According to the 7olicitor Keneral%

As petitioners couch it, the 1uestion involved is simpl# whether or not petitioners ;erdinand E.Marcos and his famil# have the right to travel and libert# of abode. Petitioners invo"e theseconstitutional rights in vacuowithout reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners ;erdinandE. Marcos and famil# have the right to return to the Philippines and reside here at this time in theface of the determination b# the President that such return and residence will endanger nationalsecurit# and public safet#.


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/o petitioners ;erdinand E. Marcos and famil# have their right to return to the Philippines andreestablish their residence here even if their return and residence here will endanger nationalsecurit# and public safet#D this is still a 2usticiable 1uestion which this :onorable Court can decide.

**9 Rollo, pp. +>++.@

Respondents argue for the primac# of the right of the 7tate to national securit# over individual rights.


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Conse1uentl#, resolution b# the Court of the well>debated issue of whether or not there can be limitations on theright to travel in the absence of legislation to that effect is rendered unnecessar#. An appropriate case for itsresolution will have to be awaited.

:aving clarified the substance of the legal issue, we find now a need to e5plain the methodolog# for its resolution.'ur resolution of the issue will involve a two>tiered approach. e shall first resolve whether or not the President hasthe power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine,pursuant to the e5press power of the Court under the Constitution in Article F


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This view is shared b# 7chlesinger who wrote in /he Imperial Presidenc%

;or the American Presidenc# was a peculiarl# personal institution. it remained of course, an agenc#of government sub2ect to unvar#ing demands and duties no remained, of cas President. But, morethan most agencies of government, it changed shape, intensit# and ethos according to the man incharge. Each President$s distinctive temperament and character, his values, standards, st#le, hishabits, e5pectations, Keneral of the Philippines and the Hegislature ma# vote theshares of stoc" held b# the Kovernment to elect directors in the ational Coal Compan# and the Philippine ationalBan", the I.7. 7upreme Court, in upholding the power of the Kovernor>Keneral to do so, said%

...:ere the members of the legislature who constitute a ma2orit# of the 3board3 and 3committee3respectivel#, are not charged with the performance of an# legislative functions or with the doing of

an#thing which is in aid of performance of an# such functions b# the legislature. Putting aside for themoment the 1uestion whether the duties devolved upon these members are vested b# the 'rganicAct in the Kovernor>Keneral, it is clear that the# are not legislative in character, and still more clearthat the# are not 2udicial. /he fact that the do not fall -ithin the authorit of either of these t-oconstitutes logical ground for concluding that the do fall -ithin that of the remaining one among-hich the po-ers of government are divided....?At 8>869 Emphasis supplied.@

e are not unmindful of =ustice :olmes$ strong dissent. But in his enduring words of dissent we find reinforcementfor the view that it would indeed be a foll# to construe the powers of a branch of government to embrace onl# whatare specificall# mentioned in the Constitution%

The great ordinances of the Constitution do not establish and divide fields of blac" and white. Even

the more specific of them are found to terminate in a penumbra shading graduall# from one e5tremeto the other. ....

555 555 555


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**.@

/he Po-er Involved

The Constitution declares among the guiding principles that 3?t@he prime dut# of theKovernment is to serve and

protect the people3 and that 3?t@he maintenance of peace and order,the protection of life, libert#, and propert#, andthe promotion of the general welfare are essential for the en2o#ment b# all the people of the blessings ofdemocrac#.3 ?Art. gotten wealth are sought to be recovered. The constitutional guarantees the# invo"e are neither

absolute nor infle5ible. ;or the e5ercise of even the preferred freedoms of speech and ofe5pression, althoughcouched in absolute terms, admits of limits and must be ad2usted to the re1uirements of e1uall# important publicinterests ?&aldivar v. 7andiganba#an, K.R. os. +)+8>8, 'ctober , *+*.@

To the President, the problem is one of balancing the general welfare and the common good against the e5ercise ofrights of certain individuals. The power involved is the President$s residual power to protect the general welfare ofthe people. in>chief the enumeration of powers that follow cannot besaid to e5clude the President$s e5ercising as Commander>in> Chief powers short of the calling of the armed forces,or suspending the privilege of the writ of habeas corpusor declaring martial law, in order to "eep the peace, andmaintain public order and securit#.

That the President has the power under the Constitution to bar the Marcose$s from returning has been recogni0edb# memembers of the Hegislature, and is manifested b# the Resolution proposed in the :ouse of Representativesand signed b# *86 of its members urging the President to allow Mr. Marcos to return to the Philippines 3as agenuine unselfish gesture for true national reconciliation and as irrevocable proof of our collective adherence touncompromising respect for human rights under the Constitution and our laws.3 ?:ouse Resolution o. *6, Rollo,


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p. 6*.* The Resolution does not 1uestion the President$s power to bar the Marcoses from returning to thePhilippines, rather, it appeals to the President$s sense of compassion to allow a man to come home to die in hiscountr#.

hat we are sa#ing in effect is that the re1uest or demand of the Marcoses to be allowed to return to thePhilippines cannot be considered in the light solel# of the constitutional provisions guaranteeing libert# of abode andthe right to travel, sub2ect to certain e5ceptions, or of case law which clearl# never contemplated situations evenremotel# similar to the present one.


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The Court cannot close its e#es to present realities and pretend that the countr# is not besieged from within b# awell>organi0ed communist insurgenc#, a separatist movement in Mindanao, rightist conspiracies to grab power,urban terrorism, the murder with impunit# of militar# men, police officers and civilian officials, to mention onl# a few.The documented histor# of the efforts of the Marcose$s and their followers to destabili0e the countr#, as earliernarrated in thisponenciabolsters the conclusion that the return of the Marcoses at this time would onl# e5acerbateand intensif# the violence directed against the 7tate and instigate more chaos.

As divergent and discordant forces, the enemies of the 7tate ma# be contained. The militar# establishment has

given assurances that it could handle the threats posed b# particular groups. But it is the cataltic effectof thereturn of the Marcoses that ma# prove to be the proverbial final straw that would brea" the camel$s bac". ith thesebefore her, the President cannot be said to have acted arbitraril# and capriciousl# and whimsicall# in determiningthat the return of the Marcoses poses a serious threat to the national interest and welfare and in prohibiting theirreturn.

in>chief powersgranted her b# the Constitution to suppress or stamp out such violence. The 7tate, acting through the Kovernment,is not precluded from ta"ing pre> emptive action against threats to its e5istence if, though still nascent the# areperceived as apt to become serious and direct. Protection of the people is the essence of the dut# of government.The preservation of the 7tate the fruition of the people$s sovereignt# is an obligation in the highest order. The

President, sworn to preserve and defend the Constitution and to see the faithful e5ecution the laws, cannot shir"from that responsibilit#.

e cannot also lose sight of the fact that the countr# is onl# now beginning to recover from the hardships broughtabout b# the plunder of the econom# attributed to the Marcoses and their close associates and relatives, man# ofwhom are still here in the Philippines in a position to destabili0e the countr#, while the Kovernment has barel#scratched the surface, so to spea", in its efforts to recover the enormous wealth stashed awa# b# the Marcoses inforeign 2urisdictions. Then, e cannot ignore the continuall# increasing burden imposed on the econom# b# thee5cessive foreign borrowing during the Marcos regime, which stifles and stagnates development and is one of theroot causes of widespread povert# and all its attendant ills. The resulting precarious state of our econom# is ofcommon "nowledge and is easil# within the ambit of 2udicial notice.

The President has determined that the destabili0ation caused b# the return of the Marcoses would wipe awa# thegains achieved during the past few #ears and lead to total economic collapse. Kiven what is within our individualand common "nowledge of the state of the econom#, we cannot argue with that determination.

:ERE;'RE, and it being our well>considered opinion that the President did not act arbitraril# or with grave abuseof discretion in determining that the return of former President Marcos and his famil# at the present time and underpresent circumstances poses a serious threat to national interest and welfare and in prohibiting their return to thePhilippines, the instant petition is hereb# /


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Manila

E BAC

G.R. No. "** Mar4 13, 137

GREGORIO #G"IP#,petitioner,vs.+U#N RUI$,respondent.

;icente Sotto for petitioner.'ffice of the Solicitor!:eneral /uason for respondent.

"#URE", J.:

The petitioner, Mons. Kregorio Aglipa#, 7upreme :ead of the Philippine Keneral contends that the writ of prohibition is not the proper legal remed# in the instant case,although he admits that the writ ma# properl# restrain ministerial functions. hile, generall#, prohibition as ane5traordinar# legal writ will not issue to restrain or control the performance of other than 2udicial or 1uasi>2udicialfunctions (-8 C. =., )-8, its issuance and enforcement are regulated b# statute and in this 2urisdiction ma# issueto . . . inferior tribunals, corporations, boards, or persons, whether e5cercising functions 2udicial or ministerial, whichare without or in e5cess of the 2urisdiction of such tribunal, corporation, board, or person, . . . .3 (7ecs. -*) and ),Code of Civil Procedure.! The terms 32udicial3 and 3ministerial3 used with reference to 3functions3 in the statute areundoubtedl# comprehensive and include the challenged act of the respondent /irector of Posts in the present case,which act because alleged to be violative of the Constitution is a fortiorari 3without or in e5cess of . . . 2urisdiction.3The statutor# rule, therefore, in the 2urisdiction is that the writ of prohibition is not confined e5clusivel# to courts ortribunals to "eep them within the limits of their own 2urisdiction and to prevent them from encroaching upon the2urisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose acts are without or ine5cess of his authorit#. ot infre1uentl#, 3the writ is granted, where it is necessar# for the orderl# administration of2ustice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicit# ofactions.3 (/ima#uga and ;a2ardo vs. ;ernande0 ?*+6@, 6 Phil., 68, 68.!

The more important 1uestion raised refers to the alleged violation of the Constitution b# the respondent in issuingand selling postage stamps commemorative of the Thirt#>third


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The prohibition herein e5pressed is a direct corollar# of the principle of separation of church and state. ithout thenecessit# of adverting to the historical bac"ground of this principle in our countr#, it is sufficient to sa# that ourhistor#, not to spea" of the histor# of man"ind, has taught us that the union of church and state is pre2udicial to both,for ocassions might arise when the estate will use the church, and the church the state, as a weapon in thefurtherance of their recogni0ed this principle of separation of church and state in the earl# stages of ourconstitutional development9 it was inserted in the Treat# of Paris between the Inited 7tates and 7pain of /ecember*8, *+, reiterated in President Mcinle#$s


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the approval of the 7ecretar# of Public or"s and Communications, to dispose of the amount appropriated in themanner indicated and 3as often as ma# be deemed advantageous to the Kovernment3. The printing and issuance ofthe postage stamps in 1uestion appears to have been approved b# authorit# of the President of the Philippines in aletter dated 7eptember *, *+6), made part of the respondent$s memorandum as E5hibit A. The respondent allegesthat the Kovernment of the Philippines would suffer losses if the writ pra#ed for is granted. :e estimates therevenue to be derived from the sale of the postage stamps in 1uestion at P*,)*,*.*8 and states that there stillremain to be sold stamps worth P*,8,+.8.

Act o. 8- contemplates no religious purpose in view. hat it gives the /irector of Posts is the discretionar#power to determine when the issuance of special postage stamps would be 3advantageous to the Kovernment.3 'fcourse, the phrase 3advantageous to the Kovernment3 does not authori0e the violation of the Constitution.


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Manila

E BAC

G.R. No. "!8828 Mar4 27, 18*

RE"I GERM#N, R#MON PEDROS#, TIRSO S#NTI""#N, +R., M#. "UIS# #ND#", NIEV# M#"INIS, RIC#RDO"#VI#, CES#R CORTES, D#NI"O REES, +OSE REES, +OSEFIN# M#TE, "OURDES C#"M#, MI"DRED+U#N, O"IVE GU#N$ON, FERN#NDO COC/ICO, S/ERM#N CID, N#$#RENO -ENTU"#N, ROS"IN#DON#IRE, M#RIO M#RTINE$, -E#TRI$ TE"#N, #NGE"IN# "#PID, ROSEM#RIE F"ORES, D#NIE" V#NSOTO, EDG#RDO MERC#DER, NE"" #GUSTIN, M#RI" M#GC#"#S, D#VID C/#N, #RSENIOS#"#NS#NG, NE"SON DE GU$M#N, M#RCI#NO #R#NET#, CES#R MENESES, DIONISIO RE""OS#,M#RIO S#NTI#GO, SEVERINO S#NTOS, "EONOR# S#NTOS, NIMF# DORONI""#, F"ORENCE GUINTO,ROS#"IN# M#N#NS#"#, PERCIV#" OSTON#", TOMM M#C#R#N#S, ROGER NIC#NDRO, petitioners,vs.GEN. S#NTI#GO -#R#NG#N a%& M#. +OR IS#-E"O "#RIOS#, respondents.

ESCO"IN, ? J.:


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rights for that matter, must be done in good faith. As Article *+ of the Civil Code admonishes% 3Ever# person must inthe e5ercise of his rights and in the performance of his duties ... observe honest# and good faith.3

Even assuming that petitioners$ claim to the free e5ercise of religion is genuine and valid, still respondents reactionto the 'ctober , *+ mass action ma# not be characteri0ed as violative of the freedom of religious worship. 7ince*+, when mobs of demonstrators crashed through the MalacaOang gates and scaled its perimeter fence, the useb# the public of =.P. Haurel 7treet and the streets approaching it have been restricted. hile travel to and from theaffected thoroughfares has not been absolutel# prohibited, passers>b# have been sub2ected to courteous,

unobtrusive securit# chec"s. The reasonableness of this restriction is readil# perceived and appreciated if it isconsidered that the same is designed to protect the lives of the President and his famil#, as well as othergovernment officials, diplomats and foreign guests transacting business with MalacaOang. The need to secure thesafet# of heads of state and other government officials cannot be overemphasi0ed. The threat to their lives andsafet# is constant, real and felt throughout the world. Fivid illustrations of this grave and serious problem are thegruesome assassinations, "idnappings and other acts of violence and terrorism that have been perpetrated againstheads of state and other public officers of foreign nations.

7aid restriction is moreover intended to secure the several e5ecutive offices within the MalacaOang grounds frompossible e5ternal attac"s and disturbances. These offices include communications facilities that lin" the centralgovernment to all places in the land. In1uestionabl#, the restriction imposed is necessar# to maintain the smoothfunctioning of the e5ecutive branch of the government, which petitioners$ mass action would certainl# disrupt.

;reedom of religious worship is guaranteed under 7ection , Article freedom to believe and freedom to act. The first is absolute, but in the nature of things, the secondcannot be.


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:ERE;'RE, the instant petition is hereb# dismissed. o costs.


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Manila

E BAC

#.M. No. P021!*1 #uu)( , 2003

#"E+#NDRO ESTR#D#, complainant,vs.SO"ED#D S. ESCRITOR, respondent.

PUNO, J.'

The case at bar ta"es us to a most difficult area of constitutional law where man stands accountable to an authorit#higher than the state. To be held on balance are the state$s interest and the respondent$s religious freedom. not onl# for ama2orit#, however large> but for each of us.3

I. Fa()

The facts of the case will determine whether respondent will prevail in her plea of religious freedom.


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/ECHARAT


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A% /eclaration of Pledge of faithfulness.

L% hat are the relations of the document /eclaration of Pledge of faithfulness, who are suppose (sic!to e5ecute this documentD

A% This must be signed, the document must be signed b# the elders of the congregation9 the couple,who is a member (sic! of the congregation, bapti0ed member and true member of the congregation.

L% hat standard rules and regulations do #ou have in relation with this documentD

A% Actuall#, sir, the signing of that document, ah, with the couple has consent to marital relationship(sic! gives the Christian Congregation view that the couple has put themselves on record before Kod andman that the# are faithful to each other. As if that relation is validated b# Kod.

L% ;rom #our e5planation, Minister, do #ou consider it a pledge or a document between the parties,who are members of the congregationD

A%


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marital status of the declarants and their respective spouses$ commission of adulter# are investigated before thedeclarations are e5ecuted. Thus, in the case of Escritor, it is presumed that the Atimonan Congregation conductedan investigation on her marital status before the declaration was approved and the declaration is valid ever#where,including the Alman0a Congregation. That Escritor$s and Luilapio$s declarations were approved are shown b# thesignatures of three witnesses, the elders in the Atimonan Congregation. 7ala0ar confirmed from the congregation$sbranch office that these three witnesses are elders in the Atimonan Congregation. Although in *++ Escritor waswidowed, thereb# lifting the legal impediment to marr# on her part, her mate is still not capacitated to remarr#. Thus,their declarations remain valid. 'nce all legal impediments for both are lifted, the couple can alread# register their

marriage with the civil authorities and the validit# of the declarations ceases. The elders in the congregations canthen solemni0e their marriage as authori0ed b# Philippine law.


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;inall#, if the marital relationship is not one out of harmon# with the principles of Kod$s ord, and if one hasdone all that can reasonabl# be done to have it recogni0ed b# civil authorities and has been bloc"ed indoing so, then, a /eclaration Pledging ;aithfulness can be signed.


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555 555 555

(-! /isgraceful and immoral conduct9 555.

ot represented b# counsel, respondent, in la#man$s terms, invo"es the religious beliefs and practices and moralstandards of her religion, the =ehovah$s itnesses, in asserting that her con2ugal arrangement with a man not herlegal husband does not constitute disgraceful and immoral conduct for which she should be held administrativel#liable. hile not articulated b# respondent, she invo"es religious freedom under Article


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primar# position over the previous reigning gods.6-Moses, on the other hand, capitali0ed on the natural #earnings ofthe :ebrew slaves for freedom and independence to further Kod$s purposes. Hiberation and E5odus were preludesto 7inai and the receipt of the /ivine Haw. The con1uest of Canaan was a preparation for the building of the templeand the full worship of Kod.6)

Ipon the monotheism of Moses was the theocrac# of "nit hierarchicall# controlled church presented a serious problem, being a state within a state overwhich he had no control. :e had two options% either to force it into submission and brea" its power or enter into analliance with it and procure political control over it. :e opted for force and revived the persecution, destro#ed the

churches, confiscated sacred boo"s, imprisoned the clerg# and b# torture forced them to sacrifice.But his effortsproved futile.

The later emperor, Constantine, too" the second option of alliance. Constantine 2oined with Kalerius and Hicinius,his two co>rulers of the empire, in issuing an edict of toleration to Christians 3on condition that nothing is done b#them contrar# to discipline.36A #ear later, after Kalerius died, Constantine and Hicius 2ointl# issued the epochalEdict of Milan (6* or 6*6!, a document of monumental importance in the histor# of religious libert#.


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Christian edifices were erected, the clerg# were freed from public burdens others had to bear, and private heathensacrifices were forbidden.

The favors granted to Christianit# came at a price% state interference in religious affairs. Constantine and hissuccessors called and dismissed church councils, and enforced unit# of belief and practice. Intil recentl# thechurch had been the victim of persecution and repression, but this time it welcomed the state$s persecution andrepression of the nonconformist and the orthodo5 on the belief that it was better for heretics to be purged of theirerror than to die unsaved.

Both in theor# as in practice, the partnership between church and state was not eas#.


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b# Parliament in *), which, to encourage woolen trade, imposed on all clerg#men the dut# of seeing to it that noperson was buried in a shroud made of an# substance other than wool.-)Inder Eli0abeth, supremac# of the crownover the church was complete% ecclesiastical offices were regulated b# her proclamations, recusants were fined andimprisoned, =esuits and prosel#ti0ing priests were put to death for high treason, the thirt#>nine Articles of the Churchof England were adopted and English Protestantism attained its present doctrinal status.-Eli0abeth was to berecogni0ed as 3the onl# 7upreme Kovernor of this realm . . . as well in all spiritual or ecclesiastical things or causesas temporal.3 7he and her successors were vested, in their dominions, with 3all manner of 2urisdictions, privileges,and preeminences, in an# wise touching or concerning an# spiritual or ecclesiastical 2urisdiction.3-Hater, however,

Cromwell established the constitution in *) which granted full libert# to all Protestant sects, but denied tolerationto Catholics.-+


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colonies established a state religion. 'ther colonies, however, such as Rhode


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illiam Penn, proprietor of the land that became Penns#lvania, was also an ardent advocate of toleration, havingbeen imprisoned for his religious convictions as a member of the despised Lua"ers. :e opposed coercion inmatters of conscience because 3imposition, restraint and persecution for conscience sa"e, highl# invade the /ivineprerogative.3 Aside from his idealism, proprietar# interests made toleration in Penns#lvania necessar#. :e attractedlarge numbers of settlers b# promising religious toleration, thus bringing in immigrants both from the Continent andBritain. At the end of the colonial period, Penns#lvania had the greatest variet# of religious groups. Penn wasresponsible in large part for the 3Concessions and agreements of the Proprietors, ;reeholders, and inhabitants ofest =erse#, in America3, a monumental document in the histor# of civil libert# which provided among others, for

libert# of conscience.8

The Baptist followers of illiams and the Lua"ers who came after Penn continued thetradition started b# the leaders of their denominations. Aside from the Baptists and the Lua"ers, the Presb#teriansli"ewise greatl# contributed to the evolution of separation and freedom.*The Constitutional fathers who convenedin Philadelphia in *, and Congress and the states that adopted the ;irst Amendment in *+* were ver# familiarwith and strongl# influenced b# the successful e5amples of Rhode evident truth in America$s/eclaration of thirds of the population were organi0ed dissenting sects, the Kreat Awa"ening had won man# converts, theestablished Anglican Church of Firginia found themselves on the losing side of the Revolution and had alienatedman# influential la#men with its identification with the Crown$s t#rann#, and above all, present in Firginia was a

group of political leaders who were devoted to libert# generall#,

+*

who had accepted the social contract as self>evident, and who had been greatl# influenced b# /eism and Initarianism. Among these leaders were ashington,Patric" :enr#, Keorge Mason, =ames Madison and above the rest, Thomas =efferson.

The first ma2or step towards separation in Firginia was the adoption of the following provision in the Bill of Rights ofthe state$s first constitution%


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That religion, or the dut# which we owe to our Creator, and the manner of discharging it, can be directedonl# b# reason and conviction, not b# force or violence9 and therefore, all men are e1uall# entitled to the freee5ercise of religion according to the dictates of conscience9 and that it is the mutual dut# of all to practiceChristian forbearance, love, and charit# towards each other. +(emphasis supplied!

The adoption of the Bill of Rights signified the beginning of the end of establishment. Baptists, Presb#terians andHutherans flooded the first legislative assembl# with petitions for abolition of establishment. hile the ma2orit# of thepopulation were dissenters, a ma2orit# of the legislature were churchmen. The legislature compromised and enacted

a bill in *) abolishing the more oppressive features of establishment and granting e5emptions to the dissenters,but not guaranteeing separation.


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This statute forbade an# "ind of ta5ation in support of religion and effectuall# ended an# thought of a general orparticular establishment in Firginia.++But the passage of this law was obtained not onl# because of the influence ofthe great leaders in Firginia but also because of substantial popular support coming mainl# from the two greatdissenting sects, namel# the Presb#terians and the Baptists. The former were never established in Firginia and anunderprivileged minorit# of the population. This made them an5ious to pull down the e5isting state church as the#reali0ed that it was impossible for them to be elevated to that privileged position. Apart from these e5pedientialconsiderations, however, man# of the Presb#terians were sincere advocates of separation*88grounded on rational,secular arguments and to the language of natural religion.*8*supported religion was contrar# ti thespirit of the Kospel.*86Thus, separation was necessar#.*8=efferson$s religious freedom statute was a milestone inthe histor# of religious freedom. The Inited 7tates 7upreme Court has not 2ust once ac"nowledged that theprovisions of the ;irst Amendment of the I.7. Constitution had the same ob2ectives and intended to afford the sameprotection against government interference with religious libert# as the Firginia 7tatute of Religious Hibert#.

Even in the absence of the religion clauses, the principle that government had no power to legislate in the area ofreligion b# restricting its free e5ercise or establishing it was implicit in the Constitution of *. This could bededuced from the prohibition of an# religious test for federal office in Article F< of the Constitution and the assumedlac" of power of Congress to act on an# sub2ect not e5pressl# mentioned in the Constitution.*8-:owever, omission of

an e5press guarant# of religious freedom and other natural rights nearl# prevented the ratification of theConstitution.*8)care centers, retirement homes, hospitals, schools at all levels, research centers, settlement houses, halfwa#houses for prisoners, sports facilities, theme par"s, publishing houses and mass media programs.


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competing values. The result is disagreement over what laws should re1uire, permit or prohibit9 **6and agreementthat if the rights of believers as well as non>believers are all to be respected and given their 2ust due, a rigid,wooden interpretation of the religion clauses that is blind to societal and political realities must be avoided.**

Religion cases arise from different circumstances. The more obvious ones arise from a government action whichpurposel# aids or inhibits religion. These cases are easier to resolve as, in general, these actions are plainl#unconstitutional. 7till, this "ind of cases poses difficult# in ascertaining proof of intent to aid or inhibit religion.**-Themore difficult religion clause cases involve government action with a secular purpose and general applicabilit# which

incidentall# or inadvertentl# aids or burdens religious e5ercise.


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religion under the ;irst Amendment. ;irst, there must be belief in Kod or some parallel belief that occupies a centralplace in the believer$s life. 7econd, the religion must involve a moral code transcending individual belief, i.e., itcannot be purel# sub2ective. Third, a demonstrable sincerit# in belief is necessar#, but the court must not in1uireinto the truth or reasonableness of the belief.*;ourth, there must be some associational ties,*although there isalso a view that religious beliefs held b# a single person rather than being part of the teachings of an# "ind of groupor sect are entitled to the protection of the ;ree E5ercise Clause.*+

/efining religion is onl# the beginning of the difficult tas" of deciding religion clause cases. :aving hurdled the issue

of definition, the court then has to draw lines to determine what is or is not permissible under the religion clauses. isthe protection and promotion of religious libert#. *6The end, the goal, and the rationale of the religion clauses is thislibert#.*66Both clauses were adopted to prevent government imposition of religious orthodo5#9 the great evil againstwhich the# are directed is government>induced homogeneit#. *6The ;ree E5ercise Clause directl# articulates thecommon ob2ective of the two clauses and the Establishment Clause specificall# addresses a form of interferencewith religious libert# with which the ;ramers were most familiar and for which government historicall# haddemonstrated a propensit#.*6-


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that it is time enough for the rightful purposes of civil government for its officers to interfere when principlesbrea" out into overt acts against peace and good order.*-(emphasis supplied!

The Court then held, viz%

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

Haws are made for the government of actions, and while the# cannot interfere with mere religious belief andopinions, the# ma# with practices. 7uppose one believed that human sacrifice were a necessar# part ofreligious worship, would it be seriousl# contended that the civil government under which he lived could notinterfere to prevent a sacrificeD 'r if a wife religiousl# believed it was her dut# to burn herself upon thefuneral pile of her dead husband, would it be be#ond the power of the civil government to prevent hercarr#ing her belief into practiceD

7o here, as a law of the organi0ation of societ# under the e5clusive dominion of the Inited 7tates, it isprovided that plural marriages shall not be allowed. Can a man e5cuse his practices to the contrar# becauseof his religious beliefD To permit this would be to ma"e the professed doctrines of religious belief superior tothe law of the land, and in effect to permit ever# citi0en to become a law unto himself. Kovernment coulde5ist onl# in name under such circumstances.*)

The construct was thus simple% the state was absolutel# prohibited b# the ;ree E5ercise Clause from regulatingindividual religious beliefs, but placed no restriction on the abilit# of the state to regulate religiousl# motivatedconduct.


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and even to false statement. But the people of this nation have ordained in the light of histor#, that, in spiteof the probabilit# of e5cesses and abuses, these liberties are, in the long view, essential to enlightenedopinion and right conduct on the part of citi0ens of a democrac#.*--

Cantwell too" a step forward from the protection afforded b# the Re#nolds case in that it not onl# affirmed protectionof belief but also freedom to act for the propagation of that belief, viz%

Thus the Amendment embraces two concepts > freedom to believe and freedom to act. The first is absolute

but, in the nature of things, the second cannot be. Conduct remains sub2ect to regulation for the protectionof societ#. . . . C;(y o< +ea%e((e,*-ruled that police could not prohibitmembers of the =ehovah$s itnesses from peaceabl# and orderl# prosel#ti0ing on 7unda#s merel# because otherciti0ens complained. religious speech. Religious prosel#ti0ing in congested areas, fore5ample, ma# be limited to certain areas to maintain the safe and orderl# flow of pedestrians and vehicular traffic asheld in the case of /ereligious regulator# interest so long as the government is proscribing actionand not belief. Thus, the Court abandoned the simplistic belief>action distinction and instead recogni0ed thedeliberate>inadvertent distinction, i.e., the distinction between deliberate state interference of religious e5ercise forreligious reasons which was plainl# unconstitutional and government$s inadvertent interference with religion inpursuing some secular ob2ective.*);e S4oo D;)(r;( >. Gob;(;),*)6the Court uphelda local school board re1uirement that all public school students participate in a dail# flag salute program, includingthe =ehovah$s itnesses who were forced to salute the American flag in violation of their religious training, whichconsidered flag salute to be worship of a 3graven image.3 The Court recogni0ed that the general re1uirement ofcompulsor# flag salute inadvertentl# burdened the =ehovah itnesses$ practice of their religion, but 2ustified the

government regulation as an appropriate means of attaining national unit#, which was the 3basis of nationalsecurit#.3 Thus, although the Court was alread# aware of the deliberate>inadvertent distinction in governmentinterference with religion, it continued to hold that the ;ree E5ercise Clause presented no problem to interferencewith religion that was inadvertent no matter how serious the interference, no matter how trivial the state$s non>religious ob2ectives, and no matter how man# alternative approaches were available to the state to pursue itsob2ectives with less impact on religion, so long as government was acting in pursuit of a secular ob2ective.

Three #ears later, the Kobitis decision was overturned in Ae)( V;r;%;a >. -ar%e((e*)which involved a similar setof facts and issue. The Court recogni0ed that saluting the flag, in connection with the pledges, was a form ofutterance and the flag salute program was a compulsion of students to declare a belief. The Court ruled that3compulsor# unification of opinions leads onl# to the unanimit# of the grave#ard3 and e5empt the students who weremembers of the =ehovah$s itnesses from saluting the flag. A close scrutin# of the case, however, would show that

it was decided not on the issue of religious conduct as the Court said, 3(n!or does the issue as we see it turn onone$s possession of particular religious views or the sincerit# with which the# are held. hile religion suppliesappellees$ motive for enduring the discomforts of ma"ing the issue in this case, man# citi0ens who do not sharethese religious views hold such a compulsor# rite to infringe constitutional libert# of the individual.3 (emphasissupplied!*)-The Court pronounced, however, that, 3freedoms of speech and of press, of assembl#, and of worship . .. are susceptible onl# of restriction onl# to prevent grave and immediate danger to interests which the state ma#


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lawfull# protect.3*))The Court seemed to recogni0e the e5tent to which its approach in Kobitis subordinated thereligious libert# of political minorities > a speciall# protected constitutional value > to the common ever#da# economicand public welfare ob2ectives of the ma2orit# in the legislature. This time, even inadvertent interference with religionmust pass 2udicial scrutin# under the ;ree E5ercise Clause with onl# grave and immediate danger sufficing tooverride religious libert#. But the seeds of this heightened scrutin# would onl# grow to a full flower in the *+)8s.*)

earl# a centur# after Re#nolds emplo#ed the belief>action test, the arren Court began the modern free e5ercise2urisprudence.*)A two>part balancing test was established in -rau%. -ro@%*)+where the Court considered

the constitutionalit# of appl#ing 7unda# closing laws to 'rthodo5 =ews whose beliefs re1uired them to observeanother da# as the 7abbath and abstain from commercial activit# on 7aturda#. Chief =ustice arren, writing for theCourt, found that the law placed a severe burden on 7abattarian retailers. :e noted, however, that since the burdenwas the indirect effect of a law with a secular purpose, it would violate the ;ree E5ercise Clause onl# if there werealternative wa#s of achieving the state$s interest. :e emplo#ed a two>part balancing test of validit# where the firststep was for plaintiff to show that the regulation placed a real burden on his religious e5ercise. e5t, the burdenwould be upheld onl# if the state showed that it was pursuing an overriding secular goal b# the means whichimposed the least burden on religious practices.*8The Court found that the state had an overriding secular interestin setting aside a single da# for rest, recreation and tran1uilit# and there was no alternative means of pursuing thisinterest but to re1uire 7unda# as a uniform rest da#.

Two #ears after came the stricter compelling state interest test in the *+)6 case of S4erber( >. Ver%er.**This test

was similar to the two>part balancing test in Braunfeld,*

but this latter test stressed that the state interest was notmerel# an# colorable state interest, but must be paramount and compelling to override the free e5ercise claim.

three #ears from Kobitis to 7herbert (or even as earl# as Braunfeld!, the Courtmoved from the doctrine that inadvertent or incidental interferences with religion raise no problem under the ;reeE5ercise Clause to the doctrine that such interferences violate the ;ree E5ercise Clause in the absence of a

compelling state interest > the highest level of constitutional scrutin# short of a holding of a per se violation. Thus,the problem posed b# the belief>action test and the deliberate>inadvertent distinction was addressed. *)

Throughout the *+8s and *+8s under the arren, and afterwards, the Burger Court, the rationale in 7herbertcontinued to be applied. . Re>;e@ -oar&*and /obb;e >. U%e65oy6e%( #55ea) D;>;);o%,*fore5ample, the Court reiterated the e5emption doctrine and held that in the absence of a compelling 2ustification, a


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state could not withhold unemplo#ment compensation from an emplo#ee who resigned or was discharged due tounwillingness to depart from religious practices and beliefs that conflicted with 2ob re1uirements. But not ever#governmental refusal to allow an e5emption from a regulation which burdens a sincerel# held religious belief hasbeen invalidated, even though strict or heightened scrutin# is applied. . "ee,*+for instance, theCourt using strict scrutin# and referring to Thomas, upheld the federal government$s refusal to e5empt Amishemplo#ers who re1uested for e5emption from pa#ing social securit# ta5es on wages on the ground of religiousbeliefs. The Court held that 3(b!ecause the broad public interest in maintaining a sound ta5 s#stem is of such a highorder, religious belief in conflict with the pa#ment of ta5es affords no basis for resisting the ta5.3*8


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that 3if prohibiting the e5ercise of religion . . . is . . . merel# the incidental effect of a generall# applicable andotherwise valid law, the ;irst Amendment has not been offended.3 settled ;irst Amendment 2urisprudence. . . and . . . (as! incompatible with our ation$s fundamentalcommitment to religious libert#.3 This portion of her concurring opinion was supported b# =ustices Brennan,Marshall and Blac"mun who dissented from the Court$s decision. =ustice '$Connor asserted that 3(t!he compellingstate interest test effectuates the ;irst Amendment$s command that religious libert# is an independent libert#, that itoccupies a preferred position, and that the Court will not permit encroachments upon this libert#, whether direct orindirect, unless re1uired b# clear and compelling government interest $of the highest order$.3 =ustice Blac"munregistered a separate dissenting opinion, 2oined b# =ustices Brennan and Marshall. :e charged the ma2orit# with3mischaracteri0ing3 precedents and 3overturning. . . settled law concerning the Religion Clauses of ourConstitution.3 :e pointed out that the ative American Church restricted and supervised the sacramental use of

pe#ote. Thus, the state had no significant health or safet# 2ustification for regulating the sacramental drug use. :ealso observed that 'regon had not attempted to prosecute 7mith or Blac", or an# ative Americans, for that matter,for the sacramental use of pe#ote.


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religious communit#, and commentaries insisted that the Court was allowing the ;ree E5ercise Clause todisappear.*+87o much was the uproar that a ma2orit# in Congress was convinced to enact the Religious ;reedomRestoration Act (R;RA! of *++6. The R;RA prohibited government at all levels from substantiall# burdening aperson$s free e5ercise of religion, even if such burden resulted from a generall# applicable rule, unless thegovernment could demonstrate a compelling state interest and the rule constituted the least restrictive means offurthering that interest.*+*R;RA, in effect, sought to overturn the substance of the 7mith ruling and restore thestatus 1uo prior to 7mith. Three #ears after the R;RA was enacted, however, the Court, dividing ) to 6, declaredthe R;RA unconstitutional in C;(y o< -oer%e >. Fore).*+The Court ruled that 3R;RA contradicts vital principles

necessar# to maintain separation of powers and the federal balance.3


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in an# amount, large or small, can be levied to support an# religious activities or institutions, whatever the#ma# be called, or whatever form the# ma# adopt to teach or practice religion. either a state nor the ;ederalKovernment can, openl# or secretl# participate in the affairs of an# religious organi0ations or groups andvice versa. . ur(6a%8in determining theconstitutionalit# of policies challenged under the Establishment Clause. This case involved a Penns#lvania statutor#program providing publicl# funded reimbursement for the cost of teachers$ salaries, te5tboo"s, and instructionalmaterials in secular sub2ects and a Rhode


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Catholic priests and a =ewish rabbi and were held wee"l# from thirt# to fort# minutes during regular class hours inthe regular classrooms of the school building. The religious teachers were emplo#ed at no e5pense to the schoolauthorities but the# were sub2ect to the approval and supervision of the superintendent of schools. 7tudents who didnot choose to ta"e religious instruction were re1uired to leave their classrooms and go to some other place in theschool building for their secular studies while those who were released from their secular stud# for religiousinstruction were re1uired to attend the religious classes. The Court held that the use of ta5>supported propert# forreligious instruction and the close cooperation between the school authorities and the religious council in promotingreligious education amounted to a prohibited use of ta5>established and ta5>supported public school s#stem to aid

religious groups spread their faith. The Court re2ected the claim that the Establishment Clause onl# prohibitedgovernment preference of one religion over another and not an impartial governmental assistance of all religions.. Cau)o%,*however, the Court upheld released time programs allowing students in public schools toleave campus upon parental permission to attend religious services while other students attended stud# hall.=ustice /ouglas, the writer of the opinion, stressed that 3(t!he ;irst Amendment does not re1uire that in ever# andall respects there shall be a separation of Church and 7tate.3 The Court distinguished &orach from McCollum, viz%

public corporations . . . The 7tate has an affirmative polic# that considers these groups as beneficial


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and stabili0ing influences in communit# life and finds this classification useful, desirable, and in the publicinterest.6

The Court added that the e5emption was not establishing religion but 3sparing the e5ercise of religion from theburden of propert# ta5ation levied on private profit institutions3and preventing e5cessive entanglement betweenstate and religion. At the same time, the Court ac"nowledged the long>standing practice of religious ta5 e5emptionand the Court$s traditional deference to legislative bodies with respect to the ta5ing power, viz%

(f!ew concepts are more deepl# embedded in the fabric of our national life, beginning with pre>Revolutionar#colonial times, than for the government to e5ercise . . . this "ind of benevolent neutralit# toward churchesand religious e5ercise generall# so long as none was favored over others and none sufferedinterference.-(emphasis supplied!

C. S(r;( Neu(ra;(y >. -e%e>oe%( Neu(ra;(y

To be sure, the cases discussed above, while citing man# landmar" decisions in the religious clauses area, are buta small fraction of the hundreds of religion clauses cases that the I.7. 7upreme Court has passed upon. Courtrulings contrar# to or ma"ing nuances of the above cases ma# be cited. Professor McConnell poignantl# recogni0esthis, viz%

Thus, as of toda#, it is constitutional for a state to hire a Presb#terian minister to lead the legislature in dail#pra#ers (Marsh v. Chambers, )6 I76, +>+6?*+6@!, but unconstitutional for a state to set aside amoment of silence in the schools for children to pra# if the# want to (allace v. =affree, I7 6, -)?*+-@!. )*+ ?*+*@!. old religious traditions. 7tated otherwise, separation > strict or tame > protects the principle of church>state separation with a rigid reading of the principle while benevolent neutralit# protects religious realities, traditionand established practice with a fle5ible reading of the principle.+The latter also appeals to histor# in support of itsposition, viz%

The opposing school of thought argues that the ;irst Congress intended to allow government support ofreligion, at least as long as that support did not discriminate in favor of one particular religion. . . the7upreme Court has overloo"ed man# important pieces of histor#. Madison, for e5ample, was on the

congressional committee that appointed a chaplain, he declared several national da#s of pra#er and fastingduring his presidenc#, and he sponsored =efferson$s bill for punishing 7abbath brea"ers9 moreover, whilepresident, =efferson allowed federal support of religious missions to the


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create a state of complete independence between religion and government. four hours after Congress adopted the ;irst Amendment$s prohibition on lawsrespecting an establishment of religion, Congress decided to e5press its than"s to Kod Almight# for the man#blessings en2o#ed b# the nation with a resolution in favor of a presidential proclamation declaring a national da# ofThan"sgiving and Pra#er. 'nl# two members of Congress opposed the resolution, one on the ground that the move

was a 3mimic"ing of European customs, where the# made a mere moc"er# of than"sgivings3, the other onestablishment clause concerns. evertheless, the salutar# effect of than"sgivings throughout estern histor# wasac"nowledged and the motion was passed without further recorded discussion.6*Thus, accommodationists also gobac" to the framers to ascertain the meaning of the ;irst Amendment, but prefer to focus on acts rather than words.Contrar# to the claim of separationists that rationalism pervaded America in the late *+th centur# and that Americawas less specificall# Christian during those #ears than at an# other time before or since, 6accommodationaistsclaim that American citi0ens at the time of the Constitution$s origins were a remar"abl# religious people inparticularl# Christian terms.66

The two streams of 2urisprudence > separationist or accommodationist > are anchored on a different reading of the3wall of separation.3 The strict separtionist view holds that =efferson meant the 3wall of separation3 to protect thestate from the church. =efferson was a man of the Enlightenment Era of the eighteenth centur#, characteri0ed b#

the rationalism and anticlericalism of that philosophic bent.6

:e has often been regarded as espousing /eism orthe rationalistic belief in a natural religion and natural law divorced from its medieval connection with divine law, andinstead adhering to a secular belief in a universal harmon#.6-Thus, according to this =effersonian view, theEstablishment Clause being meant to protect the state from the church, the state$s hostilit# towards religion allowsno interaction between the two.6)


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e5ercise, the ;irst Amendment has not been offended. :owever, if the strict neutralit# standard is applied ininterpreting the Establishment Clause, it could de facto void religious e5pression in the ;ree E5ercise Clause. Aspointed out b# =ustice Koldberg in his concurring opinion in 7chempp, strict neutralit# could lead to 3a brooding andpervasive devotion to the secular and a passive, or even active, hostilit# to the religious3 which is prohibited b# theConstitution.Professor Haurence Tribe commented in his authoritative treatise, vi0%

To most observers. . . strict neutralit# has seemed incompatible with the ver# idea of a free e5ercise clause.The ;ramers, whatever specific applications the# ma# have intended, clearl# envisioned religion as

something special9 the# enacted that vision into law b# guaranteeing the free e5ercise of religion but not,sa#, of philosoph# or science. The strict neutralit# approach all but erases this distinction. Thus it is notsurprising that the 7upreme Court has re2ected strict neutralit#, permitting and sometimes mandatingreligious classifications.

The separationist approach, whether strict or tame, is caught in a dilemma because while the =effersonian wall ofseparation 3captures the spirit of the American ideal of church>state separation3, in real life church and state are notand cannot be totall# separate.+This is all the more true in contemporar# times when both the government andreligion are growing and e5panding their spheres of involvement and activit#, resulting in the intersection ofgovernment and religion at man# points.-8

Conse1uentl#, the Court has also decided cases emplo#ing benevolent neutralit#. Benevolent neutralit# which gives

room for accommodation is buttressed b# a different view of the 3wall of separation3 associated with illiams,founder of the Rhode


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these and all other references to the Almight# that run through our laws, our public rituals, our ceremonieswould be flouting the ;irst Amendment. A fastidious atheist or agnostic could even ob2ect to the supplicationwith which the Court opens each session% $Kod save the Inited 7tates and this :onorable Court.

555 555 555

e are a religious people whose institutions presuppose a 7upreme Being. e guarantee the freedom toworship as one chooses. . . hen the state encourages religious instruction or cooperates with religious

authorities b# ad2usting the schedule of public events, it follows the best of our traditions. ;or it thenrespects the religious nature of our people and accommodates the public service to their spiritual needs. Tohold that it ma# not would be to find in the Constitution a re1uirement that the government show a callousindifference to religious groups. . . But we find no constitutional re1uirement which ma"es it necessar# forgovernment to be hostile to religion and to throw its weight against efforts to widen their effective scope ofreligious influence.)*(emphases supplied!

Benevolent neutralit# is congruent with the sociological proposition that religion serves a function essential to thesurvival of societ# itself, thus there is no human societ# without one or more wa#s of performing the essentialfunction of religion. Although for some individuals there ma# be no felt need for religion and thus it is optional oreven dispensable, for societ# it is not, which is wh# there is no human societ# without one or more wa#s ofperforming the essential function of religion. Even in ostensibl# atheistic societies, there are vigorous underground

religion(s! and surrogate religion(s! in their ideolog#.)As one sociologist wrote%

scarcel# more than to sa# that anautomobile could not e5ist, as a going s#stem, without a carburetor. . . Most writers list religion among thefunctional prere1uisites.)6

Another noted sociologist, Talcott Parsons, wrote% 3There is no "nown human societ# without something whichmodern social scientists would classif# as a religionReligion is as much a human universal as language.3 )

Benevolent neutralit# thus recogni0es that religion pla#s an important role in the public life of the Inited 7tates asshown b# man# traditional government practices which, to strict neutralit#, pose Establishment Clause 1uestions.

Among these are the inscription of 3honored practice ofopening oral argument with the invocation 3Kod save the Inited 7tates and this honorable Court,3 and the practiceof Congress and ever# state legislature of pa#ing a chaplain, usuall# of a particular Protestant denomination to leadrepresentatives in pra#er.)-These practices clearl# show the preference for one theological viewpoint >thee5istence of and potential for intervention b# a god > over the contrar# theological viewpoint of atheism. Church andgovernment agencies also cooperate in the building of low>cost housing and in other forms of poor relief, in thetreatment of alcoholism and drug addiction, in foreign aid and other government activities with strong moraldimension.))The persistence of these de facto establishments are in large part e5plained b# the fact thatthroughout histor#, the evangelical theor# of separation, i.e., illiams$ wall, has demanded respect for these defacto establishments.)But the separationists have a different e5planation. To characteri0e these as de=ure establishments according to the principle of the =effersonian wall, the I.7. 7upreme Court, the man# dissenting

and concurring opinions e5plain some of these practices as 3$de minimis$ instances of government endorsement oras historic governmental practices that have largel# lost their religious significance or at least have proven not tolead the government into further involvement with religion.)

ith religion loo"ed upon with benevolence and not hostilit#, benevolent neutralit# allows accommodation of religionunder certain circumstances. Accommodations are government policies that ta"e religion specificall# into accountnot to promote the government$s favored form of religion, but to allow individuals and groups to e5ercise theirreligion without hindrance. Their purpose or effect therefore is to remove a burden on, or facilitate the e5ercise of, aperson$s or institution$s religion. As =ustice Brennan e5plained, the 3government ?ma#@ ta"e religion into accounttoe5empt, when possible, from generall# applicable governmental regulation individuals whose religious beliefs andpractices would otherwise thereb# be infringed, or to create without state involvement an atmosphere in whichvoluntar# religious e5ercise ma# flourish.3)+(emphasis supplied! Accommodation is forbearance and not alliance. it

does not reflect agreement with the minorit#, but respect for the conflict between the temporal and spiritual authorit#in which the minorit# finds itself.8

Accommodation is distinguished from strict neutralit# in that the latter holds that government should base publicpolic# solel# on secular considerations, without regard to the religious conse1uences of its actions. The debatebetween accommodation and strict neutralit# is at base a 1uestion of means% 3


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achieved when the government is conscious of the effects of its action on the various religious practices of itspeople, and see"s to minimi0e interferences with those practicesD 'r is it best advanced through a polic# of$religious blindness$ > "eeping government aloof from religious practices and issuesD3 An accommodationist holdsthat it is good public polic#, and sometimes constitutionall# re1uired, for the state to ma"e conscious and deliberateefforts to avoid interference with religious freedom. 'n the other hand, the strict neutralit# adherent believes that itis good public polic#, and also constitutionall# re1uired, for the government to avoid religion>specific polic# even atthe cost of inhibiting religious e5ercise.*

There are strong and compelling reasons, however, to ta"e the accommodationist position rather than the strictneutralit# position. ;irst, the accommodationist interpretation is most consistent with the language of the ;irstAmendment. The religion clauses contain two parallel provisions, both specificall# directed at 3religion.3 Thegovernment ma# not 3establish3 religion and neither ma# government 3prohibit3 it. Ta"en together, the religionclauses can be read most plausibl# as warding off two e1ual and opposite threats to religious freedom > governmentaction that promotes the (political! ma2orit#$s favored brand of religion and government action that impedes religiouspractices not favored b# the ma2orit#. The substantive end in view is the preservation of the autonom# of religiouslife and not 2ust the formal process value of ensuring that government does not act on the basis of religious bias. 'nthe other hand, strict neutralit# interprets the religion clauses as allowing government to do whatever it desires to orfor religion, as long as it does the same to or for comparable secular entities. Thus, for e5ample, if governmentprohibits all alcoholic consumption b# minors, it can prohibit minors from ta"ing part in communion. Parado5icall#,this view would ma"e the religion clauses violate the religion clauses, so to spea", since the religion clauses single

out religion b# name for special protection. 7econd, the accommodationist position best achieves the purposes ofthe ;irst Amendment. The principle underl#ing the ;irst Amendment is that freedom to carr# out one$s duties to a7upreme Being is an inalienable right, not one dependent on the grace of legislature. Although inalienable, it isnecessaril# limited b# the rights of others, including the public right of peace and good order. evertheless it is asubstantive right and not merel# a privilege against discriminator# legislation. The accomplishment of the purpose ofthe ;irst Amendment re1uires more than the 3religion blindness3 of strict neutralit#. ith the pervasiveness ofgovernment regulation, conflicts with religious practices become fre1uent and intense. Haws that are suitable forsecular entities are sometimes inappropriate for religious entities, thus the government must ma"e specialprovisions to preserve a degree of independence for religious entities for them to carr# out their religious missionsaccording to their religious beliefs. 'therwise, religion will become 2ust li"e other secular entities sub2ect topervasive regulation b# ma2oritarian institutions. Third, the accommodationist interpretation is particularl# necessar#to protect adherents of minorit# religions from the inevitable effects of ma2oritarianism, which include ignorance andindifference and overt hostilit# to the minorit#.


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e5ercise protections and not unconstitutionall# infringe on religious libert# or create penalties for religious freedom.Contrar# to the 7mith declaration that free e5ercise e5emptions are 3intentional government advancement3, thesee5emptions merel# relieve the prohibition on the free e5ercise thus allowing the burdened religious adherent to beleft alone. The state must create e5ceptions to laws of general applicabilit# when these laws threaten religiousconvictions or practices in the absence of a compelling state interest.-B# allowing such e5emptions, the ;reeE5ercise Clause does not give believers the right or privilege to choose for themselves to override sociall#>prescribed decision9 it allows them to obe# spiritual rather than temporal authorit# )for those who seriousl# invo"ethe ;ree E5ercise Clause claim to be fulfilling a solemn dut#. Religious freedom is a matter less of rights than

duties9 more precisel#, it is a matter of rights derived from duties. To den# a person or a communit# the right to actupon such a dut# can be 2ustified onl# b# appeal to a #et more compelling dut#. 'f course, those denied will usuall#not find the reason for the denial compelling. 3Because the# ma# turn out to be right about the dut# in 1uestion, andbecause, even if the# are wrong, religion bears witness to that which transcends the political order, such denialsshould be rare and painfull# reluctant.3

The Joder case is an e5ample where the Court held that the state must accommodate the religious beliefs of theAmish who ob2ected to enrolling their children in high school as re1uired b# law. The 7herbert case is anothere5ample where the Court held that the state unemplo#ment compensation plan must accommodate the religiousconvictions of 7herbert.e5tensive with thenoninterference mandated b# the ;ree E5ercise Clause.3*The Court held that ew Jor" could have an interest inencouraging religious values and avoiding threats to those values through the burden of propert# ta5es. 'there5amples are the &orach case allowing released time in public schools and Marsh allowing pa#ment of legislativechaplains from public funds. ;inall#, in the situation where accommodation is prohibited, establishment concernsprevail over potential accommodation interests. To sa# that there are valid e5emptions buttressed b# the ;reeE5ercise Clause does not mean that all claims for free e5ercise e5emptions are valid. An e5ample whereaccommodation was prohibited is McCollum where the Court ruled against optional religious instruction in the publicschool premises.6standing ob2ection to enrolling their children in

ninth and tenth grades in public high schools. . D;)(r;( o< Cou6b;a,-the Court deniedthe claim of a part# who refused to appear in court on 7aturda# alleging he was a 7abbatarian, but the Court notedthat he regularl# conducted business on 7aturda#. Although it is true that the Court might erroneousl# den# someclaims because of a mis2udgment of sincerit#, this is not as argument to re2ect all claims b# not allowingaccommodation as a rule. There might be in2ur# to the particular claimant or to his religious communit#, but for themost part, the in2ustice is done onl# in the particular case.)Aside from the sincerit#, the court ma# loo" into the


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centralit# of those beliefs, assessing them not on an ob2ective basis but in terms of the opinion and belief of theperson see"ing e5emption.


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as the separation of the Church and 7tate.3 But the Malolos Constitution and government was short>lived as theAmericans too" over the reigns of government.+

ith the Philippines under the American regime, President Mcinle# issued


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The *+6 Constitution which superseded the *+6- Constitution contained an almost identical provision on religiousfreedom in the Bill of Rights in Article the well>spring of Philippine 2urisprudence on this sub2ect isfor the most part, benevolent neutralit# which gives room for accommodation.

-. +ur;)5ru&e%e


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Manila re1uired plaintiff to secure a ma#or$s permit and a municipal license as ordinaril# re1uired of those engagedin the business of general merchandise under the cit#$s ordinances. Plaintiff argued that this amounted to 3religiouscensorship and restrained the free e5ercise and en2o#ment of religious profession, to wit% the distribution and sale ofbibles and other religious literature to the people of the Philippines.3

After defining religion, the Court, citing Tanada and ;ernando, made this statement, viz%

The constitutional guarant# of the free e5ercise and en2o#ment of religious profession and worship carries

with it the right to disseminate religious information. An# restraint of such right can onl# be 2ustified li"e otherrestraints of freedom of e5pression on the grounds that there is a clear and present danger of an#substantive evil which the 7tate has the right to prevent. (Tanada and ;ernando on the Constitution of thePhilippines, vol. *, th ed., p. +! (emphasis supplied!

This was the Court$s maiden une1uivocal affirmation of the 3clear and present danger3 rule in the religious freedomarea, and in Philippine 2urisprudence, for that matter. 6*-The case did not clearl# show, however, whether the Courtproceeded to appl# the test to the facts and issues of the case, i.e., it did not identif# the secular value theg

H05.Mandatory Cases

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