G.R. No.

110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and RAFAEL S.
ORTANEZ, respondents.

Oscar A. Inocentes & Associates Law Office for petitioner.

Efren A. Santos for private respondent.

PADILLA, J.:

This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of respondent Court of Appeals in
CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial
Court of Quezon City and Rafael S. Ortanez".

The relevant facts of the case are as follows:

On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a complaint for annulment of
marriage with damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or psychological
incapacity of the petitioner. The complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City
presided over by respondent Judge Romeo F. Zamora.

Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M".

Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone conversations between petitioner
and unidentified persons.

Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June 1992; on the same day, the trial
court admitted all of private respondent's offered evidence.

A motion for reconsideration from petitioner was denied on 23 June 1992.

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in evidence of the aforementioned
cassette tapes.

On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition, which in part reads:

It is much too obvious that the petition will have to fail, for two basic reasons:

(1) Tape recordings are not inadmissible per se. They and any other variant thereof can be admitted in evidence for
certain purposes, depending on how they are presented and offered and on how the trial judge utilizes them in the
interest of truth and fairness and the even handed administration of justice.

(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in admitting evidence adduced
during trial. The ruling on admissibility is interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the
ruling should be questioned in the appeal from the judgment on the merits and not through the special civil action
of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an error of law, properly
correctible by appeal and not by certiorari. Otherwise, we will have the sorry spectacle of a case being subject of a
counterproductive "ping-pong" to and from the appellate court as often as a trial court is perceived to have made an
error in any of its rulings with respect to evidentiary matters in the course of trial. This we cannot sanction.

1
WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED.

From this adverse judgment, petitioner filed the present petition for review, stating:

Grounds for Allowance of the Petition

10. The decision of respondent [Court of Appeals] has no basis in law nor previous decision of the Supreme Court.
 10.1 In affirming the questioned order of respondent judge, the Court of Appeals has decided a
question of substance not theretofore determined by the Supreme Court as the question of
admissibility in evidence of tape recordings has not, thus far, been addressed and decided squarely
by the Supreme Court.

11. In affirming the questioned order of respondent judge, the Court of Appeals has likewise rendered a decision in a
way not in accord with law and with applicable decisions of the Supreme Court.

11.1 Although the questioned order is interlocutory in nature, the same can still be [the] subject of a
petition for certiorari. 2

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of Court was properly availed of by
the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial court. The proper remedy in
such cases is an ordinary appeal from an adverse judgment, incorporating in said appeal the grounds for assailing the interlocutory
order.

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and
expeditious relief, the Court may allow certiorari as a mode of redress. 3

In the present case, the trial court issued the assailed order admitting all of the evidence offered by private respondent, including tape
recordings of telephone conversations of petitioner with unidentified persons. These tape recordings were made and obtained when
private respondent allowed his friends from the military to wire tap his home telephone. 4

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations of the Privacy of
Communication, and for other purposes" expressly makes such tape recordings inadmissible in evidence. The relevant provisions of
Rep. Act No. 4200 are as follows:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to
secretly overhear, intercept, or record such communication or spoken word by using a device commonly
known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however
otherwise described. . . .

Sec. 4. Any communication or spoken word, or the existence, contents, substance, purport, or meaning of
the same or any part thereof, or any information therein contained, obtained or secured by any person in
violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasi-
judicial, legislative or administrative hearing or investigation.

Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of the law in admitting in evidence
the cassette tapes in question. Absent a clear showing that both parties to the telephone conversations allowed the recording of the
same, the inadmissibility of the subject tapes is mandatory under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof imposes a penalty of imprisonment of
not less than six (6) months and up to six (6) years for violation of said Act. 5

We need not address the other arguments raised by the parties, involving the applicability of American jurisprudence, having arrived at
the conclusion that the subject cassette tapes are inadmissible in evidence under Philippine law.

WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The subject cassette tapes are
declared inadmissible in evidence.

SO ORDERED.

Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

 [G.R. No. 107383. February 20, 1996.]

CECILIA ZULUETA, petitioner, vs. COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION
MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch
X) which ordered petitioner to return documents and papers taken by her from private respondents clinic without the latters knowledge
and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her
husband, a doctor of medicine, and in the presence of her mother, a driver and private respondents secretary, forcibly opened the drawers
and cabinet in her husbands clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martins passport, and photographs. The documents and papers were seized
for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against
her husband.
Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was
filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin,
declaring him the capital/exclusive owner of the properties described in paragraph 3 of plaintiffs Complaint or those further described in
the Motion to Return and Suppress and ordering Cecilia Zulueta and any person acting in her behalf to immediately return the properties
to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorneys fees; and to pay the costs of
the suit. The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from using or submitting/admitting as evidence the documents and papers in question. On appeal, the
Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were
taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and
papers to be properties of private respondent, ordered petitioner to return them to private respondent and enjoined her from using them
in evidence. In appealing from the decision of the Court of Appeals affirming the trial courts decision, petitioners only ground is that
in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of respondents
comment in that case) were admissible in evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr., did not constitute
malpractice or gross misconduct. For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court
instead of dismissing private respondents complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent,
Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice
or gross misconduct because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took
note of the following defense of Atty. Felix, Jr. which it found to be impressed with merit: 2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of
the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex A-I to J-7. On September 6, 1983, however having
appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order
temporarily set aside the order of the trial court. Hence, during the enforceability of this Courts order, respondents request for petitioner
to admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the questioned annexes. At that point in time, would it have been malpractice for
respondent to use petitioners admission as evidence against him in the legal separation case pending in the Regional Trial Court of
Makati? Respondent submits it is- not malpractice.

Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself under oath. Such verified admission
constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail
herself of her husbands admission and use the same in her action for legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents
and papers for the purpose of securing Dr. Martins admission as to their genuiness and authenticity did not constitute a violation of the
injunctive order of the trial court. By no means does the decision in that case establish the admissibility of the documents and papers in
question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued
by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was
temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner
against the trial courts order was dismissed and, therefore, the prohibition against the further use of the documents and papers became
effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring the privacy of
communication and correspondence [to be] inviolable3 is no less applicable simply because it is the wife (who thinks herself aggrieved
by her husbands infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful order [from a] court or when public safety or order requires otherwise, as prescribed
by law.4 Any violation of this provision renders the evidence obtained inadmissible for any purpose in any proceeding. 5
The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his
right to privacy as an individual and the constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the affected spouse while the marriage subsists. 6 Neither may be examined without
the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified
exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the
other. And this has nothing to do with the duty of fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Regalado (Chairman), Romero, and Puno, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 81561 January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting
accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic
Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth
of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift
wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed
Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for
the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee,
namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring
her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's
representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a
brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before
the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband
of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's
box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves
and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of
one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents
thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the
samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation
(NBI), at about 1:30 o'clock in the afternoon of that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics
Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3)
NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the
top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were
found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained
bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It
turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).
 The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt"
acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central
Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at
the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the
Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that
the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS
CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS
UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE
FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against
unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same
should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which,
worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures
shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the
pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this
jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed.
1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a
defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1
[1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure. The 1973 Charter (Sec. 4 [2], Art. IV)
constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in
violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823
[1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687
[1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).
It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting
through the medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered
and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under
the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has
been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked
against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked
against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or
alien, from interference by government, included in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in
the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by
government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable
searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its
protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the
activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against
such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his
dwelling and the possession of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to
ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared
admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the
government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State
v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant
stayed overnight and in which he left behind a travel case containing the evidence***complained of. The search was made on
the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's
contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a
private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights
against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the
prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in
prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its
own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and
seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding
agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part
of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October
6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later
summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the
care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to
the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and
seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that
which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the
constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State,
429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the
specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure
within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the
deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be
subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the essence of constitutional democracy. Protection
against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its
concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does
is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of
Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in
the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal
search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of
the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in
the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility
of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No.
12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable
search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly
traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights
should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in pari passu, to
the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his
rights under the constitution while under custodial investigation were not observed.
Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an
"undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of
counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have
regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no
evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while
under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused
together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any
written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the
records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is
more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant
while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore
misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages
which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila:
that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of
the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human
experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man
to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of
considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused.
The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to
explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in
law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People
v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of
possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from
appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the
common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342
[1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327
[1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his
complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant
should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract
as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of
ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED.
No costs.

SO ORDERED.

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

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 93516 August 12, 1992

THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,

vs.
BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-appellant.

The Solicitor General for plaintiff-appellee.

MEDIALDEA, J.:

The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial Court of Dagupan City
with violation of Presidential Decree No. 1866 in furtherance of, or incident to, or in connection with the crime of subversion, together
with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric,
Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3).
Such information was later amended to exclude all the above-enumerated persons except the accused-appellant from the criminal
charge. The amended information reads:

That an or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the territorial jurisdiction
of this Honorable Court, the above-named accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA DADO, did
then and there, willfully, unlawfully and criminally, have in his possession, custody and control one (1) M14 Rifle
bearing Serial No. 1249935 with magazine and Fifty-Seven (57) live ammunition, in furtherance of, or incident to, or in
connection with the crime of subversion, filed against said accused in the above-entitled case for Violation of
Republic Act 1700, as amended by Executive Order No. 276.

Contrary to Third Paragraph of Sec. 1, P.D. 1866. (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged (Records, p. 37). Trial on the merits ensued. The
prosecution rested its case and offered its exhibits for admission. The counsel for accused-appellant interposed his objections to the
admissibility of the prosecution's evidence on grounds of its being hearsay, immaterial or irrelevant and illegal for lack of a search
warrant. On these bases, he, thereafter, manifested that he was not presenting any evidence for the accused (TSN, December 28,
1989, p. 139). On January 17, 1990, the trial court rendered decision, the dispositive portion of which states:

WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka Dado guilty beyond
reasonable doubt of Violation of Presidential Decree Number 1866, and considering that the Violation is in
furtherance of, or incident to, or in connection with the crime of subversion, pursuant to Section 1, Paragraph 3 of
Presidential Decree Number 1866 hereby sentences the accused to suffer the penalty of Reclusion Perpetua and to
pay the costs of the proceedings.

The M14 Rifle bearing Serial Number 1249935 and live ammunition and all the articles and/or items seized on June
19, 1988 in connection with this case and marked and submitted in court as evidence are ordered confiscated and
forfeited in favor of the government, the same to be turned over to the Philippine Constabulary Command at
Lingayen, Pangasinan.

SO ORDERED. (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR
INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSION DESPITE THE WOEFULLY
INADEQUATE EVIDENCE PRESENTED BY THE PROSECUTION.
 B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYING CIRCUMSTANCES OF
SUBVERSION WAS NOT PROVEN BY THE PROSECUTION.

C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS
LISTED IN EXHIBIT E AFTER THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH
OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED-APPELLANT
BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBED THE CHARGE FOR
ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OF OR INCIDENT TO, OR IN CONNECTION WITH
THE CRIME OF SUBVERSION. (pp. 55-66, Rollo)

The antecedent facts are set forth by the Solicitor General in his Brief, as follows:

On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary officer connected with the 152nd PC Company at
Lingayen, Pangasinan, and some companions were sent to verify the presence of CPP/NPA members in Barangay
Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended Gregorio Flameniano, Berlina
Aritumba, Revelina Gamboa and Deogracias Mayaoa. When interrogated, the persons apprehended revealed that
there was an underground safehouse at Gracia Village in Urdaneta, Pangasinan. After coordinating with the Station
Commander of Urdaneta, the group proceeded to the house in Gracia Village. They found subversive documents, a
radio, a 1 x 7 caliber .45 firearm and other items (pp. 4, 6-7, tsn, October 23, 1989).

After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rented apartment of
Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a
visitor of Rosemarie Aritumba. She stated that she worked with Bernie Mendoza, herein appellant. She guided the
group to the house rented by appellant. When they reached the house, the group found that it had already been
vacated by the occupants. Since Morados was hesitant to give the new address of Bernie Mendoza, the group looked
for the Barangay Captain of the place and requested him to point out the new house rented by appellant. The group
again required Morados to go with them. When they reached the house, the group saw Luz Tanciangco outside. They
told her that they already knew that she was a member of the NPA in the area. At first, she denied it, but when she
saw Morados she requested the group to go inside the house. Upon entering the house, the group, as well as the
Barangay Captain, saw radio sets, pamphlets entitled "Ang Bayan," xerox copiers and a computer machine. They
also found persons who were companions of Luz Tanciangco (namely, Teresita Calosa, Ricardo Calosa, Maries
Calosa, Eric Tanciangco and Luzviminda Morados). The group requested the persons in the house to allow them to
look around. When Luz Tanciangco opened one of the rooms, they saw books used for subversive orientation, one
M-14 rifle, bullets and ammunitions, Kenwood radio, artificial beard, maps of the Philippines, Zambales, Mindoro
an(d) Laguna and other items. They confiscated the articles and brought them to their headquarters for final
inventory. They likewise brought the persons found in the house to the headquarters for investigation. Said persons
revealed that appellant was the lessee of the house and owned the items confiscated therefrom (pp. 8-12, tsn, ibid;
pp. 2-4, 6, 8-10, 31, tsn, October 31, 1989). (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their drive against lawless elements in our society, We must, however,
stress that the latter's efforts to this end must be done within the parameters of the law. In the case at bar, not only did We find that
there are serious flaws in the method used by the law officers in obtaining evidence against the accused-appellant but also that the
evidence as presented against him is weak to justify conviction.

We reverse.

The records of this case show that the accused-appellant was singled out as the sole violator of P.D. No. 1866, in furtherance of, or
incident to, or in connection with the crime of subversion. Yet, there is no substantial and credible evidence to establish the fact that the
appellant is allegedly the same person as the lessee of the house where the M-14 rifle and other subversive items were found or the
owner of the said items. The prosecution presented two witnesses who attested to this fact, thus:

Lieutenant Candito Quijardo

Fiscal

Q How about this Bernie Mendoza, who was the one renting the house?

A He was not around at that time, but according to Luz (Tanciangco) who mentioned the name
Bernie Mendoza (as) the one who was renting the house and at the same time claiming that it was
Bernie Mendoza who owns the said items. (TSN of October 31, 1989, p. 40)

xxx xxx xxx

 Q I am showing you another picture which we request to be marked as Exhibit "K-2," tell us if it has
any connection to the house?

A The same house, sir.

Q Now, this person who according to you allegedly occupied the house at Bonuan Gueset, by the
name of Bernie Mendoza, in your capacity as a Military officer, did you find out the identity?

A I am not the proper (person) to tell the real identity of Bernie de Guzman.

Q Can you tell the Honorable Court the proper person who could tell the true identity of Bernie
Mendoza?

A The Intelligence of the Pangasinan PC Command.

Q Can you name these officers?

A Captain Roberto Rosales and his assistant, First Lt. Federico Castro. (ibid, pp. 54-55)

M/Sqt. Artemio Gomez

Q That underground house, do you know who was the principal occupant of that house?

xxx xxx xxx

A During our conversation with the occupants, they revealed that a certain Ka Bernie is the one
occupying the house, Bernie Mendoza alias Basilio Damaso.

. . . (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on their own personal knowledge. The
Solicitor General, however, argues that while the testimonies may be hearsay, the same are admissible because of the failure of
counsel for appellant to object thereto.

It is true that the lack of objection to a hearsay testimony results in its being admitted as evidence. But, one should not be misled into
thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsay evidence, whether objected to
or not, cannot be given credence. In People vs. Valero, We emphatically declared that:

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsay evidence or
evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out of the same does not give
such evidence any probative value. The lack of objection may make any incompetent evidence admissible.
But admissibility of evidence should not be equated with weight of evidence. Hearsay evidence whether objected to
or not has no probative value.
(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)

It is unfortunate that the prosecution failed to present as witnesses the persons who knew the appellant as the lessee and
owner of the M-14 rifle. In this way, the appellant could have exercised his constitutional right to confront the witnesses and to
cross-examine them for their truthfulness. Likewise, the records do not show any other evidence which could have identified
the appellant as the lessee of the house and the owner of the subversive items. To give probative value to these hearsay
statements and convict the appellant on this basis alone would be to render his constitutional rights useless and without
meaning.

Even assuming for the sake of argument that the appellant is the lessee of the house, the case against him still will not prosper, the
reason being that the law enforcers failed to comply with the requirements of a valid search and seizure proceedings.

The right against unreasonable searches and seizures is enshrined in the Constitution (Article III, Section 2). The purpose of the law is
to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home by officers of the law
acting under legislative or judicial sanction and to give remedy against such usurpations when attempted (see Alvero v. Dizon, 76 Phil.
637, 646). However, such right is not absolute. There are instances when a warrantless search and seizure becomes valid, namely: (1)
search incidental to an arrest; (2) search of a moving vehicle; and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan,
L-58889, July 31, 1986, 143 SCRA 267, 276). None of these exceptions is present in this case.
The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo entered the appellant's house upon invitation of Luz
Tanciangco and Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened one of the rooms, they saw a copier
machine, computer, M-14 rifle, bullets and ammunitions, radio set and more subversive items; that technically speaking, there was no
search as the group was voluntarily shown the articles used in subversion; that besides, a search may be validly conducted without
search warrant with the consent of the person searched in this case, appellant's helper and Luz Tanciangco allowed them to enter and
to look around the appellant's house; and that since the evidence seized was in plain view of the authorities, the same may be seized
without a warrant.

We are not persuaded. The constitutional immunity from unreasonable searches and seizures, being personal one, cannot be waived
by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf (De Garcia v.
Locsin, 65 Phil. 689, 695). In the case at bar, the records show that appellant was not in his house at that time Luz Tanciangco and Luz
Morados, his alleged helper, allowed the authorities to enter it (TSN, October 31, 1989, p. 10). We Find no evidence that would
establish the fact that Luz Morados was indeed the appellant's helper or if it was true that she was his helper, that the appellant had
given her authority to open his house in his absence. The prosecution likewise failed to show if Luz Tanciangco has such an authority.
Without this evidence, the authorities' intrusion into the appellant's dwelling cannot be given any color of legality. While the power to
search and seize is necessary to the public welfare, still it must be exercised and the law enforced without transgressing the
constitutional rights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basic
principles of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by the authorities was
illegal. It would have been different if the situation here demanded urgency which could have prompted the authorities to dispense with
a search warrant. But the record is silent on this point. The fact that they came to the house of the appellant at nighttime (Exh. J, p.
7, Records), does not grant them the license to go inside his house. In Alih v. Castro, We ruled that:

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where the
petitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that
the weapons inside the compound would be spirited away, they could have surrounded the premises in the
meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the orderly
processes required by the Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises
with all the menace of a military invasion. (G.R. No. 69401, June 23, 1987, 151 SCRA 279, 286)

Another factor which illustrates the weakness of the case against the accused-appellant is in the identification of the gun which he was
charged to have illegally possessed. In the amended information (supra, pp. 1-2), the gun was described as an M-14 rifle with serial
no. 1249935. Yet, the gun presented at the trial bore a different serial number thus:

FISCAL

Q Will you kindly restate again the items that you found inside the house?

Lt. Quijardo:

A When she opened the doors of the rooms that we requested for, we immediately saw different
kinds of books of which we believed to be used for subversive orientation and the M-14 rifle.

Q In what portion of the house did you find this M-14 rifle which you mentioned?

A In the same room of which the subversive documents were placed.

Q If this firearm would be shown to you would you be able to identify the same?

A Yes, sir.

Q I am showing to you a rifle bearing a serial number 1249985 which for purposes of identification,
may we request your Honor, that this rifle be marked as Exhibit "D."

COURT:

Mark it.

FISCAL:

Q Kindly examine the said firearm and tell the Honorable Court the relation of that firearm to the
firearm which according to you you found inside the room allegedly occupied by one Bernie
Mendoza?
 A This is the same rifle which was discovered during our raid in the same house. (TSN, October 31,
1989, pp. 36-38, emphasis supplied).

The Solicitor General contends that the discrepancy is merely a typographical error.

We do not think so. This glaring error goes into the substance of the charge. Its correction or lack of it could spell the difference
between freedom and incarceration of the accused-appellant.

In crimes of illegal possession of firearm as in this case, the prosecution has the burden to prove the existence of the firearm and that
the accused who possessed or owned the firearm does not have the corresponding license for it. Since the gun as identified at the trial
differs from the gun described in the amended information, the corpus delicti(the substance of the crime, the fact that a crime has
actually been committed) has not been fully established. This circumstance coupled with dubious claims of appellant's connection to the
house (where the gun was found) have totally emasculated the prosecution's case.

But even as We find for the accused-appellant, We, take exception to the argument raised by the defense that the crime of subversion
absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with the crime of subversion. It
appears that the accused-appellant is facing a separate charge of subversion. The defense submits that the trial court should have
peremptorily dismissed this case in view of the subversion charge. In People of the Philippines v. Asuncion, et al., We set forth in no
uncertain terms the futility of such argument. We quote:

If We are to espouse the theory of the respondents that force and violence are the very essence of subversion, then it
loses its distinction from rebellion. In People v. Liwanag (G.R. No. 27683, 1976, 73 SCRA 473, 480 [1976]), the Court
categorically distinguished subversion from rebellion, and held:

Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is a crime distinct
from that of actual rebellion. The crime of rebellion is committed by rising publicly and taking up
arms against the Government for any of the purposes specified in Article 134 of the Revised Penal
Code; while the Anti-Subversion Act (Republic Act No. 1700) punishes affiliation or membership in
a subversive organization as defined therein. In rebellion, there must be a public uprising and
taking of arms against the Government; whereas, in subversion, mere membership in a subversive
association is sufficient and the taking up of arms by a member of a subversive organization
against the Government is but a circumstance which raises the penalty to be imposed upon the
offender. (Emphasis supplied)

Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 289 (1981]), this Court said that
subversion, like treason, is a crime against national security, while rebellion is a crime against public order. Rising
publicly and taking arms against the Government is the very element of the crime on rebellion. On the other hand,
R.A. 1700 was enacted to outlaw the Communist Party of the Philippines (CPP) , other similar associations and its
successors because their existence and activities constitute a clear, present and grave danger to national security.

The first Whereas clause of R.A. 1700 states that the CPP is an organized conspiracy to overthrow the Government,
not only by force and violence but also by deceit, subversion, and other illegal means. This is a recognition that
subversive acts do not only constitute force and violence (contrary to the arguments of private respondents), but may
partake of other forms as well. One may in fact be guilty of subversion by authoring subversive materials, where force
and violence is neither necessary or indispensable.

Private respondents contended that the Court in Misolas v. Panga impliedly ruled that if an accused is simultaneously
charged with violation of P.D. 1866 and subversion, the doctrine of absorption of common crimes as applied in
rebellion would have found application therein. The respondents relied on the opinion of this Court when it said:

. . . in the present case, petitioner is being charged specifically for the qualified offense of illegal
possession of firearms and ammunition under PD 1866. HE IS NOT BEING CHARGED WITH THE
COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF FIREARMS. NEITHER
IS HE BEING SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION
OF FIREARMS. Thus, the rulings of the Court in Hernandez, Geronimo and Rodriguez find no
application in this case.

This is however a mere obiter. In the above case, the Court upheld the validity of the charge under the third
paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is not applicable in that
case, considering that the legislature deemed it fit to provide for two distinct offenses: (1) illegal possession of
firearms qualified by subversion (P.D. 1866) and (2) subversion qualified by the taking up of arms against the
Government (R.A. 1700). The practical result of this may be harsh or it may pose grave difficulty on an accused in
instances similar to those that obtain in the present case, but the wisdom of the legislature in the lawful exercise of its
power to enact laws is something that the Court cannot inquire into . . . (G.R. Nos. 83837-42, April 22, 1992).
Nonetheless, the evidence in hand is too weak to convict the accused-appellant of the charge of illegal possession of firearm in
furtherance of, or incident to or in connection with the crime of subversion, We are therefore, left with no option, but to acquit the
accused on reasonable doubt.

ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is ACQUITTED with costs de oficio.

SO ORDERED.

Griño-Aquino and Bellosillo, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-95630 June 18, 1992

SPOUSES LEOPOLDO and MA. LUISA VEROY, petitioners,

vs.
THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao City; and BRIG. GEN.
PANTALEON DUMLAO, Commanding General, PC-Criminal Investigation Service, respondents.

PARAS, J.:

This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court: certiorari, to review the Order
of the respondent Judge dated October 2, 1990 denying herein petitioner's Motion for Hospital Confinement; mandamus, to compel
respondent Judge to resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the ground that
the legal basis therefore is unconstitutional for being violative of the due process and equal protection clauses of the Constitution.

The facts of this case are as follows:

Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline Village. Catalunan Grande, Davao City.
When petitioner Leopoldo Veroy was promoted to the position of Assistant Administrator of the Social Security System sometime in
June, 1988, he and his family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently residing. The care and
upkeep of their residence in Davao City was left to two (2) houseboys, Jimmy Favia and Eric Burgos, who had their assigned quarters
at a portion of the premises. The Veroys would occasionally send money to Edna Soguilon for the salary of the said houseboys and
other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the house, only the key to the kitchen,
where the circuit breakers were located, was entrusted to Edna Soguilon to give her access in case of an emergency. Hence, since
1988, the key to the master's bedroom as well as the keys to the children's rooms were retained by herein Petitioners so that neither
Edna Soguilon nor the caretakers could enter the house.

On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a directive issued by Metrodiscom
Commander Col. Franco Calida, raided the house of herein petitioners in Davao City on information that the said residence was being
used as a safehouse of rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the house since
the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone in her Quezon City
residence by Capt. Obrero to ask permission to search the house in Davao City as it was reportedly being used as a hideout and
recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness the search but
relented if the search would not be conducted in the presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a
long time family friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who
answered that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was given on the condition that
the search be conducted in his presence.

The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in Skyline Village to conduct the search
pursuant to the authority granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and using the key
entrusted to Edna Soguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of George Badiang
had to be employed to open the padlock of the door leading to the children's room. Capt. Obrero and Major Macasaet then entered the
children's room and conducted the search. Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets
in a black clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing printed materials of RAM-SFP (samples of
which were attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the
children's recreation and study area revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) pieces polo
barong and short sleeve striped gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A., one blanket, a small black
bag, Gandhi brand, containing a book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a
telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the master's bedroom. Sgt. Leo Justalero
was instructed by Capt. Obrero to make an inventory and receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p.
48). Said receipt was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero
turned over the articles to Sgt. Rodolfo Urbano at the police station.

The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo Ponferrada who was designated
Acting Provincial Prosecutor for Davao City by the Department of Justice through Department Order No. 88 dated May 16, 1990. In a
resolution dated August 6, 1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners for Violation of
Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of Rebellion) (Annex "L" of the
Petition, Rollo, p. 71). Hence, on August 8, 1990. an Information for the said offense was filed by the Office of the City Prosecutor of
Davao City before the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and
entitled "People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail
was recommended by the prosecution.

The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the petitioners on August 13, 1990. On the
same day, the latter filed a Motion for Bail before herein respondent Judge Layague which was denied on August 17, 1990 for being
premature since at that time, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest have not yet been
served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the
CIS that initiated the complaint. However, the latter refused to receive them on the ground that his office has not yet received copies of
their warrants of arrest.

In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital for various ailments brought about or
aggravated by the stress and anxiety caused by the filing of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted
their request that they be allowed to be confined at the hospital and placed under guard thereat.

In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made its return to the trial court informing the
latter of the voluntary surrender of herein petitioners and the fact that they were under hospital confinement. Herein Petitioner reiterated
their Motion for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion for Ball was
set for August 31, 1990 to enable the prosecution to present evidence it opposition to said motion. The prosecution filed its written
opposition (Annex "N" of the Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was strong and
thereafter presented its evidence.

On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein petitioners on October 1, 1990 for
arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon their arraignment, herein Petitioners entered a plea of not guilty and filed an
"Urgent Motion for Hospital Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in its Order dated
October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It likewise ordered their commitment at the Davao City Rehabilitation Center,
Ma-a, Davao City pending trial on the merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the
prosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of the Petition, Rollo, p. 83) denying then
motion for reconsideration and as to the alternative prayer to reopen the motion for hospital confinement, set the continuance thereof to
October 17, 1990. It was further ordered that the petitioners shall remain under the custody of the PC-CIS pending resolution of the
case.

Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition remained erratic. On or about October 18,
1990, herein petitioners were informed that Brig. Gen. Dumlao had issued a directive for their transfer from the St. Luke's Hospital to
Camp Crame on the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made representations that
the tenor of the court order warranted maintenance of the status quo, i.e., they were to continue their hospital confinement. However,
Brig, Gen. Dumlao informed them that unless otherwise restrained by the court, they would proceed with their transfer pursuant to the
order of the trial court.

Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order, effective immediately and continuing until
further orders from this Court, ordering: (a) respondent Hon. William L. Layague to refrain from further proceeding with petitioners'
"Motion for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa
Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from the St. Luke's Hospital (Rollo, pp.
84-A to 84-C).

On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail (Annex "A" of the Second Supplemental
Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental
Petition on November 16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2, 1990 denying their
petition for bail.

Acting on the Supplemental Petition filed by Petitioners and taking into consideration several factors such as: a) that the possibility that
they will flee or evade the processes of the court is fairly remote; b) their poor medical condition; and c) the matters in their Second
Supplemental Petition especially since the prosecution's evidence refers to constructive possession of the disputed firearms in Davao
City through the two (2) caretakers while petitioners lived in Manila since 1988, this Court, on November 20, 1990, granted petitioners'
provisional liberty and set the bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount on
November 23, 1990 (Rollo, pp. 143-145).

The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their Comment dated December 28, 1990
(Rollo, pp. 182-191) as their Memorandum while, petitioners filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269).

As submitted by the respondents, and accepted by petitioners, the petition for mandamus to compel respondent Judge to resolve
petitioners' Motion for Bail, and the petition for certiorari to review the order of respondent judge initially denying their Motion for
Hospital Confinement, were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and October 25,
1990, respectively. What remains to be resolved is the petition for prohibition where petitioners raised the following issues:
 1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof, is unconstitutional for being
violative of the due process and equal protection clauses of the Constitution;

2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;

3. Assuming the validity of Presidential Decree No. 1866 the respondent judge gravely abused his discretion in
admitting in evidence certain articles which were clearly inadmissible for being violative of the prohibition against
unreasonable searches and seizures.

The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R. No. 83341,
January 30, 1990 (181 SCRA 648), where this Court held that the declaration of unconstitutionality of the third paragraph of Section 1 of
Presidential Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a double
jeopardy.

Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule
of statutory construction that where the words and phrases of a statute are not obscure or ambiguous. its meaning and the intention of
the legislature must be determined from the language employed, and where there is no ambiguity in the words, there is no room for
construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A
perusal of the aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1) illegal possession of
firearms under Presidential Decree No. 1866; and (2) rebellion, coup d' etat, sedition and disloyalty under Republic Act 6968; evidently
involving different subjects which were not clearly shown to have eliminated the others.

But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or vague terms. The terms "deal in",
"acquire", "dispose" or "possess" are capable of various interpretations such that there is no definiteness as to whether or not the
definition includes "constructive possession" or how the concept of constructive possession should be applied. Petitioners were not
found in actual possession of the firearm and ammunitions. They were in Quezon City while the prohibited articles were found in Davao
City. Yet they were being charged under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items
were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).

Otherwise stated, other than their ownership of the house in Skyline Village, there was no other evidence whatsoever that herein
petitioners possessed or had in their control the items seized (Ibid., pp. 248-250). Neither was it shown that they had the intention to
possess the Firearms or to further rebellion (Ibid., P. 252).

In a similar case, the revolver in question was found in appellant's store and the question arouse whether he had possession or custody
of it within the meaning of the law.

This Court held that:

The animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the
accused and the same rule is applicable to the possession of firearms. The appellant denied all knowledge of the
existence of the revolver, and the Government's principal witness stated that there were a number of employees in
the store. The only testimony which tends to show that the appellant had the possession or custody of this revolver is
the inference drawn from the fact that it was found in his store, but we think that this inference is overcome by the
positive testimony of the appellant, when considered with the fact that there were a number of employees in the store,
who, of course, could have placed the revolver in the secret place where it was found without the knowledge of the
appellant. At least there is a very serious doubt whether he knew of the existence of this revolver. In such case the
doubt must be resolved in favor of the appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916])

But more importantly, petitioners question the admissibility in evidence of the articles seized in violation of their constitutional right
against unreasonable search and seizure.

Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their
residence, it was merely for the purpose of ascertaining thereat the presence of the alleged "rebel" soldiers. The permission did not
include any authority to conduct a room to room search once inside the house. The items taken were, therefore, products of an illegal
search, violative of their constitutional rights As such, they are inadmissible in evidence against them.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures (Article III, Section 2 of the 1987 Constitution). However, the rule that searches and seizures must be supported
by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a
search of a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193
SCRA 122]).

None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioners is that it was reportedly
being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter
the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need
for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the
same. Permission was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers.
Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not.

In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin, G.R. No. L-74869, July 6, 1988 [163
SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987 [151 SCRA 279]), warrantless searches were declared illegal because the
officials conducting the search had every opportunity to secure a search Warrant. The objects seized, being products of illegal
searches, were inadmissible in evidence in the criminal actions subsequently instituted against the accused-appellants (People v.
Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]).

Undeniably, the offense of illegal possession of firearms is malum prohibitum but it does not follow that the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita but the subjects of this kind of offense may not be summarily seized
simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being
applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used
as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA
689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal
intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime.

PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners for illegal possession of firearms is
DISMISSED.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Bellosillo,
JJ., concur.

Nocon, J., is on leave.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 202666 September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.

DECISION

VELASCO, JR., J.:

The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus each individual is
continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and
communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

- Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section 19 of A.M. No. 08-1-16-
SC,1 otherwise known as the "Rule on the Writ of Habeas Data." Petitioners herein assail the July 27, 2012 Decision 2 of the Regional
Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period material, graduating high school
students at St. Theresa's College (STC), Cebu City. Sometime in January 2012, while changing into their swimsuits for a beach party
they were about to attend, Julia and Julienne, along with several others, took digital pictures of themselves clad only in their
undergarments. These pictures were then uploaded by Angela Lindsay Tan (Angela) on her Facebook 3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school department, learned from her
students that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in brassieres.
Escudero then asked her students if they knew who the girls in the photos are. In turn, they readily identified Julia, Julienne, and Chloe
Lourdes Taboada (Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and showed her photos of the
identified students, which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes inside a bar; and (b) Julia and
Julienne along the streets of Cebu wearing articles of clothing that show virtually the entirety of their black brassieres. W hat is more,
Escudero’s students claimed that there were times when access to or the availability of the identified students’ photos was not confined
to the girls’ Facebook friends,4but were, in fact, viewable by any Facebook user. 5

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed the photosto Kristine Rose
Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an investigation, STC found the identified
students to have deported themselves in a manner proscribed by the school’s Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholicbeverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages, language or
symbols; and 6. Posing and uploading pictures on the Internet that entail ample body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as required, to the office of Sr.
Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and ICM6 Directress. They claimed that during the meeting, they
were castigated and verbally abused by the STC officials present in the conference, including Assistant Principal Mussolini S. Yap
(Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of their penalty,
they are barred from joining the commencement exercises scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a Petition for Injunction and
Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-38594.7In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded Angela from joining the commencement exercises.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an intervenor. On March 28, 2012,
defendants inCivil Case No. CEB-38594 filed their memorandum, containing printed copies of the photographs in issue as annexes.
That same day, the RTC issued a temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which
STC filed a motion for reconsideration.

Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from participating in the graduation rites, arguing
that, on the date of the commencement exercises, its adverted motion for reconsideration on the issuance ofthe TRO remained
unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed as SP. Proc. No. 19251-
CEB8 on the basis of the following considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they changed into their
swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They, thus, have a reasonable
expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of laws that safeguard the right to
privacy. Corollarily, respondents knew or ought to have known that the girls, whose privacy has been invaded, are the victims
in this case, and not the offenders. Worse, after viewing the photos, the minors were called "immoral" and were punished
outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their consent. Escudero,
however, violated their rights by saving digital copies of the photos and by subsequently showing them to STC’s officials.
Thus, the Facebook accounts of petitioners’ children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images happened at
STC’s Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents through their memorandum
submitted to the RTC in connection with Civil Case No. CEB-38594. To petitioners, the interplay of the foregoing constitutes
an invasion of their children’s privacy and, thus, prayed that: (a) a writ of habeas databe issued; (b) respondents be ordered to
surrender and deposit with the court all soft and printed copies of the subjectdata before or at the preliminary hearing; and (c)
after trial, judgment be rendered declaring all information, data, and digital images accessed, saved or stored, reproduced,
spread and used, to have been illegally obtained inviolation of the children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued the writ of habeas data.
Through the same Order, herein respondents were directed to file their verified written return, together with the supporting affidavits,
within five (5) working days from service of the writ.

In time, respondents complied with the RTC’s directive and filed their verified written return, laying down the following grounds for the
denial of the petition, viz: (a) petitioners are not the proper parties to file the petition; (b) petitioners are engaging in forum shopping; (c)
the instant case is not one where a writ of habeas data may issue;and (d) there can be no violation of their right to privacy as there is no
reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive portion of the Decision
pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the minors’ right to privacy, one of the
preconditions for the issuance of the writ of habeas data. Moreover, the court a quoheld that the photos, having been uploaded on
Facebook without restrictions as to who may view them, lost their privacy in some way. Besides, the RTC noted, STC gathered the
photographs through legal means and for a legal purpose, that is, the implementation of the school’s policies and rules on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule on Habeas Data.10

The Issues

The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be issued given the factual milieu. Crucial
in resolving the controversy, however, is the pivotal point of whether or not there was indeed an actual or threatened violation of the
right to privacy in the life, liberty, or security of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by
an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home and correspondence of the aggrieved party. 11 It is an independent and
summary remedy designed to protect the image, privacy, honor, information, and freedom of information of an individual, and to provide
a forum to enforce one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information
regarding oneself, particularly in instances in which such information is being collected through unlawful means in order to achieve
unlawful ends.12

In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational privacy, among others. A
comparative law scholar has, in fact, defined habeas dataas "a procedure designed to safeguard individual freedom from abuse in the
information age."13 The writ, however, will not issue on the basis merely of an alleged unauthorized access to information about a
person.Availment of the writ requires the existence of a nexus between the right to privacy on the one hand, and the right to life, liberty
or security on the other.14 Thus, the existence of a person’s right to informational privacy and a showing, at least by substantial
evidence, of an actual or threatened violation of the right to privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas datapetition will not prosper. Viewed
from the perspective of the case at bar,this requisite begs this question: given the nature of an online social network (OSN)––(1) that it
facilitates and promotes real-time interaction among millions, if not billions, of users, sans the spatial barriers, 16 bridging the gap created
by physical space; and (2) that any information uploaded in OSNs leavesan indelible trace in the provider’s databases, which are
outside the control of the end-users––is there a right to informational privacy in OSN activities of its users? Before addressing this point,
We must first resolve the procedural issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose of complementing the Writ of
Amparoin cases of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal killings and
enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degreeof consanguinity or
affinity, in default of those mentioned in the preceding paragraph. (emphasis supplied)
Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings or enforced disappearances,
the above underscored portion of Section 2, reflecting a variance of habeas data situations, would not have been made.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information age." 17 As such, it is erroneous to
limit its applicability to extralegal killings and enforced disappearances only. In fact, the annotations to the Rule preparedby the
Committee on the Revision of the Rules of Court, after explaining that the Writ of Habeas Data complements the Writ of Amparo,
pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to privacy, more specifically the
right to informational privacy. The remedies against the violation of such right can include the updating, rectification, suppression or
destruction of the database or information or files in possession or in control of respondents. 18 (emphasis Ours) Clearly then, the
privilege of the Writ of Habeas Datamay also be availed of in cases outside of extralegal killings and enforced disappearances.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information

Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity engaged in the gathering,
collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party, while valid to
a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against abuses of a person or
entity engaged in the businessof gathering, storing, and collecting of data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.
(emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection against
unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering, collecting, or storing data about
the aggrieved party and his or her correspondences, or about his or her family. Such individual or entity need not be in the business of
collecting or storing data.

To "engage" in something is different from undertaking a business endeavour. To "engage" means "to do or take part in something." 19 It
does not necessarily mean that the activity must be done in pursuit of a business. What matters is that the person or entity must be
gathering, collecting or storing said data or information about the aggrieved party or his or her family. Whether such undertaking carries
the element of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for any other reason or even
for no reason at all, is immaterial and such will not prevent the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very small group, i.e., private
persons and entities whose business is data gathering and storage, and in the process decreasing the effectiveness of the writ asan
instrument designed to protect a right which is easily violated in view of rapid advancements in the information and communications
technology––a right which a great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, through time, greatly evolved, with technological advancements having an influential part therein. This
evolution was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common Right to Privacy, 20 where he explained
the three strands of the right to privacy, viz: (1) locational or situational privacy;21(2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case at bar is the right to informational privacy––usually defined as the right of individuals
to control information about themselves.23

With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each system’s inherent
vulnerability to attacks and intrusions, there is more reason that every individual’s right to control said flow of information should be
protected and that each individual should have at least a reasonable expectation of privacy in cyberspace. Several commentators
regarding privacy and social networking sites, however, all agree that given the millions of OSN users, "[i]n this [Social Networking]
environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful
thinking."24

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would allow a summary hearing of the
unlawful use of data or information and to remedy possible violations of the right to privacy. 25 In the same vein, the South African High
Court, in its Decision in the landmark case, H v. W, 26promulgated on January30, 2013, recognized that "[t]he law has to take into
account the changing realities not only technologically but also socially or else it will lose credibility in the eyes of the people. x x x It is
imperative that the courts respond appropriately to changing times, acting cautiously and with wisdom." Consistent with this, the Court,
by developing what may be viewed as the Philippine model of the writ of habeas data, in effect, recognized that, generally speaking,
having an expectation of informational privacy is not necessarily incompatible with engaging in cyberspace activities, including those
that occur in OSNs.

The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind that informational privacy involves
personal information. At the same time, the very purpose of OSNs is socializing––sharing a myriad of information,27 some of which
would have otherwise remained personal.

b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other members of the same or
different social media platform through the sharing of statuses, photos, videos, among others, depending on the services provided by
the site. It is akin to having a room filled with millions of personal bulletin boards or "walls," the contents of which are under the control
of each and every user. In his or her bulletin board, a user/owner can post anything––from text, to pictures, to music and videos––
access to which would depend on whether he or she allows one, some or all of the other users to see his or her posts. Since gaining
popularity, the OSN phenomenon has paved the way to the creation of various social networking sites, includingthe one involved in the
case at bar, www.facebook.com (Facebook), which, according to its developers, people use "to stay connected with friends and family,
to discover what’s going on in the world, and to share and express what matters to them." 28

Facebook connections are established through the process of "friending" another user. By sending a "friend request," the user invites
another to connect their accounts so that they can view any and all "Public" and "Friends Only" posts of the other.Once the request is
accepted, the link is established and both users are permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships with other users, whereby the user gives his or her
"Facebook friend" access to his or her profile and shares certain information to the latter. 29

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with different privacy tools designed to
regulate the accessibility of a user’s profile31 as well as information uploaded by the user. In H v. W,32 the South Gauteng High Court
recognized this ability of the users to "customize their privacy settings," but did so with this caveat: "Facebook states in its policies that,
although it makes every effort to protect a user’s information, these privacy settings are not foolproof." 33

For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos), posted on his or her personal
bulletin or "wall," except for the user’sprofile picture and ID, by selecting his or her desired privacy setting:

(a) Public - the default setting; every Facebook user can view the photo;

(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;

(b) Friends - only the user’s Facebook friends can view the photo;

(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user; and

(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the visibility of his or her
specific profile content, statuses, and photos, among others, from another user’s point of view. In other words, Facebook extends its
users an avenue to make the availability of their Facebook activities reflect their choice as to "when and to what extent to disclose facts
about [themselves] – and to put others in the position of receiving such confidences." 34 Ideally, the selected setting will be based on
one’s desire to interact with others, coupled with the opposing need to withhold certain information as well as to regulate the spreading
of his or her personal information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can view that
user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable expectation of privacy in Facebook would, in
context, be correct. However, such is not the case. It is through the availability of said privacy tools that many OSN users are said to
have a subjective expectation that only those to whomthey grant access to their profile will view the information they post or upload
thereto.35

This, however, does not mean thatany Facebook user automatically has a protected expectation of privacy inall of his or her Facebook
activities.
Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this case the children of
petitioners,manifest the intention to keepcertain posts private, through the employment of measures to prevent access thereto or to limit
its visibility.36 And this intention can materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words,
utilization of these privacy tools is the manifestation,in cyber world, of the user’s invocation of his or her right to informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post orprofile detail should not
be denied the informational privacy right which necessarily accompanies said choice.38Otherwise, using these privacy tools would be a
feckless exercise, such that if, for instance, a user uploads a photo or any personal information to his or her Facebook page and sets its
privacy level at "Only Me" or a custom list so that only the user or a chosen few can view it, said photo would still be deemed public by
the courts as if the user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip these
privacy tools of their function but it would also disregard the very intention of the user to keep said photo or information within the
confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook users and whether the disclosure was
confidential in nature. In other words, did the minors limit the disclosure of the photos such that the images were kept within their zones
of privacy? This determination is necessary in resolving the issue of whether the minors carved out a zone of privacy when the photos
were uploaded to Facebook so that the images will be protected against unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated, insist that Escudero intruded upon their children’s
Facebook accounts, downloaded copies ofthe pictures and showed said photos to Tigol. To them, this was a breach of the minors’
privacy since their Facebook accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure was only limited since their profiles were not open to public viewing.
Therefore, according to them, people who are not their Facebook friends, including respondents, are barred from accessing said post
without their knowledge and consent. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which were only
viewable by the five of them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of girls cladin brassieres. This
student [sic] of mine informed me that these are senior high school [students] of STC, who are their friends in [F]acebook. x x x They
then said [that] there are still many other photos posted on the Facebook accounts of these girls. At the computer lab, these students
then logged into their Facebook account [sic], and accessed from there the various photographs x x x. They even told me that there had
been times when these photos were ‘public’ i.e., not confined to their friends in Facebook."

In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to question the students’ act of
showing the photos to Tigol disproves their allegation that the photos were viewable only by the five of them. Without any evidence to
corroborate their statement that the images were visible only to the five of them, and without their challenging Escudero’s claim that the
other students were able to view the photos, their statements are, at best, self-serving, thus deserving scant consideration.42

It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who are the minors’ Facebook
"friends," showed her the photos using their own Facebook accounts. This only goes to show that no special means to be able to
viewthe allegedly private posts were ever resorted to by Escudero’s students, 43 and that it is reasonable to assume, therefore, that the
photos were, in reality, viewable either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is"Public," it can be surmised that the photographs in question were viewable to
everyone on Facebook, absent any proof that petitioners’ children positively limited the disclosure of the photograph. If suchwere the
case, they cannot invoke the protection attached to the right to informational privacy. The ensuing pronouncement in US v. Gines-
Perez44 is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances suchas here, where the Defendant did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself. 45

Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less privacy one can reasonably expect.
Messages sent to the public at large inthe chat room or e-mail that is forwarded from correspondent to correspondent loses any
semblance of privacy."

That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention. In this regard, the cyber
community is agreed that the digital images under this setting still remain to be outside the confines of the zones of privacy in view of
the following:

(1) Facebook "allows the world to be more open and connected by giving its users the tools to interact and share in any
conceivable way;"47

(2) A good number of Facebook users "befriend" other users who are total strangers;48
 (3) The sheer number of "Friends" one user has, usually by the hundreds; and

(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not Facebook friends with the former,
despite its being visible only tohis or her own Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no assurance that it can no longer be
viewed by another user who is not Facebook friends with the source of the content. The user’s own Facebook friend can share said
content or tag his or her own Facebook friend thereto, regardless of whether the user tagged by the latter is Facebook friends or not
with the former. Also, when the post is shared or when a person is tagged, the respective Facebook friends of the person who shared
the post or who was tagged can view the post, the privacy setting of which was set at "Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C, A’s Facebook friend, tags B
in A’s post, which is set at "Friends," the initial audience of 100 (A’s own Facebook friends) is dramatically increased to 300 (A’s 100
friends plus B’s 200 friends or the public, depending upon B’s privacy setting). As a result, the audience who can view the post is
effectively expanded––and to a very large extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user interaction and socialization rather
than seclusion or privacy, as it encourages broadcasting of individual user posts. In fact, it has been said that OSNs have facilitated
their users’ self-tribute, thereby resulting into the "democratization of fame." 51Thus, it is suggested, that a profile, or even a post, with
visibility set at "Friends Only" cannot easily, more so automatically, be said to be "very private," contrary to petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends, respondent STC can
hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook friends who showed the pictures to Tigol.
Respondents were mere recipients of what were posted. They did not resort to any unlawful means of gathering the information as it
was voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of
the minors. Curiously enough, however, neither the minors nor their parents imputed any violation of privacy against the students who
showed the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the photographs. In fact, what
petitioners attributed to respondents as an act of offensive disclosure was no more than the actuality that respondents appended said
photographs in their memorandum submitted to the trial court in connection with Civil Case No. CEB-38594.52 These are not
tantamount to a violation of the minor’s informational privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students scantily clad, are
personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare assertions that they utilized Facebook’s privacy settings to make the
photos visible only to them or to a select few. Without proof that they placed the photographs subject of this case within the ambit of
their protected zone of privacy, they cannot now insist that they have an expectation of privacy with respect to the photographs in
question.

Had it been proved that the access tothe pictures posted were limited to the original uploader, through the "Me Only" privacy setting, or
that the user’s contact list has been screened to limit access to a select few, through the "Custom" setting, the result may have been
different, for in such instances, the intention to limit access to the particular post, instead of being broadcasted to the public at large or
all the user’s friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children’s ears."53 This means that self-regulation on the part of OSN users
and internet consumers ingeneral is the best means of avoiding privacy rights violations.54 As a cyberspace communitymember, one
has to be proactive in protecting his or her own privacy. 55 It is in this regard that many OSN users, especially minors, fail.Responsible
social networking or observance of the "netiquettes" 56 on the part of teenagers has been the concern of many due to the
widespreadnotion that teenagers can sometimes go too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its curriculum to educate its students on
proper online conduct may be mosttimely. Too, it is not only STC but a number of schools and organizations have already deemed it
important to include digital literacy and good cyber citizenshipin their respective programs and curricula in view of the risks that the
children are exposed to every time they participate in online activities.58 Furthermore, considering the complexity of the cyber world and
its pervasiveness,as well as the dangers that these children are wittingly or unwittingly exposed to in view of their unsupervised
activities in cyberspace, the participation of the parents in disciplining and educating their children about being a good digital citizen is
encouraged by these institutions and organizations. In fact, it is believed that "to limit such risks, there’s no substitute for parental
involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of teaching its students to beresponsible in their dealings and activities in
cyberspace, particularly in OSNs, whenit enforced the disciplinary actions specified in the Student Handbook, absenta showing that, in
the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage incyberspace
activities.1âwphi1 Accordingly, they should be cautious enough to control their privacy and to exercise sound discretion regarding how
much information about themselves they are willing to give up. Internet consumers ought to be aware that, by entering or uploading any
kind of data or information online, they are automatically and inevitably making it permanently available online, the perpetuation of
which is outside the ambit of their control. Furthermore, and more importantly, information, otherwise private, voluntarily surrendered by
them can be opened, read, or copied by third parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must not be negligent in
protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here, requires that claimants themselves take
utmost care in safeguarding a right which they allege to have been violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within the confines of their private zone. OSN users must be mindful enough
to learn the use of privacy tools, to use them if they desire to keep the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because Facebook is notorious for changing these settings and the site's layout
often.

In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no cogent reason to disturb the findings
and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the Regional Trial Court,
Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice
Near v. Minnesota, 283 U.S. 697 (1931)

Primary Holding

Prior restraints on speech are generally unconstitutional, such as when they forbid the publication of malicious, scandalous, and
defamatory content.

Facts

In a Minneapolis newspaper called The Saturday Press, Jay Near and Howard Guilford alleged that the police chief, the mayor, a
prosecutor, and grand jury members were neglecting their duties to prosecute known criminal activity. The anti-Semitic newspaper
suggested that these authority figures were colluding with Jewish gangs. Despite two ensuing assassination attempts on Guilford, the
newspaper's disclosures resulted in the conviction of a local gangster.

The prosecutor, Floyd Olson, sought a permanent injunction against The Saturday Press on the grounds that it violated the Public
Nuisance Law because it was malicious, scandalous, and defamatory. He received a temporary injunction after an ex parte hearing,
prior to a hearing at which Near and Guilford would be required to show cause for why they should not be permanently enjoined from
publishing the newspaper.

The state Supreme Court upheld both the temporary injunction and the permanent injunction that eventually issued from the trial court.
With assistance from the publisher of the Chicago Tribune, Robert R. McCormick, Near appealed to the U.S. Supreme Court.

Opinions

Majority

 Charles Evans Hughes (Author)

 Oliver Wendell Holmes, Jr.
 Louis Dembitz Brandeis
 Harlan Fiske Stone
 Owen Josephus Roberts

In a 5-4 decision, the Court issued a strong prohibition against prior restraints, or government censorship. Hughes noted that his
decision was based on an analysis of the law's general applications, not the specific context of this case. According to the majority
opinion, government officials could not be trusted with the responsibility of regulating speech before it even reaches the public. Hughes
used the incorporation doctrine, echoing Gitlow v. New York, to apply the rights granted under the Bill of Rights to the states under the
Fourteenth Amendment. However, he admitted that the ban on prior restraints was not categorical. In some situations, such as when
speech is obscene, incites violence, or reveals military secrets, the government might be able to justify a prior restraint.

Dissent

 Pierce Butler (Author)

 Willis Van Devanter
 James Clark McReynolds
 George Sutherland

Case Commentary

The government does not have the right to prohibit negative speech about it if there is some truth to it. There must be a case-specific
analysis to determine whether the allegations have a basis in truth, although war or other types of national emergency may reduce the
protections of the press.

Continuing with his inflammatory activities, Guilford remained in the Minneapolis newspaper business. He was assassinated three
years after this decision, probably by members of a gang that he had denounced.
U.S. Supreme Court
Freedman v. Maryland, 380 U.S. 51 (1965)

Freedman v. Maryland

No. 69

Argued November 19, 1964

Decided March 1, 1965

380 U.S. 51

APPEAL FROM THE COURT OF APPEALS OF MARYLAND

Syllabus

Appellant was convicted of exhibiting a motion picture without submitting it to the Maryland State Board of Censors for prior approval,
despite his contention that the motion picture censorship statute unconstitutionally impaired freedom of expression. The Maryland Court
of Appeals affirmed.

Held:

1. Where motion pictures are concerned, a requirement of prior submission to a censorship board is not necessarily
unconstitutional. Times Film Corp. v. City of Chicago, 365 U. S. 43. Pp. 380 U. S. 53-54.

2. One can challenge a licensing statute which endangers freedom of expression whether or not his conduct could be prohibited by a
properly drawn statute and whether or not he applied for a license. P. 380 U. S. 56.

3. There is a heavy presumption against the constitutional validity of prior restraints of expression. Bantam Books, Inc. v. Sullivan, 372
U. S. 58, 370 U. S. 70. P. 380 U. S. 57.

4. A noncriminal process requiring prior submission of a film to a censor avoids constitutional invalidity only with procedural safeguards
designed to eliminate the dangers of censorship. Pp. 380 U. S. 58-60.

(a) The censor must have the burden of proving that the film is expression unprotected by the Constitution. P. 380 U. S. 58.

(b) Any restraint prior to judicial review must be limited to preservation of the status quo and for the shortest period compatible with
sound judicial procedure. Pp. 380 U. S. 58-59.

(c) A prompt final judicial determination of obscenity must be assured. P. 380 U. S. 59.

5. The absence in the Maryland procedure of adequate safeguards against undue inhibition of protected expression renders the
statutory requirement of prior submission to censorship an invalid previous restraint. Pp. 380 U. S. 59-60.

233 Md. 498,197 A. 2d 232, reversed.

Page 380 U. S. 52

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Appellant sought to challenge the constitutionality of the Maryland motion picture censorship statute, Md.Ann.Code, 1957, Art. 66A, and
exhibited the film "Revenge at Daybreak" at his Baltimore theatre without first submitting the picture to the State Board of Censors as
required by § 2 thereof. [Footnote 1] The State concedes that the picture does not violate the statutory standards [Footnote 2] and

Page 380 U. S. 53

would have received a license if properly submitted, but the appellant was convicted of a § 2 violation despite his contention that the
statute in its entirety unconstitutionally impaired freedom of expression. The Court of Appeals of Maryland affirmed, 233 Md. 498, 197
A.2d 232, and we noted probable jurisdiction, 377 U.S. 987. We reverse.
I

In Times Film Corp. v. City of Chicago, 365 U. S. 43, we considered and upheld a requirement of submission of motion pictures in
advance of exhibition. The Court of Appeals held, on the authority of that decision, that

"the Maryland censorship law must be held to be not void on its face as violative of the freedoms protected against State action by the
First and Fourteenth Amendments."

233 Md. at 505, 197 A.2d at 235. This reliance on Times Film was misplaced. The only question tendered for decision in that case was
"whether a prior restraint was necessarily unconstitutional under all circumstances." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372
U. S. 70, n. 10

Page 380 U. S. 54

(emphasis in original). The exhibitor's argument that the requirement of submission without more amounted to a constitutionally
prohibited prior restraint was interpreted by the Court in Times Film as a contention that the

"constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture . . .
even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government. . . .'"

365 U.S. at 365 U. S. 46, 47. The Court held that, on this "narrow" question, id. at 365 U. S. 46, the argument stated the principle
against prior restraints too broadly; citing a number of our decisions, the Court quoted the statement from Near v. State of
Minnesota, 283 U. S. 697, that "[t]he protection even as to previous restraint is not absolutely unlimited." In rejecting the proffered
proposition in Times Film, the Court emphasized, however, that "[i]t is that question alone which we decide," 365 U.S. at 365 U. S. 46,
and it would therefore be inaccurate to say that Times Film upheld the specific features of the Chicago censorship ordinance.

Unlike the petitioner in Times Film, appellant does not argue that § 2 is unconstitutional simply because it may prevent even the first
showing of a film whose exhibiting may legitimately be the subject of an obscenity prosecution. He presents a question quite distinct
from that passed on in Times Film; accepting the rule in Times Film, he argues that § 2 constitutes an invalid prior restraint because, in
the context of the remainder of the statute, it presents a danger of unduly suppressing protected expression. He focuses particularly on
the procedure for an initial decision by the censorship board, which, without any judicial participation, effectively bars exhibition of any
disapproved film unless and until the exhibitor undertakes a time-consuming appeal to the Maryland courts and succeeds in having the
Board's decision

Page 380 U. S. 55

reversed. Under the statute, the exhibitor is required to submit the film to the Board for examination, but no time limit is imposed for
completion of Board action, § 17. If the film is disapproved, or any elimination ordered, § 19 provides that

"The person submitting such film or view for examination will receive immediate notice of such elimination or disapproval, and if
appealed from, such film or view will be promptly reexamined, in the presence of such person, by two or more members of the Board,
and the same finally approved or disapproved promptly after such reexamination, with the right of appeal from the decision of the Board
to the Baltimore City Court of Baltimore City. There shall be a further right of appeal from the decision of the Baltimore City Court to the
Court of Appeals of Maryland, subject generally to the time and manner provided for taking appeal to the Court of Appeals."

Thus, there is no statutory provision for judicial participation in the procedure which bars a film, nor even assurance of prompt judicial
review. Risk of delay is built into the Maryland procedure, as is borne out by experience; in the only reported case indicating the length
of time required to complete an appeal, the initial judicial determination has taken four months, and final vindication of the film on
appellate review six months. United Artists Corp. v. Maryland State Board of Censors, 210 Md. 586, 124 A.2d 292.

In the light of the difference between the issues presented here and in Times Film, the Court of Appeals erred in saying that, since
appellant's refusal to submit the film to the Board was a violation only of § 2,

"he has restricted himself to an attack on that section

Page 380 U. S. 56

alone, and lacks standing to challenge any of the other provisions (or alleged shortcomings) of the statute."

233 Md. at 505, 197 A.2d at 236. Appellant has not challenged the submission requirement in a vacuum, but in a concrete statutory
context. His contention is that § 2 effects an invalid prior restraint because the structure of the other provisions of the statute contributes
to the infirmity of § 2; he does not assert that the other provisions are independently invalid.
In the area of freedom of expression, it is well established that one has standing to challenge a statute on the ground that it delegates
overly broad licensing discretion to an administrative office, whether or not his conduct could be proscribed by a properly drawn statute,
and whether or not he applied for a license.

"One who might have had a license for the asking may . . . call into question the whole scheme of licensing when he is prosecuted for
failure to procure it."

Thornhill v. State of Alabama, 310 U. S. 88, 310 U. S. 97; see Staub v. City of Baxley, 355 U. S. 313, 355 U. S. 319; Saia v. New
York, 334 U. S. 558; Thomas v. Collins, 323 U. S. 516; Hague v. CIO, 307 U. S. 496; Lovell v. City of Griffin, 303 U. S. 444, 303 U. S.
452-453. Standing is recognized in such cases because of the

". . . danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and
improper application."

NAACP v. Button, 371 U. S. 145, 371 U. S. 433; see also Amsterdam, Note, The Void for Vagueness Doctrine in the Supreme Court,
109 U.Pa.L.Rev. 67, 75- 76, 80-81, 96-104 (1960). Although we have no occasion to decide whether the vice of overbroadness infects
the Maryland statute, [Footnote 3] we think that appellant's assertion of a similar

Page 380 U. S. 57

danger in the Maryland apparatus of censorship -- one always fraught with danger and viewed with suspicion -- gives him standing to
make that challenge. In substance, his argument is that, because the apparatus operates in a statutory context in which judicial review
may be too little and too late, the Maryland statute lacks sufficient safeguards for confining the censor's action to judicially determined
constitutional limits, and therefore contains the same vice as a statute delegating excessive administrative discretion.

II

Although the Court has said that motion pictures are not "necessarily subject to the precise rules governing any other particular method
of expression," Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 343 U. S. 503, it is as true here as of other forms of expression that
"[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional
validity." Bantam Books, Inc. v. Sullivan, supra, at372 U. S. 70.

". . . [U]nder the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity . . .
without regard to the possible consequences for constitutionally protected speech."

Marcus v. Search Warrant, 367 U. S. 717, 367 U. S. 731. The administration of a censorship system for motion pictures presents
peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial
burden on the exhibitor or distributor. Because the censor's business is to censor, there inheres the danger that he may well be less
responsive than a court-part of an independent branch of government -- to the

Page 380 U. S. 58

constitutionally protected interests in free expression. [Footnote 4] And if it is made unduly onerous, by reason of delay or otherwise, to
seek judicial review, the censor's determination may, in practice, be final.

Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor
avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship
system. First, the burden of proving that the film is unprotected expression must rest on the censor. As we said in Speiser v.
Randall, 357 U. S. 513, 357 U. S. 526,

"Where the transcendent value of speech is involved, due process certainly requires . . . that the State bear the burden of persuasion to
show that the appellants engaged in criminal speech."

Second, while the State may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected
films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination whether a
film constitutes protected expression. The teaching of our cases is that, because only a judicial determination in an adversary
proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to
impose a valid final restraint. See Bantam Books, Inc. v. Sullivan, supra; A Quantity of Books v. State of Kansas, 378 U. S. 205; Marcus
v. Search Warrant, supra; Manual Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 518-519. To this end, the exhibitor must be
assured, by

Page 380 U. S. 59
statute or authoritative judicial construction that the censor will, within a specified brief period, either issue a license or go to court to
restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to
preservation of the status quo for the shortest fixed period compatible with sound judicial resolution. Moreover, we are well aware that,
even after expiration of a temporary restraint, an administrative refusal to license, signifying the censor's view that the film is
unprotected, may have a discouraging effect on the exhibitor. See Bantam Books, Inc. v. Sullivan, supra.Therefore, the procedure must
also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.

Without these safeguards, it may prove too burdensome to seek review of the censor's determination. Particularly in the case of motion
pictures, it may take very little to deter exhibition in a given locality. The exhibitor's stake in any one picture may be insufficient to
warrant a protracted and onerous course of litigation. The distributor, on the other hand, may be equally unwilling to accept the burdens
and delays of litigation in a particular area when, without such difficulties, he can freely exhibit his film in most of the rest of the country;
for we are told that only four States and a handful of municipalities have active censorship laws. [Footnote 5]

It is readily apparent that the Maryland procedural scheme does not satisfy these criteria. First, once the censor disapproves the film,
the exhibitor must assume

Page 380 U. S. 60

the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the Board
has acted against a film, exhibition is prohibited pending judicial review, however protracted. Under the statute, appellant could have
been convicted if he had shown the film after unsuccessfully seeking a license, even though no court had ever ruled on the obscenity of
the film. Third, it is abundantly clear that the Maryland statute provides no assurance of prompt judicial determination. We hold,
therefore, that appellant's conviction must be reversed. The Maryland scheme fails to provide adequate safeguards against undue
inhibition of protected expression, and this renders the § 2 requirement of prior submission of films to the Board an invalid previous
restraint.

III

How or whether Maryland is to incorporate the required procedural safeguards in the statutory scheme is, of course, for the State to
decide. But a model is not lacking: In Kingsley Books, Inc. v. Brown, 354 U. S. 436, we upheld a New York injunctive procedure
designed to prevent the sale of obscene books. That procedure postpones any restraint against sale until a judicial determination of
obscenity following notice and an adversary hearing. The statute provides for a hearing one day after joinder of issue; the judge must
hand down his decision within two days after termination of the hearing. The New York procedure operates without prior submission to
a censor, but the chilling effect of a censorship order, even one which requires judicial action for its enforcement, suggests all the more
reason for expeditious determination of the question whether a particular film is constitutionally protected.

The requirement of prior submission to a censor sustained in Times Film is consistent with our recognition

Page 380 U. S. 61

that films differ from other forms of expression. Similarly, we think that the nature of the motion picture industry may suggest different
time limits for a judicial determination. It is common knowledge that films are scheduled well before actual exhibition, and the
requirement of advance submission in § 2 recognizes this. One possible scheme would be to allow the exhibitor or distributor to submit
his film early enough to ensure an orderly final disposition of the case before the scheduled exhibition date -- far enough in advance so
that the exhibitor could safely advertise the opening on a normal basis. Failing such a scheme or sufficiently early submission under
such a scheme, the statute would have to require adjudication considerably more prompt than has been the case under the Maryland
statute. Otherwise, litigation might be unduly expensive and protracted, or the victorious exhibitor might find the most propitious
opportunity for exhibition past. We do not mean to lay down rigid time limits or procedures, but to suggest considerations in drafting
legislation to accord with local exhibition practices, and in doing so to avoid the potentially chilling effect of the Maryland statute on
protected expression.

Reversed.

[Footnote 1]

Md.Ann.Code, 1957, Art. 66A, § 2:

"It shall be unlawful to sell, lease, lend, exhibit or use any motion picture film or view in the State of Maryland unless the said film or
view has been submitted by the exchange, owner or lessee of the film or view and duly approved and licensed by the Maryland State
Board of Censors, hereinafter in this article called the Board."

[Footnote 2]

Md.Ann.Code, 1957, Art. 66A, § 6:

"(a) Board to examine, approve or disapprove films. -- The Board shall examine or supervise the examination of all films or views to be
exhibited or used in the State of Maryland and shall approve and license such films or views which are moral and proper, and shall
disapprove such as are obscene, or such as tend, in the judgment of the Board, to debase or corrupt morals or incite to crimes. All films
exclusively portraying current events or pictorial news of the day, commonly called news reels, may be exhibited without examination
and no license or fees shall be required therefor."

"(b) What films considered obscene. -- For the purposes of this article, a motion picture film or view shall be considered to be obscene
if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability
of this effect is so great as to outweigh whatever other merits the film may possess."

"(c) What films tend to debase or corrupt morals. -- For the purposes of this article, a motion picture film or view shall be considered to
be of such a character that its exhibition would tend to debase or corrupt morals if its dominant purpose or effect is erotic or
pornographic; or if it portrays acts of sexual immorality, lust or lewdness; or if it expressly or impliedly presents such acts as desirable,
acceptable or proper patterns of behavior."

"(d) What films tend to incite to crime. -- For the purposes of this article, a motion picture film or view shall be considered of such a
character that its exhibition would tend to incite to crime if the theme or the manner of its presentation presents the commission of
criminal acts or contempt for law as constituting profitable, desirable, acceptable, respectable or commonly accepted behavior, or if it
advocates or teaches the use of, or the methods of use of, narcotics or habit-forming drugs."

[Footnote 3]

Appellant also challenges the constitutionality of § 6, establishing standards, as invalid for vagueness under the Due Process Clause; §
11, imposing fees for the inspection and licensing of a film, as constituting an invalid tax upon the exercise of freedom of speech; and §
23, allowing exemptions to various classes of exhibitors, as denying him the equal protection of the laws. In view of our result, we
express no views upon these claims.

[Footnote 4]

See Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp.Prob. 648, 656-659 (1955). This is well illustrated by the fact that the
Maryland Court of Appeals has reversed the Board's disapproval in every reported case. United Artists Corp. v. Maryland State Board
of Censors, supra; Maryland State Board of Censors v. Times Film Corp., 212 Md. 454, 129 A.2d 833; Fanfare Films, Inc. v. Motion
Picture Censor Board, 234 Md. 10, 197 A.2d 839.

[Footnote 5]

An appendix to the brief amici curiae of the American Civil Liberties Union and its Maryland Branch lists New York, Virginia and Kansas
as the three States having statutes similar to the Maryland statute, and the cities of Chicago, Detroit, Fort Worth and Providence as
having similar ordinances. Twenty-eight of the remaining 39 municipal ordinances and codes are listed as "inactive."

MR. JUSTICE DOUGLAS, whom MR. JUSTICE BLACK joins, concurring.

On several occasions, I have indicated my view that movies are entitled to the same degree and kind of protection under the First
Amendment as other forms of expression. Superior Films v. Department of Education, 346 U. S. 587, 346 U. S. 588; Kingsley
International Pictures Corp. v. Regents, 360 U. S. 684, 360 U. S. 697; Times Film Corp. v. City of Chicago, 365 U. S. 43, 365 U. S.
78. * For the reasons there stated, I do not

Page 380 U. S. 62

believe any form of censorship -- no matter how speedy or prolonged it may be -- is permissible. As I see it, a pictorial presentation
occupies as preferred a position as any other form of expression. If censors are banned from the publishing business, from the pulpit,
from the public platform -- as they are -- they should be banned from the theatre. I would not admit the censor even for the limited role
accorded him in Kingsley Books, Inc. v. Brown, 354 U. S. 436. I adhere to my dissent in that case. Id. at 354 U. S. 466-447. Any
authority to obtain a temporary injunction gives the State "the paralyzing power of a censor." Id. at 354 U. S. 446. The regime
of Kingsley Books "substitutes punishment by contempt for punishment by jury trial." Id. at 354 U. S. 477. I would put an end to all forms
and types of censorship and give full literal meaning to the command of the First Amendment.

* The Court today holds that a system of movie censorship must contain at least three procedural safeguards if it is not to run afoul of
the First Amendment: (1) the censor must have the burden of instituting judicial proceedings; (2) any restraint prior to judicial review can
be imposed only briefly in order to preserve the status quo; and (3) a prompt judicial determination of obscenity must be assured. Thus,
the Chicago censorship system, upheld by the narrowest of margins in Times Film Corp. v. City of Chicago, 365 U. S. 43, could not
survive under today's standards, for it provided not one of these safeguards, as the dissenters there expressly pointed out. Id. at 365 U.
S. 73-75.
New York Times Co. v. United States, 403 U.S. 713 (1971)

Primary Holding

The First Amendment overrides the federal government’s interest in keeping certain documents, such as the Pentagon Papers,
classified.

Facts

Secretary of Defense Robert McNamara commissioned a classified history of the U.S. role in Indochina in 1967, two years into the
Vietnam War. The New York Times gained access to this history three years later and started to publish portions of its contents in
articles in 1971, six years into the war. Soon after the first article appeared, a federal district court judge ordered the newspaper to stop
publishing the classified information. This order was based on the federal government's pursuit of an injunction based on irreparable
harm to national security. The war had become highly unpopular by this stage, due to a high casualty rate, so part of its reasoning may
have been based on the damage to public morale.

Granting an injunction against the Times would constitute a prior restraint, generally disfavored by courts under the First Amendment.
However, the government used statements by the Secretary of State and an affidavit from the Navy general counsel to support its
argument that serious harm would befall the nation's interests if publication did not halt. The Times complied with the restraining order
while the judge considered the contents of the documents, popularly known as the Pentagon Papers. The judge eventually denied the
government's request for an injunction, but it was granted by an appellate court.

On the other hand, the government had not been able to secure an injunction against the Washington Post, a similar type of
newspaper, for publishing similar content. The division between these outcomes resulted in an appeal to the Supreme Court.

Opinions

Per Curiam

It is difficult to extract a clear precedent from this case, since the per curiam opinion limited itself to agreeing with the two lower courts
that the government should not be granted an injunction. No reasoning was conveyed in the per curiam opinion to support this
conclusion.

Concurrence

 Hugo Lafayette Black (Author)

Taking an originalist view of the First Amendment, Black relied on the historical views of the Framers to find that prior restraints and
other forms of government censorship would be per se unconstitutional. This was especially relevant in this case because the speech in
question criticized the government, which Black viewed as one of the most important types of speech under the First Amendment. His
opinion also echoed the growing popular distrust of the federal government amid a widely deplored conflict that had resulted in the loss
of American lives for no apparent gain. Black was not persuaded that broadly citing national security interests gave the government a
blank check to prohibit speech.

Concurrence

 William Orville Douglas (Author)

Like Black, Douglas held an expansive view of the First Amendment that would have prohibited virtually any government restraint on
speech, no matter how significant the interest cited.

Concurrence

 William Joseph Brennan, Jr. (Author)

Brennan pointed out that the government's action would be valid only if the speech fell within one of the categorical exceptions to First
Amendment protection. The Pentagon Papers did not, since they did not contain military secrets, obscenities, or fighting words that
would be likely to directly induce unrest. (One could disagree on the first point, but the information was several years old and thus did
not relate to the details of any ongoing military operations such that publication would jeopardize their success.)

Concurrence
  Potter Stewart (Author)

While acknowledging the importance of national security, Stewart felt that it was especially critical to maintain First Amendment
protections in an area such as foreign relations, where the executive branch has immense authority compared to the other branches of
government. He argued that the relative lack of transparency meant that the spread of information was critical to keeping the public
informed and the democratic process intact.

Concurrence

 Byron Raymond White (Author)

White essentially echoed Stewart's opinion. Their views were somewhat counter-intuitive, considering that protecting national security is
usually considered an especially compelling government interest that provides a stronger rationale for regulating speech. Stewart and
White seemed to argue, on the contrary, that the circulation of information should be especially unfettered in this context.

Concurrence

 Thurgood Marshall (Author)

Questioning whether issuing a prior restraint would amount to legislating by the courts, Marshall raised separation of powers concerns.
He also felt that the government was overly vague when describing how the prior restraint was necessary for national security.

Dissent

 Warren Earl Burger (Author)

Burger would have placed greater responsibility on the newspaper to investigate the potential impact on national security prior to
publication and reach an agreement with the government on what parts (if any) of the Pentagon Papers were suitable for public release.
He felt that the Court could not properly understand the contents of these vast documents in the time within which it needed to review
the case. However, it is important to note that Burger did not find that the prior restraint was justified, but only that further deliberations
and investigations were needed.

Dissent

 John Marshall Harlan II (Author)

Harlan felt that the Court should have showed more deference toward the executive branch and national security interests during
wartime. He agreed with Burger that the decision had been reached too hastily.

Dissent

 Harry Andrew Blackmun (Author)

This dissent mostly agreed with Harlan, citing similar concerns about the level of respect accorded to the President's handling of foreign
affairs.

Case Commentary

Prior restraints are rarely justified, even in matters of extreme government importance or national security, since they are among the
most disfavored forms of restricting the freedom of speech. As noted above, the opinion has limited precedential value because of its
distinctive circumstances and the absence of a majority opinion with detailed reasoning. It is mostly important as an indication of the
significance accorded to the First Amendment by the Justices and an example of the wide-ranging philosophical perspectives on it.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21049 December 22, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
ISAAC PEREZ, defendant-appellant.

Mario Guariña for appellant.

Attorney-General Villa Real for appellee.

MALCOLM, J.:

Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to meet on
the morning of April 1, 1992, in the presidencia of Pilar, they became engaged in a discussion regarding the administration of Governor-
General Wood, which resulted in Perez shouting a number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's
head for having recommended a bad thing for the Filipinos, for he has killed our independence." Charged in the Court of First Instance
of Sorsogon with a violation of article 256 of the Penal Code having to do with contempt of ministers of the Crown or other persons in
authority, and convicted thereof, Perez has appealed the case to this court. The question presented for decision is, What crime, if any,
did the accused commit?

A logical point of departure is the information presented in this case. It reads in translation as follows:

That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said accused, Isaac
Perez, while holding a discussion with several persons on political matters, did criminally, unlawfully and wilfully and with
knowledge that Honorable Leonard Wood was the Governor-General of the Philippine Islands and in the discharge of his
functions as such authority, insult by word, without his presence, said Governor-General, uttering in a loud voice and in the
presence of many persons, and in a public place, the following phrases: "Asin an mangña filipinos na caparejo co, maninigong
gumamit nin sundang asin haleon an payo ni Wood huli can saiyang recomendacion sa pag raot con Filipinas," which in
English, is as follows: "And the Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a
bad thing for the Philippines.

Contrary to article 256 of the Penal Code.

At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense. According
to the first witness for the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in question was
this:

"The Filipinos, like myself, should get a bolo and cut off the head of Governor-General Wood, because he has recommended a bad
administration in these Islands and has not made a good recommendation; on the contrary, he has assassinated the independence of
the Philippines and for this reason, we have not obtained independence and the head of that Governor-General must be cut off."
Higinio J. Angustia, justice of the peace of Pilar, in a written statement, and Gregorio Cresencio, another witness for the prosecution,
corroborated the testimony of the first witness. Cresencio understood that Perez invited the Filipinos including himself to get
their bolos and cut off the head of Governor-General Wood and throw it into the sea.

The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused
participated. But they endeavored to explain that the discussion was between Perez and one Severo Madrid, the latter maintaining that
the fault was due to the Nacionalista Party, while Perez argued that the Governor-General was to blame. The accused testified that the
discussion was held in a peaceful manner, and that what he wished to say was that the Governor-General should be removed and
substituted by another. On the witness stand, he stated that his words were the following: "We are but blaming the Nacionalista Party
which is in power but do not take into account that above the representatives there is Governor-General Wood who controls everything,
and I told him that the day on which the Democrats may kill that Governor-General, then we, the Filipinos will install the government we
like whether you Democratas want to pay or not to pay taxes."

The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the accused
made use of the language stated in the beginning of this decision and set out in the information. The question of fact thus settled, the
question of law recurs as to the crime of which the accused should be convicted.
It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial judge
so found in his decision. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower court and is to
the effect that article 256 of the Penal Code is no longer in force.

In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was charged with having uttered the following
language: "To hell with the President of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and
though the case was eventually sent back to the court of origin for a new trial, the appellate court by majority vote held as a question of
law that article 256 is still in force.

In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published an article reflecting on the
Philippine Senate and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by unanimous
vote, with three members of the court holding that article 256 was abrogated completely by the change from Spanish to American
sovereignty over the Philippines, and with six members holding that the Libel Law had the effect of repealing so much of article 256 as
relates to written defamation, abuse, or insult, and that under the information and the facts, the defendant was neither guilty of a
violation of article 256 of the Penal Code nor of the libel Law. In the course of the main opinion in the Perfecto case, is found this
significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but
as to this point, it is not necessary to make a pronouncement."

It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we
can muster, that until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to ministers of
the Crown or to writings coming under the Libel Law, exist and must be enforced. To which proposition, can properly be appended a
corollary, namely: Seditious words, speeches, or libels, constitute a violation of Act No. 292, the Treason and Sedition Law, and to this
extent, both the Penal Code and the Libel Law are modified.

Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the law
infringed in this instance is not this article but rather a portion of the Treason and Sedition Law. In other words, as will later appear, we
think that the words of the accused did not so much tend to defame, abuse, or insult, a person in authority, as they did to raise a
disturbance in the community.

In criminal law, there are a variety of offenses which are not directed primarily against individuals, but rather against the existence of the
State, the authority of the Government, or the general public peace. The offenses created and defined in Act No. 292 are distinctly of
this character. Among them is sedition, which is the raising of commotions or disturbances in the State. It is a revolt against legitimate
authority. Though the ultimate object of sedition is a violation of the public peace or at least such a course of measures as evidently
engenders it, yet it does not aim at direct and open violence against the laws, or the subversion of the Constitution. (2 Bouvier's Law
Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil., 64.)

It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of speech and
the right of the people peaceably to assemble and petition the Government for redress of grievances. Criticism is permitted to penetrate
even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within
the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the
constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to
maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (III
Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto, supra.)

Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the Presidency of
the United States and other high offices, under a democratic form of government, instead, of affording immunity from promiscuous
comment, seems rather to invite abusive attacks. But in this instance, the attack on the Governor-General passes the furthest bounds
of free speech was intended. There is a seditious tendency in the words used, which could easily produce disaffection among the
people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws.

The Governor-General is an executive official appointed by the President of the United States by and with the advice and consent of the
Senate of the United States, and holds in his office at the pleasure of the President. The Organic Act vests supreme executive power in
the Governor-General to be exercised in accordance with law. The Governor-General is the representative of executive civil authority in
the Philippines and of the sovereign power. A seditious attack on the Governor-General is an attack on the rights of the Filipino people
and on American sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.)

Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have been placed on the statute
books exactly to meet such a situation. This section reads as follows:

Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels against the
Government of the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or
make any statement, or speech, or do any act which tends to disturb or obstruct any lawful officer in executing his office or in
performing his duty, or which tends to instigate others to cabal or meet together for unlawful purposes, or which suggests or
incites rebellious conspiracies or which tends to stir up the people against the lawful authorities, or which tends to disturb the
peace of the community or the safety or order of the Government, or who shall knowingly conceal such evil practices from the
 constituted authorities, shall be punished by a fine not exceeding two thousand dollars United States currency or by
imprisonment not exceeding two years, or both, in the discretion of the court.

In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate others
to cabal or meet together for unlawful purposes. He has made a statement and done an act which suggested and incited rebellious
conspiracies. He has made a statement and done an act which tended to stir up the people against the lawful authorities. He has made
a statement and done an act which tended to disturb the peace of the community and the safety or order of the Government. All of
these various tendencies can be ascribed to the action of Perez and may be characterized as penalized by section 8 of Act No. 292 as
amended.

A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended, is, in effect, responsive to, and
based upon, the offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive. The crime of
which the defendant stands charged is that described by the facts stated in the information. In accordance with our settled rule, an
accused may be found guilty and convicted of a graver offense than that designated in the information, if such graver offense is
included or described in the body of the information, and is afterwards justified by the proof presented during the trial. (Guevarra's Code
of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure, p. 9.)

The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think, sufficiently
punish the accused.

That we have given more attention to this case than it deserves, may be possible. Our course is justified when it is recalled that only
last year, Mr. Chief Justice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of the Porto
Rico, observed: "A reading of the two articles removes the slightest doubt that they go far beyond the "exuberant expressions of
meridional speech," to use the expression of this court in a similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so
excessive and outrageous in their character that they suggest the query whether their superlative vilification has not overleapt itself and
become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While our own sense of humor is not entirely blunted,
we nevertheless entertain the conviction that the courts should be the first to stamp out the embers of insurrection. The fugitive flame of
disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it endangers the general public peace.

The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section 8 of
Act No. 292 as amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance with the
sentence of the lower court, the defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So
ordered.

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

Separate Opinions

JOHNSON, J., concurring:

I agree with the opinion of Mr. Justice Villamor. I cannot give assent to a doctrine which permits a complaint to be presented upon one
theory and the trial to be carried through upon that theory and then to condemn the defendant upon a theory which he nor the
prosecution ever dreamed of.

VILLAMOR, J., concurring and dissenting:

I agree in that the accused should be sentenced to suffer two months and one day of arresto mayor with costs, as imposed by the
court a quo, under the provisions of article 256 of the Penal Code, but not under section 8 of Act No. 292. The accused, in my opinion,
should not be convicted of the crime of sedition because there is no allegation in the complaint nor proof in the record, showing that
when the accused uttered the words that gave rise to these proceedings, he had the intention of inciting others to gather for an illicit
purpose, or to incite any conspiracy or rebellion, or to disturb the peace of the community or the safety and order of the Government
which are the acts penalized by section 8 of Act No. 292. On the contrary, having due regard to the place and time when the discussion
arose between Lodovice and the accused, the political rivalry between them and the difference of opinion that they entertained
regarding the administration of the Governor-General, the Honorable Leonard Wood, it would appear evident that the accused
expressed himself in biting and poignant language, unbecoming and improper of a law abiding citizen and highly detrimental and
insulting to the authority of the Governor-General which is the thing prohibited and punished by article 256 of the Penal Code.
Avanceña and Johnson, JJ., concurs.
Dennis v. United States, 341 U.S. 494 (1951)

Primary Holding

Convicting a defendant of a non-speech related offense based on speech is permissible only if the speech created a clear and present
danger that the crime would be attempted or perpetrated.

Facts

Dennis was convicted of conspiring with other Communist Party leaders to overthrow the government by force or violence under the
Smith Act. This law generally prohibited any conspiracy to advocate or teach the overthrow of the government by force or violence or to
organize people to perform such advocacy or teaching. The Communist Party literature and public statements clearly pursued these
goals, and it was a tightly controlled, highly disciplined organization that permitted no internal dissent. It was shown to be skilled at
infiltrating strategic positions as well as at using aliases and language with multiple meanings.

Opinions

Majority

 Frederick Moore Vinson (Author)

 Stanley Forman Reed
 Harold Hitz Burton
 Tom C. Clark
 Sherman Minton

The government has a compelling interest in preventing its overthrow by force or violence, so it is justified in placing some limits on
speech to protect that interest, notwithstanding the First Amendment. Whether an attempt to overthrow the government poses a clear
and present danger to it should not be determined according to whether such an attempt will be likely to be successful. Instead, the
appropriate standard is whether the gravity of the evil, discounted by its improbability, warrants a restriction on free speech that is
needed to avoid the danger. A clear and present danger existed here, taking into account the strength and sophistication of the
organization as well as the unstable nature of governments around the world, tensions between the U.S. and Communist countries, and
recent revolutions abroad in similar situations.

Dissent

 Hugo Lafayette Black (Author)

Dissent

 William Orville Douglas (Author)

Concurrence

 Felix Frankfurter (Author)

Concurrence

 Robert Houghwout Jackson (Author)

Case Commentary

The clear and present danger test used in this early First Amendment decision no longer holds significant value and is largely useful
from a historical perspective, showing how the doctrine in this area has evolved. It also is curious what courts have found to constitute
clear and present dangers, which often seem relatively harmless in hindsight.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-27833 April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO
GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner.

B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of
prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public
office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly
and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance.

It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom
of belief and of expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a
goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a
prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with
the hope that the time-consuming efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in
violence, to paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act
in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the
responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged
infringement of liberty, when our competence is appropriately invoked.

This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory
Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but
treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners
challenged the validity of two new sections now included in the Revised Election Code, under Republic Act No. 4880, which was
approved and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period of election
campaign or partisan political activity. 3

The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880
"refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office." Then the
acts were specified. There is a proviso that simple expression of opinion and thoughts concerning the election shall not be considered
as part of an election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any person
from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office
whom he supports." 4

Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista
Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on
the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim
that "the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech,
their freedom of assembly and their right to form associations or societies for purpose not contrary to law, guaranteed under the
Philippine Constitution," and that therefore said act is unconstitutional.

After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation
of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally
justify its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore the enactment of
Republic Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of
speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law, ..." There was the further
allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among themselves through self-restraint or mutual understanding
or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and
present danger to the state, would render the constitutional rights of petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission
on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions
of law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character, would have this Court
dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At
the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the
petitioners and Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within which to
submit, simultaneously,, their respective memorandum in lieu of oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio
Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the
constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the constitutionality of
section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no treaty or law may be
declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court
[resolved] to defer final voting on the issue until after the return of the Justices now on official leave."

The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of
Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that
warn against curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of association, all
embraced in the First Amendment of the United States Constitution. Respondent Commission on Elections was duly represented by
Atty. Ramon Barrios.

Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive
exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full
recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and
of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of
elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and
undue concentration in politics with the loss not only of efficiency in government but of lives as well.

The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs
above mentioned having continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici
curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law
Center and the U.P. Women Lawyers' Circle were included, among them. They did file their respective memoranda with this Court and
aided it in the consideration of the constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that
respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be
characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be treated as
a petition for prohibition.

The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering, therefore,
the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its]
constitutionality ... be now resolved." 7 It may likewise be added that the exceptional character of the situation that confronts us, the
paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely six months away, reinforce our
stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an
alleged unconstitutional statute. We are left with no choice then; we must act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who
impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate the
clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such were the
case, however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to
bring an action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative
measure. 9

2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police
power of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined
harmful if unstrained and carried for a long period before elections it necessarily entails huge expenditures of funds on the part of the
candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon
public interest as the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to
meet the constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of
association. Would it were as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The case confronts us
again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on
that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the
preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That
priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the
limitation, which determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent,
militates against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us,
it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any
provision of either the state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any
wise subversive of any one's constitutional liberty." 11Another leading State decision is much more emphatic: "Broad as the power of the
legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections,
the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be compelled to give
evidence against himself. If it destroys the right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nêt

3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may
prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our
constitutional system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the very
least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without
censorship or punishment. 14 There is to be then no previous restraint on the communication of views or subsequent liability whether in
libel suits, 15prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger
of substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-
fulfillment, of attaining the truth, of assuring participation by the people in social including political decision-making, and of maintaining
the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast
scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of
public issue should be uninhibited, robust, and wide-open. 20 It is not going too far, according to another American decision, to view the
function of free speech as inviting dispute. "It may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 21 Freedom of speech and of the press thus means something
more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, to take refuge in
the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as
well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought
that we hate, no less than for the thought that agrees with us. 22

So with Emerson one may conclude that "the theory of freedom of expression involves more than a technique for arriving at better
social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew
out of an age that was awakened and invigorated by the idea of new society in which man's mind was free, his fate determined by his
own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that,
through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative
of a society that is tyrannical, conformist, irrational and stagnant." 23

From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may
be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal
interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it
should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high' before
the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It has the advantage
of establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be
public established."

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

We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to
the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest
and indisputable. It adopted the clear and present danger test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there
was likewise an implicit acceptance of the clear and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil
apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not
enforced silence." 26 For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go
further. He would require that the substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned
by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders
where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question in every case is whether the
words used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 29

This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right
to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point
to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time
element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press.
It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the
case of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free
speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. From the same
Bustos opinion: "Public policy, the welfare of society and orderly administration of government have demanded protection for public
opinion." To paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or
coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty with the rights of the people
peaceably to assemble and to petition the government for redress of grievances. All these rights while not identical are inseparable.
They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights wherein they are contained,
applies to all. As emphatically put in the leading case of United States v. Cruikshank, 32 "the very idea of a government, republican in
form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of
grievances." As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that Congress has a right to prevent.

5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or without a
constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society
exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which
are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily the first
amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 34 He adopted
the view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most natural privilege of
man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common
with them. The right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator
can attack it without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren
existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more
common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those
exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful.

In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent
then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition
will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become
a thing of the past.

Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the
electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this
freedom of association.
It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance
that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its
own program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political
and academic affiliations have a preferred position under the due process version of the First Amendment. But the associational rights
protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in
journalism, in teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political,
spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this
country." 36

Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form
associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be
interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society
could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First Amendment. For
the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he
associates with are no concern to government — until and unless he moves into action. That article of faith marks indeed the main
difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above
principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and
the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the
rights of free speech, free press, freedom of assembly and freedom of association. In effect what are asked to do is to declare the act
void on its face evidence having been introduced as to its actual operation. There is respectable authority for the court having the power
to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest
in the wording of statute cannot be allowed to pass unnoticed. 39

In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment
was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in
existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the realities of the
situation. Nor can we ignore the express legislative purpose apparent in the proviso "that simple expressions of opinion and thoughts
concerning the election shall not be considered as part of an election campaign," and in the other proviso "that nothing herein stated
shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the
names of the candidates for public office whom he supports." Such limitations qualify the entire provision restricting the period of an
election campaign or partisan political activity.

The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It
shall be unlawful for any political party political committee, or political group to nominate candidates for any elective public officio voted
for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier
than ninety days immediately preceding an election." 40

The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the
curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not
unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain in
validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to
Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons
whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days
immediately preceding an election for any other elective public office. The term 'candidate' refers to any person aspiring for or seeking
an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated
by any political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a
candidate elected or not or promote the candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other
conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of
press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court
cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect
on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser. 41 Where
the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the
imputation of vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas, both appropriate and
vigorous, comes to mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of
Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our
society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of
free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand.

On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under
the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is
need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof.

For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice
would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court,
though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not
unaware of the clear and present danger that calls for measures that may bear heavily on the exercise of the cherished rights of
expression, of assembly, and of association.

This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights.
The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such
restrictions but also that they be limited in scope.

There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election
campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press,
freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the
enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity."

They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, caucuses,
conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate or party;(c) making speeches, announcements or commentaries or holding
interviews for or against the election or any party or candidate for public office; (d) publishing or distributing campaign literature or
materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f) giving,
soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection that may
be raised as to vagueness has been minimized, if not totally set at rest. 46

8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar
as the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition against
giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48

The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades
or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a
candidate or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a
thorough consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it should be
annulled. Candor compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory
prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial
predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their collision with the
preferred right of freedom of expression. From the outset, such provisions did occasion divergence of views among the members of the
Court. Originally only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the
scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a
clear and present danger of a substantive evil, the debasement of the electoral process.

The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or
indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election
for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer from the
corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from
the too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful
effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all.
Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such
political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further
magnified.

Under the police power then, with its concern for the general welfare and with the commendable aim of safe-guarding the right of
suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe
that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be
frustrated and nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the
constitutional test is devoid of merit.

It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for
or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign
literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or
propaganda for or against any candidate or party is repugnant to a constitutional command. To that extent, the challenged statute
prohibits what under the Constitution cannot by any law be abridged.

More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger
doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the
challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the
constitutional requirements as to a valid limitation under the clear and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation
of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that
makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally
infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose constitutionally subject to
control or prevent activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the
area of protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by
means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is
the touchstone in an area so closely related to our most precious freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on
their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of
the mind. 59

Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the
challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of
expression vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing
coverage of the practices sought to be restrained would seriously pose.

Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Tañada, appearing before us
as amicus curiae. He did clearly explain that such provisions were deemed by the legislative body to be part and parcel of the
necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive
evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and
partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies
for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure
prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable
legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus
provided: "That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election
campaign [and that nothing in the Act] shall be understood to prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the candidates for public office whom he supports. 60 If properly implemented
then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting edge may be
ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of
association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in
Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional
application of its provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is time
enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process.
There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to
what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the
press, of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard
individual rights. In the language of Justice Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not
obstruct the popular will as manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by
the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary,
it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the
legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times,
and this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval to the aforesaid
specific provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is
no occasion for the power to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 82380 April 29, 1988

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

G.R. No. 82398 April 29, 1988

HAL MCELROY petitioner,

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

FELICIANO, J.:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

(Emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the
latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a
person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a
fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle
Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to
present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because
without it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of
expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to
produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed
royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said:

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

II

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

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

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

WHEREFORE,

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

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

No pronouncement as to costs.

SO ORDERED.

Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Cortes and Griño-
Aquino, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.:

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

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

Section 15(a) of the resolution provides:

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

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

Section 21 (f) of the same resolution provides:

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

It is unlawful:

xxx xxx xxx

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

xxx xxx xxx

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

Lawful election propaganda. — Lawful election propaganda shall include:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the
conduct and manner of elections, to wit:
 Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation and other public utilities, media of communication or
information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision
or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal
rates therefore, for public information campaigns and forms among candidates in connection with the object of
holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4)

The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on
Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between
permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections.
In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated
COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case
basis.

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

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

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

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

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

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

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

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

For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not
doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and
the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not
suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and
persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the
greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323
US 516 [1945]). (Emphasis supplied)
Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party.
The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to
agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the
expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court
was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long
as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a
sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private
property.

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

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

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

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

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

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

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

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

Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the
preservation of a free society that, putting aside reasonable police and health regulations of time and manner of
distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal
methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that
stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the
dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943])

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of
justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any
place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person
cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or
regulation, may do.

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

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

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

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

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

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

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

There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept
or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he
is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We
are constrained to rule against the COMELEC prohibition.

WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections
providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21
hereof" is DECLARED NULL and VOID.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Paras, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, J.J.,
concur.
Feliciano and Bellosillo, JJ., are on leave.
 EN BANC

[G.R. No. 147571. May 5, 2001]

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA
STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent.

DECISION
MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in
various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly
reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a
newspaper of general circulation, which features newsworthy items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election
Act), which provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.

The term election surveys is defined in 5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidates popularity, qualifications,
platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed
issues during the campaign period (hereafter referred to as Survey).

To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates
shall not be published seven (7) days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and
local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of
freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and
published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without
causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an
immediate and inevitable danger to the voting process posed by election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political
issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the
results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and
corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on
the publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law, i.e.,
the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply;
(2) it is narrowly tailored to meet the evils sought to be prevented; and (3) the impairment of freedom of expression is minimal, the
restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and
in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v.
COMELEC,[1] a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called
COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4
of R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by prohibiting the publication of elec tion
survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election and seven
(7) days before a local election. Because of the preferred status of the constitutional rights of speech, expression, and the press, such a
measure is vitiated by a weighty presumption of invalidity. [2] Indeed, any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity. . . . The Government thus carries a heavy burden of showing justification
for the enforcement of such restraint.[3] There is thus a reversal of the normal presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the
enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like
5.4. For as we have pointed out in sustaining the ban on media political advertisements, the grant of power to the COMELEC under Art.
IX-C, 4 is limited to ensuring equal opportunity, time, space, and the right to reply as well as uniform and reasonable rates of charges for
the use of such media facilities for public information campaigns and forums among candidates. [4] This Court stated:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among
candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free
press.[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of
5.4. Indeed, as has been pointed out in Osmea v. COMELEC, [6] this test was originally formulated for the criminal law and only later
appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or
incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the
gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing and balancing the circumstances to
determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free
enjoyment of the rights (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the
creation of bandwagon effect to favor candidates, misinformation, the junking of weak and losing candidates by their parties, and the form
of election cheating called dagdag-bawas and invoking the States power to supervise media of information during the election period
(pages 11-16), the dissenting opinion simply concludes:

Viewed in the light of the legitimate and significant objectives of Section 5.4, it may be seen that its limiting impact on the rights of free
speech and of the press is not unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute prohibition, on the
publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating
whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published
thereafter. (Pages 17-18)

The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression.
Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space
and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. Hence
the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to
advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction
the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the
campaigns can confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining
the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a
plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In
contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,[7] from which the dissent in this case
takes its cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election campaign and
partisan political activity, was an unconstitutional abridgment of freedom of expression.
Nor can the ban on election surveys be justified on the ground that there are other countries 78, according to the Solicitor General,
while the dissent cites 28 which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It
is noteworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is
because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited
period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the
Philippines in political development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief
Justice Warren, held in United States v. OBrien:

[A] government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression;
and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is
essential to the furtherance of that interest. [8]

This is so far the most influential test for distinguishing content-based from content-neutral regulations and is said to have become
canonical in the review of such laws.[9] It is noteworthy that the OBrien test has been applied by this Court in at least two cases. [10]
 Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental
interest is not unrelated to the suppression of free expression. Moreover, even if the purpose is unrelated to the suppression of free
speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the
governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection of expression to the asserted governmental
interest makes such interest not unrelated to the suppression of free expression. By prohibiting the publication of election survey results
because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint,
by preferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that the government
has no power to restrict expression because of its message, its ideas, its subject matter, or its content. [11] The inhibition of speech should
be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire,[12] thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting
words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality.

Nor is there justification for the prior restraint which 5.4 lays on protected speech. In Near v. Minnesota,[13] it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional
cases. . . . No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of
the sailing dates of transports or the number and location of troops. On similar grounds, the primary requirements of decency may be
enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and
the overthrow by force of orderly government . . . .

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only
for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct,
absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period
of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v.
COMELEC[14] and Osmea v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional
provision,[16] but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution
of media advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting
restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction be
not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure
on voters, the creation of bandwagon effect, junking of weak or losing candidates, and resort to the form of election cheating called
dagdag-bawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right
of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension
that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987, [17] the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due
notice and hearing.

This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate
bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked
by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law
to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some
voters want to be identified with the winners. Some are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results which are a form of expression? It has been held that [mere] legislative preferences or
beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to
justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. [18]
To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct
and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental
interest sought to be promoted can be achieved by means other than the suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolutions may be
reviewed by this Court only by certiorari. The flaws in this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a
decision, order, or resolution within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that Resolution 3636 was
rendered by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the
COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for the COMELECs claim that this petition for prohibition is
inappropriate. Prohibition has been found appropriate for testing the constitutionality of various election laws, rules, and regulations.[19]
WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution 3636, dated
March 1, 2001, are declared unconstitutional.
SO ORDERED.
Davide, Jr., C.J., Vitug, and Gonzaga-Reyes, JJ., concur.
Bellosillo, Pardo, Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissent of J. Kapunan.
Melo, Puno, and Panganiban, JJ., see concurring opinion.
Kapunan, J., see dissenting opinion.
Quisumbing, Buena, and De Leon, Jr., JJ., on leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 194192 June 16, 2015

DAVAO CITY WATER DISTRICT REPRESENTED BY ITS GENERAL MANAGER, RODORA N. GAMBOA,Petitioner,
vs.
RODRIGO L. ARANJUEZ, GREGORIO S. CAGULA, CELESTINO A. BONDOC, DANILO L. BUHAY, PEDRO E. ALCALA, JOSEPH
A. VALDEZ, TITO V. SABANGAN, MARCELINO B. ANINO, JUANITO C. PANSACALA, JOEMARIE B. ALBA, ANTERO M. YMAS,
ROLANDO L. LARGO, RENEBOY U. ESTEBAN, MANUEL B. LIBANG, ROMEORICO A. LLANOS, ARTHUR C. BACHILLER,
SOCRATES V. CORCUERA, ALEJANDRO C. PICHON, GRACIANO A. MONCADA, ROLANDO K. ESCORIAL, NOEL A. DAGALE,
EMILIO S. MOLINA, SHERWIN S. SOLAMO, FULGENCIO I. DYGUAZO, GUALBERTO S. PAGATPAT, JOSEPH B. ARTAJO,
FELIXBERTO Q. OBENZA, FLORANTE A. FERRAREN, ELSA A. ELORDE, CARLOS P. MORRE, JAMES AQUILINO M. COLOMA,
JOAQUIN 0. CADORNA, JR., LORNA M. MAXINO, ROMULO A. REYES, NOEL G. LEGASPI, ELEANOR R. LAMOSTE, WELMER
E. CRASCO, DELIO T. OLAER, VICENTE R. MASUCOL, IRENEO A. CUBAL, EDWIN A. DELA PENA, JIMMY A. TROCIO,
WILFREDO L. TORREON, ALEJANDRITO M. ALO, RAUL S. SAGA, JOSELITO P. RICONALLA, TRISEBAL Q. AGUILAR, ARMAN
N. LORENZO, SR. and PEDRO C. GUNTING, Respondents.

RESOLUTION

PEREZ, J.:

This is a Petition for Review on Certiorari1 of the Decision2 of the Twenty Third Division of the Court of Appeals in CA-G.R. SP No.
02793- MIN dated 7 October 2010, affirming the 14 January 2009 Resolution No. 09-0047 rendered by the Civil Service Commission
(CSC).

The Facts

Petitioner Davao City Water District(DCWD) is a government-owned and controlled corporation in Davao City represented by its
General Manager Engr. Rodora N. Gamboa (GM Gamboa). The private respondents, namely, Rodrigo L. Aranjuez, Gregorio S. Cagula,
Celestino A. Bondoc, Danilo L.Buhay, Pedro E. Alcala, Joseph A. Valdez, Tito V. Sabangan,Marcelino B. Anino, Juanito C. Pansacala,
Joemarie B. Alba, Antero M. Ymas, Rolando L. Largo, Reneboy U. Esteban, Manuel B. Libang, Romeorico A. Llanos, Arthur C.
Bachiller, Socrates V. Corcuera, Alejandro C. Pichon, Graciano A . Moncada, Rolando K. Escorial, Noel A. Dagale, Emilio S. Molina,
Sherwin S. Solamo, Fulgencio I. Dyguazo, Gualberto S. Pagatpat, Joseph B. Artajo, Felixberto Q. Obenza, Florante A. Ferraren, Elsa
A. Elorde, Carlos P. Morre, James Aquilino M. Coloma, Joaquin O. Cadorna, Jr., Lorna M. Maxino, Romulo A. Reyes, Noel G. Legaspi,
Eleanor R. Lamoste, WelmerE. Crasco, Delio T. Olaer, Vicente R. Masucol, Ireneo A. Cubal, Edwin A. dela Peña, Jimmy A. Trocio,
Wilfredo L. Torreon, Alejandrito M.Alo, Raul S. Saga, Joselito P. Riconalla, Trisebal Q. Aguilar, Arman N. Lorenzo, Sr. and Pedro C.
Gunting (Aranjuez, et al.) are officers and members of Nagkahiusang Mamumuo sa Davao City Water District (NAMADACWAD). They
were charged with several administrative cases due to acts committed during the anniversary celebration of DCWD such as wearing of
t-shirts with inscriptions and posting of bond papers outside the designated places. The inscriptions and postings bore employees’
grievances.

The records show that as early as 16 May 2007, the members and officers of NAMADACWAD have been staging pickets in front of the
DCWD Office during their lunch breaks to air their grievances about the non-payment of their Collective Negotiation Agreement (CNA)
incentives and their opposition to DCWD’s privatization and proposed One Hundred Million Peso Loan.

On 31 October 2007, GM Gamboa issued an Office Memorandum addressed to all department managers concerning the different
activities that would take place during DCWD’s then upcoming anniversary celebration. The Memorandum reads:

Please be informed that the opening activities of our 34th anniversary this coming 09 November 2007 are the motorcade and the fun
run. The assembly area will be at the Victoria Plaza Mall parking, in front of Cynthia’s Lechon Hauz, 6:00 o’clock in the morning.

In view of this, everybody is expected to be there except only those who are assigned as a skeletal force. All carpool vehicles are also
enjoined to proceed at the said area. The participants are free to wear any sports attire. Further, you are advised to sign in the
attendance sheet provided by the HRD.3

On 8 November 2007, the officers and members of NAMADACWAD held an Emergency General Assembly and they agreed to wear
NAMADACWAD t-shirts with inscriptions stating, "CNA Incentive Ihatag Na, Dir. Braganza Pahawa Na!" on the day of the anniversary. 4

Came the anniversary, officers and members sported t-shirts with inscriptions "CNA Incentive Ihatag Na, Dir. Braganza Pahawa Na!" at
the beginning of the Fun Run at VictoriaPlaza at around 6:30 in the morning and continued to wear the same inside the premises of the
DCWD office during the office hours. Also, one of the members of the Board of Directors of NAMADACWAD Gregorio S. Cagula
(Cagula), with the help of some of its members, attached similar inscriptions and posters of employees’ grievances to a post in the
motor pool area, an area not among the officially designated places 5 for posting of grievances as prescribed by DCWD’s Office
Memorandum6 dated 8 February 1996 and pursuant to CSC Memorandum Circular No. 33,7 Series of 1994 (MC No. 33).8

As a consequence of their actions, GM Gamboa sent a Memorandum dated 14 November 2007 addressed to the officers and members
of NAMADACWAD, requiring them to explain the reasons for the attire they wore during the anniversary celebration. Through a
collective letter dated 19 November 2007, the officers and members explained that the Memorandum only required the employees to
wear any sports attire, though theirs were with additional inscriptions containing grievances. They countered that the inscriptions were
but manifestations of their constitutional rights of free speech and freedom of expression. 9

On 23 November 2007, another Memorandum was sent to the officers of NAMADACWAD requiring them to explain within 72-hours
why they should not be held liable for the actions committed by Cagula.10

Finding prima facie case against them, GM Gamboa filed formal charges against the officers and members of NAMADACWAD as
follow:

1. For DCWD Administrative Case No. 34-2007 against the officials of NAMADACWAD for violation of Existing Civil Service
Law and Rules of Serious Nature defined under Section 46 [12], Book V of Executive Order No. 292, 11 in relation to Rule IV,
Section 52 B [4] of the Civil Service Resolution No. 99193612 dated August 31, 1999 and Civil Service Resolution No.
02131613 dated October 11, 2002 and MC No. 33 dated October 21, 1994. 14

2. For DCWD Administrative Case Nos. 11-2007 to 33-2007 and 35-2007 to 44-2007 involving the individual members of
NAMADACWAD for violation of Existing Civil Service Law and Rules of Serious Nature defined under Section 46 [12], Book V
of Executive Order No. 292,15 in relation to Rule IV, Section 52 B [4] of the Civil Service Resolution No. 991936 dated August
31, 1999 and Civil Service Resolution No. 021316 dated October 11, 2002.

After giving those concerned the opportunity to explain through several hearings and submission of additional evidence, the
Hearing Committee, through the authority given by DCWD to hear the administrative charges, filed on 14 March 2008 its
Consolidated Resolution and Recommendation finding the officers and members of the NAMADACWAD guilty as charged with
penalties ranging from suspension to dismissal from service with all accessory penalties under the CSC Law and Rules.16

On 19 March 2008, GM Gamboa issued several Orders 17 adopting the recommendation submitted by the Hearing Committee but
modifying some of the corresponding penalties in view of mitigating circumstances such as first infractionand substantial justice.
However, three officials namely Rodrigo L. Aranjuez, Cagula and Celestino A. Bondoc were penalized with dismissal from the service
for the reason that the infraction was the second administrative offense of serious nature. 18

Aggrieved, Aranjuez, et al., filed an Urgent Motion for Reconsideration 19 with Prayer to Suspend the Immediate Execution of the Orders
dated 19 March 2008. The Motion for Reconsideration was thereafter submitted for resolution after the Hearing Committee waived the
filing of a Comment. On 17 April 2008, the Motion was denied by DCWD.

On 2 May 2008, Aranjuez, et al., filed an appeal before the CSC bringing up, among other issues, the violation of their constitutional
rights to assemble and petition for redress of grievances. 20

In its Comment, DCWD defended the Orders on the basis of Section 6 of CSC Resolution No. 021316 21 which provides that the
concerted activity like the participation of the officers and employees during the fun run wearing t-shirts with inscriptions was prohibited
because it was done during office hours. Moreover, the act of Cagula in posting papers with grievances outside the designated areas
was a clear violation of MC No. 33 in relation to 8 February 1996 Office Memorandum. It was submitted that due to Cagula’s
membership in the Board of Directors of NAMADACWAD, the other officers were solidarily responsible for his actions. 22

CSC Resolution

On 14 January 2009, CSC issued a Resolution23 partly granting the consolidated appeal and held that the collective act of respondents
in wearing t-shirts with grievance inscriptions during office hours was not within the ambit of the definition of prohibited mass action
punishable under CSC Resolution 021316 since there was no intent to cause work stoppage. However, though not prohibited under the
Resolution, the act was considered as an offense punishable under "Violation of Reasonable Office Rules and Regulations." CSC
further ruled that Cagula’s act of posting of grievances outside the designated areas was a clear violation of MC No. 33. By reason of
Cagula’s position, the other officers of NAMADACWAD were considered as having agreed and conspired to commit the said act and as
such are as liable as Cagula.

On the other hand, and contrary to the assertions of DCWD, the violations committed by the private respondents are not serious in
nature due to the lack of any abusive, vulgar, defamatory or libelous language. The dispositive portion reads:
WHEREFORE, the Consolidated Appeal filed by Rodrigo L. Aranjuez, et al. is PARTLY GRANTED. The Orders dated March 19, 2008
issued by the General Manager Rodora N. Gamboa finding appellants guilty of Violation of Existing Civil Service Law and Rules of
Serious Nature (Section 46 [12] Book V of Executive Order No. 292, in relation to Rule IV, Section 52 B [4] of the CSC Resolution No.
991936 dated August 31, 1999 and CSC Resolution No. 021316 dated October 11, 2002 and CSC MC No. 33 dated October 21,
1994), are hereby MODIFIED. Accordingly, appellants are hereby found liable for Violation of Reasonable Office Rules and Regulations
and are meted the following penalties, to wit:

1. As to members Danilo Buhay, Pedro E. Alcala, Joseph A. Valdez, Tito V. Sabangan, Marcelino B. Anino, Juanito C.
Pansacala, Joemarie B. Alba, Antero M. Ymas, Rolando L. Largo, Reneboy U. Esteban, Manuel B. Libang, Romeorico A.
Llanos, Arthur C. Bachiller, Socrates V. Corcuera, Alejandro C. Pichon, Graciano A. Moncada, Rolando Escorial, Noel A.
Dagale, Emilio S. Molina, Sherwin S. Solano, Danilo L. Buhay and Fulgencio I. Dyguazo, the penalty of reprimand;

2. As to officers Gualberta S. Pagatpat, Joseph A. Artalo, Felixberto Q. Obenza, Florante A. Ferraren, Elsa A. Ilorde, Carlos P.
Morre, James Aquilino M. Coloma, Joacquin O. Cadorna, Jr., Lorna M. Maximo, Romulo A. Reyes, Noel G.Legazpi, Eleanor
R. Lamoste, Welmer E. Crasco, Delio T. Olaer, Vicente R. Masucol, Ireneo Cubal, Rodrigo L. Aranjuez, Gregorio S. Cagula
and Celestino A. Bondoc, the penalty of reprimand and strong warning that a repetition of the same shall be dealt with
severely.

3. As to members Edwin A. dela Peña, Jummy A. Trocio, Wilfredo A. Torreon, Alejandrito M. Alo, Raul S. Saga, Joselito P.
Riconalla, Trisebal Q. Aguilar,Arman L. Lorenzo, Sr. and Pedro C. Gunting, they are likewise found guilty of the offense of
Violation of Reasonable Office Rules and Regulations but are not meted a penalty considering that they are casual employees
whose renewal of appointments were held in abeyance. 24

Aggrieved, DCWD filed a Petition for Review under Rules 43 before the Court of Appeals alleging procedural and substantive infirmities
of the CSC Resolution.

The Court of Appeals’ Decision

In its decision, the Court of Appeals affirmed in toto25 the resolution of CSC.

The appellate court disagreed with the contention of DCWD that there was a violation of any provision of Resolution No. 021316 in this
wise:

As correctly observed by the Civil Service Commission, the act of respondents in sporting a t-shirt with the inscription "CNA INCENTIVE
IHATAG NA, DIRECTOR BRAGANZA,PAHAWA NA!" during the fun run and even inside the office premises hardly qualifies as a
prohibited concerted mass action under CSC Resolution No. 021316.

xxxx

To say the least, Section 5 of Resolution No. 01316 provides a specific guideline as to what constitutes a prohibited concerted activity.
A prohibited concerted activity must be one undertaken by government employees, by themselves or through their association, with the
intent of effecting work stoppage or service disruption, in order to realize their demands or force concessions. In the case at hand, we
can readily observe that respondent’s participation in the fun run, as well as their behavior inside the premises of DCWD office during
the regular working hours of that day indicate a complete absence of any intention on their part to effect a work stoppage or
disturbance. In fact, as attested by both parties, all the respondents participated with the planned activities and festivities on that day.26

The appellate court was likewise in agreement with the CSC which considered as simple violation of office rules the posting of banners
outside the designated posting areas by Cagula. Also like the CSC, it ruled that such offense is not punishable with the penalty of
dismissal.

The DCWD is now before us still with its basic arguments, though rephrased:

I.

The court a quo failed to rule on the issue whether or not the respondents’ Consolidated Appeal filed before the CSC was sufficient in
form and substance.

II.

The court a quo erred in ruling that the concerted mass action on November 9, 2007 was not prohibited under Resolution No. 021316.

III.
The court a quo erred in ruling that Resolution No. 021316 and MC No. 33 are considered "reasonable office rules and regulations"
within the purview of Section 52 C [3] of the Uniform Rules on Administrative Cases.

IV.

The court a quo erred in ruling that respondents’ act of posting white bond papers with union-related inscriptions on their t-shirts while
inside the office premises does not constitute serious violation of Civil Service Rules but only a violation of Reasonable Office Rules
and Regulations, despite the fact that the said Memorandum Circular No. 33 is a CSC-issued Memorandum and not DCWD-issued
Rules.

V.

The court a quo erred in ruling that MC No. 33 was not violated by respondent Gregorio S. Cagula and the rest of the officials of
NAMADACWAD who were charged in DCWD Administrative case No. 34-2007.

VI.

The court a quo erred in not taking into consideration that respondents Aranjuez, Cagula and Bondoc were second-time offenders who
were previously charged and penalized for violation of MC No. 33, thereby justifying their dismissal from the service.

VII.

The court a quo erred when it failed to rule on the issue of whether the decisions of a government agency, acting as Disciplining
Authority, in disciplinary cases are immediately executory upon receipt thereof.

The Court's Ruling

The Court finds no merit in the petition.

Prefatorily, DCWD contends that the appeal of Aranjuez, et al., should have been dismissed by the CSC for non-compliance with
Section 46 of CSC Resolution No. 991936, particularly their failure to file a notice of appeal, their failure to show proof of payment of the
appeal fee and the petition’s invalid verification and certification of non-forum shopping.

We are not persuaded.

Though the appeal before the CSC lacked a notice of appeal as required by CSC Resolution No. 991936 or the Uniform Rules on
Administrative Cases in the Civil Service (URACCS),27 the Consolidated Memorandum filed by the private respondents was enough to
be considered as a sufficient compliance with the rules. The Memorandum delineates the errors asserted against DCWD and the
discussions supporting their arguments. We find merit in the sufficiency of the Memorandum rather than strict compliance in view of the
constitutional right of every employee to security of tenure. A more relevant consideration of public interest is accorded whenever the
merits of a case collide with rigid application of the rules.28

Further, we find that the Civil Service Commission, the agency directly concerned, the ruling of which was upheld by the Court of
Appeals on review, correctly exercised jurisdiction over respondent’s appeal from the decision of petitioner DCWD, thereby ruling
against, if sub silentio, the argument of petitioner that the appeal should be dismissed for lack of proof of payment of appeal. The Civil
Service Commission and the Court of Appeals considered the procedural issue raised by petitioner as a surmountable bar to the
resolution of the main issue of respondents’ constitutional right to free expression29 as amplified with specificity by their guaranteed right
as workers to peaceful concerted activity and their entitlement to security of tenure.30 The decisions of the Civil Service Commission
and the Court of Appeals are squarely supported by Adalim v. Taniñas31 stating that:

In a number of cases, we upheld the CSC’s decision relaxing its procedural rules to render substantial justice. The Revised Rules on
Administrative Cases in the Civil Service themselves provide that administrative investigations shall be conducted without strict
recourse to the technical rules of procedure and evidence applicable to judicial proceedings. The case before the CSC involves the
security of tenure of public employees protected by the Constitution. Public interest requires a resolution of the merits of the appeal
instead of dismissing the same based on a rigid application of the CSC Rules of Procedure. Accordingly, both the CSC and the CA
properly allowed respondent employees’ appeal despite procedural lapses to resolve the issue on the merits.

In Republic of the Philippines v. Court of Appeals, 32 this Court pronounced that technical rules of procedure are not ends in themselves
but primarily devised and designed to help in the proper and expedient dispensation of justice. In appropriate cases, therefore, the rules
may have to be so construed liberally as to meet and advance the cause of substantial justice. While it is desirable that the rules of
procedure are faithfully and even meticulously observed, courts should not be so strict about procedural lapses that do not really impair
the proper administration of justice. If the rules are intended to ensure the orderly conduct of litigation, it is because of the higher
objective they seek which is the protection of substantive rights of the parties. 33 Substantial justice, in other words must prevail. In
Paler,34 We said:

When substantial justice dictates it, procedural rules may be relaxed in order to arrive at a just disposition of a case. The purpose
behind limiting the period of appeal is to avoid unreasonable delay in the administration of justice and to put an end to controversies. A
one-day delay as in this case, does not justify denial of the appeal where there is absolutely no indication of intent to delay as in this
case, does not justify denial of the appeal where there is absolutely no indication of intent to delay justice on the part of Paler and the
pleading is meritorious on its face.

We rule in favor of the allowance of respondents’ appeal because:

Law and jurisprudence grant to courts the prerogative to relax compliance with procedural rules of even the most mandatory character,
mindful of the duty to reconcile both the need to put an end to litigation speedily and the parties’ right to an opportunity to be
heard.35 (Emphasis supplied)

Quoting again the case of Republic v. Court of Appeals,36 we pointed out that this Court can temper rigid rules in favor of substantial
justice. We find that pronouncement apt and fit to this case. Thereby we are not detained by the omissions of the respondents in their
resort to the CSC, and we thus proceed to the merits of the petitioners’ submissions.

Lastly, on the form, we find no merit in the contention that Aranjuez was not authorized to sign on behalf of the other petitioners.
Pursuant to Union Resolution No. 015-200837 attached as Annex A to the Appellants’ 015-2008 Consolidated Memorandum dated 26
March 2008, the officers and members of NAMDACWAD gave Aranjuez a general authority to represent the organization in all legal
matters to be filed for whatever purpose it may serve. From the general and broad grant of authority, Aranjuez possessed the specific
authority to sign in behalf of his principal the verification and certification against non-forum shopping required of the petition.

To the kernel, then.

DCWD primarily contends that CSC and the Court of Appeals erred in ruling that the concerted mass action on 9 November 2007 is not
prohibited under Resolution No. 021316. We disagree. DCWD relies on Resolution No. 021316, which states:

Section 6. Permissible Concerted Mass Action.– A concerted activity or mass action done outside of government office hours shall not
be deemed a prohibited concerted activity or mass action within the contemplation of this omnibus rules provided the same shall not
occasion or result in the disruption of work or service. 38

DCWD argues that since the concerted or mass action was done within government office hours, such act was not permissible,
therefore prohibited. Otherwise stated, a concerted activity done within the regular government office hours is automatically a violation
of Section 6 of the Resolution.

Notably, however, a prohibited concerted mass action is defined not in Sec. 6 of Resolution No. 021316 but in Sec. 5 thereof. Thus:

Section 5. Definition of Prohibited Concerted Mass Action. - As used in this Omnibus Rules, the phrase ‘‘prohibited concerted activity or
mass action’’ shall be understood to refer to any collective activity undertaken by government employees, by themselves or through
their employees organizations, with the intent of effecting work stoppage or service disruption in order to realize their demands of force
concession, economic or otherwise, from their respective agencies or the government. It shall include mass leaves, walkouts, pickets
and acts of similar nature.39(Emphasis ours).

The operative phrases are "any collective activity" and "work stoppage or service disruption." Without the intent at work stoppage or
service disruption, the concerted activity is not prohibited. The time and place of the activity are not determinative of the prohibition.
Whether done within government hours, a concerted activity is allowed if it is without any intent at work stoppage.

We cannot isolate the provision of Section 6 of the Resolution from definition of prohibited activity in Section 5 thereof. It is erroneous to
interpret the provisions in such a way that an act not within the circumstances as defined under Section 5 can still be regarded as
prohibited if done within government hours. To subscribe to the argument of DCWD would in effect expand the definition provided by
Resolution No. 021316 on what constitutes a prohibited mass action.

It is clear that the collective activity of joining the fun run in t-shirts with inscriptions on CNA incentives was not to effect work stoppage
or disrupt the service. As pointed out by the respondents, they followed the advice of GM Gamboa "to be there" at the fun run.
Respondents joined, and did not disrupt the fun run. They were in sports attire that they were allowed, nay required, to wear. Else,
government employees would be deprived of their constitutional right to freedom of expression. 40 This, then, being the fact, we have to
rule against the findings of both the CSC and Court of Appeals that the wearing of t-shirts with grievance inscriptions constitutes as a
violation of Reasonable Office Rules and Regulations.

First off and as correctly pointed out by the charged officials and members in their 19 November 2007 Reply Letter to DCWD, they did
not violate the 31 October 2007 Office Memorandum issued by GM Gamboa relating to the proper attire to be worn during the fun run.
The Office Memorandum was clear in its order that the participants are free to wear any sports attire during the event. To reiterate, the
t-shirts they wore fall within the description of "any sports attire" that the Memorandum allowed to be worn.

More importantly we need to refer to GSIS v. Villaviza (GSIS case).41 It was there ruled that the acts of GSIS employees wearing
similarly colored shirts while attending a public hearing inside the GSIS Office, with clenching of fists and orating against the then
President Winston Garcia, were not constitutive of a prohibited activity but were only an exercise of their constitutional freedom of
expression.42 We repeat:

In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red shirts to witness a public hearing do not
amount to a concerted activity or mass action proscribed above. CSC even added that their actuations can be deemed an exercise of
their constitutional right to freedom of expression. The CA found no cogent reason to deviate therefrom.

As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political rights of those in the government service,
the concerted activity or mass action proscribed must be coupled with the "intent of effecting work stoppage or service disruption in
order to realize their demands of force concession. "Wearing similarly colored shirts, attending a public hearing at the GSIS-IU office,
bringing with them recording gadgets, clenching their fists, some even badmouthing the guards and PGM Garcia, are acts not
constitutive of an (i) intent to effect work stoppage or service disruption and (ii) for the purpose of realizing their demands or force
concession.

Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are there to temper and focus the
application of such prohibition. Not all collective activity or mass undertaking of government employees is prohibited. Otherwise, we
would be totally depriving our brothers and sisters in the government service of their constitutional right to freedom of expression.43

DCWD also found that Cagula and the rest of the officials violated MC No. 33 in relation to 8 February 1996 Office Memorandum.
DCWD also argues that a violation of this circular constitutes as a serious violation of CSC Rules as the circular is a CSC-issued
Memorandum and not just a mere issuance of DCWD.

CSC issued MC No. 33 in recognition of the rights of the government employees to air their grievances balanced by the delivery of
services to the public which should not be prejudiced. MC No. 33 sets down rules governing the posting of posters and other similar
materials within the premises of government agencies as follows:

1. All head of agencies are hereby directed to provide specific spaces within their respective premises, preferably near the
bundy clock, at the canteen or places normally frequented by employees, where employees’ unions/associations could post
their posters.

2. x x x.

3. The hanging of posters and streamers shall only be allowed in the designated areas.

4. No poster, placard, streamer or other similar materials containing abusive, vulgar, defamatory or libelous language shall be
allowed.

Pursuant to this mandate, the former General Manager of DCWD issued an office memorandum designating the bulletin board at the
motor pool area below the Office of the Purchasing Division and the side of the office building beside the guard house where the bundy
clock is located as the designated areas for posting of grievances.44Clearly, the DCWD Office Memorandum hews close and faithfully to
MC No. 33. It is a reasonable rule issued by the heads of the agencies in order to regulate posting of grievances of the employees.

It is correct to conclude that those who enter government service are subjected to a different degree of limitation on their freedom to
speak their mind; however, it is not tantamount to the relinquishment of their constitutional right of expression otherwise enjoyed by
citizens just by reason of their employment.45 Unarguably, a citizen who accepts public employment "must accept certain limitations on
his or her freedom." But there are some rights and freedoms so fundamental to liberty that they cannot be bargained away in a contract
for public employment. It is the Court’s responsibility to ensure that citizens are not deprived of these fundamental rights by virtue of
working for the government.46

The GSIS case pronounced:

Government workers, whatever their ranks, have as much right as any person in the land to voice out their protests against what they
believe to be a violation of their rights and interests. Civil Service does not deprive them of their freedom of expression. It would be
unfair to hold that by joining the government service, the members thereof have renounced or waived this basic liberty. This freedom
can be reasonably regulated only but can never be taken away. 47

In simple paraphrase we say, regulation of the freedom of expression is not removal of the constitutional right.
Apparently, DCWD, not satisfied by the CSC ruling that a violation of the memorandum is punishable with reprimand, argues that what
occurred was a serious violation implying that a higher penalty is warranted.

Under Section 52 (C) (3), Rule IV of Resolution No. 991936,48 violation of reasonable office rules and regulations is punishable with
reprimand on the first offense and suspension ranging from one to thirty days for the second offense.

In Re: Failure of Various Employees to Register their Time of Arrival and/or Departure from Office in the Chronolog Machine, the
charged court employees were penalized for violation of reasonable office rules and regulations due to their violation of Supreme Court
Administrative Circular No. 36-2001 requiring all employees to register their daily attendance, in the Chronolog Time Recorder Machine
(CTRM) and in the logbook of their respective offices. Following Resolution No. 991936 that violation of reasonable rules and
regulations is a light offense, the Court penalized its erring employees with the penalty of reprimand.49

Thus, in line with the civil service rules and jurisprudence, we conclude that a violation of an office memorandum, which was issued as
an internal rule to regulate the area for posting of grievances inside the office premise, is only a light offense punishable by reprimand.

Rules and regulations are issued to attain harmony, smooth operation, maximize efficiency and productivity, with the ultimate objective
of realizing the functions of particular offices and agencies of the government. 50

On the submissions that the decisions of a government agency, acting as Disciplining Authority, are immediately executory upon receipt
thereof, we need merely cite Section 37 of the Resolution No. 991936 which clearly provides that:

Section 37. Finality of Decisions. — A decision rendered by heads of agencies whereby a penalty of suspension for not more than thirty
(30) days or a fine in an amount not exceeding thirty (30) days' salary is imposed, shall be final and executory. However, if the penalty
imposed is suspension exceeding thirty (30) days, or fine in an amount exceeding thirty (30) days salary, the same shall be final and
executory after the lapse of the reglementary period for filing a motion for reconsideration or an appeal and no such pleading has been
filed.51

As distinguished by the law, if the imposed suspension exceeds thirty days or the fine imposed is in an amount over thirty-day salary,
the decision will only attain finality after the lapse of the reglementary period in the absence of any motion for reconsideration or appeal.
Penalties within the 30-day threshold are immediately executory penalties.

In this case, the members and officials, except the casual employees who were not meted with penalty as the renewal of their
employment was held in abeyance, were sanctioned with penalties ranging from suspension of work from one (1) month and one (1)
day to dismissal from service.52 Evidently, the finality and execution of the judgment did not take place after the lapse of the
reglementary period because as previously discussed, the members and officials were able to file their consolidated appeal in lieu of
notice of appeal.

As clear as the provision on the finality of decisions is Section 42 of Resolution No. 991936 on the effect of motions for
reconsideration.1âwphi1 Thus:

Section 42. Effect of Filing. — The filing of a motion for reconsideration within the reglementary period of fifteen (15) days shall stay the
execution of the decision sought to be reconsidered.53 (Emphasis ours)

The first and fundamental duty of the Court is to apply the law. If the law is clear and free from any doubt or ambiguity as the quoted
provision, there is no room for construction or interpretation. The letter must be taken to mean exactly what it says and the court has no
choice but to see to it that its mandate is obeyed.54

The ponente appreciates the concurrence of Justice Marvic M.V.F. Leonen. No need was seen, though, to add to the ruling that the
present facts limited.

WHEREFORE, We DENY the petition for review on certiorari. Nonetheless, the decision of the CSC which was affirmed in toto by the
CA is MODIFIED. The finding of administrative liability of and the penalty of reprimand against the NAMADACWAD members namely
Danilo L. Buhay, Pedro E. Alcala, Joseph A. Valdez, Tito V. Sabangan, Marcelino B. Anino, Juanito C. Pansacala, Joemarie B. Alba,
Antero M. Ymas, Rolando L. Largo, Reneboy U. Esteban, Manuel B. Libang, Romeorico A. Llanos, Arthur C. Bachiller, Socrates V.
Corcuera, Alejandro C. Pichon, Graciano A. Moncada, Rolando K. Escorial, Noel A. Dagale, Emilio S. Molina, Sherwin S. Solamo, and
Fulgencio I. Dyguazo are hereby REVERSED and SET ASIDE.

The finding of liability against the casual employees namely Edwin A. dela Peña, Jummy A. Trocio, Wilfredo L. Torreon, Alejandrito M.
Alo, Raul S. Saga, Joselito P. Riconalla, Trisebal Q. Aguilar, Arman N. Lorenzo, Sr. and Pedro C. Gunting is REVERSED and SET
ASIDE.

As to officers Gualberto S. Pagatpat, Joseph B. Artajo, Felixberto Q. Obenza, Florante A. Ferraren, Elsa A. Elorde, Carlos P. Morre,
James Aquilino M. Coloma, Joaquin O. Cadorna, Jr., Lorna M. Maxino, Romulo A. Reyes, Noel G. Legaspi, Eleanor R.Lamoste,
Welmer E. Crasco, Delio T. Olaer, Vicente R. Masucol, Ireneo Cubal, Rodrigo L. Aranjuez, Gregorio S. Cagula and Celestino A.
Bondoc, the penalty of reprimand and strong warning that a repetition of the same shall be dealt with severely is hereby AFFIRMED.

SO ORDERED.

JOSE PORTUGAL PEREZ

Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M. NAVARRA and THE BISHOP
HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from
them." – Article II, Section 1, Constitution

All governmental authority emanates from our people. No unreasonable restrictions of the fundamental and preferred right to
expression of the electorate during political contests no matter how seemingly benign will be tolerated.

This case defines the extent that our people may shape the debates during elections. It is significant and of first impression. We are
asked to decide whether the Commission on Elections (COMELEC) has the competence to limit expressions made by the citizens —
who are not candidates — during elections.

Before us is a special civil action for certiorari and prohibition with application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign Materials 2 dated February 22,
2013 and letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing the San Sebastian Cathedral of
Bacolod. Each tarpaulin was approximately six feet (6') by ten feet (10') in size. They were posted on the front walls of the cathedral
within public view. The first tarpaulin contains the message "IBASURA RH Law" referring to the Reproductive Health Law of 2012 or
Republic Act No. 10354. The second tarpaulin is the subject of the present case. 4 This tarpaulin contains the heading "Conscience
Vote" and lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The
electoral candidates were classified according to their vote on the adoption of Republic Act No. 10354, otherwise known as the RH
Law.6Those who voted for the passing of the law were classified by petitioners as comprising "Team Patay," while those who voted
against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for by any candidate. Petitioners also
conceded that the tarpaulin contains names ofcandidates for the 2013 elections, but not of politicians who helped in the passage of the
RH Law but were not candidates for that election.

On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of Bacolod City, issued a Notice to
Remove Campaign Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s
removal within three (3) days from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size requirement of two
feet (2’) by three feet (3’).9

On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop be given a definite ruling by COMELEC
Law Department regarding the tarpaulin; and (2) pending this opinion and the availment of legal remedies, the tarpaulin be allowed to
remain.11

On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate removal of the tarpaulin; otherwise, it will
be constrained to file an election offense against petitioners. The letter of COMELEC Law Department was silenton the remedies
available to petitioners. The letter provides as follows:

Dear Bishop Navarra:

It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already given you notice on February 22,
2013 as regards the election propaganda material posted on the church vicinity promoting for or against the candidates and party-list
groups with the following names and messages, particularly described as follows:

Material size : six feet (6’) by ten feet (10’)

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY

The three (3) – day notice expired on February 25, 2013.

Considering that the above-mentioned material is found to be in violation of Comelec Resolution No. 9615 promulgated on January 15,
2013 particularly on the size (even with the subsequent division of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2’) by three feet (3’), please order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election offense case against you.

We pray that the Catholic Church will be the first institution to help the Commission on Elections inensuring the conduct of peaceful,
orderly, honest and credible elections.

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners initiated this case through this petition
for certiorari and prohibition with application for preliminary injunction and temporary restraining order. 14 They question respondents’
notice dated February 22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due course; (2) a
temporary restraining order (TRO) and/or a writ of preliminary injunction be issued restraining respondents from further proceeding in
enforcing their orders for the removal of the Team Patay tarpaulin; and (3) after notice and hearing, a decision be rendered declaring
the questioned orders of respondents as unconstitutional and void, and permanently restraining respondents from enforcing them or
any other similar order.15

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining respondents from enforcing the
assailed notice and letter, and set oral arguments on March 19, 2013. 16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and prohibition under Rule 65 of the
Rules of Court filed before this court is not the proper remedy to question the notice and letter of respondents; and (2) the tarpaulin is
an election propaganda subject to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and constitutional.18

During the hearing held on March 19, 2013, the parties were directed to file their respective memoranda within 10 days or by April 1,
2013, taking into consideration the intervening holidays. 19

The issues, which also served as guide for the oral arguments, are:20

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013
ORDER BY THE COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC WHICH WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]

A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS DOCTRINE AND JURISPRUDENTIAL

RULES GOVERNING APPEALS FROM COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT CONSIDERED

JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;]

III.

WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR ELECTION

PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF EXPRESSION, WHETHER THE
COMELEC POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]

B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY 2013
ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

Respondents ask that this petition be dismissed on the ground that the notice and letter are not final orders, decisions, rulings, or
judgments of the COMELEC En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule 64 of the Rules of Court. 21

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to raise objections relating to a grave
abuse of discretion resulting in the ouster of jurisdiction. 22 As a special civil action, there must also be a showing that there be no plain,
speedy, and adequate remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court, whose power to review is "limited only to
final decisions, rulings and orders of the COMELEC En Banc rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article IX-C,
Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting elections. 25 Respondents invoke the cases of
Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the COMELEC En Banc. 31

These cases are not applicable.

In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the election protest. 32 At issue was the
validity of the promulgation of a COMELEC Division resolution. 33 No motion for reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not have jurisdiction and clarified:

We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and decisionsof the COMELEC rendered
in the exercise of its adjudicatory or quasi-judicial powers." This decision must be a final decision or resolution of the Comelec en banc,
not of a division, certainly not an interlocutory order of a division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the Commission on Elections. 35 (Emphasis in the original, citations omitted)

However, in the next case cited by respondents, Repol v. COMELEC, this court provided exceptions to this general rule. Repolwas
another election protest case, involving the mayoralty elections in Pagsanghan, Samar. 36 This time, the case was brought to this court
because the COMELEC First Division issued a status quo ante order against the Regional Trial Court executing its decision pending
appeal.37 This court’s ponencia discussed the general rule enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory
orders of a COMELEC Division.38However, consistent with ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the
exception:

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over
to prevent miscarriage of justice, when the issue involves the principle of social justice or the protection of labor, when the decision or
resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate and
speedy remedy available.40

Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral contests — despite not being reviewed
by the COMELEC En Banc, if:

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

4) The decision or resolution sought tobe set aside is a nullity; or

5) The need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.

Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued by the COMELEC Division was
unconstitutional.

Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case involving candidates for the city council of
Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari against an interlocutory order of the COMELEC
First

Division.42 While the petition was pending in this court, the COMELEC First Division dismissed the main election protest
case.43 Sorianoapplied the general rule that only final orders should be questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN.44

Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled that petitioner could not qualify for the 2007 elections due to the
findings in an administrative case that he engaged in vote buying in the 1995 elections. 46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took cognizance of this case applying one of the exceptions in ABS-CBN: The assailed
resolution was a nullity.47

Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the mayoralty candidates of Taguig
City.48 Petitioner assailed a resolution of the COMELEC denying her motion for reconsideration to dismiss the election protest petition
for lack of form and substance.49 This court clarified the general rule and refused to take cognizance of the review of the COMELEC
order. While recognizing the exceptions in ABS-CBN, this court ruled that these exceptions did not apply. 50

Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as precedents to oust this court from taking
jurisdiction over this case. All these cases cited involve election protests or disqualification cases filed by the losing candidate against
the winning candidate.

In the present case, petitioners are not candidates seeking for public office. Their petition is filed to assert their fundamental right to
expression.

Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its adjudicatory or quasi-judicial power. This
case pertains to acts of COMELEC in the implementation of its regulatory powers. When it issued the notice and letter, the COMELEC
was allegedly enforcingelection laws.

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and the "chilling effect" caused by
respondent COMELEC’s notice and letter.

Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
notice51 dated February 22,2013 and letter52 dated February 27, 2013 ordering the removal of the tarpaulin. 53 It is their position that
these infringe on their fundamental right to freedom of expression and violate the principle of separation of church and state and, thus,
are unconstitutional.54

The jurisdiction of this court over the subject matter is determined from the allegations in the petition. Subject matter jurisdiction is
defined as the authority "to hear and determine cases of the general class to which the proceedings in question belong and is conferred
by the sovereign authority which organizes the court and defines its powers." 55Definitely, the subject matter in this case is different from
the cases cited by respondents.

Nothing less than the electorate’s political speech will be affected by the restrictions imposed by COMELEC. Political speech is
motivated by the desire to be heard and understood, to move people to action. It is concerned with the sovereign right to change the
contours of power whether through the election of representatives in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech does not depend on our evaluation of the cogency of the message.
Neither do we assess whether we should protect speech based on the motives of COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and medium because the quality of this freedom in practice will define the quality
of deliberation in our democratic society.

COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of repetition. Under the conditions in which it was
issued and in view of the novelty of this case,it could result in a "chilling effect" that would affect other citizens who want their voices
heard on issues during the elections. Other citizens who wish to express their views regarding the election and other related issues may
choose not to, for fear of reprisal or sanction by the COMELEC. Direct resort to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform for raising grave abuse of discretion.

Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this court’s expanded exercise of certiorari as
provided by the Constitution as follows:

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether ornot 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. 56(Emphasis supplied)

On the other hand, respondents relied on its constitutional mandate to decide all questions affectingelections. Article IX-C, Section 2(3)
of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location
of polling places, appointment of election officials and inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.

We are not confronted here with the question of whether the COMELEC, in its exercise of jurisdiction, gravely abused it. We are
confronted with the question as to whether the COMELEC had any jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.

It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter on free speech. This does not fall
under Article IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this provision cannot be interpreted to mean that
COMELEC has the exclusive power to decide any and allquestions that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this court of its own jurisdiction.

The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the Constitution.This provision provides for this
court’s original jurisdiction over petitions for certiorari and prohibition. This should be read alongside the expanded jurisdiction of the
court in Article VIII, Section 1 of the Constitution.

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of discretion. Thus, the constitutionality of the
notice and letter coming from COMELEC is within this court’s power to review.

During elections, we have the power and the duty to correct any grave abuse of discretion or any act tainted with unconstitutionality on
the part of any government branch or instrumentality. This includes actions by the COMELEC. Furthermore, it is this court’s
constitutional mandate to protect the people against government’s infringement of their fundamental rights. This constitutional mandate
out weighs the jurisdiction vested with the COMELEC.

It will, thus, be manifest injustice if the court does not take jurisdiction over this case.

I.C

Hierarchy of courts

This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in directly filing their petition before this
court.

Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition.57 They add that observation of the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions to the general rule on hierarchy of courts, none of these are present
in this case.59

On the other hand, petitioners cite Fortich v. Corona 60 on this court’s discretionary power to take cognizance of a petition filed directly to
it if warranted by "compelling reasons, or [by] the nature and importance of the issues raised. . . ."61 Petitioners submit that there are
"exceptional and compelling reasons to justify a direct resort [with] this Court." 62

In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of courts:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be ignored
without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with causes that are also
well within the competence of the lower courts, and thus leave time to the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on petitions for the extraordinary writs of certiorari, prohibition and
mandamus only when absolutely necessary or when serious and important reasons exist to justify an exception to the policy. 64

In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of certiorari, prohibition, and mandamus, citing
Vergara v. Suelto:65

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and should not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of the
Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard, a policy that courts and lawyers must strictly
observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts from the evaluation of the
evidence presented before them. They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution. 67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their writs generally reach within those territorial boundaries. Necessarily,
they mostly perform the all-important task of inferring the facts from the evidence as these are physically presented before them. In
many instances, the facts occur within their territorial jurisdiction, which properly present the ‘actual case’ that makes ripe a
determination of the constitutionality of such action. The consequences, of course, would be national in scope. There are, however,
some cases where resort to courts at their level would not be practical considering their decisions could still be appealed before the
higher courts, such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made by the trial
courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the trial court. But the Court of
Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide scope. It is
competent to determine facts and, ideally, should act on constitutional issues thatmay not necessarily be novel unless there are factual
questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating — in the light of new circumstances or in
the light of some confusions of bench or bar — existing precedents. Rather than a court of first instance or as a repetition of the actions
of the Court of Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect constitutional rights when these
become exigent should not be emasculated by the doctrine in respect of the hierarchy of courts. That has never been the purpose of
such doctrine.

Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary power to take cognizance and
assume jurisdiction [over] special civil actions for certiorari . . .filed directly with it for exceptionally compelling reasons 69 or if warranted
by the nature of the issues clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have provided
exceptions to this doctrine:

First, a direct resort to this court is allowed when there are genuine issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the remedies of certiorari and prohibition toassail the constitutionality of
actions of both legislative and executive branches of the government. 72

In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom of expression in the present case, but
also of others in future similar cases. The case before this court involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private citizens actively engage the public in political discourse. To quote an
eminent political theorist:

[T]he theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic
procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and
invigorated by the idea of new society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73

In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of political decision-making is recognized.
It deserves the highest protection the courts may provide, as public participation in nation-building isa fundamental principle in our
Constitution. As such, their right to engage in free expression of ideas must be given immediate protection by this court.

A second exception is when the issuesinvolved are of transcendental importance.74 In these cases, the imminence and clarity of the
threat to fundamental constitutional rights outweigh the necessity for prudence. The doctrine relating to constitutional issues of
transcendental importance prevents courts from the paralysis of procedural niceties when clearly faced with the need for substantial
protection.

In the case before this court, there is a clear threat to the paramount right of freedom of speech and freedom of expression which
warrants invocation of relief from this court. The principles laid down in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing their votes. It may be said that in
an election year, the right to vote necessarily includes the right to free speech and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no jurisprudence yet exists that will
guide the lower courts on this matter. In Government of the United States v. Purganan,76 this court took cognizance of the case as a
matter of first impression that may guide the lower courts:

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we deem it best to take
cognizance of the present case. Such proceedings constitute a matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77

This court finds that this is indeed a case of first impression involving as it does the issue of whether the right of suffrage includes the
right of freedom of expression. This is a question which this court has yet to provide substantial answers to, through jurisprudence.
Thus, direct resort to this court is allowed.

Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court held that:

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher judgmentof this Court in the consideration
of its validity, which is better determined after a thorough deliberation by a collegiate body and with the concurrence of the majority of
those who participated in its discussion.79 (Citation omitted)

In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with finality on whether COMELEC committed
grave abuse of discretion or performed acts contrary to the Constitution through the assailed issuances.

Fifth, the time element presented in this case cannot be ignored. This case was filed during the 2013 election period. Although the
elections have already been concluded, future cases may be filed that necessitate urgency in its resolution. Exigency in certain
situations would qualify as an exception for direct resort to this court.

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional body. In Albano v. Arranz,80 cited by
petitioners, this court held that "[i]t is easy to realize the chaos that would ensue if the Court of First Instance ofeach and every province
were [to] arrogate itself the power to disregard, suspend, or contradict any order of the Commission on Elections: that constitutional
body would be speedily reduced to impotence." 81

In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies with the lower courts, any ruling on their
part would not have been binding for other citizens whom respondents may place in the same situation. Besides, thiscourt affords great
respect to the Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court would be in the best
interest of respondents, in order that their actions may be guided accordingly in the future.

Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in the ordinary course of law that could
free them from the injurious effects of respondents’ acts in violation of their right to freedom of expression.

In this case, the repercussions of the assailed issuances on this basic right constitute an exceptionally compelling reason to justify the
direct resort to this court. The lack of other sufficient remedies in the course of law alone is sufficient ground to allow direct resort to this
court.

Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found to be patent nullities, or the appeal was consideredas clearly an
inappropriate remedy."82 In the past, questions similar to these which this court ruled on immediately despite the doctrine of hierarchy of
courts included citizens’ right to bear arms,83 government contracts involving modernization of voters’ registration lists, 84 and the status
and existence of a public office.85

This case also poses a question of similar, if not greater import. Hence, a direct action to this court is permitted.

It is not, however, necessary that all of these exceptions must occur at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case falls under the recognized exceptions and, as such, may be resolved
by this court directly.

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question, hence not within the ambit of this
court’s power of review. They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC 86 to support their position:

It might be worth mentioning that Section 26, Article II, of the Constitution also states that the "State shall guarantee equal access to
opportunities for public service, and prohibit political dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26,
Article II, of the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free expression. In any event, the
latter, being one of general application, must yield to the specific demands of the Constitution. The freedom of expression concededly
holds, it is true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not without
limitations.

The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the "weak" in our society but it is to me a
genuine attempt on the part of Congress and the Commission on Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life to the candidates’ right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the enactment of the law, i.e., that which the legislature deems to be best in
giving life to the Constitutional mandate, is not for the Court to question; it is a matter that lies beyond the normal prerogatives of the
Court to pass upon.87

This separate opinion is cogent for the purpose it was said. But it is not in point in this case.

The present petition does not involve a dispute between the rich and poor, or the powerful and weak, on their equal opportunities for
media coverage of candidates and their right to freedom of expression. This case concerns the right of petitioners, who are non-
candidates, to post the tarpaulin in their private property, asan exercise of their right of free expression. Despite the invocation of the
political question doctrine by respondents, this court is not proscribed from deciding on the merits of this case.

In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a political question:

What is generally meant, when it is said that a question is political, and not judicial, is that it is a matter which is to be exercised by the
people in their primary political capacity, or that it has been specifically delegated to some other department or particular officer of the
government, withdiscretionary power to act.89 (Emphasis omitted)

It is not for this court to rehearse and re-enact political debates on what the text of the law should be. In political forums, particularly the
legislature, the creation of the textof the law is based on a general discussion of factual circumstances, broadly construed in order to
allow for general application by the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.

Courts, on the other hand, rule on adversarial positions based on existing facts established on a specific case-to-case basis, where
parties affected by the legal provision seek the courts’ understanding of the law.

The complementary nature of the political and judicial branches of government is essential in order to ensure that the rights of the
general public are upheld at all times. In order to preserve this balance, branches of government must afford due respectand deference
for the duties and functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence dictates that
we are careful not to veto political acts unless we can craft doctrine narrowly tailored to the circumstances of the case.

The case before this court does not call for the exercise of prudence or modesty. There is no political question. It can be acted upon by
this court through the expanded jurisdiction granted to this court through Article VIII, Section 1 of the Constitution.

A political question arises in constitutional issues relating to the powers or competence of different agencies and departments of the
executive or those of the legislature. The political question doctrine is used as a defense when the petition asks this court to nullify
certain acts that are exclusively within the domain of their respective competencies, as provided by the Constitution or the law. In such
situation, presumptively, this court should act with deference. It will decline to void an act unless the exercise of that power was so
capricious and arbitrary so as to amount to grave abuse of discretion.

The concept of a political question, however, never precludes judicial review when the act of a constitutional organ infringes upon a
fundamental individual or collective right. Even assuming arguendo that the COMELEC did have the discretion to choose the manner of
regulation of the tarpaulin in question, it cannot do so by abridging the fundamental right to expression.

Marcos v. Manglapus90 limited the use of the political question doctrine:

When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not
established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law
is for the latter alone to decide.91

How this court has chosen to address the political question doctrine has undergone an evolution since the timethat it had been first
invoked in Marcos v. Manglapus. Increasingly, this court has taken the historical and social context of the case and the relevance of
pronouncements of carefully and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987 Constitution involving the removal of
petitioners from the Commission on Appointments. In times past, this would have involved a quint essentially political question as it
related to the dominance of political parties in Congress. However, in these cases, this court exercised its power of judicial review
noting that the requirement of interpreting the constitutional provision involved the legality and not the wisdom of a manner by which a
constitutional duty or power was exercised. This approach was again reiterated in Defensor Santiago v. Guingona, Jr. 94

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible existence ofa political question did not bar
an examination of whether the exercise of discretion was done with grave abuse of discretion. In that case, this court ruled on the
question of whether there was grave abuse of discretion in the President’s use of his power to call out the armed forces to prevent and
suppress lawless violence.

In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President resigned was not a political question
even if the consequences would be to ascertain the political legitimacy of a successor President.

Many constitutional cases arise from political crises. The actors in such crises may use the resolution of constitutional issues as
leverage. But the expanded jurisdiction of this court now mandates a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.

This court’s understanding of the political question has not been static or unbending. In Llamas v. Executive Secretary Oscar
Orbos,97 this court held:

While it is true that courts cannot inquire into the manner in which the President's discretionary powers are exercised or into the wisdom
for its exercise, it is also a settled rule that when the issue involved concerns the validity of such discretionary powers or whether said
powers are within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial review. And such review
does not constitute a modification or correction of the act of the President, nor does it constitute interference with the functions of the
President.98

The concept of judicial power in relation to the concept of the political question was discussed most extensively in Francisco v.
HRET.99 In this case, the House of Representatives arguedthat the question of the validity of the second impeachment complaint that
was filed against former Chief Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and dissenting opinion:

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new Constitution which expanded the
definition of judicial power as including "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." As well observed by retired Justice Isagani Cruz, this
expanded definition of judicial power considerably constricted the scope of political question. He opined that the language luminously
suggests that this duty (and power) is available even against the executive and legislative departments including the President and the
Congress, in the exercise of their discretionary powers. 100 (Emphasis in the original, citations omitted)

Francisco also provides the cases which show the evolution of the political question, as applied in the following cases:

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The present Constitution limits resort to the
political question doctrine and broadens the scope of judicial inquiry into areas which the Court,under previous constitutions, would
have normally left to the political departments to decide. x x x

In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court declared:

The "allocation of constitutional boundaries" is a task that this Court must perform under the Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither interposes an obstacle to judicial determination of the rival claims. The jurisdiction to
delimit constitutional boundaries has been given to this Court. It cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the applicability of the principle in appropriate cases." (Emphasis and italics
supplied)

And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:

In the case now before us, the jurisdictional objection becomes even less tenable and decisive. The reason is that, even if we were to
assume that the issue presented before us was political in nature, we would still not be precluded from resolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases, even the political question.x x x (Emphasis and italics supplied.)

....

In our jurisdiction, the determination of whether an issue involves a truly political and non-justiciable question lies in the answer to the
question of whether there are constitutionally imposed limits on powers or functions conferred upon political bodies. If there are, then
our courts are duty-bound to examine whether the branch or instrumentality of the government properly acted within such
limits.101 (Citations omitted)

As stated in Francisco, a political question will not be considered justiciable if there are no constitutionally imposed limits on powers or
functions conferred upon political bodies. Hence, the existence of constitutionally imposed limits justifies subjecting the official actions
of the body to the scrutiny and review of this court.

In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance that this right may be abridged
demands judicial scrutiny. It does not fall squarely into any doubt that a political question brings.

I.E

Exhaustion of administrative remedies

Respondents allege that petitioners violated the principle of exhaustion of administrative remedies. Respondents insist that petitioners
should have first brought the matter to the COMELEC En Banc or any of its divisions. 102

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law." 103 They add that the proper venue to assail the validity of the assailed issuances
was in the course of an administrative hearing to be conducted by COMELEC. 104 In the event that an election offense is filed against
petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies prescribed in Rule 34 of the COMELEC
Rules of Procedure.105

The argument on exhaustion of administrative remedies is not proper in this case.

Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is already ripe for adjudication. Ripeness
is the "prerequisite that something had by then been accomplished or performed by either branch [or in this case, organ of government]
before a court may come into the picture." 106

Petitioners’ exercise of their rightto speech, given the message and their medium, had understandable relevance especially during the
elections. COMELEC’s letter threatening the filing of the election offense against petitioners is already an actionable infringement of this
right. The impending threat of criminal litigation is enough to curtail petitioners’ speech.

In the context of this case, exhaustion of their administrative remedies as COMELEC suggested in their pleadings prolongs the violation
of their freedom of speech.

Political speech enjoys preferred protection within our constitutional order. In Chavez v. Gonzales, 107 Justice Carpio in a separate
opinion emphasized: "[i]f everthere is a hierarchy of protected expressions, political expression would occupy the highest rank, and
among different kinds of political expression, the subject of fair and honest elections would be at the top." 108 Sovereignty resides in the
people.109 Political speech is a direct exercise of the sovereignty. The principle of exhaustion of administrative remedies yields in order
to protect this fundamental right.

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current controversy is within the exceptions
to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial action may be validly resorted to
immediately: (a) when there is a violation of due process; (b) when the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a department secretary whose acts as
analter ego of the President bear the implied and assumed approval of the latter; (g) when to require exhaustion of administrative
remedies would be unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a private land in
land case proceedings; (j) whenthe rule does not provide a plain, speedy and adequate remedy; or (k) when there are circumstances
indicating the urgency of judicial intervention." 111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners allegethat the assailed issuances
violated their right to freedom of expression and the principle of separation of church and state. This is a purely legal question. Second,
the circumstances of the present case indicate the urgency of judicial intervention considering the issue then on the RH Law as well as
the upcoming elections. Thus, to require the exhaustion of administrative remedies in this case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to except a case from their operation when
compelling reasons so warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause
that will merit suspension of the rules is discretionary upon the court". 112Certainly, this case of first impression where COMELEC has
threatenedto prosecute private parties who seek to participate in the elections by calling attention to issues they want debated by the
publicin the manner they feel would be effective is one of those cases.
 II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the power to regulate the
tarpaulin.113 However, all of these provisions pertain to candidates and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections. 114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the creation of the Cordillera
Autonomous Region.116 Columnist Pablito V. Sanidad questioned the provision prohibiting journalists from covering plebiscite issues on
the day before and on plebiscite day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this provision is the possibility that a
franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or radio or television time." 119 This
court found that "[m]edia practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders
nor the candidates[,]"120 thus, their right to expression during this period may not be regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates. II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision only affects
candidates.

Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was followed bythe assailed letter regarding
the "election propaganda material posted on the church vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and "candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common poster
areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein
candidates can post, display or exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12) by
sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates
may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or property which
shall be allocated equitably and impartially among the candidates. (Emphasis supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the Fair Election Act, provides as
follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful campaign material in:
 a. Authorized common poster areasin public places subject to the requirements and/or limitations set forth in the next following
section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas and those enumerated under
Section 7 (g) of these Rules and the like is prohibited. Persons posting the same shall be liable together with the candidates and other
persons who caused the posting. It will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which shall be issued by the Election Officer
of the city or municipality where the unlawful election propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror other officials of the COMELEC shall
apprehend the violators caught in the act, and file the appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above provisions regulating the posting of
campaign materials only apply to candidates and political parties, and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are "allowed for all registered political
parties, national, regional, sectoral parties or organizations participating under the party-list elections and for all bona fide candidates
seeking national and local elective positions subject to the limitation on authorized expenses of candidates and political parties. . . ."
Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions show that election propaganda refers to
matter done by or on behalf of and in coordination with candidates and political parties. Some level of coordination with the candidates
and political parties for whom the election propaganda are released would ensure that these candidates and political parties maintain
within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party. 125 There was no allegation that petitioners coordinated with any of the
persons named in the tarpaulin regarding its posting. On the other hand, petitioners posted the tarpaulin as part of their advocacy
against the RH Law. Respondents also cite National Press Club v. COMELEC 126 in arguing that its regulatory power under the
Constitution, to some extent, set a limit on the right to free speech during election period. 127

National Press Club involved the prohibition on the sale and donation of space and time for political advertisements, limiting political
advertisements to COMELEC-designated space and time. This case was brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of the candidates. 128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However, this case does not apply as most
of the petitioners were electoral candidates, unlike petitioners in the instant case. Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their qualifications, and program for government. Compared to Sanidadwherein
the columnists lost their ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not involve the
same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013 national elections because of the
COMELEC notice and letter. It was not merelya regulation on the campaigns of candidates vying for public office. Thus, National Press
Clubdoes not apply to this case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code, defines an"election campaign" as
follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for
public office;
 (4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants for nomination for candidacy to a
public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan election
activity. Public expressions or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political parties themselves. The focus of the
definition is that the act must be "designed to promote the election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of either appreciation or criticism on votes
made in the passing of the RH law. Thus, petitioners invoke their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their fundamental right to freedom of
expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their regulation pursuant to their
mandate under Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering itsremoval for being oversized
are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of grievances. 132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law Department, this court has applied
Article III, Section 4 of the Constitution even to governmental acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised Ordinances of 1927 of Manila for the
public meeting and assembly organized by petitioner Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and
public places for purposes such as athletic games, sports, or celebration of national holidays. 135 What was questioned was not a law
but the Mayor’s refusal to issue a permit for the holding of petitioner’s public meeting.136 Nevertheless, this court recognized the
constitutional right to freedom of speech, to peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the
petition for mandamus to compel respondent Mayor to issue the permit was granted. 138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution No. 98-1419 where the COMELEC
resolved to approve the issuance of a restraining order to stop ABS-CBN from conducting exit surveys.139 The right to freedom of
expression was similarly upheld in this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the abridgment of speech should not
mean an absolute prohibition against regulation. The primary and incidental burden on speech must be weighed against a compelling
state interest clearly allowed in the Constitution. The test depends on the relevant theory of speech implicit in the kind of society framed
by our Constitution.

. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition to the freedom of speech and of the
press provided in the US Constitution. The word "expression" was added in the 1987 Constitution by Commissioner Brocka for having a
wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29, it says: "No law shall be passed
abridging the freedom of speech." I would like to recommend to the Committee the change of the word "speech" to EXPRESSION; or if
not, add the words AND EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it would refer
to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none; the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of speech, expression or of the press . . .
."141 Speech may be said to be inextricably linked to freedom itself as "[t]he right to think is the beginning of freedom, and speech must
be protected from the government because speech is the beginning of thought." 142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a speaker, seeking to signal others,
uses conventional actions because he orshe reasonably believes that such actions will be taken by the audience in the manner
intended; and (2) the audience so takes the actions." 144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification." 145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the [right to freedom of expression].’" 147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances made to conduct enacted, and even
to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of the religious sect Jehovah’s
Witnesses were to be expelled from school for refusing to salute the flag, sing the national anthem, and recite the patriotic pledge.149 In
his concurring opinion, Justice Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that guarantees to the individual the
liberty to utter what is in his mind also guarantees to him the liberty not to utter what is not in his mind. The salute is a symbolic manner
of communication that conveys its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those raised in this petition. To impose it on
the petitioners is to deny them the right not to speak when their religion bids them to be silent. This coercion of conscience has no place
in the free society.

The democratic system provides for the accommodation of diverse ideas, including the unconventional and even the bizarre or
eccentric. The will of the majority prevails, but it cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no less than
the impatience of those who disagree with them, are protected by the Constitution. The State cannot make the individual speak when
the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present Constitution,this court has applied its precedent
version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the motion picture "Kapit sa Patalim"
as "For Adults Only." They contend that the classification "is without legal and factual basis and is exercised as impermissible restraint
of artistic expression."153 This court recognized that "[m]otion pictures are important both as a medium for the communication of ideas
and the expression of the artistic impulse." 154 It adds that "every writer,actor, or producer, no matter what medium of expression he may
use, should be freed from the censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not enough votes for a ruling of grave
abuse of discretion in the classification made by the Board.157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the expression. The present case is in
point.

It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it easier to view its messages from
greater distances. Furthermore, a larger tarpaulin makes it easier for passengers inside moving vehicles to read its content. Compared
with the pedestrians, the passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the fonts and
images, the greater the probability that it will catch their attention and, thus, the greater the possibility that they will understand its
message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader. From an ordinary person’s perspective,
those who post their messages in larger fonts care more about their message than those who carry their messages in smaller media.
The perceived importance given by the speakers, in this case petitioners, to their cause is also part of the message. The effectivity of
communication sometimes relies on the emphasis put by the speakers and onthe credibility of the speakers themselves. Certainly,
larger segments of the public may tend to be more convinced of the point made by authoritative figures when they make the effort to
emphasize their messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more opportunities to amplify, explain, and
argue points which the speakers might want to communicate. Rather than simply placing the names and images of political candidates
and an expression of support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms for
governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to advocacies, and contribute more to a more
educated and reasoned electorate. A more educated electorate will increase the possibilities of both good governance and
accountability in our government.

These points become more salient when it is the electorate, not the candidates or the political parties, that speaks. Too often, the terms
of public discussion during elections are framed and kept hostage by brief and catchy but meaningless sound bites extolling the
character of the candidate. Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather than
provide obstacles to their speech, government should in fact encourage it. Between the candidates and the electorate, the latter have
the better incentive to demand discussion of the more important issues. Between the candidates and the electorate, the former have
better incentives to avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of expression protected under Article
III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical dialogue isa critical, and
indeed defining, feature of a good polity."159 This theory may be considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people. 161 To ensure order in running the state’s affairs, sovereign powers were delegated
and individuals would be elected or nominated in key government positions to represent the people. On this note, the theory on
deliberative democracy may evolve to the right of the people to make government accountable. Necessarily, this includes the right of
the people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent, should thus be protected and
encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government demand a full discussion of
public affairs."163 This court has, thus, adopted the principle that "debate on public issues should be uninhibited, robust,and wide open .
. . [including even] unpleasantly sharp attacks on government and public officials." 164

Second, free speech should be encouraged under the concept of a market place of ideas. This theory was articulated by Justice
Holmes in that "the ultimate good desired is better reached by [the] free trade in ideas:" 165

When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the
power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes
safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their own conclusions." 167 A free, open,
and dynamic market place of ideas is constantly shaping new ones. This promotes both stability and change where recurring points
may crystallize and weak ones may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the thought that we hate, no less than for the
thought that agrees with us."168 In fact, free speech may "best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger." 169 It is in this context that we should guard against any
curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of assuring individual self-
fulfillment,"170 among others. In Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc,171 this court
discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of
his life, to his happiness and to his full and complete fulfillment.Thru these freedoms the citizens can participate not merely in the
periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline
of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or
agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an] important democratic role [in providing]
forums for the development of civil skills, for deliberation, and for the formation of identity and community spirit[,] [and] are largely
immune from [any] governmental interference."173 They also "provide a buffer between individuals and the state - a free space for the
development of individual personality, distinct group identity, and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those who have similar and shared values and ideals, to join together
and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities against majoritarian abuses perpetrated
through [the] framework [of democratic governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by despotic federal officials" 176 and the
minorities who may be oppressed by "dominant factions of the electorate [that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not only to guard the society against the oppression of its
rulers, but to guard one part of the society against the injustice of the other part." 178 We should strive to ensure that free speech is
protected especially in light of any potential oppression against those who find themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory. 179 This provides that "nonviolent manifestations of dissent reduce
the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a menacing flood of sullen anger behind the
walls of restriction’"181 has been used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making passionate dissent. This includes "free
expression and political participation"183 in that they can "vote for candidates who share their views, petition their legislatures to [make
or] change laws, . . . distribute literature alerting other citizens of their concerns[,]" 184 and conduct peaceful rallies and other similar
acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s goal, considering the possibility that repression of
nonviolent dissent may spill over to violent means just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection. Respondents argue that the tarpaulinis
election propaganda, being petitioners’ way of endorsing candidates who voted against the RH Law and rejecting those who voted for
it.186 As such, it is subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is defined under Section
1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . . .

....
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation.

On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of approval and appreciation of the named public officials’ act of
voting against the RH Law, and their criticism toward those who voted in its favor. 189It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders which . . . effectively restrain[ed]
and curtail[ed] [their] freedom of expression should be declared unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of constitutional values." 193 These
rights enjoy precedence and primacy.194 In Philippine Blooming Mills, this court discussed the preferred position occupied by freedom of
expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the
passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield
against the tyranny of officials, of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; and such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage." 196 A similar idea appeared in our jurisprudence as early as 1969, which was Justice
Barredo’s concurring and dissenting opinion in Gonzales v. COMELEC: 197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine democracy thrives only where the
power and right of the people toelect the men to whom they would entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them" (Section 1, Article II). Translating this declaration into actuality, the Philippines is a
republic because and solely because the people in it can be governed only by officials whom they themselves have placed in office by
their votes. And in it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and peaceful
assembly and redress of grievances are being exercised in relation to suffrage or asa means to enjoy the inalienable right of the
qualified citizen to vote, they are absolute and timeless. If our democracy and republicanism are to be worthwhile, the conduct of public
affairs by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and at all times.
Every holder of power in our government must be ready to undergo exposure any moment of the day or night, from January to
December every year, as it is only in this way that he can rightfully gain the confidence of the people. I have no patience for those who
would regard public dissection of the establishment as an attribute to be indulged by the people only at certain periods of time. I
consider the freedoms of speech, press and peaceful assembly and redress of grievances, when exercised in the name of suffrage, as
the very means by which the right itself to vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be
next to useless if these liberties cannot be untrammelled [sic] whether as to degree or time. 198 (Emphasis supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of speech may be subject to
regulation:

Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be
injurious to the equal right of others or those of the community or society. The difference in treatment is expected because the relevant
interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctionshave therefore
been made in the treatment, analysis, and evaluation ofthe permissible scope of restrictions on various categories of speech. We have
ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both intended and received as a
contribution to public deliberation about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On the other hand,
commercial speech has been defined as speech that does "no more than propose a commercial transaction." 202 The expression
resulting from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting opinion, he discussed that
"[t]he content of the tarpaulin, as well as the timing of its posting, makes it subject of the regulations in RA 9006 and Comelec
Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave
the issue converted the non-election issue into a live election one hence, Team Buhay and Team Patay and the plea to support one
and oppose the other."204
While the tarpaulin may influence the success or failure of the named candidates and political parties, this does not necessarily mean it
is election propaganda. The tarpaulin was not paid for or posted "in return for consideration" by any candidate, political party, or party-
list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and regulations implementing Republic Act No.
9006 as an aid to interpret the law insofar as the facts of this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo, brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites, in return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office, and shall include any of the following:

....

Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered acts of election campaigning or
partisan politicalactivity unless expressed by government officials in the Executive Department, the Legislative Department, the
Judiciary, the Constitutional Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters should be deemed narrowly tailored only
in relation to the facts and issues in this case. It also appears that such wording in COMELEC Resolution No. 9615 does not similarly
appear in Republic Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of public affairs. We acknowledged
that free speech includes the right to criticize the conduct of public men:

The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
official dom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence
and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances, allowing for criticism, save for some
exceptions.207 In the 1951 case of Espuelas v. People,208 this court noted every citizen’s privilege to criticize his or her government,
provided it is "specific and therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision "penaliz[ing] the anonymous criticism of
a candidate by means of posters or circulars."211 This court explained that it is the poster’s anonymous character that is being
penalized.212 The ponente adds that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views. According to this court, "[i]ts value
may lie in the fact that there may be something worth hearing from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government contributes to every society’s goal for
development. It puts forward matters that may be changed for the better and ideas that may be deliberated on to attain that purpose.
Necessarily, it also makes the government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass media from selling print space and
air time for campaign except to the COMELEC, to be a democracy-enhancing measure.216This court mentioned how "discussion of
public issues and debate on the qualifications of candidates in an election are essential to the proper functioning of the government
established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of elections when the free exercise
thereof informs the people what the issues are, and who are supporting what issues." 218 At the heart of democracy is every advocate’s
right to make known what the people need to know, 219 while the meaningful exercise of one’s right of suffrage includes the right of every
voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and the freedom of expression
especially in relation to information that ensures the meaningful exercise of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and
honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage. 221(Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights and even government protection of
state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are still subjectto some restrictions.
The degree of restriction may depend on whether the regulation is content-based or content-neutral.223 Content-based regulations can
either be based on the viewpoint of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The order was made simply because
petitioners failed to comply with the maximum size limitation for lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it applies only to political speech and not to
other forms of speech such as commercial speech.225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a mere
time, place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally sanctioned
objective."226

The regulation may reasonably be considered as either content-neutral or content-based.227 Regardless, the disposition of this case will
be the same. Generally, compared with other forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order applies only to posters and tarpaulins
that may affect the elections because they deliver opinions that shape both their choices. It does not cover, for instance, commercial
speech.

Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will be adjudged as "election
paraphernalia." There are no existing bright lines to categorize speech as election-related and those that are not. This is especially true
when citizens will want to use their resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not easily divorced from the size of its
medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear and present danger rule as
measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured against the clear and present danger
rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposedare neither overbroad
nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely serious and the degree of imminence
extremely high.’"230 "Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,
with the government having the burden of overcoming the presumed unconstitutionality." 231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no compelling and substantial state
interest endangered by the posting of the tarpaulinas to justify curtailment of the right of freedom of expression. There is no reason for
the state to minimize the right of non-candidate petitioners to post the tarpaulin in their private property. The size of the tarpaulin does
not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the utterance or speech."232 In contrast,
content-neutral regulation includes controls merely on the incidents of the speech such as time, place, or manner of the speech. 233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of Primicias v. Fugoso. 234The ordinance in
this case was construed to grant the Mayor discretion only to determine the public places that may be used for the procession
ormeeting, but not the power to refuse the issuance of a permit for such procession or meeting.235 This court explained that free speech
and peaceful assembly are "not absolute for it may be so regulated that it shall not beinjurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society." 236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that prohibited the passing of animal-
drawn vehicles along certain roads at specific hours.238 This court similarly discussed police power in that the assailed rules carry
outthe legislative policy that "aims to promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of
excitement. . . ."241 It is with this backdrop that the state is justified in imposing restrictions on incidental matters as time, place, and
manner of the speech.

In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants must follow which include informing
the licensing authority ahead of time as regards the date, public place, and time of the assembly.242 This would afford the public official
time to inform applicants if there would be valid objections, provided that the clear and present danger test is the standard used for his
decision and the applicants are given the opportunity to be heard. 243 This ruling was practically codified in Batas Pambansa No. 880,
otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral regulation. In the 2006 case of Bayan v.
Ermita,244 this court discussed how Batas Pambansa No. 880 does not prohibit assemblies but simply regulates their time, place, and
manner.245 In 2010, this court found in Integrated Bar of the Philippines v. Atienza 246 that respondent Mayor Atienza committed grave
abuse of discretion when he modified the rally permit by changing the venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily divorced from the size of its
medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for tarpaulins are content-neutral
regulations as these "restrict the mannerby which speech is relayed but not the content of what is conveyed." 248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the three requirements for evaluating
such restraints on freedom of speech.249 "When the speech restraints take the form of a content-neutral regulation, only a substantial
governmental interest is required for its validity," 250 and it is subject only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases.252 A content-neutral government regulation is
sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free expression; and [4] if the incident restriction on alleged [freedom of speech
& expression] is no greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates. On the second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have held, for example, that "the welfare of
children and the State’s mandate to protect and care for them, as parens patriae, 254 constitute a substantial and compelling government
interest in regulating . . . utterances in TV broadcast." 255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and credible election. 256

Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure equality of public information
campaigns among candidates, as allowing posters with different sizes gives candidates and their supporters the incentive to post larger
posters[,] [and] [t]his places candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities." 257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private citizen] to freely express his choice
and exercise his right of free speech."258 In any case, faced with both rights to freedom of speech and equality, a prudent course would
be to "try to resolve the tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private property owner’s consent be obtained when
posting election propaganda in the property.260 This is consistent with the fundamental right against deprivation of property without due
process of law.261 The present facts do not involve such posting of election propaganda absent consent from the property owner. Thus,
this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to minimize election spending.
Specifically, Article IX-C, Section 2(7) provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

....

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and substantial government interest to justify regulation of the preferred right
to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet (3’) size limitation under Section 6(c)
of COMELEC Resolution No. 9615. This resolution implements the Fair Election Act that provides for the same size limitation. 263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in guaranteeing freedom of expression,
any financial considerations behind the regulation are of marginal significance." 264 In fact, speech with political consequences, as in this
case, should be encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the objective of minimizing
election spending considering there is no limit on the number of tarpaulins that may be posted. 265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing the restriction, but more so at the
effects of such restriction, if implemented. The restriction must not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise freedom of expression.

The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading expressions with political consequences.
These should be encouraged, more so when exercised to make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate. Given the stature of petitioners and
their message, there are indicators that this will cause a "chilling effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan, "the medium is the
message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted that "the materials on which words were written down
have often counted for more than the words themselves." 267

III
Freedom of expression and equality
III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of tarpaulins, posters, or media
advertisements are made ostensibly by "friends" but in reality are really paid for by the candidate or political party. This skirts the
constitutional value that provides for equal opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation that confronts us. In such cases, it will
simply be a matter for investigation and proof of fraud on the part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political candidate should not be held hostage by
the possibility of abuse by those seeking to be elected. It is true that there can be underhanded, covert, or illicit dealings so as to hide
the candidate’s real levels of expenditures. However, labelling all expressions of private parties that tend to have an effect on the
debate in the elections as election paraphernalia would be too broad a remedy that can stifle genuine speech like in this case. Instead,
to address this evil, better and more effective enforcement will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend their own resources in order to lend
support for the campaigns. This may be without agreement between the speaker and the candidate or his or her political party. In lieu of
donating funds to the campaign, they will instead use their resources directly in a way that the candidate or political party would have
doneso. This may effectively skirt the constitutional and statutory limits of campaign spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will carry in their election posters or
media ads. The message of petitioner, taken as a whole, is an advocacy of a social issue that it deeply believes. Through rhetorical
devices, it communicates the desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only secondarily — even almost incidentally
— will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such devices as sarcasm, irony and
ridicule to deride prevailing vices or follies," 268 and this may target any individual or group in society, private and government alike. It
seeks to effectively communicate a greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to have the high-and-mighty lampooned
and spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other is an object of attack." 271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could the Archbishop of the Diocese of
Bacolod have intended it to mean that the entire plan of the candidates in his list was to cause death intentionally. The tarpaulin
caricatures political parties and parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the list
of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an important marker for the church of
petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election paraphernalia from candidates and
political parties are more declarative and descriptive and contain no sophisticated literary allusion to any social objective. Thus, they
usually simply exhort the public to vote for a person with a brief description of the attributes of the candidate. For example "Vote for [x],
Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of censorship or subsequent punishment that
entails evaluation of the speaker’s viewpoint or the content of one’s speech. This is especially true when the expression involved has
political consequences. In this case, it hopes to affect the type of deliberation that happens during elections. A becoming humility on the
part of any human institution no matter how endowed with the secular ability to decide legal controversies with finality entails that we
are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent. Tolerance has always been a
libertarian virtue whose version is embedded in our Billof Rights. There are occasional heretics of yesterday that have become our
visionaries. Heterodoxies have always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to grave social problems. This is the
utilitarian version. It could also be that it is just part of human necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other provisions which, taken together with the
guarantee of free expression, enhances each other’s value. Among these are the provisions that acknowledge the idea of equality. In
shaping doctrine construing these constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of diluting freedoms as exercised in reality
and, thus, render them meaningless.

III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at the point of giving priority to
equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation promoting political equality
prevails over speech."273 This view allows the government leeway to redistribute or equalize ‘speaking power,’ such as protecting, even
implicitly subsidizing, unpopular or dissenting voices often systematically subdued within society’s ideological ladder. 274 This view
acknowledges that there are dominant political actors who, through authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a developing or emerging economy that is part of the majoritarian
world like ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to participate in the self determination of
one’s communities is not new only to law. It has always been a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized how institutionalized inequality
exists as a background limitation, rendering freedoms exercised within such limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any improvement "in the normal course of events" within an unequal society, without
subversion, only strengthens existing interests of those in power and control.276

In other words, abstract guarantees of fundamental rights like freedom of expression may become meaningless if not taken in a real
context. This tendency to tackle rights in the abstract compromises liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results from a whole series of synthetic
judgments. It stipulates the ability to determine one’s own life: to be able to determine what to do and what not to do, what to suffer and
what not. But the subject of this autonomy is never the contingent, private individual as that which he actually is or happens to be; it is
rather the individual as a human being who is capable of being free with the others. And the problem of making possible such a
harmony between every individual liberty and the other is not that of finding a compromise between competitors, or between freedom
and law, between general and individual interest, common and private welfare in an established society, but of creating the society in
which man is no longer enslaved by institutions which vitiate self-determination from the beginning. In other words, freedom is still to be
created even for the freest of the existing societies. 277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the people — "implies a necessary
condition, namely, that the people must be capable of deliberating and choosing on the basis of knowledge, that they must have access
to authentic information, and that, on this basis, their evaluation must be the result of autonomous thought." 278 He submits that
"[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence and persuasion on rational grounds: the
‘marketplace of ideas’ is organized and delimited by those who determine the national and the individual interest." 279 A slant toward left
manifests from his belief that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use extralegal means
if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections of expressive liberty," 281 especially
by political egalitarians. Considerations such as "expressive, deliberative, and informational interests," 282 costs or the price of
expression, and background facts, when taken together, produce bases for a system of stringent protections for expressive liberties.283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed that "public discussion is a
political duty."284 Cass Sustein placed political speech on the upper tier of his twotier model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as "both intended and received as a contribution to public deliberation about some
issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to opportunity is suggested to mean
substantive equality and not mere formal equalitysince "favorable conditions for realizing the expressive interest will include some
assurance of the resources required for expression and some guarantee that efforts to express views on matters of common conc ern
will not be drowned out by the speech of betterendowed citizens." 288 Justice Brandeis’ solution is to "remedy the harms of speech with
more speech."289 This view moves away from playing down the danger as merely exaggerated, toward "tak[ing] the costs seriously and
embrac[ing] expression as the preferred strategy for addressing them." 290 However, in some cases, the idea of more speech may not
be enough. Professor Laurence Tribe observed the need for context and "the specification of substantive values before [equality] has
full meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed in a formal rather than a substantive
sense."292 Thus, more speech can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b) ofthe Electoral Reforms Law of
1987.293 This section "prohibits mass media from selling or giving free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates. 295 This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges,
or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and enhance the right of all the people to
human dignity, reducesocial, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and
political power for the common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be
defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive expressive freedoms that take equality
of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or equality inthe ability of citizens as
speakers should not have a bearing in free speech doctrine. Under this view, "members of the public are trusted to make their own
individual evaluations of speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas are
best left to a freely competitive ideological market."297 This is consistent with the libertarian suspicion on the use of viewpoint as well as
content to evaluate the constitutional validity or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative language. It uses ‘speech’ as its
subject and not ‘speakers’.298 Consequently, the Constitution protects free speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to their own
devices in sorting out the relative influence of speech." 300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of speech includes "not only the right to
express one’s views, but also other cognate rights relevant to the free communication [of] ideas, not excluding the right to be informed
on matters of public concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters and candidates, education, means of
transportation, health, public discussion, private animosities, the weather, the threshold of a voter’s resistance to pressure — the utmost
ventilation of opinion of men and issues, through assembly, association and organizations, both by the candidate and the voter,
becomes a sine qua non for elections to truly reflect the will of the electorate. 302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech primacy such that"courts, as a rule are
wary to impose greater restrictions as to any attempt to curtail speeches with political content," 303 thus:

the concept that the government may restrict the speech of some elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was designed to "secure the widest possible dissemination of information from
diverse and antagonistic sources" and "to assure unfettered interchange of ideas for the bringing about of political and social changes
desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme Court in the campaign
expenditures case of Buckley v. Valeo "condemned restrictions (even if content-neutral) on expressive liberty imposed in the name of
‘enhanc[ing] the relative voice of others’ and thereby ‘equaliz[ing] access to the political arena." 306 The majority did not use the equality-
based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can speak, which takes out of his
exclusive judgment the decision of when enough is enough, deprives him of his free speech." 307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the sum of public information and runs
counter to our ‘profound national commitment that debate on public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the plight of those without funds in the first
place . . . [and] even if one’s main concern isslowing the increase in political costs, it may be more effective torely on market forces
toachieve that result than on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not necessarily to
argue that the sky’s the limit [because in] any campaign there are saturation levels and a point where spending no longer pays off in
votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for human potentiality and the effect of
speech. It valorizes the ability of human beings to express and their necessity to relate. On the other hand, a complete guarantee must
also take into consideration the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the cultural
hegemony of the majority may have the effect of drowning out the speech and the messages of those in the minority. In a sense, social
inequality does have its effect on the exercise and effect of the guarantee of free speech. Those who have more will have better access
to media that reaches a wider audience than those who have less. Those who espouse the more popular ideas will have better
reception than the subversive and the dissenters of society.To be really heard and understood, the marginalized view normally
undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her expression. This view, thus, restricts
laws or regulation that allows public officials to make judgments of the value of such viewpoint or message content. This should still be
the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to some expression during electoral
campaigns.

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the members of their political parties or
their political parties may be regulated as to time, place, and manner. This is the effect of our rulings in Osmeña v. COMELEC and
National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates or who do not speak as members
of a political party which are, taken as a whole, principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount toan election paraphernalia to be
validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons who are not candidates or who
do not speak as members of a political party if they are not candidates, only if what is regulated is declarative speech that, taken as a
whole, has for its principal object the endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means to achieve that object. The regulation must only be with
respect to the time, place, and manner of the rendition of the message. In no situation may the speech be prohibited or censored onthe
basis of its content. For this purpose, it will notmatter whether the speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal message in the twin tarpaulins of
petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law — Section 3.3 of Republic Act No. 9006 and
Section 6(c) of COMELEC Resolution No. 9615 — if applied to this case, will not pass the test of reasonability. A fixed size for election
posters or tarpaulins without any relation to the distance from the intended average audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be read by the general public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to suffrage,312 the present case also involves
one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating to election propaganda by
applying such regulations to private individuals.314 Certainly, any provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed,
during the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political party to post the material
on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of petitioners. Their right to use their
property is likewise protected by the Constitution.

In Philippine Communications Satellite Corporation v. Alcuaz: 315

Any regulation, therefore, which operates as an effective confiscation of private property or constitutes an arbitrary or unreasonable
infringement of property rights is void, because it is repugnant to the constitutional guaranties of due process and equal protection of
the laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted is "so broad that it encompasses
even the citizen’s private property."317 Consequently, it violates Article III, Section 1 of the Constitution which provides thatno person
shall be deprived of his property without due process of law. This court explained:

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

Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it.
The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
Rep. 383. Property consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save by the
law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917]) 318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of
justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any
place, whether public or private, except inthe common poster areas sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly never
require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation,
may do.319 Respondents ordered petitioners, who are private citizens, to remove the tarpaulin from their own property. The absurdity of
the situation is in itself an indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no expression when there is no place where
the expression may be made. COMELEC’s infringement upon petitioners’ property rights as in the present case also reaches out to
infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to promote justifies the intrusion into petitioners’ property
rights. Election laws and regulations must be reasonable. It must also acknowledge a private individual’s right to exercise property
rights. Otherwise, the due process clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election propaganda in private property
without the consent of the owners of such private property. COMELEC has incorrectly implemented these regulations. Consistent with
our ruling in Adiong, we find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their own private
property is an impermissible encroachments on the right to property.

V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice and letter violated the right of
petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many forms. Article III, Section 5 of the
Constitution, for instance provides:

Section 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. Noreligious test shall be
required for the exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the free exercise and enjoyment of
religious profession and worship.323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious make such act immune from any
secular regulation.324 The religious also have a secular existence. They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to religious expression. This
notwithstanding petitioners’ claim that "the views and position of the petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill
is inextricably connected to its Catholic dogma, faith, and moral teachings. . . ." 325

The difficulty that often presents itself in these cases stems from the reality that every act can be motivated by moral, ethical, and
religious considerations. In terms of their effect on the corporeal world, these acts range from belief, to expressions of these faiths, to
religious ceremonies, and then to acts of a secular character that may, from the point of view of others who do not share the same faith
or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court. Certainly, our powers of adjudication cannot
be blinded by bare claims that acts are religious in nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of Cebu 326 in claiming that the court
"emphatically" held that the adherents ofa particular religion shall be the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony
"out of respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others." 328 This court found a balance
between the assertion of a religious practice and the compelling necessities of a secular command. It was an early attempt at
accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows accommodation of religion under certain
circumstances. Accommodations are government policies that take religion specifically intoaccount not to promote the government’s
favored form of religion, but to allow individuals and groups to exercise their religion without hindrance. Their purpose or effect therefore
is to remove a burden on, or facilitate the exercise of, a person’s or institution’s religion. As Justice Brennan explained, the "government
[may] take religion into account . . . to exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state involvement an atmosphere in which
voluntary religious exercise may flourish." 330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when: (1) it has a secular legislative
purpose; (2) it neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion. 331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious doctrine of the Catholic
church."332 That the position of the Catholic church appears to coincide with the message of the tarpaulin regarding the RH Law does
not, by itself, bring the expression within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates
classified under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the expression onthe tarpaulin is an
ecclesiastical matter. With all due respect to the Catholic faithful, the church doctrines relied upon by petitioners are not binding upon
this court. The position of the Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by one of
its members of a tarpaulin as religious speech solely on such basis. The enumeration of candidates on the face of the tarpaulin
precludes any doubtas to its nature as speech with political consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations Commission 333 cited by petitioners finds no
application in the present case. The posting of the tarpaulin does not fall within the category of matters that are beyond the jurisdiction
of civil courts as enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the speech of the electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for public office.Their message may be
construed generalizations of very complex individuals and party-list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single issue — and a complex piece of
legislation at that — can easily be interpreted as anattempt to stereo type the candidates and party-list organizations. Not all may agree
to the way their thoughts were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and non-judgmental. Some may have
expected that the authors would give more space to practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties. It is not a detailed code that
prescribes good conduct. It provides space for all to be guided by their conscience, not only in the act that they do to others but also in
judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This can often be expressed by
dominant institutions, even religious ones. That they made their point dramatically and in a large way does not necessarily mean that
their statements are true, or that they have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of expression protected by our fundamental
law. It is an expression designed to invite attention, cause debate, and hopefully, persuade. It may be motivated by the interpretation of
petitioners of their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences. Certainly, provocative
messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that tends to rouse the public to debate
contemporary issues. This is not speechby candidates or political parties to entice votes. It is a portion of the electorate telling
candidates the conditions for their election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected as a fundamental and primordial
right by our Constitution. The expression in the medium chosen by petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued is hereby made permanent. The act
of the COMELEC in issuing the assailed notice dated February 22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.

SO ORDERED.
MARVIC M.V.F. LEONEN
Associate Justice
G.R. No. 206020, April 14, 2015 - 1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION ON ELECTIONS,
Respondent.

EN BANC

G.R. No. 206020, April 14, 2015

1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

REYES, J.:

The right to participate in electoral processes is a basic and fundamental right in any democracy. It includes not only the right to vote,
but also the right to urge others to vote for a particular candidate. The right to express one's preference for a candidate is likewise part
of the fundamental right to free speech. Thus, any governmental restriction on the right to convince others to vote for a candidate
carries with it a heavy presumption of invalidity.

This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court filed by 1-United Transport Koalisyon (petitioner), a
party-list organization, assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 2 of the Commission on
Elections (COMELEC).

The Facts

On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the "Fair Elections Act", was passed. Section 9 thereof
provides:

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-list groups to erect common poster
areas for their candidates in not more than ten (10) public places such as plazas, markets, barangay centers and the like, wherein
candidates can post, display or exhibit election propaganda: Provided that the size of the poster areas shall not exceed twelve (12) by
sixteen (16) feet or its equivalent.

Independent candidates with no political parties may likewise be authorized to erect common poster areas in not more than ten (10)
public places, the size of which shall not exceed four (4) by six (6) feet or its equivalent.

Candidates may post any lawful propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates.

On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which provided for the rules implementing R.A. No. 9006 in
connection with the May 13, 2013 national and local elections and subsequent elections. Section 7 thereof, which enumerates the
prohibited forms of election propaganda, pertinently provides:

SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign period, it is unlawful:

xxxx

(f) To post, display or exhibit any election campaign or propaganda material outside of authorized common poster areas, in public
places, or in private properties without the consent of the owner thereof.

(g) Public places referred to in the previous subsection (f) include any of the following:
xxxx

5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries, pedicabs and tricycles, whether motorized or not;

6. Within the premises of public transport terminals, such as bus terminals, airports, seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the revocation of the public utility franchise and will make the
owner and/or operator of the transportation service and/or terminal liable for an election offense under Section 9 of Republic Act No.
9006 as implemented by Section 18 (n) of these Rules. 3

In its letter4 dated January 30, 2013, the petitioner, through its president, Melencio F. Vargas, sought clarification from the COMELEC
as regards the application of Resolution No. 9615, particularly Section 7(g) items (5) and (6), in relation to Section 7(f), vis-a-
vis privately owned public utility vehicles (PUVs) and transport terminals. The petitioner explained that the prohibition stated in the
aforementioned provisions impedes the right to free speech of the private owners of PUVs and transport terminals. The petitioner then
requested the COMELEC to reconsider the implementation of the assailed provisions and allow private owners of PUVs and transport
terminals to post election campaign materials on their vehicles and transport terminals.

On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-0214,5 which denied the petitioner's request to
reconsider the implementation of Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615. The COMELEC en
banc, adopting the recommendation of Commissioner Christian Robert S. Lim, opined that:

From the foregoing, x x x the primary fact in consideration here is actually whether 1 -UTAK or any other [PUV] owners in the same
position do in fact possess a franchise and/or certificate of public convenience and operate as a public utility. If it does not, then
the ruling in Adiong applies squarely. If it does, then its operations, pursuant to Section 4, Article IX-C of the Constitution, will be placed
directly under the supervision and regulation of the Commission for the duration of the election period so as to ensure equality of
opportunity, time, and space for all candidates in the placement of political advertisements. Having placed their property for use by the
general public and having secured a license or permit to do so, 1-UTAK and other PUV owners, as well as transport terminal owners,
cannot now complain that their property is subject to regulation by the State. Securing a franchise or a certificate of public convenience
in their favor does not exempt them from the burdens imposed by the Constitution, Republic Act No. 9006 x x x, and other related
statutes. It must be stressed that the Constitution itself, under Section 6, Article XII, commands that the use of property bears a
social function and all economic agents shall contribute to the common good; and there is no higher Common good than that as
espoused in R.A. No. 9006 - the equalization of opportunities for all candidates for political office during elections - a policy which Res.
No. 9615 merely implements.

As required in Adiong, and in compliance with the O'Brien standards, the prohibition furthers two important and substantial
governmental interests - equalizing opportunity, time, and space for all candidates, and putting to a stop excessive campaign spending.
The regulation bears a clear and reasonable nexus with these Constitutionally- and statutorily-sanctioned objectives, and the
infringement of freedom is merely incidental and limited as to time. The Commission has not taken away all avenues of expression
available to PUV and transport terminal owners. They may express their political preferences elsewhere.

The exact purpose for placing political advertisements on a PUV or in transport terminals is exactly because it is public and can be
seen by all; and although it is true that private vehicles ply the same route as public vehicles, the exposure of a [PUV] servicing the
general, riding public is much more compared to private vehicles. Categorizing PUVs and transport terminals as 'public places'
under Section 7 (f) of Reso. No. 9615 is therefore logical. The same reasoning for limiting political advertisements in print media, in
radio, and in television therefore holds true for political advertisements in PUVs and transport terminals.6

Hence, the instant petition.

Arguments of the Petitioner

The petitioner maintains that Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the right to free
speech of the owners of PUVs and transport terminals; that the prohibition curtails their ideas of who should be voted by the public. The
petitioner also claims that there is no substantial public interest threatened by the posting of political advertisements on PUVs and
transport terminals to warrant the prohibition imposed by the COMELEC. Further, the petitioner posits that the ownership of the
PUVs per se, as well as the transport terminals, remains private and, hence, the owners thereof could not be prohibited by the
COMELEC from expressing their political opinion lest their property rights be unduly intruded upon.

Further, assuming that substantial public interest exists in the said prohibition imposed under Resolution No. 9615, the petitioner claims
that the curtailment of the right to free speech of the owners of PUVs and transport terminals is much greater than is necessary to
achieve the desired governmental purpose, i.e., ensuring equality of opportunity to all candidates in elective office.

Arguments of COMELEC

On the other hand, the COMELEC posits that privately-owned PUVs and transport terminals are public spaces that are subject to its
regulation. It explains that under the Constitution, the COMELEC has the power to enforce and administer all laws and regulations
relative to the conduct of an election, including the power to regulate the enjoyment or utilization of all franchises and permits for the
operation of transportation utilities.

The COMELEC points out that PUVs and private transport terminals hold a captive audience - the commuters, who have no choice but
be subjected to the blare of political propaganda. Thus, the COMELEC avers, it is within its constitutional authority to prevent privately-
owned PUVs and transport terminals from concurrently serving campaign materials to the captive audience that they transport.

The COMELEC further claims that Resolution No. 9615 is a valid content-neutral regulation and, thus, does not impinge on the
constitutional right to freedom of speech. It avers that the assailed regulation is within the constitutional power of the COMELEC
pursuant to Section 4, Article IX-C of the Constitution. The COMELEC alleges that the regulation simply aims to ensure equal campaign
opportunity, time, and space for all candidates - an important and substantial governmental interest, which is totally unrelated to the
suppression of free expression; that any restriction on free speech is merely incidental and is no greater than is essential to the
furtherance of the said governmental interest.

The Issue

The petitioner presents the following issues for the Court's resolution:

I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE SPEECH OF THE OWNERS OF [PUVs] AND
TRANSPORT TERMINALS.

II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE SPEECH AND EXPRESSION FOR FAILURE TO
SATISFY THE O'BRIEN TEST.

III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL OPPORTUNITY TO INFORM THE ELECTORATE IS
NOT IMPAIRED BY POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT TERMINALS.

IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND INDEPENDENT FROM THE FRANCHISE OR OPERATION
OF THE PUBLIC UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY THE COMELEC. 7

In sum, the issue presented for the Court's resolution is whether Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 9615, which prohibits the posting of any election campaign or propaganda material, inter alia, in PUVs and public transport
terminals are valid regulations.

Ruling of the Court

The petition is meritorious.

Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-C of the Constitution and the provisions of R.A. No.
9006, lays down the administrative rules relative to the COMELEC's exercise of its supervisory and regulatory powers over all
franchises and permits for the operation of transportation and other public utilities, media of communication or information, and all
grants, special privileges, or concessions granted by the Government.

Like any other administrative regulations, Resolution No. 9615, or any part thereof, must not run counter to the Constitution. It is basic
that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. 8 In this regard, an
administrative regulation, even if it purports to advance a legitimate governmental interest, may not be permitted to run roughshod over
the cherished rights of the people enshrined in the Constitution.

Section 7(g) items (5) and (6), in

relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.

Free speech may be identified with the liberty to discuss publicly and truthfully any matter of public concern without prior restraint or
censorship and subsequent punishment.9 Prior restraint refers to official governmental restrictions on the press or other forms of
expression in advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from government
censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or
judicial branch of the government.10 Any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its validity.11

Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 unduly infringe on the fundamental right of the people
to freedom of speech. Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs and private transport terminals, to
express their preference, through the posting of election campaign material in their property, and convince others to agree with them.

Pursuant to the assailed provisions of Resolution No. 9615, posting an election campaign material during an election period in PUVs
and transport terminals carries with it the penalty of revocation of the public utility franchise and shall make the owner thereof liable for
an election offense.

The prohibition constitutes a clear prior restraint on the right to free expression of the owners of PUVs and transport terminals. As a
result of the prohibition, owners of PUVs and transport terminals are forcefully and effectively inhibited from expressing their
preferences under the pain of indictment for an election offense and the revocation of their franchise or permit to operate.

It is now deeply embedded in our jurisprudence that freedom of speech and of the press enjoys a preferred status in our hierarchy of
rights. The rationale is that the preservation of other rights depends on how well we protect our freedom of speech and of the press.12 It
has been our constant holding that this preferred freedom calls all the more for utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage. 13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's prohibition against the posting of decals and stickers on
"mobile places." The Court ratiocinated that:

Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political
party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to
convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his
private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press
Club case, the Court was careful to rule out restrictions on reporting by newspaper or radio and television stations and commentators or
columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the
prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a
sticker or decal on his private property.15 (Emphases ours)

The assailed prohibition on posting

election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.

The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution No. 9615 may incidentally restrict the right to free speech
of owners of PUVs and transport terminals, the same is nevertheless constitutionally permissible since it is a valid content-neutral
regulation. The Court does not agree.

A content-neutral regulation, i.e., which is merely concerned with the incidents of the speech, or one that merely controls the time, place
or manner, and under well-defined standards,16 is constitutionally permissible, even if it restricts the right to free speech, provided that
the following requisites concur: first, the government regulation is within the constitutional power of the Government; second, it furthers
an important or substantial governmental interest; third, the governmental interest is unrelated to the suppression of free expression;
and fourth, the incidental restriction on freedom of expression is no greater than is essential to the furtherance of that interest. 17

Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral regulations since they merely control the place where election
campaign materials may be posted. However, the prohibition is still repugnant to the free speech clause as it fails to satisfy all of the
requisites for a valid content-neutral regulation.

It is conceded that Resolution No. 9615, including the herein assailed provisions, furthers an important and substantial governmental
interest, i.e., ensuring equal opportunity, time and space among candidates aimed at the holding of free, orderly, honest, peaceful, and
credible elections. It is further conceded that the governmental interest in imposing the said prohibition is unrelated to the suppression
of free expression. However, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C of the Constitution. Also, there is absolutely no
necessity to restrict the right to free speech of the owners of PUVs and transport terminals.

The COMELEC may only regulate

the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.

The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 is not within the COMELEC's
constitutionally delegated power of supervision or regulation. It is not disputed that the COMELEC has the power to supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of transportation utilities during an election period.
Section 4, Article IX-C of the Constitution, thus provides:

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges,
or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or
controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection
with the objective of holding free, orderly, honest, peaceful, and credible elections.

Nevertheless, the constitutional grant of supervisory and regulatory powers to the COMELEC over franchises and permits to operate,
though seemingly unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory and regulatory powers granted to the
COMELEC during an election period under Section 4, Article IX-C of the Constitution, the Court had previously set out the limitations
thereon. In Adiong, the Court, while recognizing that the COMELEC has supervisory power vis-a-vis the conduct and manner of
elections under Section 4, Article IX-C of the Constitution, nevertheless held that such supervisory power does not extend to the very
freedom of an individual to express his preference of candidates in an election by placing election campaign stickers on his vehicle.

In National Press Club v. COMELEC,18 while the Court upheld the constitutionality of a prohibition on the selling or giving free of
charge, except to the COMELEC, of advertising space and commercial time during an election period, it was emphasized that the grant
of supervisory and regulatory powers to the COMELEC under Section 4, Article IX-C of the Constitution, is limited to ensuring equal
opportunity, time, space, and the right to reply among candidates.

Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court, notwithstanding the grant of supervisory and regulatory powers to
the COMELEC under Section 4, Article IX-C of the Constitution, declared unconstitutional a regulation prohibiting the release of election
surveys prior to the election since it "actually suppresses a whole class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper columnists, radio and [television (TV)] commentators, armchair theorists, and other
opinion makers."20

In the instant case, the Court further delineates the constitutional grant of supervisory and regulatory powers to the COMELEC during
an election period. As worded, Section 4, Article IX-C of the Constitution only grants COMELEC supervisory and regulatory powers
over the enjoyment or utilization "of all franchises or permits for the operation," inter alia, of transportation and other public utilities. The
COMELEC's constitutionally delegated powers of supervision and regulation do not extend to the ownership per se of PUVs and
transport terminals, but only to the franchise or permit to operate the same.

There is a marked difference between the franchise or permit to operate transportation for the use of the public and the ownership per
se of the vehicles used for public transport. Thus, in Tatad v. Garcia, Jr.,21the Court explained that:

What private respondent owns are the rail tracks, rolling stocks like the coaches, rail stations, terminals and the power plant, not a
public utility. While a franchise is needed to operate these facilities to serve the public, they do not by themselves constitute a public
utility. What constitutes a public utility is not their ownership but their use to serve the public x x x.

The Constitution, in no uncertain terms, requires a franchise for the operation of a public utility. However, it does not require a franchise
before one can own the facilities needed to operate a public utility so long as it does not operate them to serve the public.

xxxx

In law, there is a clear distinction between the "operation" of a public utility and the ownership of the facilities and equipment
used to serve the public.

xxxx

The right to operate a public utility may exist independently and separately from the ownership of the facilities thereof. One
can own said facilities without operating them as a public utility, or conversely, one may operate a public utility without
owning the facilities used to serve the public. The devotion of property to serve the public may be done by the owner or by the
person in control thereof who may not necessarily be the owner thereof.

This dichotomy between the operation of a public utility and the ownership of the facilities used to serve the public can be very well
appreciated when we consider the transportation industry. Enfranchised airline and shipping companies may lease their aircraft and
vessels instead of owning them themselves.22 (Emphases ours)

The franchise or permit to operate transportation utilities is a privilege granted to certain persons to engage in the business of
transporting people or goods; it does not refer to the ownership of the vehicleper se. Ownership is a relation in private law by virtue of
which a thing pertaining to one person is completely subjected to his will in everything not prohibited by public law or the concurrence
with the rights of another.23 Thus, the owner of a thing has the right to enjoy and dispose of a thing, without other limitations than those
established by law.24

One such limitation established by law, as regards PUVs, is the franchise or permit to operate. However, a franchise or permit to
operate a PUV is a limitation only on certain aspects of the ownership of the vehicle pertinent to the franchise or permit granted, but not
on the totality of the rights of the owner over the vehicle. Otherwise stated, a restriction on the franchise or permit to operate
transportation utilities is necessarily a limitation on ownership, but a limitation on the rights of ownership over the PUV is not necessarily
a regulation on the franchise or permit to operate the same.

A franchise or permit to operate transportation utilities pertains to considerations affecting the operation of the PUV as such, e.g., safety
of the passengers, routes or zones of operation, maintenance of the vehicle, of reasonable fares, rates, and other charges, or, in certain
cases, nationality.25 Thus, a government issuance, which purports to regulate a franchise or permit to operate PUVs, must pertain to the
considerations affecting its operation as such. Otherwise, it becomes a regulation or supervision not on the franchise or permit to
operate, but on the very ownership of the vehicle used for public transport.

The expression of ideas or opinion of an owner of a PUV, through the posting of election campaign materials on the vehicle, does not
affect considerations pertinent to the operation of the PUV. Surely, posting a decal expressing support for a certain candidate in an
election will not in any manner affect the operation of the PUV as such. Regulating the expression of ideas or opinion in a PUV, through
the posting of an election campaign material thereon, is not a regulation of the franchise or permit to operate, but a regulation on the
very ownership of the vehicle.

The dichotomy between the regulation of the franchise or permit to operate of a PUV and that of the very ownership thereof is better
exemplified in the case of commercial advertisements posted on the vehicle. A prohibition on the posting of commercial advertisements
on a PUV is considered a regulation on the ownership of the vehicle per se; the restriction on the enjoyment of the ownership of the
vehicle does not have any relation to its operation as a PUV.

On the other hand, prohibitions on the posting of commercial advertisements on windows of buses, because it hinders police authorities
from seeing whether the passengers inside are safe, is a regulation on the franchise or permit to operate. It has a direct relation to the
operation of the vehicle as a PUV, i.e., the safety of the passengers.

In the same manner, the COMELEC does not have the constitutional power to regulate public transport terminals owned by private
persons. The ownership of transport terminals, even if made available for use by the public commuters, likewise remains private.
Although owners of public transport terminals may be required by local governments to obtain permits in order to operate, the permit
only pertains to circumstances affecting the operation of the transport terminal as such. The regulation of such permit to operate should
similarly be limited to circumstances affecting the operation of the transport terminal. A regulation of public transport terminals based on
extraneous circumstances, such as prohibiting the posting of election campaign materials thereon, amounts to regulating the ownership
of the transport terminal and not merely the permit to operate the same.

Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not within the constitutionally delegated power of the COMELEC
to supervise or regulate the franchise or permit to operate of transportation utilities. The posting of election campaign material on
vehicles used for public transport or on transport terminals is not only a form of political expression, but also an act of ownership - it has
nothing to do with the franchise or permit to operate the PUV or transport terminal.

The rulings in National Press Club

and Osmena v. COMELEC26
find no application to this case.

The COMELEC pointed out that the issue presented in the instant case is akin to the Court's rulings in National Press
Club and Osmeña. It explained that in both cases, the Court sustained Section II(b) of R.A. No. 6646 or the Electoral Reforms Law of
1997, which prohibits newspapers, radio broadcasting or TV stations, and other mass media from selling or giving print space or airtime
for campaign or other political purposes, except to the COMELEC, during the election campaign. The COMELEC averred that if the
legislature can empower it to impose an advertising ban on mass media, it could likewise empower it to impose a similar ban on PUVs
and transport terminals.

The Court does not agree.

The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct relation to the enjoyment and utilization of the franchise or
permit to operate of newspapers, radio broadcasting and TV stations, and other mass media, which the COMELEC has the power to
regulate pursuant to Section 4, Article IX-C of the Constitution. The print space or airtime is an integral part of the franchise or permit to
operate of mass media utilities. Thus, the restriction under Section ll(b) of R.A. No. 6646 is within the confines of the constitutionally
delegated power of the COMELEC under Section 4, Article IX-C of the Constitution.

On the other hand, the prohibition on the posting of election campaign materials under Section 7(g) items (5) and (6) of Resolution No.
9615, as already explained, does not have any relation to the franchise or permit of PUVs and transport terminals to operate as such
and, hence, is beyond the power of the COMELEC under Section 4, Article IX-C of the Constitution.

The restriction on free speech of

owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.

Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy the fourth requisite of a valid content-neutral regulation,
i.e., the incidental restriction on freedom of expression is no greater than is essential to the furtherance of that interest. There is
absolutely no necessity to restrict the right of the owners of PUVs and transport terminals to free speech to further the governmental
interest. While ensuring equality of time, space, and opportunity to candidates is an important and substantial governmental interest
and is essential to the conduct of an orderly election, this lofty aim may be achieved sans any intrusion on the fundamental right of
expression.

First, while Resolution No. 9615 was promulgated by the COMELEC to implement the provisions of R.A. No. 9006, the prohibition on
posting of election campaign materials on PUVs and transport terminals was not provided for therein.

Second, there are more than sufficient provisions in our present election laws that would ensure equal time, space, and opportunity to
candidates in elections. Section 6 of R.A. No. 9006 mandates that "all registered parties and bona fide candidates shall have equal
access to media time and space" and outlines the guidelines to be observed in the implementation thereof, viz:

Section 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have equal access to media
time and space. The following guidelines may be amplified on by the COMELEC:

6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet and one-half (1/2) page in tabloids thrice a week per
newspaper, magazine or other publications, during the campaign period.

6.2 a. Each bona fide candidate or registered political party for a nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and one hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.

b. Each bona fide candidate or registered political party for a locally elective office shall be entitled to not more than sixty (60) minutes
of television advertisement and ninety (90) minutes of radio advertisement whether by purchase or donation.

For this purpose, the COMELEC shall require any broadcast station or entity to submit to the COMELEC a copy of its broadcast logs
and certificates of performance for the review and verification of the frequency, date, time and duration of advertisements broadcast for
any candidate or political party.

6.3 All mass media entities shall furnish the COMELEC with a copy of all contracts for advertising, promoting or opposing any political
party or the candidacy of any person for public office within five (5) days after its signing. In every case, it shall be signed by the donor,
the candidate concerned or by the duly authorized representative of the political party.

6.4 No franchise or permit to operate a radio or television station shall be granted or issued, suspended or cancelled during the
election period. In all instances, the COMELEC shall supervise the use and employment of press, radio and television facilities insofar
as the placement of political advertisements is concerned to ensure that candidates are given equal opportunities under equal
circumstances to make known their qualifications and their stand on public issues within the limits set forth in the Omnibus Election
Code and Republic Act No. 7166 on election spending.

The COMELEC shall ensure that radio or television or cable television broadcasting entities shall not allow the scheduling of any
program or permit any sponsor to manifestly favor or oppose any candidate or political party by unduly or repeatedly referring to or
including said candidate and/or political party in such program respecting, however, in all instances the right of said broadcast entities
to air accounts of significant news or news worthy events and views on matters of public interest.

6.5 All members of media, television, radio or print, shall scrupulously report and interpret the news, taking care not to suppress
essential facts nor to distort the truth by omission or improper emphasis. They shall recognize the duty to air the other side and the duty
to correct substantive errors promptly.

6.6 Any mass media columnist, commentator, announcer, reporter, on-air correspondent or personality who is a candidate for any
elective public office or is a campaign volunteer for or employed or retained in any capacity by any candidate or political party shall be
deemed resigned, if so required by their employer, or shall take a leave of absence from his/her work as such during the campaign
period: Provided, That any media practitioner who is an official of a political party or a member of the campaign staff of a candidate or
political party shall not use his/her time or space to favor any candidate or political party.

6.7 No movie, cinematograph or documentary portraying the life or biography of a candidate shall be publicly exhibited in a theater,
television station or any public forum during the campaign period.

6.8 No movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate shall likewise be
publicly exhibited in a theater or any public forum during the campaign period.

Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and independent candidates to erect common poster areas
and candidates to post lawful election campaign materials in private places, with the consent of the owner thereof, and in public places
or property, which are allocated equitably and impartially.

Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses of registered political parties and candidates for every
voter; it affords candidates equal opportunity in their election campaign by regulating the amount that should be spent for each
voter. Likewise, Section 1429 of R.A. No. 7166 requires all candidates and treasurers of registered political parties to submit a
statement of all contributions and expenditures in connection with the election. Section 14 is a post-audit measure that aims to ensure
that the candidates did not overspend in their election campaign, thereby enforcing the grant of equal opportunity to candidates under
Section 13.

A strict implementation of the foregoing provisions of law would suffice to achieve the governmental interest of ensuring equal time,
space, and opportunity for candidates in elections. There is thus no necessity of still curtailing the right to free speech of the owners of
PUVs and transport terminals by prohibiting them from posting election campaign materials on their properties.

Section 7(g) items (5) and (6) of

Resolution No. 9615 are not justified under
the captive-audience doctrine.

The COMELEC further points out that PUVs and transport terminals hold a "captive audience" - commuters who have no choice but be
subjected to the blare of political propaganda. The COMELEC further claims that while owners of privately owned PUVs and transport
terminals have a right to express their views to those who wish to listen, they have no right to force their message upon an audience
incapable of declining to receive it.

The COMELEC's claim is untenable.

The captive-audience doctrine states that when a listener cannot, as a practical matter, escape from intrusive speech, the speech can
be restricted.30 The "captive-audience" doctrine recognizes that a listener has a right not to be exposed to an unwanted message in
circumstances in which the communication cannot be avoided. 31

A regulation based on the captive-audience doctrine is in the guise of censorship, which undertakes selectively to shield the public from
some kinds of speech on the ground that they are more offensive than others. Such selective restrictions have been upheld only when
the speaker intrudes on the privacy of the home or the degree of captivity makes it either impossible or impractical for the unwilling
viewer or auditor to avoid exposure.32

In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court of the United States of America (U.S. Supreme Court)
struck down the order of New York Public Service Commission, which prohibits public utility companies from including inserts in
monthly bills discussing controversial issues of public policy. The U.S. Supreme Court held that "[t]he prohibition cannot be justified as
being necessary to avoid forcing appellant's views on a captive audience, since customers may escape exposure to objectionable
material simply by throwing the bill insert into a wastebasket." 34

Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court nullified a city ordinance, which made it a public nuisance and a
punishable offense for a drive-in movie theater to exhibit films containing nudity, when the screen is visible from a public street or place.
The U.S. Supreme Court opined that the degree of captivity is not so great as to make it impracticable for an unwilling viewer to avoid
exposure, thus:

The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to deter drive-in theaters from
showing movies containing any nudity, however innocent or even educational. This discrimination cannot be justified as a means of
preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and
places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not "so obtrusive as to
make it impossible for an unwilling individual to avoid exposure to it." x x x Thus, we conclude that the limited privacy interest of
persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.36 (Emphasis ours)

Thus, a government regulation based on the captive-audience doctrine may not be justified if the supposed "captive audience" may
avoid exposure to the otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6) of Resolution No. 9615 is not
justified under the captive-audience doctrine; the commuters are not forced or compelled to read the election campaign materials
posted on PUVs and transport terminals. Nor are they incapable of declining to receive the messages contained in the posted election
campaign materials since they may simply avert their eyes if they find the same unbearably intrusive.

The COMELEC, in insisting that it has the right to restrict the posting of election campaign materials on PUVs and transport terminals,
cites Lehman v. City of Shaker Heights,37 a case decided by the U.S. Supreme Court. In Lehman, a policy of the city government, which
prohibits political advertisements on government-run buses, was upheld by the U.S. Supreme Court. The U.S. Supreme Court held that
the advertising space on the buses was not a public forum, pointing out that advertisement space on government-run buses, "although
incidental to the provision of public transportation, is a part of commercial venture." 38 In the same way that other commercial ventures
need not accept every proffer of advertising from the general public, the city's transit system has the discretion on the type of
advertising that may be displayed on its vehicles.

Concurring in the judgment, Justice Douglas opined that while Lehman, a candidate for state office who sought to avail himself of
advertising space on government-run buses, "clearly has a right to express his views to those who wish to listen, he has no right to
force his message upon an audience incapable of declining to receive it." 39 Justice Douglas concluded: "the right of the commuters to
be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for
the dissemination of ideas upon this captive audience."40

The COMELEC's reliance on Lehman is utterly misplaced.

In Lehman, the political advertisement was intended for PUVs owned by the city government; the city government, as owner of the
buses, had the right to decide which type of advertisements would be placed on its buses. The U.S. Supreme Court gave primacy to the
city government's exercise of its managerial decision, viz:

Revenue earned from long-term commercial advertising could be jeopardized by a requirement that short-term candidacy or issue-
oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda. There could be
lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In
these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and
service-oriented advertising does not rise to the dignity of First Amendment violation. Were we to hold to the contrary, display
cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde
Parks open to every would be pamphleteer and politician. This the Constitution does not require.41 (Emphasis ours)

Lehman actually upholds the freedom of the owner of the utility vehicles, i.e., the city government, in choosing the types of
advertisements that would be placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of Resolution No. 9615 curtail the
choice of the owners of PUVs and transport terminals on the advertisements that may be posted on their properties.

Also, the city government in Lehman had the right, nay the duty, to refuse political advertisements on their buses. Considering that what
were involved were facilities owned by the city government, impartiality, or the appearance thereof, was a necessity. In the instant case,
the ownership of PUVs and transport terminals remains private; there exists no valid reason to suppress their political views by
proscribing the posting of election campaign materials on their properties.

Prohibiting owners of PUVs and transport

terminals from posting election campaign
materials violates the equal protection
clause.

Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of the free speech clause, but also of the equal protection
clause. One of the basic principles on which this government was founded is that of the equality of right, which is embodied in Section
1, Article III of the 1987 Constitution.42 "Equal protection requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give
undue favor to some and unjustly discriminate against others." 43

"The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the departments
of the government including the political and executive departments, and extend to all actions of a state denying equal protection of the
laws, through whatever agency or whatever guise is taken." 44

Nevertheless, the guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws to all citizens of the
state. Equality of operation of statutes does not mean their 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.45

In order that there can be valid classification so that a discriminatory governmental act may pass the constitutional norm of equal
protection, it is necessary that the four requisites of valid classification be complied with, namely: (1) it must be based upon substantial
distinctions; (2) it must be germane to the purposes of the law; (3) it must not be limited to existing conditions only; and (4) it must apply
equally to all members of the class.46

It is conceded that the classification under Section 7(g) items (5) and (6) of Resolution No. 9615 is not limited to existing conditions and
applies equally to the members of the purported class. However, the classification remains constitutionally impermissible since it is not
based on substantial distinction and is not germane to the purpose of the law.

A distinction exists between PUVs and transport terminals and private vehicles and other properties in that the former, to be considered
as such, needs to secure from the government either a franchise or a permit to operate. Nevertheless, as pointed out earlier, the
prohibition imposed under Section 7(g) items (5) and (6) of Resolution No. 9615 regulates the ownership per se of the PUV and
transport terminals; the prohibition does not in any manner affect the franchise or permit to operate of the PUV and transport terminals.

As regards ownership, there is no substantial distinction between owners of PUVs and transport terminals and owners of private
vehicles and other properties. As already explained, the ownership of PUVs and transport terminals, though made available for use by
the public, remains private. If owners of private vehicles and other properties are allowed to express their political ideas and opinion by
posting election campaign materials on their properties, there is no cogent reason to deny the same preferred right to owners of PUVs
and transport terminals. In terms of ownership, the distinction between owners of PUVs and transport terminals and owners of private
vehicles and properties is merely superficial. Superficial differences do not make for a valid classification. 47

The fact that PUVs and transport terminals are made available for use by the public is likewise not substantial justification to set them
apart from private vehicles and other properties. Admittedly, any election campaign material that would be posted on PUVs and
transport terminals would be seen by many people. However, election campaign materials posted on private vehicles and other places
frequented by the public, e.g., commercial establishments, would also be seen by many people. Thus, there is no reason to single out
owners of PUVs and transport terminals in the prohibition against posting of election campaign materials.

Further, classifying owners of PUVs and transport terminals apart from owners of private vehicles and other properties bears no relation
to the stated purpose of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal time, space and opportunity to
candidates in elections. To stress, PUVs and transport terminals are private properties. Indeed, the nexus between the restriction on
the freedom of expression of owners of PUVs and transport terminals and the government's interest in ensuring equal time, space, and
opportunity for candidates in elections was not established by the COMELEC.

In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615 violate the free speech clause; they are
content-neutral regulations, which are not within the constitutional power of the COMELEC issue and are not necessary to further the
objective of ensuring equal time, space and opportunity to the candidates. They are not only repugnant to the free speech clause, but
are also violative of the equal protection clause, as there is
no substantial distinction between owners of PUVs and transport terminals and owners of private vehicles and other properties.

On a final note, it bears stressing that the freedom to advertise one's political candidacy is clearly a significant part of our freedom of
expression. A restriction on this freedom without rhyme or reason is a violation of the most valuable feature of the democratic way of
life.48

WHEREFORE, in light of the foregoing disquisitions, the instant petition is hereby GRANTED. Section 7(g) items (5) and (6), in relation
to Section 7(f), of Resolution No. 9615 issued by the Commission on Elections are hereby declared NULL and VOID for being
repugnant to Sections 1 and 4, Article III of the 1987 Constitution.

SO ORDERED.

Sereno, C.J., Carpio, Brion, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Perlas-Bernabe, and Leonen, JJ., concur.
Velasco, Jr., and Jardeleza, JJ., no part.
Leonardo-De Castro, and Villarama, Jr., JJ., on official leave.
G.R. No. 208062, April 07, 2015 - SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC.,
Petitioners, v. COMMISSION ON ELECTIONS, Respondent.

EN BANC

G.R. No. 208062, April 07, 2015

SOCIAL WEATHER STATIONS, INC. AND PULSE ASIA, INC., Petitioners, v. COMMISSION ON
ELECTIONS, Respondent.

DECISION

LEONEN, J.:

This resolves the Petition1 for certiorari and prohibition under Rule 64, in relation to Rule 65, of the 1997
Rules of Civil Procedure praying that respondent Commission on Elections' Resolution No. 96742 dated
April 23, 2013 be nullified and set aside and that the Commission on Elections be permanently enjoined
from enforcing the same Resolution, as well as prosecuting Social Weather Stations, Inc. and Pulse Asia,
Inc. for violating it or otherwise compelling compliance with it.3

Commission on Elections' (COMELEC) Resolution No. 9674 directed Social Weather Stations, Inc. (SWS)
and Pulse Asia, Inc. (Pulse Asia), as well as "other survey firms of similar circumstance" 4 to submit to
COMELEC the names of all commissioners and payors of all surveys published from February 12, 2013 to
April 23, 2013, including those of their "subscribers."5

SWS and Pulse Asia are social research and public polling firms. Among their activities is the conduct of
pre-election surveys.6

As recounted by SWS and Pulse Asia, on February 15 to February 17, 2013, SWS conducted a pre-
election survey on voters' preferences for senatorial candidates. Thereafter, it published its findings. 7 The
following question was asked in the survey:

Kung ang eleksyon ay gaganapin ngayon, sino ang pinakamalamang ninyong iboboto bilang mga
SENADOR ng PILIPINAS? Narito ang listahan ng mga kandidato. Paki-shade o itiman po ang naaangkop
na oval katabi ng pangalan hg mga taong pinakamalamang ninyong iboboto. Maaari po kayong pumili ng
hanggang labindalawang (12) kandidato.

(LIST OF CANDIDATES OMITTED)

If the elections were held today, whom would you most probably vote for as SENATORS of the
PHILIPPINES? Here is a list of candidates. Please shade the oval beside the name of the persons you
would most likely vote for. You may choose up to twelve (12) candidates.

(LIST OF CANDIDATES OMITTED)8 (Emphasis in the original)

On March 20, 2013, Representative Tobias M. Tiangco (Tiangco), Secretary-General of the United
Nationalist Alliance (UNA), wrote Atty. Esmeralda Ladra, Director of COMELEC's Law Department. 9 In his
letter,10 Tiangco asked COMELEC to "compel [SWS] to either comply with the directive in the Fair Election
Act and COMELEC Resolution No. 9[6]1[5] and give the names or identities of the subscribers who paid
for the [pre-election survey conducted from February 15 to February 17, 2013], or be liable for the violation
thereof, an act constitutive of an election offense." 11

Tiangco recounted that on February 28, 2013, he wrote to SWS requesting, among others, that he "be
furnished the identity of persons who paid for the [pre-election survey conducted from February 15 to
February 17, 2013] as well as those who subscribed to it."12 Sometime in March 2013, SWS supposedly
replied to Tiangco, "furnishing [him] with some particulars about the survey but [without] disclosing] the
identity of the persons who commissioned or subscribed to the survey." 13

Acting on Tiangco's letter and on the COMELEC Law Department's recommendation, the COMELEC En
Bane issued the Order14 dated April 10, 2013 setting the matter for hearing on April 16, 2013. The same
Order directed SWS to submit its Comment within three (3) days of receipt. 15 On April 12, 2013, Pulse Asia
received a letter from COMELEC "requesting its representative to attend the COMELEC hearing on 16
April 2013."16

SWS and Pulse Asia recounted that during the hearing, COMELEC Chairman Sixto S. Brillantes, Jr.
(COMELEC Chairman Brillantes) stated that the proceeding was merely a clarificatory hearing and not a
formal hearing or an investigation.17

On April 23, 2013, COMELEC issued the assailed Resolution No. 9674. The entire dispositive portion of
this Resolution reads:

WHEREFORE, premises considered, the Commis[s]ion RESOLVED, as it hereby RESOLVES, to DIRECT

the SWS, Pulse Asia and other survey firms of similar circumstance to submit within three (3) days from
receipt of this Resolution the names of all commissioners and payors of surveys published from February
12, 2013 to the date of the promulgation of this Resolution for copying and verification by the Commission.
The submission shall include the names of all "subscribers" of those published surveys. Such
information/data shall be for the exclusive and confidential use of the Commission;

RESOLVED FURTHER, that all surveys published subsequent to the promulgation of this Resolution must
be accompanied by all the information required in Republic Act no. 9006, including the names of
commissioners, payors and subscribers.

This resolution shall take effect immediately after publication.

A violation of these rules shall constitu[t]e an election offense as provided in Republic Act no. 9006, or the
Fair Election Act.18 (Emphasis in the original)

As basis for Resolution No. 9674, COMELEC cited Article IX-C, Section 2(1)19 of the 1987 Constitution and
Sections 5.1 to 5.320 of Republic Act No. 9006, otherwise known as the Fair Election Act, as implemented
by COMELEC Resolution No. 9615.21

SWS and Pulse Asia alleged that following the issuance of Resolution No. 9674 and as of their filing before
this court of the present Petition, they had not been furnished copies of Resolution No. 9674. 22(They
emphasized that while a certified true copy of this Resolution was attached to their Petition, this was a
copy which they themselves secured "for the purpose of complying.with the requirement that Rule 65
petitions must be accompanied by a certified true copy of the assailed order or resolution[.]" 23)

In the letter24 dated April 30, 2013, SWS and Pulse Asia informed COMELEC Chairman Brillantes that they
had not received a copy of Resolution No. 9674. They also articulated their view that Resolution No. 9674
was tainted with irregularities, having been issued ultra vires (i.e., in excess of what the Fair Election Act
allows) and in violation of the non-impairment of contracts clause of the Constitution. They also expressed
their intention to bring the matter before this court on account of these supposed irregularities. Thus, they
requested that COMELEC defer or hold in abeyance Resolution No. 9674's enforcement. 25

On May 8, 2013, the COMELEC Law Department issued a Notice 26 to SWS (and also to Pulse Asia)
directing it to furnish COMELEC with a list of the names of all "commissioners, subscribers, and payors of
surveys published from February 12, 2013 until April 23, 2013." 27 SWS was warned that failure to comply
with the Notice shall constitute an election offense punishable under the Omnibus Election Code. 28

On July 1, 2013, COMELEC issued a Subpoena29 notifying SWS and Pulse Asia that a Complaint "for
violation of Section 264[,] par. 1 and 2 of the Omnibus Election Code30 in relation to R.A. 9006"31 was filed
against them. (This was docketed as E.O. Case No. 13-222). They were also directed to appear and to
submit their counter-affidavits and other supporting documents at the hearing set on August 6, 2013. 32

SWS and Pulse Asia maintained that before receiving the Subpoena, they were never informed that a
criminal case had been filed against them. They added that they were never furnished copies of the
relevant criminal Complaint.33

On July 26, 2013, petitioners Social Weather Stations, Inc. and Pulse Asia, Inc. filed the present
Petition.34 They assail Resolution No. 9674 as having been issued ultra vires. They are of the position that
Resolution No. 9674, in requiring the submission of information on subscribers, is in excess of what the
Fair Election Act requires.35 Likewise, they, assert that Resolution No. 9674 transgresses the Fair Election
Act in making itself executory immediately after publication. 36 Moreover, they claim that it violates the non-
impairment of contracts clause of the Constitution,37 and was enforced in violation of their right to due
process (as they were charged with its violation despite not having been properly served with copies of the
complaint filed against them).38 Petitioners pray for the issuance of a temporary restraining order and/or
writ of preliminary injunction in the interim.39
In this court's July 30, 2013 Resolution,40 COMELEC was required to file a Comment on the Petition. In the
same Resolution, this court issued a temporary restraining order "enjoining the enforcement of COMELEC
Resolution No. 9674 with respect to submission of the names of regular subscribers but not to the
submission of (1) the names of specific subscribers for the limited period of February 12, 2013 to April 23,
2013 who have paid a substantial amount of money for access to survey results and privileged survey
data; and (2) the names of all commissioners and payors of surveys published within the same period." 41

On October 10, 2013, COMELEC filed its Comment.42 On February 12, 2014, petitioners filed their Joint
Reply.43

In this court's February 18, 2014 Resolution,44 the present Petition was given due course, and the parties
were directed to file their memoranda. Petitioners complied on May 16, 2014 45 and COMELEC on June 25,
2014.46

For resolution are the following issues:

First, whether Resolution No. 9674 is invalid in that it requires the disclosure of the names of "subscribers"
of election surveys;

Second, whether the rights of petitioners to free speech will be curtailed by the requirement to submit the
names of their subscribers;

Third, whether Resolution No. 9674, insofar as it compels petitioners to submit the names of their
subscribers, violates the constitutional proscription against the impairment of contracts (Article II, Section
10);

Fourth, whether at the time petitioners were required by COMELEC to reveal the names of the subscribers
to their election surveys, Resolution No. 9674 was already in force and effect; and

Lastly, whether COMELEC deprived petitioners of due process of law when it:

a) failed to provide them with a copy of Resolution No. 9674 and the criminal complaint for an election
offense; and

b) refused to specify the election offense under which they were being prosecuted.

We sustain the validity of Resolution No. 9674. The names of those who commission or pay for election
surveys, including subscribers of survey firms, must be disclosed pursuant to Section 5.2(a) of the Fair
Election Act. This requirement is a valid regulation in the exercise of police power and effects the
constitutional policy of "guarantee[ing] equal access to opportunities for public service[.]"47 Section 5.2(a)'s
requirement of disclosing subscribers neither curtails petitioners' free speech rights nor violates the
constitutional proscription against the impairment of contracts.

However, it is evident that Resolution No. 9674 was promulgated in violation of the period set by the Fair
Election Act. Petitioners were also not served a copy of Resolution No. 9674 with which they were asked to
comply. They were neither shown nor served copies of the criminal Complaint subject of E.O. Case No.
13-222. Petitioners' right to due process was, thus, violated.

Petitioners assail Resolution No. 9674's requirement of submission of names of subscribers, including
those who did not commission or pay for a specific survey or cause its publication, for being ultra vires.
They maintain that the Fair Election Act "as it was written by Congress covers only those who commission
or pay for a particular election survey, and requires disclosure of their names only when that particular
survey is published."48 From this, they add that COMELEC exceeded its authority — "creating] an election
offense where there was none before"49 — in considering as an election offense any violation of Resolution
No. 9674.

COMELEC, for its part, insists on the "wide latitude of discretion"50 granted to it in the performance of its
constitutional duty to "[e]nforce and administer all laws and regulations relative to the conduct of an
election[.]"51 It adds that "as the specialized constitutional body charged with the enforcement and
administration of election laws,"52 its contemporaneous construction of Section 5.2(a) of the Fair Election
Act is "entitled to great weight and respect." 53 Citing the supposed legislative intent of Section 5.2 as
"broaden[ing] the subject of disclosure,"54 COMELEC claims that Section 5.2(a) "draws no distinction
between the direct payors and the indirect payors of the survey." 55 It adds that requiring the disclosure of
survey subscribers addresses the requirement of reporting election expenditures by candidates and
political parties, thereby helping COMELEC check compliance with this requirement. 56

Section 5.2(a) of the Fair Election Act, read in a manner consistent not only with its text but also with the
purpose for which it, along with the Fair Election Act, was adopted, sustains COMELEC's position.

Republic Act No. 9006 was adopted with the end in mind of "guarantee[ing] or ensuring] equal opportunity
for public service"57 and to this end, stipulates mechanisms for the "supervision] or regulation of] the
enjoyment or utilization of all franchises or permits for the operation of media of communication or
information[.]"58 Hence, its short title: Fair Election Act.

Situated within the constitutional order, the Fair Election Act provides means to realize the policy
articulated in Article II, Section 26 of the 1987 Constitution to "guarantee equal access to opportunities for
public service[.]" Article II, Section 26 models an understanding of Philippine political and electoral reality. It
is not merely hortatory or a statement of value. Among others, it sums up an aversion to the perpetuation
of political power through electoral contests skewed in favor of those with resources to dominate the
deliberative space in any media.

Apart from making real Article II, Section 26's constitutional policy, the Fair Election Act represents the
legislature's compliance with the requirement of Article XIII, Section 1: "Congress . . . give[s] highest
priority to the enactment of measures that. . . reduce . . . political inequalities ... by equitably diffusing
wealth and political power for the common good." 59

Moreover, the constitutional desire to "guarantee equal access to opportunities for public service" 60 is the
same intent that animates the Constitution's investiture in COMELEC of the power to "supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other
public utilities, media of communication or information, all grants, special privileges, or concessions
granted by the Government or any subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary."61

Specific provisions in the Fair Election Act regulate the means through which candidates for elective public
office, as well as political parties and groups participating in the party-list system, are able to make
themselves known to voters, the same means through which they earn votes.

Section 3 permits the use of lawful election propaganda.62 Section 4 regulates published or printed, and
broadcast election propaganda.63 Section 6 governs access to media time and space.64 Sections 7 and 8
provide for COMELEC's competencies (i.e., affirmative action, and the so-called "COMELEC Space" and
"COMELEC Time") that enable it to equalize candidates' exposure to voters. 65 Section 9 regulates venues
for the posting of campaign materials.66 Section 10 provides for parties' and candidates' right to
reply.67Section 11 requires media outlets to make available the use of their facilities for election
propaganda at discounted rates.68

The Fair Election Act also governs published surveys during elections.

Section 5.1 defines election surveys-as "the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the
election, including voters' preference for candidates or publicly discussed issues during the campaign
period[.]" Sections 5.2 and 5.3 provide regulations that facilitate transparency with respect to ' election
surveys. Section 5.469 is no longer in effect, having been declared unconstitutional in this court's May 5,
2001 Decision in Social Weather Stations and Kamahalan Publishing Corp. v. COMELEC.70 Section
5.571pertains to exit polls.

Section 5.2 enumerates the information that a person publishing an election survey must publish along
with the survey itself:

5.2 During the election period, any person, natural as well as juridical, candidate or organization who
publishes a survey must likewise publish the following information:chanroblesvirtuallawlibrary

a. The name of the person, candidate, party or. organization who commissioned
or paid for the survey;
b. The name of the person, polling firm or survey organization who conducted the
survey;
c. The period during which the survey was conducted, the methodology used,
including the number of individual respondents and the areas from which they
were selected, and the specific questions asked;
d. The margin of error of the survey;
e. For each question for which the margin of error is greater than that reported
under paragraph (d), the margin of error for that question; and
f. A mailing address and telephone number, indicating it as an address or
telephone number at which the sponsor can be contacted to obtain a written
 report regarding the survey in accordance with Subsection 5.3. (Emphasis
supplied)

Section 5.3 facilitates the inspection, copying, and verification not only of an election survey but also of the
raw data used as bases for its conclusions:

5.3 The survey together with raw data gathered to support its conclusions shall be available for inspection,
copying and verification by the COMELEC or by a registered political party or a bona fide candidate, or by
any COMELEC-accredited citizen's arm. A reasonable fee sufficient to cover the costs of inspection,
copying and verification may be charged.

As with all the other provisions of the Fair Election Act, Section 5 is a means to guarantee equal access to
the deliberative forums essential to win an elective public office. Any reading of Section 5 and of its
individual components, such as Section 5.2(a), cannot be divorced from this purpose.

The inclusion of election surveys in the list of items regulated by the Fair Election Act is a recognition that
election surveys are not a mere descriptive aggregation of data. Publishing surveys are a means to shape
the preference of voters, inform the strategy of campaign machineries, and ultimately, affect the outcome
of elections. Election surveys have a similar nature as election propaganda. They are expensive, normally
paid for by those interested in the outcome of elections, and have tremendous consequences on election
results.

II

Views vary on the precise extent to which surveys or "polls" shape voter preferences, if at all.

Election surveys have been critiqued for amplifying the notion of an election as a "horse race" 72 and for
reducing elections to the lowest common denominator of percentage points or a candidate's erstwhile
share in the vote market rather than focusing on issues, principles, programs, and platforms.

Several possible, albeit conflicting, effects of surveys on voter behavior have been postulated:

First, there is the bandwagon effect where "electors rally to support the candidate leading in the
polls."73 This "assumes that knowledge of a popular 'tide' will likely change voting intentions in [favor] of the
frontrunner, that many electors feel more comfortable supporting a popular choice or that people accept
the perceived collective wisdom of others as being enough reason for supporting a candidate." 74

Second, there is the underdog effect where "electors rally to support the candidate trailing in the
polls."75 This shift can be motivated by sympathy for the perceived underdog. 76

Third, there is the motivating effect where "individuals who had not intended to vote are persuaded to do
so,"77 having been alerted to the fact of an election's imminence. 78

Fourth, there is also the demotivating effect where "voters abstain from voting out of certainty that their
candidate or party will win[.]"79

Fifth, there are reports of a behavior known as strategic voting where "voting is influenced by the chances
of winning[.]"80

Lastly, there is also the theory of a free-will effect where "voters cast their ballots to prove the polls
wrong[.]"81

Election surveys published during election periods create the "politics of expectations." 82 Voters act in
accordance with what is perceived to be an existing or emerging state of affairs with respect to how
candidates are faring.

Of the six (6) effects, the bandwagon effect has a particular resonance and has been of concern. Surveys,
or opinion polls, "by directly influencing individual-level support . . . , can be self-fulfilling prophecies and
produce opinion cascades."83 "[A] poll's prediction may come to pass not only because it measures public
opinion but also because it may influence public opinion."84

The bandwagon effect is of particular concern because of the observed human tendency to conform. Three
(3) mechanisms through which survey results may induce conformity have been posited:

(1) normative social influence, or people's desire to adopt the majority position in order to feel liked and
accepted or believe they are on the winning team;
(2) informational social influence, or people learning from the 'wisdom of crowds' via social proof because
they 'believe that others' interpretation of an ambiguous situation is more accurate . . . and will help [them]
choose an appropriate course of action'; and

(3) people resolving cognitive dissonance by switching to the side they infer is going to win based on the
poll.85cralawlawlibrary

Likewise, it has been argued that the bandwagon effect is but the obverse of the so-called false-consensus
effect or false-consensus bias:

The bandwagon effect, a form of conformity, is the mirror image of the false consensus effect, where
people misperceive that their own behaviors and attitudes are more popular than they actually are. In the
political domain, one mechanism underlying the false consensus effect is wishful thinking - people gaining
utility from thinking their candidate is ahead or their opinions are popular. 86

The bandwagon effect induced by election surveys assumes even greater significance in considering the
health of a democracy.

Integral to our appreciation of democracy is the recognition that democracy is fundamentally deliberative. It
is rooted in the exchange and dialogue of ideas. Accordingly, free expression, not least of all from the
minority and from those who do not conform, i.e., those who dissent and criticize, is indispensable:

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and] ethical
dialogue is a critical, and indeed defining, feature of a good polity." This theory may be considered broad,
but it definitely "includes [a] collective decision making with the participation of all who will be affected by
the decision." It anchors on the principle that the cornerstone of every democracy is that sovereignty
resides in the people. To ensure order in running the state's affairs, sovereign powers were delegated and
individuals would be elected or nominated in key government positions to represent the people. On this
note, the theory on deliberative democracy may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the people to criticize acts made pursuant to
governmental functions.

Speech that promotes dialogue on public affairs, or airs out grievances and political discontent, should thus
be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and imagination;
that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good government
demand a full discussion of public affairs." This court has, thus, adopted the principle that "debate on
public issues should be uninhibited, robust, and wide open . . . [including even] unpleasantly sharp attacks
on government and public officials."87cralawlawlibrary

However, "conformity pressures can suppress minority opinion." 88 The bandwagon effect conjures images
of an impregnable majority, thereby tending to push farther toward the peripheries those who are already
marginalized. Worse, the bandwagon effect foments the illusion of a homogenous monolith denying the
very existence of those in the minority. This undermines the "normative conceptions of
democracy"89 substituting the democratic dialogue with acquiescence to perceived or projected orthodoxy.

Surveys, far from being a passive "snapshot of many viewpoints held by a segment of the population at a
given time,"90 can warp existing public opinion and can mould public opinion. They are constitutive.
Published election surveys offer valuable insight into public opinion not just because they represent it but
more so because they also tend to make it.

Appreciating this tendency to both entrench and marginalize is of acute relevance in the context of
Philippine political reality. This is the same reality that our policymakers, primarily the framers of the
Constitution, have seen fit to address.

III

The constitutional dictum to "guarantee equal access to opportunities for public service" 91 and (even more
specifically and explicitly) to "prohibit political dynasties"92 does not exist in a vacuum.

Politics in the Philippines has been criticized as "a lucrative means of self-aggrandizement."93 Ours is an
exclusive system that perpetuates power and provides sanctuary to those who have already secured their
place. Traditional Filipino politics connotes elite families that, with the state, are "engaged in a reciprocal
relationship that constantly defines and redefines both." 94 As recounted by Alfred McCoy, this reciprocal
relationship, typified by rent-seeking (i.e., "taking advantage of their access to state privileges to expand
proprietary wealth"95), is a vicious cycle propagated for as long as the Philippines has been a republic:
"The emergence of the Republic as a weak postcolonial state augmented the power of rent-seeking
political families — a development that further weakened the state's own resources." 96

The Philippines, as it emerged in the wake of Ferdinand Marcos' presidency and the adoption of the 1987
Constitution, saw the "celebritification"97 of political office. On the legislature and studying emerging
contrasts in the composition of its two chambers — the Senate and the House of Representatives — it has
been noted:

The old political families, however are not as strong in the Senate as they are in the House. This could be
read, if not as a total repudiation by voters of family power, then at least as an attempt by them to tap other
sources of national leadership. Celebrities and military and police officers have emerged as alternatives to
traditional politicians. It could be that these new men and women have captured the popular imagination or
that they are more in tune with the public pulse. But their emergence could very well be seen as an
indication of the paucity of choices: Political parties, for one, have not succeeded in proffering a wider
range of options to an electorate weary of trapos.98

This celebritification nurtures misleading notions of an enhanced or healthier democracy, one that opens
avenues to a crop of political leaders not belonging to oligarchic families. Viewed critically however, this is
nothing more than a pipe dream. New elites now share the political stage with the old. The tension
between two contrary tendencies actually serves to preserve the status quo of elitism — an expanded
elitism perhaps, but elitism no less. To evoke a truism, "the more things change, the more they stay the
same":

But the "celebritification" of the Senate can also be interpreted as the democratization of an exclusive body
once reserved only for the very rich, the politically experienced, and the intellectually brilliant. In a sense,
the bar of entry has been lowered, and anyone with national renown can contest a seat in a chamber once
famous for sharp debates and polysyllabic peroration.

The main criterion for a Senate seat is now name recall. This is where celebrities have the edge even over
older political families with bankable names. . . .

....

The diminishing clout of old families in the Senate—and their continued dominance in the House—shows
the push and pull of two contrary tendencies. The first tendency is toward the new: The importance of
name recall in national elections taking place in a media-inundated environment makes it easier for movie
and media personalities, and harder for old-style politicians, to be elected. The second tendency is veering
toward the old: At the district level, trapo-style patronage and machine politics remain deeply entrenched,
giving political families the edge in elections."99

Thus, where once there was elitism solely along lines of kinship — Alfred McCoy's so-called "anarchy of
families" — now there is also elitism demarcated by name recall, populist projection, and media exposure,
arguably, an "anarchy of celebrities."

Certainly, it is not the business of this court to engage in its own determination of the wisdom of policy.
Nevertheless, having to grapple with the tasks of adjudication and interpretation, it has become necessary
to bring to light the intent that underlies the disputed statutory provision, as well as the constitutional
regime and social context, in which this provision is situated.

To reiterate, the inclusion of published election surveys in a statute that regulates election propaganda and
other means through which candidates may shape voter preferences is itself telling of the recognition that
published election surveys, too, may influence voter preferences. This inclusion is similarly telling of a
recognition that, left unregulated, election surveys can undermine the purposes of ensuring "fair" elections.
These recognitions are embedded in the Fair Election Act; they are not judicial constructs. In adjudicating
with these' as bases, this court is merely adhering to the legislative imperative.

IV

It is necessary that the Fair Election Act be appreciated for what it is: a mechanism for ensuring equality.
The Fair Election Act is a means to effect the "necessary condition" to a genuine democratic dialogue, to
realizing a deliberative democracy. The concept of this "necessary condition" was previously considered by
this court in Diocese of Bacolod v. COMELEC:100
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse recognized
how institutionalized inequality exists as a background limitation, rendering freedoms exercised within such
limitation as merely "protecting] the already established machinery of discrimination." In his view, any
improvement "in the normal course of events" within an unequal society, without subversion, only
strengthens existing interests of those in power and control.

In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:

Liberty is selfi-determination, autonomy—this is almost a tautology, but a tautology which results from a
whole series of synthetic judgments. It stipulates the ability to determine one's own life: to be able to
determine what to do and what not to do, what to suffer and what not. But the subject of this autonomy is
never the contingent, private individual as that which he actually is or happens to be; it is rather the
individual as a human being who is capable of being free with the others. And the problem of making
possible such a harmony between every individual liberty and the other is not that of finding a compromise
between competitors, or between freedom and law, between general and individual interest, common and
private welfare in an established society, but of creating the society in which man is no longer enslaved by
institutions which vitiate self-determination from the beginning. In other words, freedom is still to be created
even for the freest of the existing societies.

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by the
people — "implies a necessary condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to authentic information, and that, on this
basis, their evaluation must be the result of autonomous thought'." He submits that "[different opinions and
'philosophies' can no longer compete peacefully for adherence and persuasion on rational grounds: the
'marketplace of ideas' is organized and delimited by those who determine the national and the individual
interest."

A slant toward left manifests from his belief that "there is a 'natural right' of resistance for oppressed and
overpowered minorities to use extralegal means if the legal ones have proved to be inadequate." Marcuse,
thus, stands for an equality that breaks away and transcends from established hierarchies, power
structures, and indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."101

What is involved here is petitioners' freedom of speech and of expression, that is, to publish their findings.
More specifically, what is involved here is their right to political speech, that which "refers to speech 'both
intended and received as a contribution to public deliberation about some issue,' 'foster[ing] informed and
civic-minded deliberation."102

The nature of the speech involved, as well as the Fair Election Act's purpose of ensuring political equality,
calls into operation the equality-based approach to weighing liberty to express vis-a-vis equality of
opportunities. As explained in Diocese of Bacolod:103

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but regulation
promoting political equality prevails over speech." This view allows the government leeway to redistribute
or equalize 'speaking power,' such as protecting, even implicitly subsidizing, unpopular or dissenting voices
often systematically subdued within society's ideological ladder. This view acknowledges that there are
dominant political actors who, through authority, power, resources, identity, or status, have capabilities that
may drown out the messages of others. This is especially true in a developing or emerging economy that is
part of the majoritarian world like ours.

...

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and their
necessity to relate. On the other hand, a complete guarantee must also take into consideration the effects
it will have in a deliberative democracy. Skewed distribution of resources as well as the cultural hegemony
of the majority may have the effect of drowning out the speech and the messages of those in the minority.
In a sense, social inequality does have its effect on the exercise and effect of the guarantee of free speech.
Those who have more will have better access to media that reaches a wider audience than those who
have less. Those who espouse the more popular ideas will have better reception than the subversive and
the dissenters of society. To be really heard and understood, the marginalized view normally undergoes its
own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments of the
value of such viewpoint or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in opportunity must provide limits to some
expression during electoral campaigns.104

The required judicial temperament in appraising speech in the context of electoral campaigns which is
principally designed to endorse a candidate, both by candidates and / or political parties, on the one hand,
and private citizens, on the other, has thus been articulated:

Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and manner.
This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates or
who do not speak as members of a political party which are, taken as a whole, principally advocacies of a
social issue that the public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of opinions coming from the
electorate including those that can catalyze candid, uninhibited, and robust debate in the criteria for the
choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not amount to
an election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of persons
who are not candidates or who do not speak as members of a political party if they are not candidates, only
if what is regulated is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the opportunity of all candidates to be heard and
considering the primacy of the guarantee of free expression, and (d) demonstrably the least restrictive
means to achieve that object. The regulation must only be with respect to the time, place, and manner of
the rendition of the message. In no situation may the speech be prohibited or censored on the basis of its
content. For this purpose, it will not matter whether the speech is made with or on private
property.105 [Emphasis in the original]

Concededly, what is involved here is not election propaganda per se. Election surveys, on their face, do
not state or allude to preferred candidates. As a means, election surveys are ambivalent. To an
academician, they are an aggrupation of data. To a journalist, they are matters for reportage. To a
historian, they form part of a chronicle. Election surveys thus become unambiguous only when viewed in
relation to the end for which they are employed. To those whose end is to get a candidate elected, election
surveys, when limited to their own private consumption, are a means to formulate strategy. When
published, however, the tendency to shape voter preferences comes into play. In this respect, published
election surveys partake of the nature of election propaganda. It is then declarative speech in the context
of an electoral campaign properly subject to regulation. Hence, Section 5.2 of the Fair Election Act's
regulation of published surveys.

We thus proceed to evaluate Resolution No. 9674's requirement of disclosing the names of subscribers to
election surveys in light of the requisites for valid regulation of declarative speech by private entities in the
context of an election campaign:

First, the text of Section 5.2(a) of the Fair Election Act supports the inclusion of subscribers among those
persons who "paid for the survey[.]"106 Thus, Resolution No. 9674 is a regulation finding basis in statute.

COMELEC correctly points out that in Section 5.2(a) of the Fair Election Act, those who "commissioned"
and those who "paid for" the published survey are separated by the disjunctive term "or."107 This
disassociates those who "commissioned" from those who "paid for" and identifies them as alternatives to
each other.108 Section 5.2(a) thus requires the disclosure of two (2) classes of persons: "[first,] those who
commissioned or sponsored the survey; and [second,] those who paid for the survey." 109

The second class makes no distinction between those who pay for a specific survey and those who pay for
election surveys in general. Indeed, subscribers do not escape the burden of paying for the component
articles comprising a subscription. They may pay for them in aggregate, but they pay for them just the
same. From the text of Section 5.2(a), the legislative intent or regulatory concern is clear: "those who have
financed, one way or another, the [published] survey" 110 must be disclosed.

Second, not only an important or substantial state interest but even a compelling one reasonably grounds
Resolution No. 9674's inclusion of subscribers to election surveys. Thus, regardless of whether an
intermediate or a strict standard is used, Resolution No. 9674 passes scrutiny.
It is settled that constitutionally declared principles are a compelling state interest:

Compelling governmental interest would include constitutionally declared principles. We have held, for
example, that "the welfare of children and the State's mandate to protect and care for them, as parens
patriae, constitute a substantial and compelling government interest in regulating . . . utterances in TV
broadcast."111

Here, we have established that the regulation of election surveys effects the constitutional policy,
articulated in Article II, Section 26, and reiterated and affirmed in Article IX-C, Section 4 and Article XIII,
Section 26 of the 1987 Constitution, of "guarantee[ing] equal access to opportunities for public service[.]" 112

Resolution No. 9674 addresses the reality that an election survey is formative as it is descriptive. It can be
a means to shape the preference of voters and, thus, the outcome of elections. In the hands of those
whose end is to get a candidate elected, it is a means for such end and partakes of the nature of election
propaganda. Accordingly, the imperative of "fair" elections impels their regulation.

Lastly, Resolution No. 9674 is "narrowly tailored to meet the objective of enhancing the opportunity of all
candidates to be heard and considering the primacy of the guarantee of free expression" 113 and is
"demonstrably the least restrictive means to achieve that object."114

While it does regulate expression (i.e., petitioners' publication of election surveys), it does not go so far as
to suppress desired expression. There is neither prohibition nor censorship specifically aimed at election
surveys. The freedom to publish election surveys remains. All Resolution No. 9674 does is articulate a
regulation as regards the manner of publication, that is, that the disclosure of those who commissioned
and/or paid for, including those subscribed to, published election surveys must be made.cralawlawlibrary

VI

Petitioners harp on what they claim to be Section 5.2(a)'s "plain meaning" and assert that there is no room
to entertain COMELEC's construction of Section 5.2(a).115

It has been said that "[a] cardinal rule in statutory construction is that when the law is clear and free from
any doubt or ambiguity, there is no room for construction or interpretation. There is only room for
application."116

Clarifications, however, are in order.

First, verba legis or the so-called plain-meaning rule applies only when the law is completely clear, such
that there is absolutely no room for interpretation. Its application is premised on a situation where the
words of the legislature are clear that its intention, insofar as the facts of a case demand from the point of
view of a contemporary interpretative community, is neither vague nor ambiguous. This is a matter of
judicial appreciation. It cannot apply merely on a party's contention of supposed clarity and lack of room for
interpretation.

This is descriptive of the situation here.

Interestingly, both COMELEC and petitioners appeal to what they (respectively) construe to be plainly
evident from Section 5.2(a)'s text: on the part of COMELEC, that the use of the words "paid for" evinces no
distinction between direct purchasers and those who purchase via subscription schemes; and, on the part
of petitioners, that Section 5.2(a)'s desistance from actually using the word "subscriber" means that
subscribers are beyond its contemplation.117 The variance in the parties' positions, considering that they
are both banking on what they claim to be the Fair Election Act's plain meaning, is the best evidence of an
extant ambiguity.

Second, statutory construction cannot lend itself to pedantic rigor that foments absurdity. The dangers of
inordinate insistence on literal interpretation are commonsensical and need not be belabored. These
dangers are by no means endemic to legal interpretation. Even in everyday conversations, misplaced
literal interpretations are fodder for humor. A fixation on technical rules of grammar is no less innocuous. A
pompously doctrinaire' approach to text can stifle, rather than facilitate, the legislative wisdom that
unbridled textualism purports to bolster.118

Third, the assumption that there is, in all cases, a universal plain language is erroneous. In reality,
universality and uniformity of meaning is a rarity. A contrary belief wrongly assumes that language is static.

The more appropriate and more effective approach is, thus, holistic rather than parochial: to consider
context and the interplay of the historical, the contemporary, and even the envisioned. Judicial
interpretation entails the convergence of social realities and social ideals. The latter are meant to be
effected by the legal apparatus, chief of which is the bedrock of the prevailing legal order: the Constitution.
Indeed, the word in the vernacular that describes the Constitution — saligan — demonstrates this
imperative of constitutional primacy.

Thus, we refuse to read Section 5.2(a) of the Fair Election Act in isolation. Here, we consider not an
abstruse provision but a stipulation that is part of the whole, i.e., the statute of which it is a part, that is
aimed at realizing the ideal of fair elections. We consider not a cloistered provision but a norm that should
have a present authoritative effect to achieve the ideals of those who currently read, depend on, and
demand fealty from the Constitution.cralawlawlibrary

VII

We note with favor COMELEC's emphasis on the "wide latitude of discretion"119 granted to it in the
performance of its constitutional duty to "[e]nforce and administer all laws arid regulations relative to the
conduct of an election[.]"120 But this is with the caution that it does not reach "grave abuse of discretion[.] 121

Alliance for Nationalism and Democracy v. COMELEC122 had the following to say regarding factual findings
made by COMELEC, an independent constitutional organ:

[T]he rule that factual findings of administrative bodies will not be disturbed by courts of justice except
when there is absolutely no evidence or no substantial evidence in support of such findings should be
applied with greater force when it concerns the COMELEC, as the framers of the Constitution intended to
place the COMELEC—created and explicitly made independent by the Constitution itself—on a level
higher than statutory administrative organs.123

Proceeding from this, we emphasize that this norm of deference applies not only to factual findings. This
applies with equal force to independent constitutional organs' general exercise of their functions. The
constitutional placing of independent constitutional organs on a plane higher than those of administrative
agencies created only by statute is not restricted to competence in fact-finding. It extends to all purposes
for which the Constitution created them.

We reiterate, however, that our recognition of this deferential norm is made with caution. This rule of
deference does not give independent constitutional organs, like COMELEC, license to gravely abuse their
discretion. With respect to rule-making, while the wisdom of "subordinate legislation" or the rule-making
power of agencies tasked with the administration of government is acknowledged, rule-making agencies
are not given unfettered power to promulgate rules. As explained in Gerochi v. Department of Energy,124it
is imperative that subordinate legislation "be germane to the objects and purposes of the law and that the
regulation be not in contradiction to, but in conformity with, the standards prescribed by the law."125A
regulation that purports to effect a statute but goes beyond the bounds of that statute is ultra vires; it is in
excess of the rule-making agency's competence. Thus, it is void and ineffectual.

This is not the case here. There is no grave abuse of discretion. Resolution No. 9674 serves a
constitutional purpose and works well within the bounds of the Constitution and of statute.cralawlawlibrary

VIII

Petitioners argue that Resolution No. 9674 constitutes a prior restraint in that:

Resolution No. 9674 makes it an election offense for a survey firm not to disclose the names of subscribers
who have paid substantial amounts to them, even if ihe survey portions provided to them have not been
published. 1'his requirement is unduly burdensome and onerous and constitutes a prior restraint on the
right of survey firms to gather information on public opinion and disseminate it to the citizenry.

. . . If Resolution No. 9674 is allowed to stand, survey firms will no longer be able to operate because they
will not have enough clients and will not be financially sustainable. COMELEC will finally be able to do
indirectly what it could not do directly, which is to prohibit the conduct of election surveys and the
publication or dissemination of the results to the public.126

Petitioners' assertions are erroneous.

Chavez v. Gonzales127 explained the concept of prior restraint as follows:

Prior restraint refers to official governmental restrictions on the press or other forms of expression in
advance of actual publication or dissemination. Freedom from prior restraint is largely freedom from
government censorship of publications, whatever the form of censorship, and regardless of whether it is
wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental
acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; and even injunctions against publication.
Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation
of their printing and publication, are deemed as previous restraint or censorship. Any law or official that
requires some form of permission to be had before publication can be made, commits an infringement of
the constitutional right, and remedy can be had at the courts. 128 (Emphasis supplied, citations omitted)

The very definition of "prior restraint" negates petitioner's assertions. Resolution No. 9674 poses no
prohibition or censorship specifically aimed at election surveys. Apart from regulating the manner of
publication, petitioners remain free to publish election surveys. COMELEC correctly points out that "[t]he
disclosure requirement kicks in only upon, not prior to, publication."129

In any case, the requirement of disclosing subscribers is neither unduly burdensome nor onerous. Prior to
the promulgation of Resolution No. 9674, survey firms were already understood to be bound by the
requirement to disclose those who commissioned or paid for published election surveys. Petitioners have
been complying with this without incident since the Fair Election Act was enacted in 2001. After more than
a decade of compliance, it is odd for petitioners to suddenly assail the disclosure requirement as unduly
burdensome or onerous.

Petitioners' claim that "[i]f Resolution No. 9674 is allowed to stand, survey firms will no longer be able to
operate because they will not have enough clients and will not be financially sustainable"130 is too
speculative and conjectural to warrant our consideration. The assumption is that persons who want to avail
of election survey results will automatically be dissuaded from doing so when there is a requirement of
submission of their names during the campaign period. This is neither self-evident, nor a presumption that
is susceptible to judicial notice. There is no evidence to establish a causal connection.

Petitioners' free speech rights must be weighed in relation to the Fair Election Act's purpose of ensuring
political equality and, therefore, the speech of others who want to participate unencumbered in our political
spaces. On one hand, there are petitioners' right to publish and publications which are attended by the
interests of those who can employ published data to their partisan ends. On the other, there is regulation
that may effect equality and, thus, strengthen the capacity of those on society's margins or those who
grope for resources to engage in the democratic dialogue. The latter fosters the ideals of deliberative
democracy. It does not trump the former; rather, it provides the environment where the survey group's free
speech rights should reside.cralawlawlibrary

IX

Petitioners argue that Resolution No. 9674 violates Article III, Section 10 of the 1987 Constitution. 131They
claim that it "unduly interferes with [their] existing contracts . . . by forcing [them] to disclose information
that, under the contracts, is confidential or privileged." 132

For its part, COMELEC argues that "[t]he non-impairment clause of the Constitution must yield to the loftier
purposes sought to be achieved by the government." 133 It adds that "[petitioners' existing contracts with
third parties must be understood to have been made in reference to the possible exercise of the
COMELEC's regulatory powers."134

It is settled that "the constitutional guaranty of non-impairment... is limited by the exercise of the police
power of the State, in the interest of public health, safety, morals and general welfare."135 "It is a basic rule
in contracts that the law is deemed written into the contract between the parties." 136 The incorporation of
regulations into contracts is "a postulate of the police power of the State." 137

The relation of the state's police power to the principle of non-impairment of contracts was thoroughly
explained in Ortigas and Co. V. Feati Bank:138

[W]hile non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to
be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe regulations to
promote the health, morals, peace, education, good order or safety and general welfare of the people."
Invariably described as "the most essential, insistent, and illimitable of powers" and "in a sense, the
greatest and most powerful attribute of government," the exercise of the power may be judicially inquired
into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of
due process or a violation of any other applicable constitutional guarantee. As this Court held through
Justice Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao, et al. police power "is
elastic and must be responsive to various social conditions; it is not confined within narrow
circumscriptions of precedents resting on past conditions; it must follow the legal progress of a democratic
way of life." We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al,
when We declared: "We do not see why public welfare when clashing with the individual right to property
should not be made to prevail through the state's exercise of its police power." 139(Citations omitted)

This case does not involve a "capricious, whimsical, unjust or unreasonable" 140 regulation. We have
demonstrated that not only an important or substantial state interest, but even a compelling one anchors
Resolution No. 9674's requirement of disclosing subscribers to election surveys. It effects the constitutional
policy of "guarantee[ing] equal access to opportunities for public service" 141 and is impelled by the
imperative of "fair" elections.

As a valid exercise of COMELEC's regulatory powers, Resolution No. 9674 is correctly deemed written into
petitioners' existing contracts.

Parenthetically, the obligations of agreements manifested in the concept of contracts are creations of law.
This right to demand performance not only involves its requisites, privileges, and regulation in the Civil
Code or special laws, but is also subject to the Constitution. The expectations inherent in a contract may
be compelling, but so are the normative frameworks demanded by law and the provisions of the
Constitution.cralawlawlibrary

Petitioners point out that Section 13 of the Fair Election Act provides that "[r]ules and regulations
promulgated by the COMELEC under and by authority of this Section shall take effect on the seventh day
after their publication in at least two (2) daily newspapers of general circulation." In contrast, Resolution
No. 9674 provides that it "shall take effect immediately after publication."142 Thus, they assert that
Resolution No. 9674's effectivity clause is invalid. From this, they argue that Resolution No. 9674 has not
taken effect and cannot be enforced against them or against other persons. 143

COMELEC counters that Section 13 of the Fair Election Act's provision that rules shall take effect "on the
seventh day after their publication" applies only to Resolution No. 9615, the Implementing Rules and
Regulations (IRR) of the Fair Election Act, and not to Resolution No. 9674, which "merely enforces Section
26144 of Resolution No. 9615."145

Noting that Resolution No. 9674 was nevertheless published in the Philippine Daily Inquirer and the
Philippine Star both on April 25, 2013, COMELEC adds that, in any case, "the lapse of the seven-day
period from the date of its publication has rendered the instant issue moot and academic." 146

It is COMELEC which is in error on this score. Section 13 of the Fair Election Act reads:

Section 13. Authority of the COMELEC to Promulgate Rules; Election Offenses. - The COMELEC shall
promulgate and furnish all political parties and candidates and the mass media entities the rules and
regulations for the implementation of this Act, consistent with the criteria established in Article IX-C,
Section 4 of the Constitution and Section 86 of the Omnibus Election Code (Batas Pambansa Bldg. 881).

Rules and regulations promulgated by the COMELEC under and by authority of this Section shall take
effect on the seventh day after their publication in at least two (2) daily newspapers of general circulation.
Prior to effectivity of said rules and regulations, no political advertisement or propaganda for or against any
candidate or political party shall be published or broadcast through mass media.

Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be
an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus
Election Code (Batas Pambansa Bldg. 881). (Emphasis supplied)

Resolution No. 9615 is denominated "Rules and Regulations Implementing Republic Act No. 9006,
otherwise known as the 'Fair Election Act', in connection to [sic] the 13 May 2013 National and Local
Elections, and Subsequent Elections[.]"

The only conceivable reason that would lead COMELEC to the conclusion that it is only Resolution No.
9615 (and not the assailed Resolution No. 9674) that needs to comply with the requirement of Section 13
of the Fair Election Act is Section 13's use of the phrase "rules and regulations for the implementation of
this Act[.]" That is, since Resolution No. 9615 is the Resolution which, by name, is called the "Rules and
Regulations Implementing Republic Act No. 9006," COMELEC seems to think that other rules named
differently need not comply.

It is an error to insist on this literal reasoning.

Section 13 applies to all rules and regulations implementing the Fair Election Act, regardless of how they
are denominated or called. COMELEC's further reasoning that what Resolution No. 9674 intends to
implement is Resolution No. 9615 and not the Fair Election Act itself is nothing but a circuitous denial of
Resolution No. 9674's true nature. COMELEC's reasoning is its own admission that the assailed
Resolution supplements what the Implementing Rules and Regulations of the Fair Election Act provides.
Ultimately, Resolution No. 9674 also implements the Fair Election Act and must, thus, comply with the
requirements of its Section 13.
Accordingly, Resolution No. 9674 could not have become effective as soon as it was published in the
Philippine Daily Inquirer and the Philippine Star on April 25, 2013. Taking into consideration the seven-day
period required by Section 13, the soonest that it could have come into effect was on May 2, 2013.

This notwithstanding, petitioners were not bound to comply with the requirement "to submit within three (3)
days from receipt of this Resolution the names of all commissioners and payors of surveys published from
February 12, 2013 to the date of the promulgation of this Resolution[.]" 147 As shall be discussed,
COMELEC's (continuing) failure to serve copies of Resolution No. 9674 on petitioners prevented this three-
day period from even commencing.cralawlawlibrary

XI

Petitioners point out that they were never served copies of Resolution No. 9674. Thus, they claim that this
Resolution's self-stated three-day period within which they must comply has not begun to run and that
COMELEC's insistence on their compliance violates their right to due process. They add that COMELEC
has also failed to provide them with copies of the criminal complaint subject of E.O. Case No. 13-222 for
which the Subpoena dated July 1, 2013 was issued against them.

COMELEC, however, insists that "[petitioners were given fair notice of the Resolution" 148 in that:

[t]he-Notice dated 08 May 2013 sent to and received by petitioners not only makes reference to the
Resolution by its number and title but also indicates its date of promulgation, the two newspapers of
general circulation in which it was published, it date of publication, and, more important [sic], reproduces in
full its dispositive portion[.]149

COMELEC adds that, in any case, petitioners were "able to secure a certified true copy of the [assailed]
Resolution."150 On the filing of a criminal complaint, COMELEC asserts that attached to the Subpoena
served on petitioners was a copy of Resolution No. 13-0739 of the COMELEC En Bane which "provides a
verbatim reproduction of the Memorandum of the Director of the Law Department detailing petitioners'
failure to comply with the assailed Resolution and of the Memorandum of Commissioner [Christian Robert
S.] Lim submitting the matter for the appropriate action of the COMELEC en bane."151

COMELEC relies on infirm reasoning and reveals how, in criminally charging petitioners, it acted arbitrarily,
whimsically, and capriciously, and violated petitioners' right to due process.

By its own reasoning, COMELEC admits that petitioners were never actually served copies of Resolution
No. 9674 after it was promulgated on April 23, 2013. It insists, however, that this flaw has been remedied
by service to petitioners of the May 8, 2013 Notice which reproduced Resolution No. 9674's dispositive
portion.

Dismembering an official issuance by producing only a portion of it (even if the reproduced portion is the
most significant, i.e., dispositive, portion) is not the same as serving on the concerned parties a copy of the
official issuance itself. Petitioners may have been informed of what the dispositive portion stated, but it
remains that they were never notified and served copies of the assailed Resolution itself. In Resolution No.
9674's own words, compliance was expected "within three (3) days from receipt of this Resolution[,]"152 not
of its partial, dismembered, reproduction.

Not having been served with copies of Resolution No. 9674 itself, petitioners are right in construing the
three-day period for compliance as not having begun to run. From this, it follows that no violation of the
requirement "to submit within three (3) days from receipt of this Resolution the names of all commissioners
and payors of surveys published from February 12, 2013 to the date of the promulgation of this
Resolution[.]"153 could have been committed. Thus, there was no basis for considering petitioners to have
committed an election offense arising from this alleged violation.

It is of no consequence that the May 8, 2013 Notice warned petitioners that failure to comply with it "shall
constitute an election offense punishable under the first and second paragraphs of Section 264 of the
Omnibus Election Code."154 It is true that the Omnibus Election Code has been in force and effect long
before Resolution No. 9674 was promulgated; nevertheless, the supposed violation of the Omnibus
Election Code rests on petitioners' alleged non-compliance with Resolution No. 9674. This is a matter
which, as we have demonstrated, is baseless, the three-day period for compliance not having even
commenced.

It is similarly inconsequential that petitioners were subsequently able to obtain certified true copies of
Resolution No. 9674. Petitioners' own diligence in complying with the formal requirements of Rule 65
petitions filed before this court cannot possibly be the cure for COMELEC's inaction. These certified true
copies were secured precisely to enable petitioners to assail COMELEC's actions, not to validate them. It
would be misguided to subscribe to COMELEC's suggestion that petitioners' diligence should be their own
undoing. To accede to this would be to effectively intimidate parties with legitimate grievances against
government actions from taking the necessary steps to comply with (formal) requisites for judicial remedies
and, ultimately, prevent them from protecting their rights.

COMELEC's error is compounded by its failure to provide petitioners with copies of the criminal complaint
subject of E.O. Case No. 13-222. COMELEC has neither alleged nor proven that it has done so. Per its
own allegations, all it did was serve petitioners with the May 8, 2013 Notice and the July 1, 2013
Subpoena.

These facts considered, it was not only grave error, but grave abuse of discretion, for COMELEC to pursue
unfounded criminal charges against petitioners. In so doing, COMELEC violated petitioners' right to due
process.

WHEREFORE, the Petition is PARTIALLY GRANTED in that COMELEC Resolution No. 9674 is upheld,
and respondent Commission on Elections is ENJOINED from prosecuting petitioners Social Weather
Stations, Inc. and Pulse Asia, Inc. for their supposed violation of COMELEC Resolution No. 9674 in
respect of their non-submission of the names of all commissioners and payors, including subscribers, of
surveys published during the campaign period for the 2013 elections.

SO ORDERED.chanroblesvirtuallawlibrary

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Perez,
Mendoza, Reyes, and Leonen, JJ., concur.
Villarama, Jr., J., on official leave.
Perlas-Bernabe, J., on leave.
Jardeleza, J., no part, prior action as SolGen.
OCTOBER TERM, 1994

Syllabus

RUBIN, SECRETARY OF THE TREASURY v.

COORS BREWING CO.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No.93-1631. Argued November 30, 1994-Decided April 19, 1995

Because § 5(e)(2) of the Federal Alcohol Administration Act (FAAA or Act), 27 U. S. C. § 205(e)(2), prohibits beer labels from displaying
alcohol content, the federal Bureau of Alcohol, Tobacco and Firearms (BATF) rejected respondent brewer's application for approval of
proposed labels that disclosed such content. Respondent filed suit for relief on the ground that the relevant provisions of the Act
violated the First Amendment's protection of commercial speech. The Government argued that the labeling ban was necessary to
suppress the threat of "strength wars" among brewers, who, without the regulation, would seek to compete in the marketplace based on
the potency of their beer. The District Court invalidated the labeling ban, and the Court of Appeals affirmed. Although the latter court
found that the Government's interest in suppressing "strength wars" was "substantial" under the test set out in Central Hudson
Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557, the court held that the ban violates the First Amendment because it
fails to advance that interest in a direct and material way.

Held: Section 5(e)(2) violates the First Amendment's protection of commercial speech. Pp.480-491.

(a) In scrutinizing a regulation of commercial speech that concerns lawful activity and is not misleading, a court must consider whether
the governmental interest asserted to support the regulation is "substantial." If that is the case, the court must also determine whether
the regulation directly advances the asserted interest and is no more extensive than is necessary to serve that interest. Central Hudson,
supra, at 566. Here, respondent seeks to disclose only truthful, verifiable, and nonmisleading factual information concerning alcohol
content. Pp.480-482.

(b) The interest in curbing "strength wars" is sufficiently "substantial" to satisfy Central Hudson. The Government has a significant
interest in protecting the health, safety, and welfare of its citizens by preventing brewers from competing on the basis of alcohol
strength, which could lead to greater alcoholism and its attendant social costs. Cf. Posadas de Puerto Rico Associates v. Tourism Co.
of P. R., 478 U. S. 328, 341. There is no reason to think that strength wars, if they were

477

to occur, would not produce the type of social harm that the Government hopes to prevent. However, the additional asserted interest in
"facilitat[ing]" state efforts to regulate alcohol under the Twenty-first Amendment is not sufficiently substantial to meet Central
Hudson's requirement. Even if the Government possessed the authority to facilitate state powers, the Government has offered nothing
to suggest that States are in need of federal assistance in this regard. United States v. Edge Broadcasting Co., 509 U. S. 418, 431-435,
distinguished. pp. 483-486.

(c) Section 205(e)(2) fails Central Hudson's requirement that the measure directly advance the asserted Government interest. The
labeling ban cannot be said to advance the governmental interest in suppressing strength wars because other provisions of the FAAA
and implementing regulations prevent § 205(e )(2) from furthering that interest in a direct and material fashion. Although beer
advertising would seem to constitute a more influential weapon in any strength war than labels, the BATF regulations governing such
advertising prohibit statements of alcohol content only in States that affirmatively ban such advertisements. Government regulations
also permit the identification of certain beers with high alcohol content as "malt liquors," and they require disclosure of content on the
labels of wines and spirits. There is little chance that § 205(e)(2) can directly and materially advance its aim, while other provisions of
the same Act directly undermine and counteract its effects. Pp. 486-490.

(d) Section 205(e)(2) is more extensive than necessary, since available alternatives to the labeling ban-including directly limiting the
alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength, and limiting the ban to malt liquors, the
segment of the beer market that allegedly is threatened with a strength war-would prove less intrusive to the First Amendment's
protections for commercial speech. Pp.490-491.

2 F.3d 355, affirmed.

THOMAS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER,
GINSBURG, and BREYER, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 491.
Deputy Solicitor General Kneedler argued the cause for petitioner. With him on the briefs were Solicitor General Days, Assistant
Attorney General Hunger, Richard H. Seamon, Michael Jay Singer, and John S. Koppel.

478

Bruce J. Ennis, Jr., argued the cause for respondent.

With him on the brief were Donald B. Verrilli, Jr., Paul M. Smith, Nory Miller, M. Caroline Turner, and Terrance D. Micek.*

JUSTICE THOMAS delivered the opinion of the Court. Section 5(e)(2) of the Federal Alcohol Administration Act prohibits beer labels
from displaying alcohol content. We granted certiorari in this case to review the Tenth Circuit's holding that the labeling ban violates the
First Amendment because it fails to advance a governmental interest in a direct and material way. Because § 5(e)(2) is inconsistent
with the protections granted to commercial speech by the First Amendment, we affirm.

Respondent brews beer. In 1987, respondent applied to the Bureau of Alcohol, Tobacco and Firearms (BATF), an agency of the
Department of the Treasury, for approval of proposed labels and advertisements that disclosed the alcohol content of its beer. BATF
rejected the application on the ground that the Federal Alcohol Administration Act (FAAA or Act), 49 Stat. 977, 27 U. S. C. § 201 et
seq., prohibited disclosure of the alcohol content of beer on labels or in advertising. Respondent then filed suit in the District

*Briefs of amici curiae urging reversal were filed for the Center for Science in the Public Interest by Bruce A. Silverglade; and for the
Council of State Governments et al. by Richard Ruda.

Briefs of amici curiae urging affirmance were filed for the Association of National Advertisers, Inc., et al. by Burt Neuborne, Gilbert H.
Weil, Valerie Schulte, and John F. Kamp; for Public Citizen by David C. Vladeck; for the United States Telephone Association et al. by
Michael W McConnell, Kenneth S. Geller, Charles A. Rothfeld, William Barfield, and Gerald E. Murray; and for the Washington Legal
Foundation by Charles Fried, Donald B. Ayer, Daniel J. Popeo, and Richard A. Samp.

Briefs of amici curiae were filed for the Beer Institute by P. Cameron De Vore, John J. Walsh, and Steven G. Brody; and for the Wine
Institute by John C. Jeffries, Jr.

479

Court for the District of Colorado seeking a declaratory judgment that the relevant provisions of the Act violated the First Amendment;
respondent also sought injunctive relief barring enforcement of these provisions. The Government took the position that the ban was
necessary to suppress the threat of "strength wars" among brewers, who, without the regulation, would seek to compete in the
marketplace based on the potency of their beer.

The District Court granted the relief sought, but a panel of the Court of Appeals for the Tenth Circuit reversed and remanded. Adolph
Coors Co. v. Brady, 944 F.2d 1543 (1991). Applying the framework set out in Central Hudson Gas & Elec. Corp. v. Public Servo
Comm'n of N. Y., 447 U. S. 557 (1980), the Court of Appeals found that the Government's interest in suppressing alcoholic "strength
wars" was "substantial." Brady, supra, at 1547-1549. It further held, however, that the record provided insufficient evidence to determine
whether the FAAA's ban on disclosure "directly advanced" that interest. Id., at 1549-1551. The court remanded for further proceedings
to ascertain whether a "'reasonable fit'" existed between the ban and the goal of avoiding strength wars. Id., at 1554.

After further factfinding, the District Court upheld the ban on the disclosure of alcohol content in advertising but invalidated the ban as it
applied to labels. Although the Government asked the Tenth Circuit to review the invalidation of the labeling ban, respondent did not
appeal the court's decision sustaining the advertising ban. On the case's second appeal, the Court of Appeals affirmed the District
Court. Adolph Coors Co. v. Bentsen, 2 F.3d 355 (1993). Following our recent decision in Edenfield v. Fane, 507 U. S. 761 (1993), the
Tenth Circuit asked whether the Government had shown that the" 'challenged regulation advances [the Government's] interests in a
direct and material way.'" 2 F. 3d, at 357 (quoting Edenfield, supra, at 767-768). After reviewing the record, the Court of Appeals
concluded that the Government

480
had failed to demonstrate that the prohibition in any way prevented strength wars. The court found that there was no evidence of any
relationship between the publication of factual information regarding alcohol content and competition on the basis of such content. 2 F.
3d, at 358-359.

We granted certiorari, 512 U. S. 1203 (1994), to review the Tenth Circuit's decision that § 205(e)(2) violates the First Amendment. We
conclude that the ban infringes respondent's freedom of speech, and we therefore affirm.

II A

Soon after the ratification of the Twenty-first Amendment, which repealed the Eighteenth Amendment and ended the Nation's
experiment with Prohibition, Congress enacted the F AAA. The statute establishes national rules governing the distribution, production,
and importation of alcohol and established a Federal Alcohol Administration to implement these rules. Section 5(e)(2) of the Act
prohibits any producer, importer, wholesaler, or bottler of alcoholic beverages from selling, shipping, or delivering in interstate or foreign
commerce any malt beverages, distilled spirits, or wines in bottles

"unless such products are bottled, packaged, and labeled in conformity with such regulations, to be prescribed by the Secretary of the
Treasury, with respect to packaging, marking, branding, and labeling and size and fill of container ... as will provide the consumer with
adequate information as to the identity and quality of the products, the alcoholic content thereof (except that statements of, or
statements likely to be considered as statements of, alcoholic content of malt beverages are prohibited unless required by State
law and except that, in case of wines, statements of alcoholic content shall be required only for wines containing more than 14 per
centum of alcohol by volume), the net contents of

481

the package, and the manufacturer or bottler or importer of the product." 27 U. S. C. § 205(e)(2) (emphasis added).

The Act defines "'malt beverage[sJ''' in such a way as to include all beers and ales. § 211(a)(7).

Implementing regulations promulgated by BATF (under delegation of authority from the Secretary of the Treasury) prohibit the
disclosure of alcohol content on beer labels. 27 CFR § 7.26(a) (1994).1 In addition to prohibiting numerical indications of alcohol
content, the labeling regulations proscribe descriptive terms that suggest high content, such as "strong," "full strength," "extra strength,"
"high test," "high proof," "pre-war strength," and "full oldtime alcoholic strength." § 7.29(f). The prohibitions do not preclude labels from
identifying a beer as "low alcohol," "reduced alcohol," "non-alcoholic," or "alcohol-free." Ibid.; see also §§ 7.26(b)-(d). By statute and by
regulation, the labeling ban must give way if state law requires disclosure of alcohol content.

Both parties agree that the information on beer labels constitutes commercial speech. Though we once took the position that the First
Amendment does not protect commercial speech, see Valentine v. Chrestensen, 316 U. S. 52 (1942), we repudiated that position
in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748 (1976). There we noted that the free flow of
commercial information is "indispensable to the proper allocation of resources in a free enterprise system" because it informs the
numerous private decisions that drive the system. Id., at 765. Indeed, we observed that a "particular consumer's interest in the

1 BATF has suspended § 7.26 to comply with the District Court's order enjoining the enforcement of that provision. 58 Fed. Reg. 21228
(1993). Pending the final disposition of this case, interim regulations permit the disclosure of alcohol content on beer labels. 27 CFR §
7.71 (1994).

482

free flow of commercial information ... may be as keen, if not keener by far, than his interest in the day's most urgent political
debate." Id., at 763.

Still, Virginia Board of Pharmacy suggested that certain types of restrictions might be tolerated in the commercial speech area because
of the nature of such speech. See id., at 771-772, n. 24. In later decisions we gradually articulated a test based on "'the
"commonsense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to
government regulation, and other varieties of speech.'" Central Hudson, 447 U. S., at 562 (quoting Ohralik v. Ohio State Bar Assn., 436
U. S. 447,455-456 (1978)). Central Hudson identified several factors that courts should consider in determining whether a regulation of
commercial speech survives First Amendment scrutiny:
"For commercial speech to come within [the First Amendment], it at least must concern lawful activity and not be misleading. N ext, we
ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the
regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that
interest." 447 U. S., at 566.

We now apply Central Hudson's test to § 205(e)(2).2

2 The Government argues that Central Hudson imposes too strict a standard for reviewing §205(e)(2), and urges us to adopt instead a
far more deferential approach to restrictions on commercial speech concerning alcohol. Relying on United States v. Edge Broadcasting
Co., 509 U. S. 418 (1993), and Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 (1986), the Government
suggests that legislatures have broader latitude to regulate speech that promotes socially harmful activities, such as alcohol
consumption, than they have to regulate other types of speech. Although Edge Broadcasting and Posadas involved the advertising of
gambling activities, the Government argues that we also have applied this principle to speech concerning alcohol.
See California v. LaRue, 409

483

III

Both the lower courts and the parties agree that respondent seeks to disclose only truthful, verifiable, and nonmisleading factual
information about alcohol content on its beer labels. Thus, our analysis focuses on the substantiality of the interest behind § 205(e) (2)
and on whether the labeling ban bears an acceptable fit with the Government's goal. A careful consideration of these factors indicates
that § 205(e)(2) violates the First Amendment's protection of commercial speech.

The Government identifies two interests it considers sufficiently "substantial" to justify § 205(e) (2)'s labeling ban. First, the Government
contends that § 205(e)(2) advances Congress' goal of curbing "strength wars" by beer brewers who might seek to compete for
customers on the basis of alcohol content. According to the Government, the FAAA's restriction prevents a particular type of beer
drinker-one

u. S. 109, 138 (1972) (holding that States may ban nude dancing in bars and nightclubs that serve liquor).

Neither Edge Broadcasting nor Posadas compels us to craft an exception to the Central Hudson standard, for in both of those cases we
applied the Central Hudson analysis. Indeed, Edge Broadcasting specifically avoided reaching the argument the Government makes
here because the Court found that the regulation in question passed muster under Central Hudson. 509 U. S., at 425. To be
sure, Posadas did state that the Puerto Rico Government could ban promotional advertising of casino gambling because it could have
prohibited gambling altogether. 478 U. S., at 346. But the Court reached this argument only after it already had found that the state
regulation survived the Central Hudson test. See 478 U. S., at 340-344. The Court raised the Government's point in response to an
alternative claim that Puerto Rico's regulation was inconsistent with Carey v. Population Services Int'l, 431 U. S. 678 (1977),
and Bigelow v. Virginia, 421 U. S. 809(1975). Posadas, supra, at 345-346.

Nor does LaRue support the Government's position. LaRue did not involve commercial speech about alcohol, but instead concerned
the regulation of nude dancing in places where alcohol was served. 409 U. S., at 114.

484

who selects a beverage because of its high potency-from choosing beers solely for their alcohol content. In the Government's view,
restricting disclosure of information regarding a particular product characteristic will decrease the extent to which consumers will select
the product on the basis of that characteristic.

Respondent counters that Congress actually intended the F AAA to achieve the far different purpose of preventing brewers from
making inaccurate claims concerning alcohol content. According to respondent, when Congress passed the FAAA in 1935, brewers did
not have the technology to produce beer with alcohol levels within predictable tolerances-a skill that modern beer producers now
possess. Further, respondent argues that the true policy guiding federal alcohol regulation is not aimed at suppressing strength wars. If
such were the goal, the Government would not pursue the opposite policy with respect to wines and distilled spirits. Although §
205(e)(2) requires BATF to promulgate regulations barring the disclosure of alcohol content on beer labels, it also orders BATF
to require the disclosure of alcohol content on the labels of wines and spirits. See 27 CFR § 4.36 (1994) (wines); § 5.37 (distilled
spirits).
Rather than suppressing the free flow of factual information in the wine and spirits markets, the Government seeks to control
competition on the basis of strength by monitoring distillers' promotions and marketing. Respondent quite correctly notes that the
general thrust of federal alcohol policy appears to favor greater disclosure of information, rather than less. This also seems to be the
trend in federal regulation of other consumer products as well. See, e. g., Nutrition Labeling and Education Act of 1990, Pub. L. 101-
535, 104 Stat. 2353, as amended (requiring labels of food products sold in the United States to display nutritional information).

Respondent offers a plausible reading of the purpose behind § 205(e)(2), but the prevention of misleading statements of alcohol
content need not be the exclusive Government in-

485

terest served by § 205(e)(2). In Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328, 341 (1986), we found that
the Puerto Rico Legislature's interest in promoting the health, safety, and welfare of its citizens by reducing their demand for gambling
provided a sufficiently "substantial" governmental interest to justify the regulation of gambling advertising. So too the Government here
has a significant interest in protecting the health, safety, and welfare of its citizens by preventing brewers from competing on the basis
of alcohol strength, which could lead to greater alcoholism and its attendant social costs. Both panels of the Court of Appeals that heard
this case concluded that the goal of suppressing strength wars constituted a substantial interest, and we cannot say that their
conclusion is erroneous. We have no reason to think that strength wars, if they were to occur, would not produce the type of social
harm that the Government hopes to prevent.

The Government attempts to bolster its position by arguing that the labeling ban not only curbs strength wars, but also "facilitates" state
efforts to regulate alcohol under the Twenty-first Amendment. The Solicitor General directs us to United States v. Edge Broadcasting
Co., 509 U. S. 418 (1993), in which we upheld a federal law that prohibited lottery advertising by radio stations located in States that did
not operate lotteries. That case involved a station located in North Carolina (a nonlottery State) that broadcast lottery advertisements
primarily into Virginia (a State with a lottery). We upheld the statute against First Amendment challenge in part because it supported
North Carolina's antigambling policy without unduly interfering with States that sponsored lotteries. Id., at 431-435. In this case, the
Government claims that the interest behind § 205(e) (2) mirrors that of the statute in Edge Broadcasting because it prohibits disclosure
of alcohol content only in States that do not affirmatively require brewers to provide that information. In the Government's view, this
saves States that might wish to

486

ban such labels the trouble of enacting their own legislation, and it discourages beer drinkers from crossing state lines to buy beer they
believe is stronger.

We conclude that the Government's interest in preserving state authority is not sufficiently substantial to meet the requirements
of Central Hudson. Even if the Federal Government possessed the broad authority to facilitate state powers, in this case the
Government has offered nothing that suggests that States are in need of federal assistance. States clearly possess ample authority to
ban the disclosure of alcohol content-subject, of course, to the same First Amendment restrictions that apply to the Federal
Government. Unlike the situation in Edge Broadcasting, the policies of some States do not prevent neighboring States from pursuing
their own alcohol-related policies within their respective borders. One State's decision to permit brewers to disclose alcohol content on
beer labels will not preclude neighboring States from effectively banning such disclosure of that information within their borders.

The remaining Central Hudson factors require that a valid restriction on commercial speech directly advance the governmental interest
and be no more extensive than necessary to serve that interest. We have said that "[t]he last two steps of the Central Hudson analysis
basically involve a consideration of the 'fit' between the legislature's ends and the means chosen to accomplish those ends." Posadas,
supra, at 341. The Tenth Circuit found that § 205(e)(2) failed to advance the interest in suppressing strength wars sufficiently to justify
the ban. We agree.

Just two Terms ago, in Edenfield v. Fane, 507 U. S. 761 (1993), we had occasion to explain the Central Hudson factor concerning
whether the regulation of commercial speech "directly advances the governmental interest asserted." Central Hudson, 447 U. S., at
566. In Edenfield, we decided

487
that the Government carries the burden of showing that the challenged regulation advances the Government's interest "in a direct and
material way." 507 U. S., at 767. That burden "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking
to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact
alleviate them to a material degree." Id., at 770-771. We cautioned that this requirement was critical; otherwise, "a State could with
ease restrict commercial speech in the service of other objectives that could not themselves justify a burden on commercial
expression." Id., at 771.

The Government attempts to meet its burden by pointing to current developments in the consumer market. It claims that beer producers
are already competing and advertising on the basis of alcohol strength in the "malt liquor" segment of the beer market.3 The
Government attempts to show that this competition threatens to spread to the rest of the market by directing our attention to
respondent's motives in bringing this litigation. Respondent allegedly suffers from consumer misperceptions that its beers contain less
alcohol than other brands. According to the Government, once respondent gains relief from § 205(e)(2), it will use its labels to
overcome this handicap.

Under the Government's theory, § 205(e) (2) suppresses the threat of such competition by preventing consumers from choosing beers
on the basis of alcohol content. It is assuredly a matter of "common sense," Brief for Petitioner 27, that a restriction on the advertising of
a product characteristic will decrease the extent to which consumers select a product on the basis of that trait. In addition to common
sense, the Government urges us to turn to history as a guide. Ac-

3" 'Malt liquor' is the term used to designate those malt beverages with the highest alcohol content .... Malt liquors represent
approximately three percent of the malt beverage market." Adolph Coors Co. v. Bentsen, 2 F.3d 355, 358, n. 4 (CAlO 1993).

488

cording to the Government, at the time Congress enacted the F AAA, the use of labels displaying alcohol content had helped produce a
strength war. Section 205(e)(2) allegedly relieved competitive pressures to market beer on the basis of alcohol content, resulting over
the long term in beers with lower alcohol levels.

We conclude that § 205(e)(2) cannot directly and materially advance its asserted interest because of the overall irrationality of the
Government's regulatory scheme. While the laws governing labeling prohibit the disclosure of alcohol content unless required by state
law, federal regulations apply a contrary policy to beer advertising. 27 U. S. C. § 205(f)(2); 27 CFR § 7.50 (1994). Like § 205(e)(2),
these restrictions prohibit statements of alcohol content in advertising, but, unlike § 205(e)(2), they apply only in States that affirmatively
prohibit such advertisements. As only 18 States at best prohibit disclosure of content in advertisements, App. to Brief for Respondent
la-12a, brewers remain free to disclose alcohol content in advertisements, but not on labels, in much of the country. The failure to
prohibit the disclosure of alcohol content in advertising, which would seem to constitute a more influential weapon in any strength war
than labels, makes no rational sense if the Government's true aim is to suppress strength wars.

Other provisions of the FAAA and its regulations similarly undermine § 205(e)(2)'s efforts to prevent strength wars. While § 205(e)(2)
bans the disclosure of alcohol content on beer labels, it allows the exact opposite in the case of wines and spirits. Thus, distilled spirits
may contain statements of alcohol content, 27 CFR § 5.37 (1994), and such disclosures are required for wines with more than 14
percent alcohol, 27 CFR § 4.36 (1994). If combating strength wars were the goal, we would assume that Congress would regulate
disclosure of alcohol content for the strongest beverages as well as for the weakest ones. Further, the Government permits brewers to
signal high alcohol content through use

489

of the term "malt liquor." Although the Secretary has proscribed the use of various colorful terms suggesting high alcohollevels, 27 CFR
§ 7.29(f) (1994), manufacturers still can distinguish a class of stronger malt beverages by identifying them as malt liquors. One would
think that if the Government sought to suppress strength wars by prohibiting numerical disclosures of alcohol content, it also would
preclude brewers from indicating higher alcohol beverages by using descriptive terms.

While we are mindful that respondent only appealed the constitutionality of § 205(e)(2), these exemptions and inconsistencies bring into
question the purpose of the labeling ban. To be sure, the Government's interest in combating strength wars remains a valid goal. But
the irrationality of this unique and puzzling regulatory framework ensures that the labeling ban will fail to achieve that end. There is little
chance that § 205(e)(2) can directly and materially advance its aim, while other provisions of the same Act directly undermine and
counteract its effects.

This conclusion explains the findings of the courts below.

Both the District Court and the Court of Appeals found that the Government had failed to present any credible evidence showing that
the disclosure of alcohol content would promote strength wars. In the District Court's words, "none of the witnesses, none of the
depositions that I have read, no credible evidence that I have heard, lead[s] me to believe that giving alcoholic content on labels will in
any way promote ... strength wars." App. to Pet. for Cert. A-38. See also Bentsen, 2 F. 3d, at 359. Indeed, the District Court concluded
that "[p]rohibiting the alcoholic content disclosure of malt beverages on labels has little, if anything, to do with the type of advertising
that promotes strength wars." App. to Pet. for Cert. A-36.4 As the FAAA's exceptions and reg-

4 Not only was there little evidence that American brewers intend to increase alcohol content, but the lower courts also found that "in
the United States ... the vast majority of consumers ... value taste and

490

ulations would have counteracted any effect the labeling ban had exerted, it is not surprising that the lower courts did not find any
evidence that § 205(e) (2) had suppressed strength wars.

The Government's brief submits anecdotal evidence and educated guesses to suggest that competition on the basis of alcohol content
is occurring today and that § 205(e) (2)'s ban has constrained strength wars that otherwise would burst out of control. These various
tidbits, however, cannot overcome the irrationality of the regulatory scheme and the weight of the record. The Government did not offer
any convincing evidence that the labeling ban has inhibited strength wars. Indeed, it could not, in light of the effect of the FAAA's other
provisions. The absence of strength wars over the past six decades may have resulted from any number of factors.

Nor do we think that respondent's litigating positions can be used against it as proof that the Government's regulation is necessary.
That respondent wishes to disseminate factual information concerning alcohol content does not demonstrate that it intends to compete
on the basis of alcohol content. Brewers may have many different reasons-only one of which might be a desire to wage a strength war-
why they wish to disclose the potency of their beverages.

Even if § 205(e) (2) did meet the Edenfield standard, it would still not survive First Amendment scrutiny because the Government's
regulation of speech is not sufficiently tailored to its goal. The Government argues that a sufficient "fit" exists here because the labeling
ban applies to only one product characteristic and because the ban does not prohibit all disclosures of alcohol content-it applies only to
those involving labeling and advertising. In response, respondent suggests several alternatives, such as directly limiting the alcohol
content of beers, prohibiting marketing efforts em-

lower calories-both of which are adversely affected by increased alcohol strength." Bentsen, 2 F. 3d, at 359; accord, App. to Pet. for
Cert. A-37.

491

phasizing high alcohol strength (which is apparently the policy in some other western nations), or limiting the labeling ban only to malt
liquors, which is the segment of the market that allegedly is threatened with a strength war. We agree that the availability of these
options, all of which could advance the Government's asserted interest in a manner less intrusive to respondent's First Amendment
rights, indicates that § 205(e)(2) is more extensive than necessary.

IV

In sum, although the Government may have a substantial interest in suppressing strength wars in the beer market, the FAAA's
countervailing provisions prevent § 205(e)(2) from furthering that purpose in a direct and material fashion. The FAAA's defects are
further highlighted by the availability of alternatives that would prove less intrusive to the First Amendment's protections for commercial
speech. Because we find that § 205(e)(2) fails the Central Hudson test, we affirm the decision of the court below.

It is so ordered.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16027 May 30, 1962

LUMEN POLICARPIO, plaintiff-appellant,

vs.
THE MANILA TIMES PUB. CO., INC., CONSTANTE C. ROLDAN,
MANUEL V. VILLA-REAL, E. AGUILAR CRUZ and CONSORCIO BORJE, defendant-appellees.

Mario Bengzon for plaintiff-appellant.

Alfredo Gonzales and Rafael M. Delfin for defendants-appellees.

CONCEPCION, J.:

Appeal from a decision of the Court of First Instance of Manila dismissing plaintiff's complaint and defendants' counterclaim, without
special pronouncement as to costs. Originally certified to the Court of Appeals, the record on appeal was subsequently forwarded to us
in view of the amount involved in the complaint (P300,000.00).

Plaintiff Lumen Policarpio seeks to recover P150,000.00, as actual damages, P70,000, as moral damages, P60,000 as correctional and
exemplary damages, and P20,000, as attorney's fees, aside from the costs, by reason of the publication in the Saturday Mirror of
August 11, 1956, and in the Daily Mirror of August 13, 1956, of two (2) articles or news items which are claimed to be per se
defamatory, libelous and false, and to have exposed her to ridicule, jeopardized her integrity, good name and business and official
transactions, and caused her grave embarrassment, untold and extreme moral, mental and physical anguish and incalculable material,
moral, professional and business damages. The defendants are The Manila Times Publishing Co., Inc., as publisher of The Saturday
Mirror and The Daily Mirror, which are newspapers of general circulation in the Philippines, and Constante C. Roldan, Manuel V. Villa-
Real, E. Aguilar Cruz and Consorcio Borje, as the reporter or author of the first article and the managing editor, the associate editor and
the news editor, respectively, of said newspapers.

After its motion to dismiss the complaint had been denied by the Court of First Instance of Manila, in which the present action was
initiated, the defendants filed a joint answer admitting the formal allegations of the complaint, denying the other allegations thereof,
alleging special defenses and setting up a counterclaim for P10,000, as attorney's fees and expenses of litigation. In due course, later
on, said court rendered the aforementioned decision, upon the ground that plaintiff had not proven that defendants had acted
maliciously in publishing the aforementioned articles, although portions thereof were inaccurate or false.

Plaintiff is a member of the Philippine bar. On August 11 and 13, 1956, and for sometime prior thereto, she was executive secretary of
the local UNESCO National Commission. As such officer, she had preferred charges against Herminia D. Reyes, one of her
subordinates in said Commission, and caused her to be separated from the service. Miss Reyes, in turn, preferred counter-charges
which were referred to Col. Crisanto V. Alba, a Special Investigator in the Office of the President. Pending completion of the
administrative investigation, which began in June, 1956, Miss Reyes filed with the Office of the City Fiscal of Manila, on August 8, 1956,
a complaint against the plaintiff for alleged malversation of public funds and another complaint for alleged estafa thru falsification of
public documents, which were scheduled for investigation by said office on August 22, 1956, at 2:00 p.m. Meanwhile, or on August 11,
1956, the following appeared, with a picture of the plaintiff, in the front page of The Saturday Mirror:

WOMAN OFFICIAL SUED

PCAC RAPS L. POLICARPIO ON FRAUDS
Unesco Official Head Accused on
Supplies, Funds Use by Colleague

By Constante C. Roldan

Lumen Policarpio, executive secretary of the Unesco national commission here, was charged with malversation and estafa in
complaints filed with the city fiscal's office by the Presidential Complaints and Action Commission today.

The criminal action was initiated as a result of current administrative investigation against the Unesco official being conducted by Col.
Crisanto V. Alba, Malacañan technical assistant, on charges filed by Herminia D. Reyes, a Unesco confidential assistant. The Unesco
commission functions under the Office of the President.

Fiscal Manases G. Reyes, to whom the cases were assigned, immediately scheduled preliminary investigation of the charges on
August 22 at 2 p.m. Colonel Alba, in turn, indicated that the administrative phase of the inquiry will continue Monday and then resume
on August 21 at Malacañan Park. The Palace Investigator said there are other charges, but would not specify these.
Alba said Miss Reyes had testified on circumstances supposedly substantiating the malversation charge. Testimony had allegedly
indicated that the accused had used Unesco stencils for private and personal purposes. Specification reputedly said that Miss
Policarpio had taken stencils from the Unesco storeroom and used these for French lessons not at all connected with Unesco work; for
the preparation of contracts of sale of pianos in her business establishment; for preparation of invitations sent to members of the
League of Women Voters of which she is one of the officers.

Cited as witnesses on this charge are Miss Reyes, Francisco Manalo of Barrio Salabat, Taal, Batangas, Federico Vergara and Pablo
Armesto both of the Unesco.1äwphï1.ñët

Regarding the charge of estafa through falsification of public documents allegedly also committed sometime in 1955, Miss Policarpio
was accused of having collected expenses for supposed trips. The accusation said the Unesco official had sought reimbursement of
expenses for a trip to Baler, Quezon, on Aug. 19, last year, representing expenses of her car when in fact she supposedly rode in an
army plane.

Testimony indicated that a newspaper woman who was a supposed co-passenger had even written about the plane trip in her
newspaper column. The same voucher also allegedly collected expenses for going to a Unesco Bayambang (Pangasinan) project,
although records reputedly showed that she was absent in that conferences.

Witnesses cited on the charge include Aurelio Savalbaro, a Philippine Air Force pilot, Lt. Clemente Antonio and others, also of the PAF.

Miss Policarpio becomes the second high-ranking woman government official to face charges involving financial disbursements in their
office. The first was Sen. Pacita M. Gonzales who is still under charge mis-spending funds of the Social Welfare Administration and the
UNAC while she had charge of these.

The complainant, Miss Reyes, was earlier ordered relieved from her Unesco post by Miss Policarpio on charges including conduct
"unbecoming a lady", and as a result had not been paid her salary. She appealed to Malacañan which dismissed her suit and later she
sued before Judge Rafael Amparo to compel payment of her salary. The court also rejected her plea on the ground that she had not
exhausted all administrative remedies, the Palace not having made a clearcut decision on her case.

The Daily Mirror of August 13, 1956, likewise, carried on its first page — with a picture of plaintiff and of Miss Reyes, taken during the
administrative investigation being conducted by Col. Alba — another news item, reading:

"PALACE OPENS INVESTIGATION OF RAPS AGAINST POLICARPIO

Alba Probes Administrative Phase of
Fraud Charges Against Unesco Woman
Official; Fiscal Sets Prelim Quiz
Of Criminal Suit on Aug. 22.

The administrative phase of two-pronged investigation Miss Lumen Policarpio, head of the Unesco national commission here, opened
in Malacañan before Col. Crisanto V. Alba.

The judicial inquiry of charges filed by Herminia D. Reyes, also the complainant in the Malacañan case before the Presidential
Complaints and Action Commission, will be conducted by Fiscal Manases G. Reyes on Aug. 22 at 2 p.m.

Miss Policarpio stands accused by Reyes of having malversed public property and of having fraudulently sought reimbursement of
supposed official expenses.

Colonel Alba, at the start of his investigation at the Malacañan Park, clarified that neither he nor the PCAC had initiated the criminal
action before the city fiscal's office. The complaint before the fiscal was started by an information she naming Herminia D. Reyes as
complainant and citing other persons as witnesses. Fiscal Reyes set preliminary investigation of these charges for Aug. 22.

Miss Reyes, technical assistant of the Unesco, stated at the Palace inquiry that during 1955 Miss Policarpio allegedly used several
sheets of government stencils for her private and personal use, such as for French lessons, contracts of sale of pianos and for
invitations of the League of Women Voters of which she (Miss Policarpio) is an officer. The Unesco commission here functions under
the Office of the President.

The charge was filed with the PCAC, and the PCAC endorsed it to Colonel Alba for investigation.

Miss Policarpio this morning was not represented by an lawyer. Federico Diaz, lawyer representing complainant Miss Reyes, petitioned
for the suspension of Miss Policarpio, executive secretary of the Unesco.

Alba did not act immediately on the petition. He said he was holding a hearing on the petition on August 15.
During this morning's investigation three witness appeared. The first witness was Atty. Antonio Lopez of the PCAC who brought with
him 18 sheets of stencil which were allegedly used by Miss Policarpio for her personal use. These sheets were admitted as temporary
exhibits.

The second witness was Federico Vergara of the Unesco who said that he received four of the 18 sheets, but he could not identify
which of the sheets he had received.

The third witness was Francisco Manalo who certified on the charge of oppression in office against Miss Policarpio.

The other charge of Miss Reyes corresponded to supposed reimbursements sought by Miss Policarpio for a trip to Quezon Province
and to Pangasinan. On the first, Miss Reyes' complaint alleged the Unesco official had asked for refund of expenses for use of her car
when, Miss Reyes claimed she had actually made the trip aboard an army plane.

Miss Reyes also said Miss Policarpio was absent from the Bayambang conference for which she also sought allegedly refund of
expenses.

The complainant had previously been ordered relieved of her Unesco post by Miss Policarpio and had later sued at the Palace and
before the Court for payment of her salary.

The title of the article of August 11, 1956 — "WOMAN OFFICIAL SUED" — was given prominence with a 6-column (about 11 inches)
banner headline of one-inch types. Admittedly, its sub-title — "PCAC RAPS L. POLICARPIO PIO ON FRAUD" — printed in bold one-
centimeter types, is not true. Similarly, the statement in the first paragraph of the article, to the effect that plaintiff "was charged with
malversation and estafa in complaints filed with the city fiscal's office by the Presidential Complaint and Action Commission" —
otherwise known as PCAC — is untrue, the complaints for said offenses having been filed by Miss Reyes. Neither is it true that said
"criminal action was initiated as a result of current administrative, investigation", as stated in the second paragraph of the same article.

Plaintiff maintains that the effect of these false statements was to give the general impression that said investigation by Col. Alba had
shown that plaintiff was guilty, or, at least, probably guilty of the crimes aforementioned, and that, as a consequence, the PCAC had
filed the corresponding complaints with the city fiscal's office. She alleges, also, that although said article indicates that the charges for
malversation and for estafa through falsification against her referred, respectively, to the use by her of Unesco stencils allegedly for
private and personal purposes, and to the collection of transportation expenses, it did not mention the fact that the number of stencils
involved in the charge was only 18 or 20, that the sum allegedly misappropriated by her was only P54, and that the falsification imputed
to her was said to have been committed by claiming that certain expenses for which she had sought and secured reimbursement were
incurred in trips during the period from July 1, 1955 to September 30, 1955, although the trips actually were made, according to Miss
Reyes, from July 8 to August 31, 1955. By omitting these details, plaintiff avers, the article of August 11, 1956, had the effect of
conveying the idea that the offenses imputed to her were more serious than they really were. Plaintiff, likewise, claims that there are
other inaccuracies in the news item of August 13, 1956, but, we do not deem it necessary to dwell upon the same for the determination
of this case.

Upon the other hand, defendants contend that, although the complaints in the city fiscal's office were filed, not by the PCAC, but by
Miss Reyes, this inaccuracy is insignificant and immaterial to the case, for the fact is that said complaints were filed with said office. As
regards the number of sheets of stencil allegedly misused and the amount said to have been misappropriated by plaintiff, as well as the
nature of the falsification imputed to her, defendants argue that these "details" do not affect the truthfulness of the article as a whole,
and that, in any event, the insignificant value of said sheets of stencil and the small amount allegedly misappropriated, would have had,
if set forth in said article, a greater derogatory effect upon the plaintiff, aside from the circumstance that defendants had no means of
knowing such "details". It appears, however, that prior to August 11, 1956, Col. Alba had already taken the testimony of Antonio P.
Lopez, Francisco Manalo and Federico Vergara, as witnesses for Miss Reyes. Hence, defendants could have ascertained the "details"
aforementioned, had they wanted to. Indeed, some of the defendants and/or their representatives had made appropriate inquiries from
Col. Alba before said date, and some "details" — though not those adverted to above — appear in the article then published, whereas
the number of sheets of stencil allegedly misused was mentioned in the news item of August 13, 1956.

Moreover, the penalty prescribed by law for the crime either of estafa or of embezzlement depends partly upon the amount of the
damage caused to the offended party (Articles 315 to 318, Revised Penal Code). Hence, the amount or value of the property
embezzled is material to said offense.

Again, it is obvious that the filing of criminal complaints with the city fiscal's office by another agency of the Government, like the PCAC,
particularly after an investigation conducted by the same, imparts the ideal that the probability of guilty on the part of the accused is
greater than when the complaints are filed by a private individual, specially when the latter is a former subordinate of the alleged
offender, who was responsible for the dismissal of the complainant from her employment. It is only too apparent that the article
published on August 11, 1956, presented the plaintiff in a more unfavorable light than she actually was.

It goes without saying that newspapers must enjoy a certain degree of discretion in determining the manner in which a given event
should be presented to the public, and the importance to be attached thereto, as a news item, and that its presentation in a sensational
manner is not per se illegal. Newspaper may publish news items relative to judicial, legislative or other official proceedings, which are
not of confidential nature, because the public is entitled to know the truth with respect to such proceedings, which, being official and
non-confidential, are open to public consumption. But, to enjoy immunity, a publication containing derogatory information must be not
only true, but, also, fair, and it must be made in good faith and without any comments or remarks.

Defendants maintain that their alleged malice in publishing the news items in question had not been established by the plaintiff.
However, Article 354 of the Revised Penal Code, provides:

Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for
making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official
proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of other functions.

In the case at bar, aside from containing information derogatory to the plaintiff, the article published on August 11, 1956, presented her
in a worse predicament than that in which she, in fact, was. In other words, said article was not a fair and true report of the proceedings
there in alluded to. What is more, its sub-title — "PCAC RAPS L. POLICARPIO ON FRAUD" — is a comment or remark, besides being
false. Accordingly, the defamatory imputations contained in said article are "presumed to be malicious".

Then too, how could defendants claim to have acted with good intentions or justifiable motive in falsely stating that the complaints had
been filed with the Office of the City Fiscal by the PCAC as a result of the administrative investigation of Col. Alba? Either they knew the
truth about it or they did not know it. If they did, then the publication would be actually malicious. If they did not or if they acted under a
misapprehension of the facts, they were guilty of negligence in making said statement, for the consequences of which they are liable
solidarily (Articles 2176, 2194, 2208 and 2219 [I], Civil Code of the Philippines; 17 R.C.L. sec. 95, p. 349).

We note that the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that
neither Col. Alba nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of
sheets of stencil involved in said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the
publication of the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52). For this reason, we feel that the
interest of justice and of all parties concerned would be served if the defendants indemnify the plaintiff in the sums of P3,000, by way of
moral damages, and P2,000, as attorney's fees.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered sentencing the defendants herein to
pay jointly and severally to the plaintiff the aforementioned sums of P3,000, as moral damages, and P2,000, by way of attorney's fees,
in addition to the costs. It is so ordered.

Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
Bengzon, C.J., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-26549 July 31, 1970

EUGENIO LOPEZ, publisher and owner of the "MANILA, CHRONICLE and JUAN T. GATBONTON, petitioners,
vs.
THE HON. COURT OF APPEALS and FIDEL G. CRUZ, respondents.

Salonga, Ordoñez, Sicat & Associates for petitioners.

FERNANDO, J.:

There is an element of novelty in this appeal by certiorari from a decision of respondent Court of Appeals holding petitioners, the then
publisher and editor of This Week Magazine, liable in damages to the tune of eleven thousand pesos arising from the publication of a
picture of respondent, Fidel G. Cruz, as being responsible for the hoax of the year. The absence of any connection either fanciful or
remote with such event is admitted. The view is pressed by petitioners, invoking a liberal construction of the implications of press
freedom, owning up to the mistake, unfortunately not discovered until it was too late, and publishing a correction as an earnest of its
good faith, that they should not be made to pay at all. This Court, without discounting the elements of plausibility of their contention,
cannot, however, close its eyes to the injury inflicted on respondent and indulge them in such a plea. It is not disposed though to affirm
respondent Court's decision in its entirety. Considering all the circumstances, the damages awarded to private respondent appear to be
far too generous. A reduction is in order. The sum of one thousand pesos would be enough. So we decide.

The antecedents of the case follow: In the early part of January, 1956, there appeared on the front page of The Manila Chronicle, of
which petitioner Eugenio Lopez was the publisher, as well as on other dailies, a news story of a sanitary inspector assigned to the
Babuyan Islands, Fidel Cruz by name, sending a distress signal to a passing United States Airforce plane which in turn relayed the
message to Manila. He was not ignored, an American Army plane dropping on the beach of an island an emergency-sustenance kit
containing, among other things, a two-way radio set. He utilized it to inform authorities in Manila that the people in the place were living
in terror, due to a series of killings committed since Christmas of 1955. Losing no time, the Philippines defense establishment rushed to
the island a platoon of scout rangers led by Major Wilfredo Encarnacion. Upon arriving at the reported killer-menaced Babuyan Claro,
however, Major Encarnacion and his men found, instead of the alleged killers, a man, the same Fidel Cruz, who merely wanted
transportation home to Manila. In view of this finding, Major Wilfredo Encarnacion branded as a "hoax," to use his own descriptive word,
the report of Fidel Cruz. That was the term employed by the other newspapers when referring to the above-mentioned incident.

This Week Magazine of the Manila Chronicle, then edited by petitioner Juan T. Gatbonton, devoted a pictorial article to it in its issue of
January 15, 1956. Mention was made that while Fidel Cruz story turned out to be false if brought to light the misery of the people living
in that place, with almost everybody sick, only two individuals able to read and write, food and clothing being scarce. Then in the
January 29, 1956 issue of This Week Magazine, the "January News Quiz" included an item on the central figure in what was known as
the Calayan Hoax, who nevertheless did the country a good turn by calling the government's attention to that forsaken and desolate
corner of the Republic. Earlier in its Special Year End Quiz appearing in its issue of January 13, 1956, reference was made to a health
inspector who suddenly felt "lonely" in his isolated post, cooked up a story about a murderer running loose on the island of Calayan so
that he could be ferried back to civilization. He was given the appellation of "Hoax of the Year."

The magazine on both occasions carried photographs of the person purporting to be Fidel Cruz. Unfortunately, the pictures that were
published on both occasions were that of private respondent Fidel G. Cruz, a businessman contractor from Santa Maria, Bulacan. It
turned out that the photographs of respondent Cruz and that of Fidel Cruz, sanitary inspector, were on file in the library of the Manila
Chronicle in accordance with the standard procedure observed in other newspaper offices, but when the news quiz format was
prepared, the two photographs were in advertently switched.

As soon, however, as the inadvertent error was brought to the attention of petitioners, the following correction was immediately
published in This Week Magazine on January 27, 1957: "While we were rushing to meet: the deadline for January 13th issue of This
Week, we inadvertently published the picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman and contractor, in
'Our Own Who's Who feature in the Year End Quiz' of This Week in lieu of the health inspector Fidel Cruz, who was connected with a
story about a murderer running loose on Calayan Island. We here express our profound regrets that such an error occurred." Together
with the foregoing correction, petitioners published the picture of Fidel Cruz; the photographs and the correction moreover were
enclosed by four lines the type used was bolder than ordinary, and the item was placed in a conspicuous place in order to call the
attention of the readers to such amends being made. 1

Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of Manila for the recovery of damages alleging the defamatory
character of the above publication of his picture. After trial duly had, he was awarded five thousand pesos as actual damages, another
five thousand pesos as moral damages, and one thousand pesos for attorney's fees. That judgment was affirmed on appeal to
respondent Court. Hence, this petition for certiorari with the result, as already announced at the opening of this opinion, that while
respondent Cruz is entitled to Prevail, the damages awarded him should be reduced.

1. It is on the freedom of the press that petitioners would stake their case to demonstrate that no action for libel would lie arising from
the publication of the picture of respondent Cruz identified as responsible for the hoax of the year, when such was not the case at all. It
is easily understandable why. No liability would be incurred if it could be demonstrated that it comes within the well-nigh all embracing
scope of freedom of the press. Included therein is the widest latitude of choice as to what items should see the light of day so long as
they are relevant to a matter of public interest, the insistence on the requirement as to its truth yielding at times to unavoidable
inaccuracies attendant on newspapers and other publications being subject to the tyranny of deadlines. If no such showing could be
plausibly made, however, it is difficult to resist the conclusion that there was in fact the commission of such quasi-delict. It was held
in Lu Chu Sing v. Lu Tiong Gui,2 that "the repeal of the old Libel Law (Act No. 277) did not abolish the civil action for libel." 3 A libel was
defined in that Act as a "malicious defamation, expressed either in writing, printing, or by signs or pictures, or the like, ..., tending to
blacken the memory of one who is dead or to impeach the honesty, virtue, or reputation, or publish the alleged or natural defects of one
who is alive, and thereby "pose him to public hatred, contempt, or ridicule,"4 There was an express provision in such legislation for a tort
or a quasi-delict action arising from libel.5 There is reinforcement to such a view in the new Civil Code providing for the recovery of
moral damages for libel, slander or any other form of defamation. 6

There has been no time then in our judicial history when civil actions for libel did not form a staple part of litigations which had reached
this Court.7 Such is the case in a far greater measure in the United States. According to the standard treatise of Newell on Slander and
Libel: "Publication of a person's photograph in connection with an article libelous of a third person, is a libel on the person whose picture
is published, where the acts set out in the article are imputed to such person." 8 In support of the above statement, he made reference to
several cases.9 Other decisions to the same effect have been promulgated since the fourth edition of Newell published in 1924. 1 0 Why
libel law has both a criminal and a civil aspect is explained by Hale in his Law of the Press thus: "On the one hand, libeling a person
results in depriving him of his good reputation. Since reputation is a thing of value, truly rather to be chosen than great riches , an
impairment of it is a personal wrong. To redress this personal wrong money damages are awarded to the injured person. On the other
hand, the publication of defamatory statements tends strongly to induce breach of the peace by the person defamed, and hence is of
peculiar moment to the state as the guardian of the public peace. Viewed from this angle, libel is a crime, and as such subjects the
offender to a fine or imprisonment." 11

The first decision cited by Newell is a decision of Justice Holmes. The case is Peck v. Tribune Co. 1 2 Plaintiff there complained of her
picture being published in an advertisement in defendant's newspaper. The Chicago Sunday Tribune, with certain words of
commendation for a brand of liquor attributed to her when in fact she did not make such a statement at all and could not have made it,
as she was a total abstainer. The defendant was held liable, for as Justice Holmes pointed out: "There was some suggestion that the
defendant published the portrait by mistake, and without knowledge that it was the plaintiff's portrait, or was not what it purported to be.
But the fact, if it was one, was no excuse. If the publication was libelous, the defendant took the risk. As was said of such matters by
Lord Mansfield, 'Whenever a man publishes, he publishes at his peril.' ... The reason is plain. A libel is harmful on its face. If a man
sees fit to publish manifestly hurtful statements concerning an individual, without other justification than exists for an advertisement or a
piece of news, the usual principles of tort will make him liable if the statements are false, or are true only of someone else." 1 3

Learned Hand, in holding that an action for libel would lie arising from a publication in an advertisement of plaintiff's photograph yielding
a "grotesque monstrous and obscene impression" and that he was "substantially enough ridiculed" to complain reached the conclusion
"that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima
facie actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is
actionable." 1 4 It is likewise an accepted fact that such publications do occasion greater injury to reputation than would mere words
alone. Cardozo so aptly put the matter thus: "'It has its genesis in evils which the years have not erased. Many things that are
defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and
transmuted into print. What gives the sting to the writing is its permanence of form. The spoken word dissolves, but the written one
abide and Perpetuates the scandal.' ... When one speaks of a writing in this connection, one does not limit oneself to writings in
manuscripts or books. Any symbol suffices — Pictures, hieroglyphics shorthand notes — if only what is written is intelligible to him who
reads." 1 5

2. That is only one side of the picture, however. There is an impressive recognition in our decisions of the curtailment to which press
freedom would be subjected if an action for libel were not rigorously scrutinized to remove doubts as to its being utilized to penalize the
exercise of that constitutional right Thus, in the first leading case, United States v. Bustos, 1 6 Justice Malcolm could correctly stress:
"The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and an unjust accusation: the wound can be assuaged with the balm of a clear
conscience. A public officer must not to be too thin-skinned with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as an individual is
less than the State, so must expected criticism be born for the common good." 1 7 On this aspect of the question which, as answered by
him, would require that a criminal suit for libel should not be utilized as a means for stifling press freedom, he categorically declared:
"Public policy, the welfare of society, and the orderly administration of government have demanded protection for public opinion. The
inevitable and incontestable result has been the development and adoption of the doctrine of privilege." 1 8

In another civil action for libel, such a thought is expressed differently in this wise: "So long as it is done in good faith, newspapers have
the legal right to have and express opinions on legal questions. To deny them that right would infringe upon the freedom of the
press." 1 9 The last word on the subject, up to now at least, came from Quisumbing v. Lopez. 2 0 In the language of the then Chief
Justice Paras, who penned the opinion: "The Court of Appeals found as a fact that "there is no evidence in the record to prove that the
publication of the news item under Consideration was prompted by personal ill will or spite, or that there was intention to do harm,' and
that on the other hand there was 'an honest and high sense of duty to serve the best interests of the public, without self-seeking motive
and with malice towards none.' Every citizen of course has the right to enjoy a good name and reputation, but we do not consider that
the respondents, under the circumstances of this case, had violated said right or abused the freedom of the press. The newspapers
should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our
democracy. In the preparation of stories, press reporters and edition usually have to race with their deadlines; and consistently with
good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the
choice of words." 2 1

It was not until 1964 that the United States Supreme Court had occasion to speak its mind on the subject. In the leading case of New
York Times Co. v. Sulivan, 2 2 the nature of the question presented was set forth by Justice Brennan for the Court in the opening
paragraph of his opinion: "We are required in this case to determine for the first time the extent to which the constitutional protections
for speech and press limit a State's power to award damages in a libel action brought by a public official against critics of his official
conduct." 2 3 This is the Court's approach to such an issue: "In deciding the question now, we are compelled by neither precedent nor
Policy to give any more weight to the epithet 'libel' than we have to other 'mere labels' of state law. ... Like insurrection, contempt,
advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no talismanic immunity from constitutional limitations. It
must be measured by standards that satisfy the First Amendment." 2 4 Continuing the same trend, the opinion stressed further: "Thus
we consider this case against the background of a profound national commitment to 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. ... The present advertisement, as an expression of grievance and protest on one of the major public
issues of our time, would seem clearly to qualify for the constitutional protection." 2 5

For liability to arise then without offending press freedom, there is this test to meet: "The constitutional guarantees require, we think, a
federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he
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." 2 6 The United States Supreme Court went further in Curtis Publishing Co. v. Butts, 2 7 where such
immunity, was held as covering statements concerning public figures regardless of whether or not they are government officials. Why
there should be such an extension is understandable in the light of the broad scope enjoyed by press freedom which certainly allows a
full and free discussion of public issues. What can be more logical and appropriate, then, than such an expansion of the principle. As
noted by a commentator: "Since discussion of public issues cannot be meaningful without reference to the men involved on both sides
of such issues, and since such men will not necessarily be public officials, one cannot but agree that the Court was right in Curtis to
extend the Times rule to all public figures." 2 8

The significance of the foregoing line of decisions impressive for their consistency is quite obvious. No inroads on press freedom should
be allowed in the guise of punitive action visited on what otherwise could be characterized as libel whether in the form of printed words
or a defamatory imputation resulting from the publication of respondent's picture with the offensive caption as in the case here
complained of. This is not to deny that the party responsible invites the institution either of a criminal prosecution or a civil suit. It must
be admitted that what was done did invite such a dire consequence, considering the value the law justly places on a man's reputation.
This is merely to underscore the primacy that freedom of the press enjoys. It ranks rather high in the hierarchy of legal values. If the
cases moan anything at all then, to emphasize what has so clearly emerged, they call for the utmost care on the part of the judiciary to
assure that in safeguarding the interest of the party allegedly offended a realistic account of the obligation of a news media to
disseminate information of a public character and to comment thereon as well as the conditions attendant on the business of publishing
cannot be ignored. To single out one decision, Quisumbing v. Lopez so speaks in tones loud and clear.

3. It is to the haven thus afforded by such a highly sympathetic ruling to press freedom that petitioners would seek refuge. The
defamatory matter complained of in the Quisumbing case appeared in the headline. It was without basis, as shown by the text of the
news item itself. Nonetheless, for the reasons expressed with vigor and clarity by former Chief Justice Paras, no liability was deemed
incurred by the then publisher of the Manila Chronicle A newspaper, it is stressed, "should not be held to account to a point of
suppression for honest mistakes or imperfection in the choice of words." The above ruling, coupled with the requirement in the New
York Times decision of the United States Supreme Court, would for the writer of this opinion, furnish a sufficient basis for the success of
this appeal. The Court, however, is not inclined to view matters thus. Obviously Quisumbing v. Lopez is not squarely in point. Here
there was no pressure of a daily deadline to meet no occasion to act with haste as the picture of respondent was published in a weekly
magazine. Moreover, there is the added requirement of reasonable care imposed by such decision which from the facts here found,
appeared not to be satisfied. It cannot be concluded then that the plea of petitioners is sufficiently persuasive. The mandate of press
freedom is not ignored, but here it does not speak unequivocally. It is not decisive of the basic issue. By itself, it does not have a
controlling significance. So we hold.

4. Petitioners would make much, likewise, of their correction, which has all the force of a retraction, as a basis from being absolved from
any pecuniary responsibility. The present Chief Justice in Policarpio v. Manila Times 2 9 restated the controlling principle: "We note that
the news item published on August 13, 1956, rectified a major inaccuracy contained in the first article, by stating that neither Col. Alba
nor the PCAC had filed the aforementioned complaints with the city fiscal's office. It, likewise, indicated the number of sheets of stencil
involved in said complaints. But, this rectification or clarification does not wipe out the responsibility arising from the publication of the
first article, although it may and should mitigate it (Jimenez vs. Reyes, 27 Phil. 52)." 3 0
The correction promptly made by petitioners would thus call for a reduction in the damages awarded. It should be noted that there was
no proof of any actual pecuniary logs arising from the above publication. It is worthwhile to recall what Justice Malcolm referred to as
the tolerant attitude on the part of appellate courts on this score, the usual practice being "more likely to reduce damages for libel than
to increase them." 3 1

WHEREFORE, the decision of respondent Court of Appeals of August 25, 1966 affirming the lower court decision of March 22, 1958 is
hereby modified, petitioners Eugenio Lopez and Juan T. Gatbonton being ordered to pay jointly and severally the sum of P500.00 as
moral damages and the additional amount of P500.00 for attorney's fees. Costs against petitioners.

Concepcion, C.J., Reyes, J.B.L., Zaldivar and Teehankee, JJ., concur.

Castro and Barredo, JJ., concur in the result.

Miller v. California, 413 U.S. 15 (1973)

Primary Holding

Speech that is obscene and thus lacking First Amendment protection must be without serious literary, artistic, political, or scientific
value. It also must appeal to the prurient interest in the view of an average person according to community standards, and it must
describe sexual conduct or excretory functions in an offensive way.

Facts

The owner of a California business that distributed pornographic books and films, Marvin Miller, mailed advertising materials that
contained explicit sexual imagery from the books and films that he was promoting. When the owner of a restaurant in Newport Beach,
California, and his mother opened an envelope containing five of the brochures, they alerted the police. Miller was arrested, charged,
and convicted under a California law that banned selling, possessing, distributing, or publishing obscene materials. The law had been
specifically crafted to comply with the Supreme Court's decision on obscenity and the First Amendment in Roth v. United States. A first
conviction was defined as a misdemeanor.

During the trial, the judge had instructed the jury to use the community standards of California in determining whether the materials
would be considered obscene. Miller then argued on appeal that these instructions had failed to comply with the Supreme Court's
decision in Memoirs v. Massachusetts, which would require a national standard for obscenity because obscene works must be
completely lacking in redeeming social value. In an unpublished decision, the appellate decision rejected this argument, and the state
appellate court refused review.

Opinions

Majority

 Warren Earl Burger (Author)

 Byron Raymond White
 Harry Andrew Blackmun
 Lewis Franklin Powell, Jr.
 William Hubbs Rehnquist

Vacating and remanding the state court decision, Burger reiterated that the First Amendment does not protect obscene speech and
especially hardcore pornography but created a more detailed standard for determining whether material is obscene. He noted that any
statutes prohibiting obscenity must be narrowly constructed and devised three factors to help state legislatures in formulating them.
These were:

1) Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the
prurient interest;
2) Whether the work depicts or describes sexual conduct or excretory functions, as defined by state law, in an offensive way; and
3) Whether the work as a whole lacks serious literary, artistic, political, or scientific value.

Only if all three of these factors are satisfied can speech give rise to criminal liability as obscene matter. In developing this test, Burger
refined the ruling in Memoirs that speech was only obscene if it had absolutely no redeeming value.

Dissent

 William Orville Douglas (Author)

Dissent

 William Joseph Brennan, Jr. (Author)

 Potter Stewart
 Thurgood Marshall

Case Commentary

In addition to outlining the factors to consider in an obscenity determination, this decision moves responsibility for evaluating obscenity
to the state and local courts. Miller made it easier for states to create laws that properly defined obscenity and provided a firmer basis
for prosecution, and the Court soon began to decline review of obscenity cases, which flooded the dockets of state courts after this
decision. However, the standard also has given rise to unanticipated complexities with the development of the Internet, which makes it
harder to determine which community norms should be used.
Concerning a separate but related issue, the Court held in New York v. Ferber (1982) that child pornography is a categorical exception
to the First Amendment, like obscenity, although not all sexually explicit material that appears to depict children might be outside
constitutional protections. Zoning ordinances banning adult entertainment enterprises and public nudity laws are generally constitutional
restrictions on speech.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q.
SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION
PICTURES AND TELEVISION (BRMPT), respondents.

Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners.

The Solicitor General for respondents.

FERNANDO, C.J.:

In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the
constitutional right to freedom of expression 1 of an artist—and for that matter a man of letters too—as the basis for a ruling on the
scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised. The dispute
between the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For Adults Only." There
is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in view of the objections raised.
Thus the relevance of this constitutional command: "Arts and letters shall be under the patronage of the State. 2

The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a
single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television,
with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents.

In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the
classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by
petitioners stating that the classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent
Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of
the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee.
Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to
Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition.

This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as
one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned
resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut
[thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The modified resolution of the
Board, of course, classifies Kapit as for-adults-only, but the petition does not raise any issue as to the validity of this classification. All
that petitioners assail as arbitrary on the part of the Board's action are the deletions ordered in the film. 7 The prayer was for the
dismissal of the petition.

An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For
petitioners, such classification "is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The
film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the
integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for its
classification. 8 There was an answer to the amended petition filed on February 18, 1985. It was therein asserted that the issue
presented as to the previous deletions ordered by the Board as well as the statutory provisions for review of films and as to the
requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for
classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the
sufficiency of the standards remains the only question at issue.

It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board
in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the
classification of "For Adults Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom
of artistic and literary expression embraced in the free speech and free press guarantees of the Constitution.
1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their
effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson9 is the "importance of motion pictures as an organ of public opinion lessened by
the fact that they are designed to entertain as well as to inform. 10There is no clear dividing line between what involves knowledge and
what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Our recent
decision in Reyes v. Bagatsing11 cautions against such a move. Press freedom, as stated in the opinion of the Court, "may be Identified
with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 12This is not to say that
such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a substantive evil that
[the State] has a right to prevent. 13

2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are
emasculated. It is however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to
deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the
emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as
1909, in the case of United States v. Sedano,14 a prosecution for libel, the Supreme Court of the Philippines already made clear that
freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of such a view
in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate of
candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was
considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court,
therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It
can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either
parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the
exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16

3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a
substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no
doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be
reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only
probable. There is the require of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the
movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned — included as they
are in freedom of expression — censorship, especially so if an entire production is banned, is allowable only under the clearest proof of
a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 17 There is
merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use,
should be freed from the censor. 18

4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United States 19 speaking
of the free speech and press guarantee of the United States Constitution: "All Ideas having even the slightest redeeming social
importance — unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of opinion — have the full protection
of the guaranties, unless excludable because they encroach upon the limited area of the First Amendment is the rejection of obscenity
as utterly without redeeming social importance. 20 Such a view commends itself for approval.

5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: "The
early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly
susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have
rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme
of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon
the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as
unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards
adequate to withstand the charge of constitutional infirmity. 21

6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the
freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided in 1918.
While recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in determining what
constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of expression is allowable. It is a
matter of pride for the Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-years later, that the United States
Supreme Court enunciated a similar doctrine.

7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and obscenity are not
synonymous. 24 Further: "Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of
sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of
speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to
mankind through the ages; it is one of the vital problems of human interest and public concern. 25

8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural
values as standard, 26 words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity
are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That is a
constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of autonomy
that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true
representation. It is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense.
What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be
considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to be given to the
adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a man's personality. On the question of obscenity,
therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a
fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing the language of Justice
Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a universal role of construction, applied when
considering constitutional questions, that when a law is susceptible of two constructions' one of which will maintain and the other
destroy it, the courts will always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency of the
controlling standard and its conformity to what the Constitution ordains.

9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was
an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa
Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears
to be unduly restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to
maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this
explanation of respondents in its Answer to the amended petition: "The adult classification given the film serves as a warning to theater
operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-
club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the
theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture,
there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative
in the young audience will misunderstand these scenes." 32 Further: "Respondents further stated in its answer that petitioner company
has an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the
violence in the film." 33 Petitioners, however, refused the "For Adults Only" classification and instead, as noted at the outset, filed this
suit for certiorari.

10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the
consensus of this Court that where television is concerned: a less liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely
will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is
hardly the concern of the law to deal with the sexual fantasies of the adult population. 34 it cannot be denied though that the State
as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.

WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the
ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as
"For-Adults-Only."

Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., Cuevas and Alampay, JJ., concur.

Aquino, J., concurs in the result.

De la Fuente, J., took no part.

Abad Santos, J., is on leave.

G.R. No. 169838 April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato Constantino, Jr.,
Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA, Chief of the Philippine National
Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL QUEROL, and Western Police District Chief Gen. PEDRO
BULAONG, Respondents.

x---------------------------------x

G.R. No. 169848 April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo
Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary Grace Gonzales, Michael Torres, Rendo Sabusap, Precious
Balute, Roxanne Magboo, Ernie Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny
Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal capacity, ANGELO REYES, in his
official capacity as Secretary of the Interior and Local Governments, ARTURO LOMIBAO, in his official capacity as the Chief,
Philippine National Police, VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office
(NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD) AND ALL OTHER PUBLIC
OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.

x---------------------------------x

G.R. No. 169881 April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President,
JOSELITO V. USTAREZ, ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA,
and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO
ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG, Respondents.

DECISION

AZCUNA, J.:

Petitioners come in three groups.

The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are citizens and taxpayers of the Philippines and that their
rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by
policemen implementing Batas Pambansa (B.P.) No. 880.

The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848,2 who allege that they were injured,
arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the
police. They further assert that on October 5, 2005, a group they participated in marched to Malacañang to protest issuances of the
Palace which, they claim, put the country under an "undeclared" martial rule, and the protest was likewise dispersed violently and many
among them were arrested and suffered injuries.

The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881,3 allege that they conduct peaceful mass actions
and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are
affected by Batas Pambansa No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being followed to implement it.

KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked
them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further
allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España Avenue in
front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and
prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them. 4 Three other rallyists were
arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as
the policy of CPR. They seek to stop violent dispersals of rallies under the "no permit, no rally" policy and the CPR policy recently
announced.

B.P. No. 880, "The Public Assembly Act of 1985," provides:

Batas Pambansa Blg. 880

An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For
Other Purposes

Be it enacted by the Batasang Pambansa in session assembled:

Section 1. Title. – This Act shall be known as "The Public Assembly Act of 1985."

Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such
right without prejudice to the rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted
action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any
particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed
by local ordinances; Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully
observed.

The definition herein contained shall not include picketing and other concerted action in strike areas by workers and
employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the
Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square,
and/or any open space of public ownership where the people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities
shall observe during a public assembly or in the dispersal of the same.

(d) "Modification of a permit" shall include the change of the place and time of the public assembly, rerouting of the parade or
street march, the volume of loud-speakers or sound system and similar changes.

Sec. 4. Permit when required and when not required. – A written permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled
to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject
to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as
provided for by law are not covered by this Act.

Sec. 5. Application requirements. – All applications for a permit shall comply with the following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public
assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable
number of persons participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of the applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity
is to be held, at least five (5) working days before the scheduled public assembly.
 (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall
cause the same to immediately be posted at a conspicuous place in the city or municipal building.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public
convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the
application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting
in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of
the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or
modification of the permit, he shall immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the
applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-
eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such
permit or modifying it in terms satisfactory to the applicant shall be immediately executory.

(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Sec. 7. Use of Public throroughfare. – Should the proposed public assembly involve the use, for an appreciable length of time, of any
public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so
that there will be no serious or undue interference with the free flow of commerce and trade.

Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all
reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the
terms of the permit. These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;|avvphi|.net

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the
public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held
peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other
persons not participating in the public assembly.

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain
peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies
shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot
sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is
attended by actual violence or serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the
leaders of the public assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at
the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during
the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;

(e) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for
dispersal.

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that
written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place
other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for
participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other
official acting in his behalf;

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any
official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public
assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or
on the occasion thereof:
 1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;

2. the carrying of a bladed weapon and the like;

3. the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its
horns and loud sound systems.

Sec. 14. Penalties. – Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding section
shall be punished as follows:

(a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months;

(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six
months and one day to six years;

(c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without
prejudice to prosecution under Presidential Decree No. 1866;

(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days.

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six
months from the effectivity this Act.

Sec. 16. Constitutionality. – Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the
other provisions shall not be affected thereby.

Sec. 17. Repealing clause. – All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are
inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.

Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex "A" to the
Petition in G.R. No. 169848, thus:

Malacañang Official

Manila, Philippines NEWS

Release No. 2 September 21, 2005

STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA

On Unlawful Mass Actions

In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and
incite people against the duly constituted authorities, we have instructed the PNP as well as the local government units to strictly
enforce a "no permit, no rally" policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land
as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while
those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and
the peace of mind of the national community.

Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive
government.

We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.

The President’s call for unity and reconciliation stands, based on the rule of law.

Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant
on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.5

They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a
clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and
place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does
not apply to mass actions in support of the government. The words "lawful cause," "opinion," "protesting or influencing" suggest the
exposition of some cause not espoused by the government. Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny
test.

Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a curtailment of the right to peacefully
assemble and petition for redress of grievances because it puts a condition for the valid exercise of that right. It also characterizes
public assemblies without a permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions.

Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and
present danger and imminent and grave danger) are inconsistent.

Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880,
aside from being void for being vague and for lack of publication.

Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put
the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are
unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too
comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly,
otherwise interest on the issue would possibly wane.

As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act,
and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P.
No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.

Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive Secretary, Manila City Mayor Lito Atienza, Chief, of the
Philippine National Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal
Querol, and Manila Police District (MPD) Chief Gen. Pedro Bulaong.

Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary and in his personal capacity; Angelo Reyes, as
Secretary of the Interior and Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as
Chief, MPD, and all other public officers and private individuals acting under their control, supervision and instruction.

Respondents in G.R. No. 169881 are the Honorable Executive Secretary, PNP Director General Arturo Lomibao, the
Honorable Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.

Respondents argue that:

1. Petitioners have no standing because they have not presented evidence that they had been "injured, arrested or detained
because of the CPR," and that "those arrested stand to be charged with violating Batas Pambansa [No.] 880 and other
offenses."

2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot honestly claim that the time, place and manner
regulation embodied in B.P. No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P. No. 880 is content-
neutral, i.e., it has no reference to content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
 governmental interest, i.e., the interest cannot be equally well served by a means that is less intrusive of free speech interests;
and (c) B.P. No. 880 leaves open alternative channels for communication of the information. 6

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

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation of the time, place and manner of holding public
assemblies and the law passes the test for such regulation, namely, these regulations need only a substantial governmental
interest to support them.

5. Sangalang v. Intermediate Appellate Court9 held that a local chief executive has the authority to exercise police power to
meet "the demands of the common good in terms of traffic decongestion and public convenience." Furthermore, the discretion
given to the mayor is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.

6. The standards set forth in the law are not inconsistent. "Clear and convincing evidence that the public assembly will create a
clear and present danger to public order, public safety, public convenience, public morals or public health" and "imminent and
grave danger of a substantive evil" both express the meaning of the "clear and present danger test." 10

7. CPR is simply the responsible and judicious use of means allowed by existing laws and ordinances to protect public interest
and restore public order. Thus, it is not accurate to call it a new rule but rather it is a more pro-active and dynamic enforcement
of existing laws, regulations and ordinances to prevent chaos in the streets. It does not replace the rule of maximum tolerance
in B.P. No. 880.

Respondent Mayor Joselito Atienza, for his part, submitted in his Comment that the petition in G.R. No. 169838 should be dismissed on
the ground that Republic Act No. 7160 gives the Mayor power to deny a permit independently of B.P. No. 880; that his denials of
permits were under the "clear and present danger" rule as there was a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have affirmed the constitutionality of
requiring a permit; that the permit is for the use of a public place and not for the exercise of rights; and that B.P. No. 880 is not a
content-based regulation because it covers all rallies.

The petitions were ordered consolidated on February 14, 2006. After the submission of all the Comments, the Court set the cases for
oral arguments on April 4, 2006,14 stating the principal issues, as follows:

1. On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic
Act No. 7160:

(a) Are these content-neutral or content-based regulations?

(b) Are they void on grounds of overbreadth or vagueness?

(c) Do they constitute prior restraint?

(d) Are they undue delegations of powers to Mayors?

(e) Do they violate international human rights treaties and the Universal Declaration of Human Rights?

2. On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):

(a) Is the policy void on its face or due to vagueness?

(b) Is it void for lack of publication?

(c) Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?

During the course of the oral arguments, the following developments took place and were approved and/or noted by the Court:
 1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew the portions of their petitions raising factual
issues, particularly those raising the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies of September
20, October 4, 5 and 6, 2005.

2. The Solicitor General agreed with the observation of the Chief Justice that CPR should no longer be used as a legal term
inasmuch as, according to respondents, it was merely a "catchword" intended to clarify what was thought to be a
misunderstanding of the maximum tolerance policy set forth in B.P. No. 880 and that, as stated in the affidavit executed by
Executive Secretary Eduardo Ermita and submitted to the Ombudsman, it does not replace B.P. No. 880 and the maximum
tolerance policy embodied in that law.

The Court will now proceed to address the principal issues, taking into account the foregoing developments.

Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of
petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly
assemble in the nation’s streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to
press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other
hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit.

Section 4 of Article III of the Constitution provides:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.

The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech,
of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very
basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v.
CA,15 the Court, as early as the onset of this century, in U.S. v. Apurado,16 already upheld the right to assembly and petition, as follows:

There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances and, for
that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities.
These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article
IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the people’s exercise
of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition
and even went as far as to acknowledge:

"It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance
and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd
as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and
to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the
purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct
occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised
in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous
uprising."

Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.

Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:

The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it
shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power," which is the power to
prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This
sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils to enact ordinances for the purpose. 18

Reyes v. Bagatsing19 further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom
of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of
public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or
subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless
there be a "clear and present danger of a substantive evil that [the State] has a right to prevent." Freedom of assembly
connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to
be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior
to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican
institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority
of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of
speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to
petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of
the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate public interest.

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the
Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for
gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of
communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose
its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or
printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this
the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved
or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable
assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The
Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence
to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be
precise, United States v. Apurado: "It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers." It bears repeating that for the constitutional right to be
invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to one’s destructive
urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of
values.

There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on national questions may be regulated in the interest
of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of regulation, be abridged or denied." The above excerpt
was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a
1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and
thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason
why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.

4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at
the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso
of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared:
"Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case,
the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting
thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from
licensing committee,’ was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that ‘a statute requiring
 persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not
an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time,
place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. "Nor should
the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil liberties, as guaranteed by
the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost
in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather
as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation
is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to protection."

xxx

6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if
the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is
held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the
freedom of speech which the Constitution protects." There could be danger to public peace and safety if such a gathering were
marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held
accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or
not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic
appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the
assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the
assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American
Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place."

xxx

8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the
public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for
the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants
must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable
assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, -- even more so than on the other departments – rests the grave and delicate
responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of
course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment."
Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they
do precedence and primacy. x x x.

B.P. No. 880 was enacted after this Court rendered its decision in Reyes.

The provisions of B.P. No. 880 practically codify the ruling in Reyes:

Reyes v. Bagatsing B.P. No. 880

(G.R. No. L-65366, November 9, 1983, Sec. 4. Permit when required and when not required.-- A
written permit shall be required for any person or persons to
125 SCRA 553, 569) organize and hold a public assembly in a public place.
However, no permit shall be required if the public assembly
shall be done or made in a freedom park duly established
8. By way of a summary. The applicants for a permit to hold by law or ordinance or in private property, in which case
an assembly should inform the licensing authority of the only the consent of the owner or the one entitled to its legal
date, the public place where and the time when it will take possession is required, or in the campus of a government-
place. If it were a private place, only the consent of the owned and operated educational institution which shall be
owner or the one entitled to its legal possession is required. subject to the rules and regulations of said educational
Such application should be filed well ahead in time to institution. Political meetings or rallies held during any
enable the public official concerned to appraise whether
there may be valid objections to the grant of the permit or to
its grant but at another public place. It is an indispensable election campaign period as provided for by law are not
condition to such refusal or modification that the clear and covered by this Act.
present danger test be the standard for the decision
reached. If he is of the view that there is such an imminent Sec. 5. Application requirements.-- All applications for a
and grave danger of a substantive evil, the applicants must permit shall comply with the following guidelines:
be heard on the matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have (a) The applications shall be in writing and shall
recourse to the proper judicial authority. include the names of the leaders or organizers; the
purpose of such public assembly; the date, time
and duration thereof, and place or streets to be
used for the intended activity; and the probable
number of persons participating, the transport and
the public address systems to be used.

(b) The application shall incorporate the duty and

responsibility of applicant under Section 8 hereof.

(c) The application shall be filed with the office of

the mayor of the city or municipality in whose
jurisdiction the intended activity is to be held, at
least five (5) working days before the scheduled
public assembly.

(d) Upon receipt of the application, which must be

duly acknowledged in writing, the office of the city
or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in
the city or municipal building.

Sec. 6. Action to be taken on the application. –

(a) It shall be the duty of the mayor or any official

acting in his behalf to issue or grant a permit
unless there is clear and convincing evidence that
the public assembly will create a clear and present
danger to public order, public safety, public
convenience, public morals or public health.

(b) The mayor or any official acting in his behalf

shall act on the application within two (2) working
days from the date the application was filed, failing
which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in
his behalf refuse to accept the application for a
permit, said application shall be posted by the
applicant on the premises of the office of the
mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent

and grave danger of a substantive evil warranting
the denial or modification of the permit, he shall
immediately inform the applicant who must be
heard on the matter.

(d) The action on the permit shall be in writing and

served on the applica[nt] within twenty-four hours.

(e) If the mayor or any official acting in his behalf

denies the application or modifies the terms
thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
 (f) In case suit is brought before the Metropolitan
Trial Court, the Municipal Trial Court, the Municipal
Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be
appealed to the appropriate court within forty-eight
(48) hours after receipt of the same. No appeal
bond and record on appeal shall be required. A
decision granting such permit or modifying it in
terms satisfactory to the applicant shall be
immediately executory.

(g) All cases filed in court under this section shall

be decided within twenty-four (24) hours from date
of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to

the Supreme Court.

(i) Telegraphic appeals to be followed by formal

appeals are hereby allowed.

It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the Court referred to it as a "content-
neutral" regulation of the time, place, and manner of holding public assemblies. 21

A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies22 that would use public
places. The reference to "lawful cause" does not make it content-based because assemblies really have to be for lawful causes,
otherwise they would not be "peaceable" and entitled to protection. Neither are the words "opinion," "protesting" and "influencing" in the
definition of public assembly content based, since they can refer to any subject. The words "petitioning the government for redress of
grievances" come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection
and benefit of all rallyists and is independent of the content of the expressions in the rally.

Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights, thus:

Universal Declaration of Human Rights

Article 20

1. Everyone has the right to freedom of peaceful assembly and association.

xxx

Article 29

1. Everyone has duties to the community in which alone the free and full development of his personality is possible.

2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely
for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality, public order and the general welfare in a democratic society.

3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

The International Covenant on Civil and Political Rights

Article 19.
 1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Contrary to petitioner’s claim, the law is very clear and is nowhere vague in its provisions. "Public" does not have to be defined. Its
ordinary meaning is well-known. Webster’s Dictionary defines it, thus:23

public, n, x x x 2a: an organized body of people x x x 3: a group of people distinguished by common interests or characteristics x x x.

Not every expression of opinion is a public assembly. The law refers to "rally, demonstration, march, parade, procession or any other
form of mass or concerted action held in a public place." So it does not cover any and all kinds of gatherings.

Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a
clear and present danger of the substantive evils Congress has the right to prevent.

There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.

As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present danger test
stated in Sec. 6(a). The reference to "imminent and grave danger of a substantive evil" in Sec. 6(c) substantially means the same thing
and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.

Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where
no prior permit is needed for peaceful assembly and petition at any time:

Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six
months from the effectivity this Act.

This brings up the point, however, of compliance with this provision.

The Solicitor General stated during the oral arguments that, to his knowledge, only Cebu City has declared a freedom park – Fuente
Osmeña.

That of Manila, the Sunken Gardens, has since been converted into a golf course, he added.

If this is so, the degree of observance of B.P. No. 880’s mandate that every city and municipality set aside a freedom park within six
months from its effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The matter appears to have been taken for
granted amidst the swell of freedom that rose from the peaceful revolution of 1986.

Considering that the existence of such freedom parks is an essential part of the law’s system of regulation of the people’s exercise of
their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision,
no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or
municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to
deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should
now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated
in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in
the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding
rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence
under B.P. Blg. 880.

15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies
to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons
may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal
and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how
peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with
the view to preempting the outbreak of violence.

16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring
to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the
public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously
threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to
the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy .
. . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the
letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to
violate any law.25

At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means
the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that
mandated by the law itself, namely, maximum tolerance, which specifically means the following:

Sec. 3. Definition of terms. – For purposes of this Act:

xxx

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.

xxx

Sec. 9. Non-interference by law enforcement authorities. – Law enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain
peace and order at all times.

Sec. 10. Police assistance when requested. – It shall be imperative for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law
enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their
nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must
observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot
sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is
attended by actual violence or serious threats of violence, or deliberate destruction of property.

Sec. 11. Dispersal of public assembly with permit. – No public assembly with a permit shall be dispersed. However, when an assembly
becomes violent, the police may disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the
leaders of the public assembly and ask the latter to prevent any possible disturbance;
 (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at
the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement
contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after
allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during
the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised
Penal Code, as amended;

(d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for
dispersal.

xxx

Sec. 12. Dispersal of public assembly without permit. – When the public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.

Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:

(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the
occasion thereof:

xxx

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound
systems.

Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and
when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a
necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can,
after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being
then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in
which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law.

In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and
freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of
our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the
government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that
restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected
to heightenedscrutiny."26

For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand,
B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of
public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the
constitutionally-sound "clear and present danger" standard.

In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within
which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in
accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed
freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written
notices to the police and the mayor’s office to allow proper coordination and orderly activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more particularly the Secretary of the Interior and Local
Governments, are DIRECTED to take all necessary steps for the immediate compliance with Section 15 of Batas Pambansa No. 880
through the establishment or designation of at least one suitable freedom park or plaza in every city and municipality of the country.
After thirty (30) days from the finality of this Decision, subject to the giving of advance notices, no prior permit shall be required to
exercise the right to peaceably assemble and petition in the public parks or plazas of a city or municipality that has not yet complied
with Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu
of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY
OBSERVE the requirements of maximum tolerance. The petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.

No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-45459 March 13, 1937

GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.

Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.

LAUREL, J.:

The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a
writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-
third International Eucharistic Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman
Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the
Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the
respondent publicly announced having sent to the United States the designs of the postage stamps for printing as follows:

"In the center is chalice, with grape vine and stalks of wheat as border design. The stamps are blue, green, brown, cardinal red, violet
and orange, 1 inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually issued
and sold though the greater part thereof, to this day, remains unsold. The further sale of the stamps is sought to be prevented by the
petitioner herein.

The Solicitor-General contends that the writ of prohibition is not the proper legal remedy in the instant case, although he admits that the
writ may properly restrain ministerial functions. While, generally, prohibition as an extraordinary legal writ will not issue to restrain or
control the performance of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and enforcement are regulated by
statute and in this jurisdiction may issue to . . . inferior tribunals, corporations, boards, or persons, whether excercising functions judicial
or ministerial, which are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516 and 226,
Code of Civil Procedure.) The terms "judicial" and "ministerial" used with reference to "functions" in the statute are undoubtedly
comprehensive and include the challenged act of the respondent Director of Posts in the present case, which act because alleged to be
violative of the Constitution is a fortiorari "without or in excess of . . . jurisdiction." The statutory rule, therefore, in the jurisdiction is that
the writ of prohibition is not confined exclusively to courts or tribunals to keep them within the limits of their own jurisdiction and to
prevent them from encroaching upon the jurisdiction of other tribunals, but will issue, in appropriate cases, to an officer or person whose
acts are without or in excess of his authority. Not infrequently, "the writ is granted, where it is necessary for the orderly administration of
justice, or to prevent the use of the strong arm of the law in an oppressive or vindictive manner, or a multiplicity of actions." (Dimayuga
and Fajardo vs. Fernandez [1923], 43 Phil., 304, 307.)

The more important question raised refers to the alleged violation of the Constitution by the respondent in issuing and selling postage
stamps commemorative of the Thirty-third International Eucharistic Congress. It is alleged that this action of the respondent is violative
of the provisions of section 23, subsection 3, Article VI, of the Constitution of the Philippines, which provides as follows:

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

The prohibition herein expressed is a direct corollary of the principle of separation of church and state. Without the necessity of
adverting to the historical background of this principle in our country, it is sufficient to say that our history, not to speak of the history of
mankind, has taught us that the union of church and state is prejudicial to both, for ocassions might arise when the estate will use the
church, and the church the state, as a weapon in the furtherance of their recognized this principle of separation of church and state in
the early stages of our constitutional development; it was inserted in the Treaty of Paris between the United States and Spain of
December 10, 1898, reiterated in President McKinley's Instructions of the Philippine Commission, reaffirmed in the Philippine Bill of
1902 and in the autonomy Act of August 29, 1916, and finally embodied in the constitution of the Philippines as the supreme expression
of the Filipino people. It is almost trite to say now that in this country we enjoy both religious and civil freedom. All the officers of the
Government, from the highest to the lowest, in taking their oath to support and defend the constitution, bind themselves to recognize
and respect the constitutional guarantee of religious freedom, with its inherent limitations and recognized implications. It should be
stated that what is guaranteed by our Constitution is religious liberty, not mere religious toleration.

Religious freedom, however, as a constitutional mandate is not inhibition of profound reverence for religion and is not denial of its
influence in human affairs. Religion as a profession of faith to an active power that binds and elevates man to his Creator is recognized.
And, in so far as it instills into the minds the purest principles of morality, its influence is deeply felt and highly appreciated. When the
Filipino people, in the preamble of their Constitution, implored "the aid of Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation, promote the general welfare, and secure to themselves
and their posterity the blessings of independence under a regime of justice, liberty and democracy," they thereby manifested reliance
upon Him who guides the destinies of men and nations. The elevating influence of religion in human society is recognized here as
elsewhere. In fact, certain general concessions are indiscriminately accorded to religious sects and denominations. Our Constitution
and laws exempt from taxation properties devoted exclusively to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the
Philippines and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c]. Adm. Code). Sectarian aid is not
prohibited when a priest, preacher, minister or other religious teacher or dignitary as such is assigned to the armed forces or to any
penal institution, orphanage or leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious instruction in
the public schools is by constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm.
Code). Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and Sundays and made legal holidays (sec. 29, Adm.
Code) because of the secular idea that their observance is conclusive to beneficial moral results. The law allows divorce but punishes
polygamy and bigamy; and certain crimes against religious worship are considered crimes against the fundamental laws of the state
(see arts. 132 and 133, Revised Penal Code).

In the case at bar, it appears that the respondent Director of Posts issued the postage stamps in question under the provisions of Act
No. 4052 of the Philippine Legislature. This Act is as follows:

No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS AND MAKING THE SAME AVAILABLE
OUT OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES
AND PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER PURPOSES.

Be it enacted by the Senate and House of Representatives of the Philippines in Legislature assembled and by the authority of
the same:

SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made immediately available out of any funds in the Insular
Treasury not otherwise appropriated, for the costs of plates and printing of postage stamps with new designs, and other expenses
incident thereto.

SEC. 2. The Director of Posts, with the approval of the Secretary of Public Works and Communications, is hereby authorized to dispose
of the whole or any portion of the amount herein appropriated in the manner indicated and as often as may be deemed advantageous
to the Government.

SEC. 3. This amount or any portion thereof not otherwise expended shall not revert to the Treasury.

SEC. 4. This act shall take effect on its approval.

Approved, February 21, 1933.

It will be seen that the Act appropriates the sum of sixty thousand pesos for the costs of plates and printing of postage stamps with new
designs and other expenses incident thereto, and authorizes the Director of Posts, with the approval of the Secretary of Public Works
and Communications, to dispose of the amount appropriated in the manner indicated and "as often as may be deemed advantageous
to the Government". The printing and issuance of the postage stamps in question appears to have been approved by authority of the
President of the Philippines in a letter dated September 1, 1936, made part of the respondent's memorandum as Exhibit A. The
respondent alleges that the Government of the Philippines would suffer losses if the writ prayed for is granted. He estimates the
revenue to be derived from the sale of the postage stamps in question at P1,618,17.10 and states that there still remain to be sold
stamps worth P1,402,279.02.

Act No. 4052 contemplates no religious purpose in view. What it gives the Director of Posts is the discretionary power to determine
when the issuance of special postage stamps would be "advantageous to the Government." Of course, the phrase "advantageous to
the Government" does not authorize the violation of the Constitution. It does not authorize the appropriation, use or application of public
money or property for the use, benefit or support of a particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of Public Works and Communications was not inspired by any
sectarian denomination. The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived
from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936,
incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the
Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of
international importance "to give publicity to the Philippines and its people" (Letter of the Undersecretary of Public Works and
Communications to the President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note that the stamps
as actually designed and printed (Exhibit 2), instead of showing a Catholic Church chalice as originally planned, contains a map of the
Philippines and the location of the City of Manila, and an inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-
7,1937." What is emphasized is not the Eucharistic Congress itself but Manila, the capital of the Philippines, as the seat of that
congress. It is obvious that while the issuance and sale of the stamps in question may be said to be inseparably linked with an event of
a religious character, the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not be embarassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordinate to mere incidental results not contemplated. (Vide Bradfield vs. Roberts,
175 U. S., 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the petitioner to maintain inviolate the complete separation of church
and state and curb any attempt to infringe by indirection a constitutional inhibition. Indeed, in the Philippines, once the scene of religious
intolerance and prescription, care should be taken that at this stage of our political development nothing is done by the Government or
its officials that may lead to the belief that the Government is taking sides or favoring a particular religious sect or institution. But, upon
very serious reflection, examination of Act No. 4052, and scrutiny of the attending circumstances, we have come to the conclusion that
there has been no constitutional infraction in the case at bar, Act No. 4052 grants the Director of Posts, with the approval of the
Secretary of Public Works and Communications, discretion to misuse postage stamps with new designs "as often as may be deemed
advantageous to the Government." Even if we were to assume that these officials made use of a poor judgment in issuing and selling
the postage stamps in question still, the case of the petitioner would fail to take in weight. Between the exercise of a poor judgment and
the unconstitutionality of the step taken, a gap exists which is yet to be filled to justify the court in setting aside the official act assailed
as coming within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement as to costs. So ordered.

Avanceña, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-53487 May 25, 1981

ANDRES GARCES, Reverend Father SERGIO MARILAO OSMEÑA, NICETAS DAGAR and JESUS EDULLANTES, petitioners,
vs.
Hon. NUMERIANO G. ESTENZO, Presiding Judge of the Court of First Instance of Leyte, Ormoc City Branch V, BARANGAY
COUNCIL of Valencia, Ormoc City, Barangay Captain MANUEL C. VELOSO, Councilmen GAUDENCIO LAVEZARES, TOMAS
CABATINGAN and MAXIMINO NAVARRO, Barangay Secretary CONCHITA MARAYA and Barangay Treasurer LUCENA
BALTAZAR, respondents.

AQUINO, J.:1äwphï1.ñët

This case is about the constitutionality of four resolutions of the barangay council of Valencia, Ormoc City, regarding the acquisition of
the wooden image of San Vicente Ferrer to be used in the celebration of his annual feast day. That issue was spawned by the
controversy as to whether the parish priest or a layman should have the custody of the image.

On March 23, 1976, the said barangay council adopted Resolution No. 5, "reviving the traditional socio-religious celebration" every fifth
day of April "of the feast day of Señor San Vicente Ferrer, the patron saint of Valencia".

That resolution designated the members of nine committees who would take charge of the 1976 festivity. lt provided for (1) the
acquisition of the image of San Vicente Ferrer and (2) the construction of a waiting shed as the barangay's projects. Funds for the two
projects would be obtained through the selling of tickets and cash donations " (Exh A or 6).

On March 26, 1976, the barangay council passed Resolution No. 6 which specified that, in accordance with the practice in Eastern
Leyte, Councilman Tomas Cabatingan, the Chairman or hermano mayor of the fiesta, would be the caretaker of the image of San
Vicente Ferrer and that the image would remain in his residence for one year and until the election of his successor as chairman of the
next feast day.

It was further provided in the resolution that the image would be made available to the Catholic parish church during the celebration of
the saint's feast day (Exh. B or 7).

Resolutions Nos. 5 and 6 were submitted to a plebiscite and were duly ratified by the barangay general assembly on March 26, 1976.
Two hundred seventy-two voters ratified the two resolutions (Exh. 2 and 5).

Funds were raised by means of solicitations0 and cash donations of the barangay residents and those of the neighboring places of
Valencia. With those funds, the waiting shed was constructed and the wooden image of San Vicente Ferrer was acquired in Cebu City
by the barangay council for four hundred pesos (Exh. F-l, 3 and 4).

On April 5, 1976, the image was temporarily placed in the altar of the Catholic church of Barangay Valencia so that the devotees could
worship the saint during the mass for the fiesta.

A controversy arose after the mass when the parish priest, Father Sergio Marilao Osmeña refused to return that image to the barangay
council on the pretext that it was the property of the church because church funds were used for its acquisition.

Several days after the fiesta or on April 11, 1976, on the occasion of his sermon during a mass, Father Osmeña allegedly uttered
defamatory remarks against the barangay captain, Manuel C. Veloso, apparently in connection with the disputed image. That incident
provoked Veloso to file against Father Osmeña in the city court of Ormoc City a charge for grave oral defamation.

Father Osmeña retaliated by filing administrative complaints against Veloso with the city mayor's office and the Department of Local
Government and Community Development on the grounds of immorality, grave abuse of authority, acts unbecoming a public official
and ignorance of the law.

Meanwhile, the image of San Vicente Ferrer remained in the Catholic church of Valencia. Because Father Osmeña did not accede to
the request of Cabatingan to have custody of the image and "maliciously ignored" the council's Resolution No. 6, the council enacted on
May 12, 1976 Resolution No. 10, authorizing the hiring of a lawyer to file a replevin case against Father Osmeña for the recovery of the
image (Exh. C or 8). On June 14, 1976, the barangay council passed Resolution No. 12, appointing Veloso as its representative in the
replevin case (Exh. D or 9).

The replevin case was filed in the city court of Ormoc City against Father Osmeña and Bishop Cipriano Urgel (Exh. F). After the
barangay council had posted a cash bond of eight hundred pesos, Father Osmeña turned over the image to the council (p. 10, Rollo). ln
his answer to the complaint for replevin, he assailed the constitutionality of the said resolutions (Exh. F-1).

Later, he and three other persons, Andres Garces, a member of the Aglipayan Church, and two Catholic laymen, Jesus Edullantes and
Nicetas Dagar, filed against the barangay council and its members (excluding two members) a complaint in the Court of First Instance
at Ormoc City, praying for the annulment of the said resolutions (Civil Case No. 1680-0).

The lower court dismissed the complaint. lt upheld the validity of the resolutions. The petitioners appealed under Republic Act No. 5440.
The petitioners contend that the barangay council was not duly constituted because lsidoro M. Mañago, Jr., the chairman of the
kabataang barangay, was not allowed to participate in its sessions.

Barangays used to be known as citizens assemblies (Presidential Decrees Nos. 86 and 86-A). Presidential Decree No. 557, which took
effect on September 21, 1974, 70 O.G. 8450-L, directed that all barrios should be known as barangays and adopted the Revised Barrio
Charter as the Barangay Charter.

Barrios are units of municipalities or municipal districts in which they are situated. They are quasi-municipal corporations endowed with
such powers" as are provided by law "for the performance of particular government functions, to be exercised by and through their
respective barrio governments in conformity with law" (Sec. 2, Revised Barrio Charter, R.A. No. 3590).

The barrio assembly consists of all persons who are residents of the barrio for at least six months, eighteen years of age or over and
Filipino citizens duly registered in the list kept by the barrio secretary (Sec. 4, Ibid).

The barrio council, now barangay council, is composed of the barangay captain and six councilmen (Sec. 7, Ibid). Section 3 of
Presidential Decree No. 684, which took effect on April 15, 1975, provides that "the barangay youth chairman shall be an ex-
officio member of the barangay council", having the same powers and functions as a barangay councilman.

In this case, Mañago, the barangay youth chairman, was notified of the sessions of the barangay council to be held on March 23 and
26, 1976 but he was not able to attend those sessions because he was working with a construction company based at Ipil, Ormoc City
(Par. 2[d] Exh. 1).

Mañago's absence from the sessions of the barangay council did not render the said resolutions void. There was a quorum when the
said resolutions were passed.

The other contention of the petitioners is that the resolutions contravene the constitutional provisions that "no law shall be made
respecting an establishment of religion" and that "no public money or property shall ever be appropriated, applied, paid, or used,
directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for
the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary as such. except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium
(Sec. 8, Article IV and sec. 18[2], Article VIII, Constitution).

That contention is glaringly devoid of merit. The questioned resolutions do not directly or indirectly establish any religion, nor abridge
religious liberty, nor appropriate public money or property for the benefit of any sect, priest or clergyman. The image was purchased
with private funds, not with tax money. The construction of a waiting shed is entirely a secular matter.

Manifestly puerile and flimsy is Petitioners argument that the barangay council favored the Catholic religion by using the funds raised by
solicitations and donations for the purchase of the patron saint's wooden image and making the image available to the Catholic church.

The preposterousness of that argument is rendered more evident by the fact that counsel advanced that argument in behalf of the
petitioner, Father Osmeña the parish priest.

The wooden image was purchased in connection with the celebration of the barrio fiesta honoring the patron saint, San Vicente Ferrer,
and not for the purpose of favoring any religion nor interfering with religious matters or the religious beliefs of the barrio residents. One
of the highlights of the fiesta was the mass. Consequently, the image of the patron saint had to be placed in the church when the mass
was celebrated.

If there is nothing unconstitutional or illegal in holding a fiesta and having a patron saint for the barrio, then any activity intended to
facilitate the worship of the patron saint (such as the acquisition and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-religious affair. Its celebration is an ingrained tradition in rural communities.
The fiesta relieves the monotony and drudgery of the lives of the masses.

The barangay council designated a layman as the custodian of the wooden image in order to forestall any suspicion that it is favoring
the Catholic church. A more practical reason for that arrangement would be that the image, if placed in a layman's custody, could easily
be made available to any family desiring to borrow the image in connection with prayers and novenas.

The contradictory positions of the petitioners are shown in their affidavits. Petitioner Garces swore that the said resolutions favored the
Catholic church. On the other hand, petitioners Dagar and Edullantes swore that the resolutions prejudiced the Catholics because they
could see the image in the church only once a year or during the fiesta (Exh. H and J).

We find that the momentous issues of separation of church and state, freedom of religion annd the use of public money to favor any
sect or church are not involved at all in this case even remotely or indirectly. lt is not a microcosmic test case on those issues.

This case is a petty quarrel over the custody of a saint's image. lt would never have arisen if the parties had been more diplomatic and
tactful and if Father Osmeña had taken the trouble of causing contributions to be solicited from his own parishioners for the purchase
of another image of San Vicente Ferrer to be installed in his church.

There can be no question that the image in question belongs to the barangay council. Father Osmeña claim that it belongs to his
church is wrong. The barangay council, as owner of the image, has the right to determine who should have custody thereof.

If it chooses to change its mind and decides to give the image to the Catholic church. that action would not violate the Constitution
because the image was acquired with private funds and is its private property.

The council has the right to take measures to recover possession of the image by enacting Resolutions Nos. 10 and 12.

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

In Aglipay vs. Ruiz, 64 Phil. 201, what was involved was Act No. 4052 which appropriated sixty thousand pesos for the cost of plates
and the printing of postage stamps with new designs. Under the law, the Director of Posts, with the approval of the Department Head
and the President of the Philippines, issued in 1936 postage stamps to commemorate the celebration in Manila of the 33rd International
Eucharistic Congress sponsored by the Catholic Church.

The purpose of the stamps was to raise revenue and advertise the Philippines. The design of the stamps showed a map of the
Philippines and nothing about the Catholic Church. No religious purpose was intended.

Monsignor Gregorio Aglipay, the founder and head of the Philippine Independent Church, sought to enjoin the sale of those
commemorative postage stamps.

It was held that the issuance of the stamps, while linked inseparably with an event of a religious character, was not designed as a
propaganda for the Catholic Church. Aglipay's prohibition suit was dismissed.

The instant case is easily distinguishable from Verzosa vs. Fernandez, 49 Phil., 627 and 55 Phil. 307, where a religious brotherhood, La
Archicofradia del Santisimo Sacramento, organized for the purpose of raising funds to meet the expenses for the annual fiesta in honor
of the Most Holy Sacrament and the Virgin Lady of Guadalupe, was held accountable for the funds which it held as trustee. 0

Finding that the petitioners have no cause of action for the annulment of the barangay resolutions, the lower court's judgment
dismissing their amended petition is affirmed. No costs.

SO ORDERED.

Fernando C.J., Barredo, Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ., concur.1äwphï1.ñët

Teehankee, J., concur in the result.

Fernandez, J., Concepcion Jr. J., are on leave.

Separate Opinions

ABAD SANTOS, J., concurring:

I want to add these observations: the images of saints are not worshiped; they are venerated. "Thou shall not have strange gods." A
petty dispute on who should have custody of the statue of San Vicente Ferrer should not have taken up the time of the Supreme Court.
There can be no doubt that the statue was bought with private funds raised by the barangay council which also decided who should
have custody of it. How the cura parroco got it into his head that he should have custody of the statue defies logic. lt is not, therefore,
suprising to hear statements that religion has no relevance to current problems. Let there be affirmation action by the churches and less
concern for inconsequential matters.

Separate Opinions

ABAD SANTOS, J., concurring:

I want to add these observations: the images of saints are not worshiped; they are venerated. "Thou shall not have strange gods." A
petty dispute on who should have custody of the statue of San Vicente Ferrer should not have taken up the time of the Supreme Court.
There can be no doubt that the statue was bought with private funds raised by the barangay council which also decided who should
have custody of it. How the cura parroco got it into his head that he should have custody of the statue defies logic. lt is not, therefore,
suprising to hear statements that religion has no relevance to current problems. Let there be affirmation action by the churches and less
concern for inconsequential matters.
U.S. Supreme Court
Board of Education v. Allen, 392 U.S. 236 (1968)

Board of Education v. Allen

No. 660

Argued April 22, 1968

Decided June 10, 1968

392 U.S. 236

APPEAL FROM THE COURT OF APPEALS OF NEW YORK

Syllabus

New York's Education Law requires local public school authorities to lend textbooks free of charge to all students in grades seven to 12,
including those in private schools. Appellant school boards sought a declaration that the statutory requirement was invalid as violative
of the State and Federal Constitutions, an order barring appellee Commissioner of Education from removing appellants' members from
office for failing to comply with it, and an order preventing the use of state funds for the purchase of textbooks to be lent to parochial
students. The trial court held the law unconstitutional under the First and Fourteenth Amendments and entered summary judgment for
appellants on the pleadings; the Appellate Division reversed and ordered the complaint dismissed since appellant school boards had no
standing to attack the statute, and the New York Court of Appeals held that appellants did have standing, but that the statute did not
violate the State or Federal Constitution. The Court of Appeals said that the law was to benefit all school children, without regard to the
type of school attended, that only textbooks approved by school authorities could be loaned, and therefore the statute was "completely
neutral with respect to religion."

Held: The statute does not violate the Establishment or the Free Exercise Clause of the First Amendment. Pp.392 U. S. 241-249.

(1) The express purpose of the statute was the furtherance of educational opportunities for the young, and the law merely makes
available to all children the benefits of a general program to lend school books free of charge, and the financial benefit is to parents and
children, not to schools. Everson v. Board of Education, 330 U. S. 1. Pp. 392 U. S. 243-244.

(2) There is no evidence that religious books have been loaned, and it cannot be assumed that school authorities are unable to
distinguish between secular and religious books, or that they will not honestly discharge their duties to approve only secular books.
Pp. 392 U. S. 244-245.

Page 392 U. S. 237

(3) Parochial schools, in addition to their sectarian function, perform the task of secular education, and, on the basis of this meager
record, the Court cannot agree with appellants that all teaching in a sectarian school is religious, or that the intertwining of secular and
religious training is such that secular textbooks furnished to students are, in fact, instrumental in teaching religion. Pp. 392 U. S. 245-
248.

(4) In the absence of specific evidence, and based solely on judicial notice, it cannot be concluded that the statute results in
unconstitutional state involvement with religious instruction or violates the Establishment Clause. P. 392 U. S. 248.

(5) Since appellants have not shown that the law coerces them in any way in the practice of religion, there is no violation of the Free
Exercise Clause. Pp. 392 U. S. 248-249.

20 N.Y.2d 109, 228 N.E.2d 791, affirmed.

Page 392 U. S. 238

MR. JUSTICE WHITE delivered the opinion of the Court.

A law of the State of New York requires local public school authorities to lend textbooks free of charge to all students in grades seven
through 12; students attending private schools are included. This case presents the question whether this statute is a "law respecting
an establishment of religion, or prohibiting the free exercise thereof," and so in conflict with the First and Fourteenth Amendments to the
Constitution, because it authorizes the loan of textbooks to students attending parochial schools. We hold that the law is not in violation
of the Constitution.
Until 1965, § 701 of the Education Law of the State of New York authorized public school boards to designate

Page 392 U. S. 239

textbooks for use in the public schools, to purchase such books with public funds, and to rent or sell the books to public school
students. [Footnote 1] In 1965, the legislature amended § 701, basing the amendments on findings that the

"public welfare and safety require that the state and local communities give assistance to educational programs which are important to
our national defense and the general welfare of the state. [Footnote 2]"

Beginning with the 1966 1967 school year, local school boards were required to purchase textbooks and lend them without charge

"to all children residing in such district who are enrolled in grades seven to twelve of a public or private school which complies with the
compulsory education law."

The books now loaned are

"textbooks which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of
education,"

and which -- according to a 1966 amendment -- "a pupil is required to use as a text for a semester or more in a particular class in the
school he legally attends." [Footnote 3]

Page 392 U. S. 240

Appellant Board of Education of Central School District No. 1 in Renesselaer and Columbia Counties, brought suit in the New York
courts against appellee James Allen. [Footnote 4] The complaint alleged that § 701 violated both the State and Federal Constitutions;
that, if appellants, in reliance on their interpretation of the Constitution, failed to lend books to parochial school students within their
counties, appellee Allen would remove appellants from office, and that, to prevent this, appellants were complying with the law and
submitting to their constituents a school budget including funds for books to be lent to parochial school pupils. Appellants therefore
sought a declaration that § 701 was invalid, an order barring appellee Allen from removing appellants from office for failing to comply
with it, and another order restraining him from apportioning state funds to school districts for the purchase of textbooks to be lent to
parochial students. After answer, and upon cross-motions for summary judgment, the trial court held the law unconstitutional

Page 392 U. S. 241

under the First and Fourteenth Amendments and entered judgment for appellants. 51 Misc.2d 297, 273 N.Y.S.2d 239 (1966). The
Appellate Division reversed, ordering the complaint dismissed on the ground that appellant school boards had no standing to attack the
validity of a state statute. 27 App.Div.2d 69, 276 N.Y.S.2d 234 (1966). On appeal, the New York Court of Appeals concluded by a 4-3
vote that appellants did have standing, [Footnote 5] but, by a different 4-3 vote, held that § 701 was not in violation of either the State or
the Federal Constitution. 20 N.Y.2d 109, 228 N.E.2d 791, 281 N.Y.S.2d 799 (1967). The Court of Appeals said that the law's purpose
was to benefit all school children, regardless of the type of school they attended, and that only textbooks approved by public school
authorities could be loaned. It therefore considered § 701

"completely neutral with respect to religion, merely making available secular textbooks at the request of the individual student, and
asking no question about what school he attends."

Section 701, the Court of Appeals concluded, is not a law which "establishes a religion or constitutes the use of public funds to aid
religious schools." 20 N.Y.2d at 117; 228 N.E.2d at 794, 795; 281 N.Y.S.2d at 805. We noted probable jurisdiction. 389 U.S. 1031
(1968).

Everson v. Board of Education, 330 U. S. 1 (1947), is the case decided by this Court that is most nearly in

Page 392 U. S. 242

point for today's problem. New Jersey reimbursed parents for expenses incurred in busing their children to parochial schools. The Court
stated that the Establishment Clause bars a State from passing "laws which aid one religion, aid all religions, or prefer one religion over
another," and bars too any

"tax in any amount, large or small . . . levied to support any religious activities or institutions, whatever they may be called, or whatever
form they may adopt to teach or practice religion."
330 U.S. at 330 U. S. 15-16. Nevertheless, said the Court, the Establishment Clause does not prevent a State from extending the
benefits of state laws to all citizens without regard for their religious affiliation and does not prohibit

"New Jersey from spending tax raised funds to pay the bus fares of parochial school pupils as a part of a general program under which
it pays the fares of pupils attending public and other schools."

The statute was held to be valid even though one of its results was that "children are helped to get to church schools," and

"some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their
own pockets."

330 U.S. at 330 U. S. 17. As with public provision of police and fire protection, sewage facilities, and streets and sidewalks, payment of
bus fares was of some value to the religious school, but was nevertheless not such support of a religious institution as to be a
prohibited establishment of religion within the meaning of the First Amendment.

Everson and later cases have shown that the line between state neutrality to religion and state support of religion is not easy to locate.

"The constitutional standard is the separation of Church and State. The problem, like many problems in constitutional law, is one of
degree."

Zorach v. Clauson, 343 U. S. 306, 343 U. S. 314 (1952). See McGowan v. Maryland, 366 U. S. 420 (1961). Based

Page 392 U. S. 243

on Everson, Zorach, McGowan, and other cases, Abington School District v. Schempp, 374 U. S. 203 (1963), fashioned a test
subscribed to by eight Justices for distinguishing between forbidden involvements of the State with religion and those contacts which
the Establishment Clause permits:

"The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or
inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say
that, to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that
neither advances nor inhibits religion. Everson v. Board of Education. . . ."

374 U.S. at 374 U. S. 222.

This test is not easy to apply, but the citation of Everson by the Schempp Court to support its general standard made clear how
the Schempp rule would be applied to the facts of Everson. The statute upheld in Everson would be considered a law having "a secular
legislative purpose and a primary effect that neither advances nor inhibits religion." We reach the same result with respect to the New
York law requiring school books to be loaned free of charge to all students in specified grades. The express purpose of § 701 was
stated by the New York Legislature to be furtherance of the educational opportunities available to the young. Appellants have shown us
nothing about the necessary effects of the statute that is contrary to its stated purpose. The law merely makes available to all children
the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership
remains, at least technically, in the State. Thus, no funds or books are furnished

Page 392 U. S. 244

to parochial schools, and the financial benefit is to parents and children, not to schools. [Footnote 6] Perhaps free books make it more
likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson, and does not
alone demonstrate an unconstitutional degree of support for a religious institution. Of course, books are different from buses. Most bus
rides have no inherent religious significance, while religious books are common. However, the language of § 701 does not authorize the
loan of religious books, and the State claims no right to distribute religious literature. Although the books loaned are those required by
the parochial school for use in specific courses, each book

Page 392 U. S. 245

loaned must be approved by the public school authorities; only secular books may receive approval. The law was construed by the
Court of Appeals of New York as "merely making available secular textbooks at the request of the individual student," supra, and the
record contains no suggestion that religious books have been loaned. Absent evidence, we cannot assume that school authorities, who
constantly face the same problem in selecting textbooks for use in the public schools, are unable to distinguish between secular and
religious books, or that they will not honestly discharge their duties under the law. In judging the validity of the statute on this record, we
must proceed on the assumption that books loaned to students are books that are not unsuitable for use in the public schools because
of religious content.
The major reason offered by appellants for distinguishing free textbooks from free bus fares is that books, but not buses, are critical to
the teaching process, and, in a sectarian school, that process is employed to teach religion. However. this Court has long recognized
that religious schools pursue two goals, religious instruction and secular education. In the leading case of Pierce v. Society of
Sisters, 268 U. S. 510 (1925), the Court held that, although it would not question Oregon's power to compel school attendance or
require that the attendance be at an institution meeting State-imposed requirements as to quality and nature of curriculum, Oregon had
not shown that its interest in secular education required that all children attend publicly operated schools. A premise of this holding was
the view that the State's interest in education would be served sufficiently by reliance on the secular teaching that accompanied
religious training in the schools maintained by the Society of Sisters. Since Pierce, a substantial body of case law has confirmed the
power of the States to insist that attendance at private schools, if it is to satisfy state compulsory attendance

Page 392 U. S. 246

laws, be at institutions which provide minimum hours of instruction, employ teachers of specified training, and cover prescribed subjects
of instruction. [Footnote 7] Indeed, the State's interest in assuring that these standards are being met has been considered a sufficient
reason for refusing to accept instruction at home as compliance with compulsory

Page 392 U. S. 247

education statutes. [Footnote 8] These cases were a sensible corollary of Pierce v. Society of Sisters: if the State must satisfy its
interest in secular education through the instrument of private schools, it has a proper interest in the manner in which those schools
perform their secular educational function. Another corollary was Cochran v. Louisiana State Board of Education, 281 U. S. 370 (1930),
where appellants said that a statute requiring school books to be furnished without charge to all students, whether they attended public
or private schools, did not serve a "public purpose," and so offended the Fourteenth Amendment. Speaking through Chief Justice
Hughes, the Court summarized as follows its conclusion that Louisiana's interest in the secular education being provided by private
schools made provision of textbooks to students in those schools a properly public concern:

"[The State's] interest is education, broadly; its method, comprehensive. Individual interests are aided only as the common interest is
safeguarded."

281 U.S. at 281 U. S. 375.

Underlying these cases, and underlying also the legislative judgments that have preceded the court decisions, has been a recognition
that private education has played and is playing a significant and valuable role in raising national levels of knowledge, competence, and
experience. Americans care about the quality of the secular education available to their children. They have considered high quality
education to be an indispensable ingredient for achieving the kind of nation, and the kind of citizenry, that they have desired to create.
Considering this attitude, the continued willingness to rely on private school systems, including parochial systems, strongly suggests

Page 392 U. S. 248

that a wide segment of informed opinion, legislative and otherwise, has found that those schools do an acceptable job of providing
secular education to their students. [Footnote 9] This judgment is further evidence that parochial schools are performing, in addition to
their sectarian function, the task of secular education.

Against this background of judgment and experience, unchallenged in the meager record before us in this case, we cannot agree with
appellants either that all teaching in a sectarian school is religious or that the processes of secular and religious training are so
intertwined that secular textbooks furnished to students by the public are, in fact, instrumental in the teaching of religion. This case
comes to us after summary judgment entered on the pleadings. Nothing in this record supports the proposition that all textbooks,
whether they deal with mathematics, physics, foreign languages, history, or literature, are used by the parochial schools to teach
religion. No evidence has been offered about particular schools, particular courses, particular teachers, or particular books. We are
unable to hold, based solely on judicial notice, that this statute results in unconstitutional involvement of the State with religious
instruction, or that § 701, for this or the other reasons urged, is a law respecting the establishment of religion within the meaning of the
First Amendment.

Appellants also contend that § 701 offends the Free Exercise Clause of the First Amendment. However,

"it is necessary in a free exercise case for one to show the

Page 392 U. S. 249

coercive effect of the enactment as it operates against him in the practice of his religion,"

Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 223 (1963), and appellants have not contended that the New York law in
any way coerces them as individuals in the practice of their religion.
The judgment is affirmed.
U.S. Supreme Court
Tilton v. Richardson, 403 U.S. 672 (1971)

Tilton v. Richardson

No. 153

Argued March 2-3, 1971

Decided June 28, 1971

403 U.S. 672

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF CONNECTICUT

Syllabus

The Higher Education Facilities Act of 1963 provides federal construction grants for college and university facilities, excluding

"any facility used or to be used for sectarian instruction or as a place for religious worship, or . . . primarily in connection with any part of
the program of a school or department of divinity."

The United States retains a 20-year interest in any facility constructed with funds under the Act, and if, during this period, the recipient
violates the statutory conditions, the Government is entitled to recovery of funds. Four church-related colleges and universities in
Connecticut received federal construction grants for five facilities. Appellants attempted to show, in a three-judge court, that the
recipient institutions were "sectarian" by introducing evidence of their relations with religious authorities, the curricula content, and other
indicia of religious character. Appellee colleges introduced testimony that they had fully complied with the statutory conditions, and that
their religious affiliations did not interfere with their secular educational functions. The court held that the Act authorized grants to
church-related schools, and sustained its constitutionality, finding that the Act had neither the purpose nor the effect of promoting
religion.

Held: The Act is constitutional except for that portion providing for a 20-year limitation on the religious use of the facilities constructed
with federal funds. Pp. 403 U. S. 676-689, 403 U. S. 661-671, 403 U. S. 692.

312 F.Supp. 1191, vacated and remanded.

THE CHIEF JUSTICE, joined by MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN, concluded that:

1. The Act includes colleges and universities with religious affiliations. Pp. 403 U. S. 676-677.

2. Congress' objective of providing more opportunity for college education is a legitimate secular goal entirely appropriate for
governmental action. Pp. 403 U. S. 678-679.

Page 403 U. S. 673

3. The record fully supports the District Court's findings that the colleges involved have not violated the statutory restrictions; it provides
no basis for assuming that religiosity necessarily permeates the secular education of the colleges; and it yields no evidence that religion
seeps into the use of any of the five facilities. Pp. 403 U. S. 680-682.

4. The limitation of federal interest in the facilities to a period of 20 years violates the Religion Clauses of the First Amendment, as the
unrestricted use of valuable property after 20 years is in effect a contribution to a religious body. Pp. 403 U. S. 682-684.

5. This case is distinguished from Lemon v. Kurtzman, ante, p. 403 U. S. 602; (a) there is less danger here than in church-related
primary and secondary schools dealing with impressionable children that religion will permeate the area of secular education, since
religious indoctrination is not a substantial purpose or activity of these church-related colleges, (b) the facilities provided here are
themselves religiously neutral, with correspondingly less need for government surveillance, and (c) the government aid here is a one-
time, single-purpose construction grant, with only minimal need for inspection. Cumulatively, these factors lessen substantially the
potential for divisive religious fragmentation in the political arena. Pp. 403 U. S. 684-689.
6. The implementation of the Act does not inhibit the free exercise of religion in violation of the First Amendment. P. 403 U. S. 689.

MR. JUSTICE WHITE concurred in the judgment in this case. Pp. 403 U. S. 661-671.

MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK and MR. JUSTICE MARSHALL, agreed only with that part of the plurality
opinion relating to the limitation of federal interest in the facilities to 20 years, concluding that a reversion of a facility at the end of that
period to a parochial school would be unconstitutional as a gift of taxpayers' funds. P. 403 U. S. 692.

BURGER, C.J., announced the Court's judgment and delivered an opinion in which HARLAN, STEWART, and BLACKMUN, JJ., joined.
WHITE, J., filed an opinion concurring in the judgment, ante, p. 403 U. S. 661. DOUGLAS, J., filed an opinion dissenting in part, in
which BLACK and MARSHALL, JJ., joined, post, p. 403 U. S. 689. BRENNAN, J. filed a dissenting opinion, ante, p. 403 U. S. 642.

Page 403 U. S. 674

MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE HARLAN, MR. JUSTICE
STEWART, and MR. JUSTICE BLACKMUN join.

This appeal presents important constitutional questions as to federal aid for church-related colleges and universities under Title I of the
Higher Education Facilities Act of 1963, 77 Stat. 364, as amended, 20 U.S.C. §§ 711-721 (1964 ed. and Supp. V), which provides
construction grants for buildings and facilities used

Page 403 U. S. 675

exclusively for secular educational purposes. We must determine first whether the Act authorizes aid to such church-related institutions,
and, if so, whether the Act violates either the Establishment or Free Exercise Clauses of the First Amendment.

The Higher Education Facilities Act was passed in 1963 in response to a strong nationwide demand for the expansion of college and
university facilities to meet the sharply rising number of young people demanding higher education. The Act authorizes federal grants
and loan to "institutions of higher education" for the construction of a wide variety of "academic facilities." But § 751(a)(2) (1964 ed.,
Supp. V) expressly excludes

"any facility used or to be used for sectarian instruction or as a place for religious worship, or . . . any facility which . . . is used or to be
used primarily in connection with any part of the program of a school or department of divinity. . . ."

The Act is administered by the United States Commissioner of Education. He advises colleges and universities applying for funds that
under the Act no part of the project may be used for sectarian instruction, religious worship, or the programs of a divinity school. The
Commissioner requires applicants to provide assurances that these restrictions will be respected. The United States retains a 20-year
interest in any facility constructed with Title I funds. If, during this period, the recipient violates the statutory conditions, the United
States is entitled to recover an amount equal to the proportion of its present value that the federal grant bore to the original cost of the
facility. During the 20-year period, the statutory restrictions are enforced by the Office of Education primarily by way of on-site
inspections.

Page 403 U. S. 676

Appellants are citizens and taxpayers of the United States and residents of Connecticut. They brought this suit for injunctive relief
against the officials who administer the Act. Four church-related colleges and universities in Connecticut receiving federal construction
grants under Title I were also named as defendants. Federal funds were used for five projects at these four institutions: (1) a library
building at Sacred Heart University; (2) a music, drama, and arts building at Annhurst College; (3) a science building at Fairfield
University; (4) a library building at Fairfield; and (5) a language laboratory at Albertus Magnus College.

A three-judge federal court was convened under 28 U.S.C. § 2282 and § 2284. Appellants attempted to show that the four recipient
institutions were "sectarian" by introducing evidence of their relations with religious authorities, the content of their curricula, and other
indicia of their religious character. The sponsorship of these institutions by religious organizations is not disputed. Appellee colleges
introduced testimony that they had fully complied with the statutory conditions and that their religious affiliation in no way interfered with
the performance of their secular educational functions. The District Court ruled that Title I authorized grants to church-related colleges
and universities. It also sustained the constitutionality of the Act, finding that it had neither the purpose nor the effect of promoting
religion. 312 F.Supp. 1191. We noted probable jurisdiction. 399 U.S. 904 (1970).
II

We are satisfied that Congress intended the Act to include all colleges and universities regardless of any affiliation with or sponsorship
by a religious body. Congress defined "institutions of higher education," which are eligible to receive aid under the Act, in broad and

Page 403 U. S. 677

inclusive terms. Certain institutions, for example, institutions that are neither public nor nonprofit, are expressly excluded, and the Act
expressly prohibits use of the facilities for religious purposes. But the Act makes no reference to religious affiliation or nonaffiliation.
Under these circumstances, "institutions of higher education" must be taken to include church-related colleges and universities.

This interpretation is fully supported by the legislative history. Although there was extensive debate on the wisdom and constitutionality
of aid to institutions affiliated with religious organizations, Congress clearly included them in the program. The sponsors of the Act so
stated, 109 Cong.Rec.19218 (1963) (remarks of Sen. Morse); id. at 14954 (remarks of Rep. Powell); id. at 14963 (remarks of Rep.
Quie), and amendments aimed at the exclusion of church-related institutions were defeated. Id. at 14990-14992, 19496.

III

Numerous cases considered by the Court have noted the internal tension in the First Amendment between the Establishment Clause
and the Free Exercise Clause. Walz v. Tax Comm'n, 397 U. S. 664 (1970), is the most recent decision seeking to define the boundaries
of the neutral area between these two provisions within which the legislature may legitimately act. There, as in other decisions, the
Court treated the three main concerns against which the Establishment Clause sought to protect: "sponsorship, financial support, and
active involvement of the sovereign in religious activity." Id. at 668.

Every analysis must begin with the candid acknowledgment that there is no single constitutional caliper that can be used to measure
the precise degree to which these three factors are present or absent. Instead, our

Page 403 U. S. 678

analysis in this area must begin with a consideration of the cumulative criteria developed over many years and applying to a wide range
of governmental action challenged as violative of the Establishment Clause.

There are always risks in treating criteria discussed by the Court from time to time as "tests" in any limiting sense of that term.
Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather
be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired. And, as we
have noted in Lemon v. Kurtzman and Earley v. DiCenso, ante at 403 U. S. 612, candor compels the acknowledgment that we can only
dimly perceive the boundaries of permissible government activity in this sensitive area of constitutional adjudication.

Against this background we consider four questions: first, does the Act reflect a secular legislative purpose? Second, is the primary
effect of the Act to advance or inhibit religion? Third, does the administration of the Act foster an excessive government entanglement
with religion? Fourth, does the implementation of the Act inhibit the free exercise of religion?

(a)

The stated legislative purpose appears in the preamble, where Congress found and declared that

"the security and welfare of the United States require that this and future generations of American youth be assured ample opportunity
for the fullest development of their intellectual capacities, and that this opportunity will be jeopardized unless the Nation's colleges and
universities are encouraged and assisted in their efforts to accommodate rapidly growing numbers of youth who aspire to a higher
education."

20 U.S.C. § 701.

Page 403 U. S. 679

This expresses a legitimate secular objective entirely appropriate for governmental action.

The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long
ago in Bradfield v. Roberts, 175 U. S. 291 (1899). There, a federal construction grant to a hospital operated by a religious order was
upheld. Here, the Act is challenged on the ground that its primary effect is to aid the religious purposes of church-related colleges and
universities. Construction grants surely aid these institutions in the sense that the construction of buildings will assist them to perform
their various functions. But bus transportation, textbooks, and tax exemptions all gave aid in the sense that religious bodies would
otherwise have been forced to find other sources from which to finance these services. Yet all of these forms of governmental
assistance have been upheld. Everson v. Board of Education,330 U. S. 1 (1947); Board of Education v. Allen, 392 U. S.
236 (1968); Walz v. Tax Comm'n., supra. See also Bradfield v. Roberts, supra. The crucial question is not whether some benefit
accrues to a religious institution as a consequence of the legislative program, but whether its principal or primary effect advances
religion.

A possibility always exists, of course, that the legitimate objectives of any law or legislative program may be subverted by conscious
design or lax enforcement. There is nothing new in this argument. But judicial concern about these possibilities cannot, standing alone,
warrant striking down a statute as unconstitutional.

The Act itself was carefully drafted to ensure that the federally subsidized facilities would be devoted to the secular, and not the
religious, function of the recipient institutions. It authorizes grants and loans only for academic facilities that will be used for defined
secular purposes, and expressly prohibits their use for religious

Page 403 U. S. 680

instruction, training, or worship. These restrictions have been enforced in the Act's actual administration, and the record shows that
some church-related institutions have been required to disgorge benefits for failure to obey them.

Finally, this record fully supports the findings of the District Court that none of the four church-related institutions in this case has
violated the statutory restrictions. The institutions presented evidence that there had been no religious services or worship in the
federally financed facilities, that there are no religious symbols or plaques in or on them, and that they had been used solely for
nonreligious purposes. On this record, therefore, these buildings are indistinguishable from a typical state university facility. Appellants
presented no evidence to the contrary.

Appellants instead rely on the argument that government may not subsidize any activities of an institution of higher learning that, in
some of its programs, teaches religious doctrines. This argument rests on Everson,where the majority stated that the Establishment
Clause barred any "tax . . . levied to support any religious . . . institutions . . . whatever form they may adopt to teach or practice
religion." 330 U.S. at 330 U. S. 16. In Allen, however, it was recognized that the Court had fashioned criteria under which an analysis of
a statute's purpose and effect was determinative as to whether religion was being advanced by government action. 392 U.S. at 392 U.
S. 243; Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 222 (1963).

Under this concept, appellants' position depends on the validity of the proposition that religion so permeates the secular education
provided by church-related colleges and universities that their religious and secular educational functions are, in fact, inseparable. The
argument that government grants would thus inevitably advance

Page 403 U. S. 681

religion did not escape the notice of Congress. It was carefully and thoughtfully debated, 109 Cong.Rec.19474-19475, but was found
unpersuasive. It was also considered by this Court in Allen. There, the Court refused to assume that religiosity in parochial elementary
and secondary schools necessarily permeates the secular education that they provide.

This record, similarly, provides no basis for any such assumption here. Two of the five federally financed buildings involved in this case
are libraries. The District Court found that no classes had been conducted in either of these facilities, and that no restrictions were
imposed by the institutions on the books that they acquired. There is no evidence to the contrary. The third building was a language
laboratory at Albertus Magnus College. The evidence showed that this facility was used solely to assist students with their
pronunciation in modern foreign languages -- a use which would seem peculiarly unrelated and unadaptable to religious indoctrination.
Federal grants were also used to build a science building at Fairfield University and a music, drama, and arts building at Annhurst
College.

There is no evidence that religion seeps into the use of any of these facilities. Indeed, the parties stipulated in the District Court that
courses at these institutions are taught according to the academic requirements intrinsic to the subject matter and the individual
teacher's concept of professional standards. Although appellants introduced several institutional documents that stated certain religious
restrictions on what could be taught, other evidence showed that these restrictions were not, in fact, enforced, and that the schools
were characterized by an atmosphere of academic freedom, rather than religious indoctrination. All four institutions, for example,
subscribe to the 1940 Statement of Principles on Academic

Page 403 U. S. 682

Freedom and Tenure endorsed by the American Association of University Professors and the Association of American Colleges.

Rather than focus on the four defendant colleges and universities involved in this case, however, appellants seek to shift our attention
to a "composite profile" that they have constructed of the "typical sectarian" institution of higher education. We are told that such a
"composite" institution imposes religious restrictions on admissions, requires attendance at religious activities, compels obedience to
the doctrines and dogmas of the faith, requires instruction in theology and doctrine, and does everything it can to propagate a particular
religion. Perhaps some church-related schools fit the pattern that appellants describe. Indeed, some colleges have been declared
ineligible for aid by the authorities that administer the Act. But appellants do not contend that these four institutions fall within this
category. Individual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some
evidence is then presented to show that the institution does in fact, possess these characteristics. We cannot, however, strike down an
Act of Congress on the basis of a hypothetical "profile."

(b)

Although we reject appellants' broad constitutional arguments, we do perceive an aspect in which the statute's enforcement provisions
are inadequate to ensure that the impact of the federal aid will not advance religion. If a recipient institution violates any of the statutory
restrictions on the use of a federally financed facility, § 754(b)(2) permits the Government to recover an amount equal to the proportion
of the facility's present value that the federal grant bore to its original cost.

Page 403 U. S. 683

This remedy, however, is available to the Government only if the statutory conditions are violated "within twenty years after completion
of construction." This 20-year period is termed by the statute as "the period of Federal interest," and reflects Congress' finding that,
after 20 years, "the public benefit accruing to the United States" from the use of the federally financed facility "will equal or exceed in
value" the amount of the federal grant. 20 U.S.C. § 754(a).

Under § 754(b)(2), therefore, a recipient institution's obligation not to use the facility for sectarian instruction or religious worship would
appear to expire at the end of 20 years. We note, for example, that, under § 718(b)(7)(C) (1964 ed., Supp. V), an institution applying for
a federal grant is only required to provide assurances that the facility will not be used for sectarian instruction or religious worship
"during at least the period of the Federal interest therein (as defined in section 754 of this title)."

Limiting the prohibition for religious use of the structure to 20 years obviously opens the facility to use for any purpose at the end of that
period. It cannot be assumed that a substantial structure has no value after that period, and, hence, the unrestricted use of a valuable
property is, in effect, a contribution of some value to a religious body. Congress did not base the 20-year provision on any contrary
conclusion. If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious
interests, the original federal grant will, in part, have the effect of advancing religion.

To this extent, the Act therefore trespasses on the Religion Clauses. The restrictive obligations of a recipient institution under §
751(a)(2) cannot, compatibly with the Religion Clauses, expire while the building has substantial value. This circumstance does not
require us to

Page 403 U. S. 684

invalidate the entire Act, however. "The cardinal principle of statutory construction is to save, and not to destroy." NLRB v. Jones &
Laughlin Steel Corp., 301 U. S. 1, 301 U. S. 30 (1937). In Champlin Rfg. Co. v. Commission, 286 U. S. 210, 286 U. S. 234 (1932), the
Court noted

"The unconstitutionality of a part of an Act does not necessarily defeat . . . the validity of its remaining provisions. Unless it is evident
that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid
part may be dropped if what is left is fully operative as a law."

Nor does the absence of an express severability provision in the Act dictate the demise of the entire statute.E.g., United States v.
Jackson, 390 U. S. 570, 390 U. S. 585 n. 27 (1968).

We have found nothing in the statute or its objectives intimating that Congress considered the 20-year provision essential to the
statutory program as a whole. In view of the broad and important goals that Congress intended this legislation to serve, there is no
basis for assuming that the Act would have failed of passage without this provision; nor will its excision impair either the operation or
administration of the Act in any significant respect. [Footnote 1]

IV

We next turn to the question of whether excessive entanglements characterize the relationship between government and church under
the Act. Walz v. Tax Comm'n, supra, at 397 U. S. 674-676. Our decision today in

Page 403 U. S. 685

Lemon v. Kurtzman and Robinson v. DiCenso has discussed and applied this independent measure of constitutionality under the
Religion Clauses. There, we concluded that excessive entanglements between government and religion were fostered by Pennsylvania
and Rhode Island statutory programs under which state aid was provided to parochial elementary and secondary schools. Here,
however, three factors substantially diminish the extent and the potential danger of the entanglement.

In DiCenso, the District Court found that the parochial schools in Rhode Island were "an integral part of the religious mission of the
Catholic Church." There, the record fully supported the conclusion that the inculcation of religious values was a substantial, if not the
dominant, purpose of the institutions. The Pennsylvania case was decided on the pleadings, and hence we accepted as true the
allegations that the parochial schools in that State shared the same characteristics.

Appellants' complaint here contains similar allegations. But they were denied by the answers, and there was extensive evidence
introduced on the subject. Although the District Court made no findings with respect to the religious character of the four institutions of
higher learning, we are not required to accept the allegations as true under these circumstances, particularly where, as here, appellants
themselves do not contend that these four institutions are "sectarian."

There are generally significant differences between the religious aspects of church-related institutions of higher learning and parochial
elementary and secondary schools. [Footnote 2] The "affirmative if not dominant policy" of the instruction in pre-college church schools
is "to assure future

Page 403 U. S. 686

adherents to a particular faith by having control of their total education at an early age." Walz v. Tax Comm'n, supra, at 397 U. S. 671.
[Footnote 3] There is substance to the contention that college students are less impressionable and less susceptible to religious
indoctrination. [Footnote 4] Common observation would seem to support that view, and Congress may well have entertained it. The
skepticism of the college student is not an inconsiderable barrier to any attempt or tendency to subvert the congressional objectives and
limitations. Furthermore, by their very nature, college and postgraduate courses tend to limit the opportunities for sectarian influence by
virtue of their own internal disciplines. Many church-related colleges and universities are characterized by a high degree of academic
freedom, [Footnote 5] and seek to evoke free and critical responses from their students.

The record here would not support a conclusion that any of these four institutions departed from this general pattern. All four schools
are governed by Catholic religious organizations, and the faculties and student bodies at each are predominantly Catholic.
Nevertheless, the evidence shows that non-Catholics were admitted as students and given faculty appointments. Not one of these four
institutions requires its students to attend religious services. Although all four schools require their students to take theology courses,
the parties stipulated that these courses are taught according to the academic requirements of the subject matter and the teacher's
concept of professional standards. The parties also stipulated that the courses covered a range of human religious

Page 403 U. S. 687

experiences, and are not limited to courses about the Roman Catholic religion. The schools introduced evidence that they made no
attempt to indoctrinate students or to proselytize. Indeed, some of the required theology courses at Albertus Magnus and Sacred Heart
are taught by rabbis. Finally, as we have noted, these four schools subscribe to a well established set of principles of academic
freedom, and nothing in this record shows that these principles are not, in fact, followed. In short, the evidence shows institutions with
admittedly religious functions, but whose predominant higher education mission is to provide their students with a secular education.

Since religious indoctrination is not a substantial purpose or activity of these church-related colleges and universities, there is less
likelihood than in primary and secondary schools that religion will permeate the area of secular education. This reduces the risk that
government aid will, in fact, serve to support religious activities. Correspondingly, the necessity for intensive government surveillance is
diminished, and the resulting entanglements between government and religion lessened. Such inspection as may be necessary to
ascertain that the facilities are devoted to secular education is minimal, and indeed hardly more than the inspections that States impose
over all private schools within the reach of compulsory education laws.

The entanglement between church and state is also lessened here by the nonideological character of the aid that the Government
provides. Our cases from Everson to Allen have permitted church-related schools to receive government aid in the form of secular,
neutral, or nonideological services, facilities, or materials that are supplied to all students regardless of the affiliation of the school that
they attend. In Lemon and DiCenso,however, the state programs subsidized teachers, either directly or indirectly. Since teachers are
not necessarily

Page 403 U. S. 688

religiously neutral, greater governmental surveillance would be required to guarantee that state salary aid would not, in fact, subsidize
religious instruction. There, we found the resulting entanglement excessive. Here, on the other hand, the Government provides facilities
that are themselves religiously neutral. The risks of Government aid to religion, and the corresponding need for surveillance, are
therefore reduced.

Finally, government entanglements with religion are reduced by the circumstance that, unlike the direct and continuing payments under
the Pennsylvania program, and all the incidents of regulation and surveillance, the Government aid here is a one-time, single-purpose
construction grant. There are no continuing financial relationships or dependencies, no annual audits, and no government anal ysis of
an institution's expenditures on secular, as distinguished from religious, activities. Inspection as to use is a minimal contact.

No one of these three factors, standing alone, is necessarily controlling; cumulatively all of them shape a narrow and limited relationship
with government which involves fewer and less significant contacts than the two state schemes before us in Lemon and DiCenso. The
relationship therefore has less potential for realizing the substantive evils against which the Religion Clauses were intended to protect.

We think that, cumulatively, these three factors also substantially lessen the potential for divisive religious fragmentation in the political
arena. This conclusion is admittedly difficult to document, but neither have appellants pointed to any continuing religious aggravation on
this matter in the political processes. Possibly this can be explained by the character and diversity of the recipient colleges and
universities and the absence of any intimate continuing relationship or dependency between government and religiously affiliated
institutions. The

Page 403 U. S. 689

potential for divisiveness inherent in the essentially local problems of primary and secondary schools is significantly less with respect to
a college or university, whose student constituency is not local, but diverse and widely dispersed.

Finally, we must consider whether the implementation of the Act inhibits the free exercise of religion in violation of the First Amendment.
Appellants claim that the Free Exercise Clause is violated because they are compelled to pay taxes, the proceeds of which in part
finance grants under the Act. Appellants, however, are unable to identify any coercion directed at the practice or exercise of their
religious beliefs. Board of Education v. Allen, supra, at 392 U. S. 246-249. Their share of the cost of the grants under the Act is not
fundamentally distinguishable from the impact of the tax exemption sustained in Walz or the provision of textbooks upheld in Allen.

We conclude that the Act does not violate the Religion Clauses of the First Amendment except that part of § 754(b)(2) providing a 20-
year limitation on the religious use restrictions contained in § 751(a)(2). We remand to the District Court with directions to enter a
judgment consistent with this opinion.

Vacated and remanded.

 SECOND DIVISION

G.R. No. L-25246 September 12, 1974

BENJAMIN VICTORIANO, Plaintiff-Appellee, vs. ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE FACTORY, INC.,
defendants, ELIZALDE ROPE WORKERS' UNION, Defendant-Appellant.

Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-appellee.

Cipriano Cid & Associates for defendant-appellant.

ZALDIVAR, J.:

Appeal to this Court on purely questions of law from the decision of the Court of First Instance of Manila in its Civil Case No.
58894.chanroblesvirtualawlibrarychanrobles virtual law library

The undisputed facts that spawned the instant case follow:chanrobles virtual law library

Benjamin Victoriano (hereinafter referred to as Appellee), a member of the religious sect known as the "Iglesia ni Cristo", had been in
the employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958. As such employee, he was a member of
the Elizalde Rope Workers' Union (hereinafter referred to as Union) which had with the Company a collective bargaining agreement
containing a closed shop provision which reads as follows:

Membership in the Union shall be required as a condition of employment for all permanent employees workers covered by this
Agreement.

The collective bargaining agreement expired on March 3, 1964 but was renewed the following day, March 4,
1964.chanroblesvirtualawlibrarychanrobles virtual law library

Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its amendment by Republic Act No. 3350, the employer was not
precluded "from making an agreement with a labor organization to require as a condition of employment membership therein, if such
labor organization is the representative of the employees." On June 18, 1961, however, Republic Act No. 3350 was enacted,
introducing an amendment to - paragraph (4) subsection (a) of section 4 of Republic Act No. 875, as follows: ... "but such agreement
shall not cover members of any religious sects which prohibit affiliation of their members in any such labor
organization".chanroblesvirtualawlibrarychanrobles virtual law library

Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Appellee presented his
resignation to appellant Union in 1962, and when no action was taken thereon, he reiterated his resignation on September 3, 1974.
Thereupon, the Union wrote a formal letter to the Company asking the latter to separate Appellee from the service in view of the fact
that he was resigning from the Union as a member. The management of the Company in turn notified Appellee and his counsel that
unless the Appellee could achieve a satisfactory arrangement with the Union, the Company would be constrained to dismiss him from
the service. This prompted Appellee to file an action for injunction, docketed as Civil Case No. 58894 in the Court of First Instance of
Manila to enjoin the Company and the Union from dismissing Appellee. 1In its answer, the Union invoked the "union security clause" of
the collective bargaining agreement; assailed the constitutionality of Republic Act No. 3350; and contended that the Court had no
jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24 and 9 (d) and (e). 2Upon the facts agreed upon by the parties
during the pre-trial conference, the Court a quo rendered its decision on August 26, 1965, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, judgment is rendered enjoining the defendant Elizalde Rope Factory, Inc. from dismissing the plaintiff
from his present employment and sentencing the defendant Elizalde Rope Workers' Union to pay the plaintiff P500 for attorney's fees
and the costs of this action. 3chanrobles virtual law library

From this decision, the Union appealed directly to this Court on purely questions of law, assigning the following errors:

I. That the lower court erred when it did not rule that Republic Act No. 3350 is unconstitutional.chanroblesvirtualawlibrarychanrobles
virtual law library

II. That the lower court erred when it sentenced appellant herein to pay plaintiff the sum of P500 as attorney's fees and the cost thereof.

In support of the alleged unconstitutionality of Republic Act No. 3350, the Union contented, firstly, that the Act infringes on the
fundamental right to form lawful associations; that "the very phraseology of said Republic Act 3350, that membership in a labor
organization is banned to all those belonging to such religious sect prohibiting affiliation with any labor organization" 4, "prohibits all the
members of a given religious sect from joining any labor union if such sect prohibits affiliations of their members thereto" 5; and,
consequently, deprives said members of their constitutional right to form or join lawful associations or organizations guaranteed by the
Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the 1935 Constitution. 6chanrobles virtual law library

Secondly, the Union contended that Republic Act No. 3350 is unconstitutional for impairing the obligation of contracts in that, while the
Union is obliged to comply with its collective bargaining agreement containing a "closed shop provision," the Act relieves the employer
from its reciprocal obligation of cooperating in the maintenance of union membership as a condition of employment; and that said Act,
furthermore, impairs the Union's rights as it deprives the union of dues from members who, under the Act, are relieved from the
obligation to continue as such members. 7chanrobles virtual law library

Thirdly, the Union contended that Republic Act No. 3350 discriminatorily favors those religious sects which ban their members from
joining labor unions, in violation of Article Ill, Section 1 (7) of the 1935 Constitution; and while said Act unduly protects certain religious
sects, it leaves no rights or protection to labor organizations. 8chanrobles virtual law library

Fourthly, Republic Act No. 3350, asserted the Union, violates the constitutional provision that "no religious test shall be required for the
exercise of a civil right," in that the laborer's exercise of his civil right to join associations for purposes not contrary to law has to be
determined under the Act by his affiliation with a religious sect; that conversely, if a worker has to sever his religious connection with a
sect that prohibits membership in a labor organization in order to be able to join a labor organization, said Act would violate religious
freedom. 9chanrobles virtual law library

Fifthly, the Union contended that Republic Act No. 3350, violates the "equal protection of laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by exempting from the operation of closed shop agreement the members of the "Iglesia ni
Cristo", it has granted said members undue advantages over their fellow workers, for while the Act exempts them from union obligation
and liability, it nevertheless entitles them at the same time to the enjoyment of all concessions, benefits and other emoluments that the
union might secure from the employer. 10chanrobles virtual law library

Sixthly, the Union contended that Republic Act No. 3350 violates the constitutional provision regarding the promotion of social
justice. 11chanrobles virtual law library

Appellant Union, furthermore, asserted that a "closed shop provision" in a collective bargaining agreement cannot be considered
violative of religious freedom, as to call for the amendment introduced by Republic Act No. 3350; 12and that unless Republic Act No.
3350 is declared unconstitutional, trade unionism in this country would be wiped out as employers would prefer to hire or employ
members of the Iglesia ni Cristo in order to do away with labor organizations. 13chanrobles virtual law library

Appellee, assailing appellant's arguments, contended that Republic Act No. 3350 does not violate the right to form lawful associations,
for the right to join associations includes the right not to join or to resign from a labor organization, if one's conscience does not allow
his membership therein, and the Act has given substance to such right by prohibiting the compulsion of workers to join labor
organizations; 14that said Act does not impair the obligation of contracts for said law formed part of, and was incorporated into, the
terms of the closed shop agreement; 15that the Act does not violate the establishment of religion clause or separation of Church and
State, for Congress, in enacting said law, merely accommodated the religious needs of those workers whose religion prohibits its
members from joining labor unions, and balanced the collective rights of organized labor with the constitutional right of an individual to
freely exercise his chosen religion; that the constitutional right to the free exercise of one's religion has primacy and preference over
union security measures which are merely contractual 16; that said Act does not violate the constitutional provision of equal protection,
for the classification of workers under the Act depending on their religious tenets is based on substantial distinction, is germane to the
purpose of the law, and applies to all the members of a given class; 17that said Act, finally, does not violate the social justice policy of
the Constitution, for said Act was enacted precisely to equalize employment opportunities for all citizens in the midst of the diversities of
their religious beliefs." 18chanrobles virtual law library

I. Before We proceed to the discussion of the first assigned error, it is necessary to premise that there are some thoroughly established
principles which must be followed in all cases where questions of constitutionality as obtains in the instant case are involved. All
presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt, that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be
conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. 19chanrobles virtual law library

1. Appellant Union's contention that Republic Act No. 3350 prohibits and bans the members of such religious sects that forbid affiliation
of their members with labor unions from joining labor unions appears nowhere in the wording of Republic Act No. 3350; neither can the
same be deduced by necessary implication therefrom. It is not surprising, therefore, that appellant, having thus misread the Act,
committed the error of contending that said Act is obnoxious to the constitutional provision on freedom of
association.chanroblesvirtualawlibrarychanrobles virtual law library

Both the Constitution and Republic Act No. 875 recognize freedom of association. Section 1 (6) of Article III of the Constitution of 1935,
as well as Section 7 of Article IV of the Constitution of 1973, provide that the right to form associations or societies for purposes not
contrary to law shall not be abridged. Section 3 of Republic Act No. 875 provides that employees shall have the right to self-
organization and to form, join of assist labor organizations of their own choosing for the purpose of collective bargaining and to engage
in concerted activities for the purpose of collective bargaining and other mutual aid or protection. What the Constitution and the
Industrial Peace Act recognize and guarantee is the "right" to form or join associations. Notwithstanding the different theories
propounded by the different schools of jurisprudence regarding the nature and contents of a "right", it can be safely said that whatever
theory one subscribes to, a right comprehends at least two broad notions, namely: first, liberty or freedom, i.e., the absence of legal
restraint, whereby an employee may act for himself without being prevented by law; and second, power, whereby an employee may, as
he pleases, join or refrain from Joining an association. It is, therefore, the employee who should decide for himself whether he should
join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even
after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. 20It
is clear, therefore, that the right to join a union includes the right to abstain from joining any union. 21Inasmuch as what both the
Constitution and the Industrial Peace Act have recognized, and guaranteed to the employee, is the "right" to join associations of his
choice, it would be absurd to say that the law also imposes, in the same breath, upon the employee the duty to join associations. The
law does not enjoin an employee to sign up with any association.chanroblesvirtualawlibrarychanrobles virtual law library

The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, however, limited. The legal
protection granted to such right to refrain from joining is withdrawn by operation of law, where a labor union and an employer have
agreed on a closed shop, by virtue of which the employer may employ only member of the collective bargaining union, and the
employees must continue to be members of the union for the duration of the contract in order to keep their jobs. Thus Section 4 (a) (4)
of the Industrial Peace Act, before its amendment by Republic Act No. 3350, provides that although it would be an unfair labor practice
for an employer "to discriminate in regard to hire or tenure of employment or any term or condition of employment to encourage or
discourage membership in any labor organization" the employer is, however, not precluded "from making an agreement with a labor
organization to require as a condition of employment membership therein, if such labor organization is the representative of the
employees". By virtue, therefore, of a closed shop agreement, before the enactment of Republic Act No. 3350, if any person, regardless
of his religious beliefs, wishes to be employed or to keep his employment, he must become a member of the collective bargaining
union. Hence, the right of said employee not to join the labor union is curtailed and withdrawn.chanroblesvirtualawlibrarychanrobles
virtual law library

To that all-embracing coverage of the closed shop arrangement, Republic Act No. 3350 introduced an exception, when it added to
Section 4 (a) (4) of the Industrial Peace Act the following proviso: "but such agreement shall not cover members of any religious sects
which prohibit affiliation of their members in any such labor organization". Republic Act No. 3350 merely excludes ipso jure from the
application and coverage of the closed shop agreement the employees belonging to any religious sects which prohibit affiliation of their
members with any labor organization. What the exception provides, therefore, is that members of said religious sects cannot be
compelled or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite of any
closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole
ground that they are not members of the collective bargaining union. It is clear, therefore, that the assailed Act, far from infringing the
constitutional provision on freedom of association, upholds and reinforces it. It does not prohibit the members of said religious sects
from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with labor unions.
If, notwithstanding their religious beliefs, the members of said religious sects prefer to sign up with the labor union, they can do so. If in
deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither does
the law prohibit them from joining; and neither may the employer or labor union compel them to join. Republic Act No. 3350, therefore,
does not violate the constitutional provision on freedom of association.chanroblesvirtualawlibrarychanrobles virtual law library

2. Appellant Union also contends that the Act is unconstitutional for impairing the obligation of its contract, specifically, the "union
security clause" embodied in its Collective Bargaining Agreement with the Company, by virtue of which "membership in the union was
required as a condition for employment for all permanent employees workers". This agreement was already in existence at the time
Republic Act No. 3350 was enacted on June 18, 1961, and it cannot, therefore, be deemed to have been incorporated into the
agreement. But by reason of this amendment, Appellee, as well as others similarly situated, could no longer be dismissed from his job
even if he should cease to be a member, or disaffiliate from the Union, and the Company could continue employing him notwithstanding
his disaffiliation from the Union. The Act, therefore, introduced a change into the express terms of the union security clause; the
Company was partly absolved by law from the contractual obligation it had with the Union of employing only Union members in
permanent positions, It cannot be denied, therefore, that there was indeed an impairment of said union security
clause.chanroblesvirtualawlibrarychanrobles virtual law library

According to Black, any statute which introduces a change into the express terms of the contract, or its legal construction, or its validity,
or its discharge, or the remedy for its enforcement, impairs the contract. The extent of the change is not material. It is not a question of
degree or manner or cause, but of encroaching in any respect on its obligation or dispensing with any part of its force. There is an
impairment of the contract if either party is absolved by law from its performance. 22Impairment has also been predicated on laws which,
without destroying contracts, derogate from substantial contractual rights. 23chanrobles virtual law library

It should not be overlooked, however, that the prohibition to impair the obligation of contracts is not absolute and unqualified. The
prohibition is general, affording a broad outline and requiring construction to fill in the details. The prohibition is not to be read with literal
exactness like a mathematical formula, for it prohibits unreasonable impairment only. 24In spite of the constitutional prohibition, the
State continues to possess authority to safeguard the vital interests of its people. Legislation appropriate to safeguarding said interests
may modify or abrogate contracts already in effect. 25For not only are existing laws read into contracts in order to fix the obligations as
between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal
order. All contracts made with reference to any matter that is subject to regulation under the police power must be understood as made
in reference to the possible exercise of that power. 26Otherwise, important and valuable reforms may be precluded by the simple device
of entering into contracts for the purpose of doing that which otherwise may be prohibited. The policy of protecting contracts against
impairment presupposes the maintenance of a government by virtue of which contractual relations are worthwhile a government which
retains adequate authority to secure the peace and good order of society. The contract clause of the Constitution must, therefore, be
not only in harmony with, but also in subordination to, in appropriate instances, the reserved power of the state to safeguard the vital
interests of the people. It follows that not all legislations, which have the effect of impairing a contract, are obnoxious to the
constitutional prohibition as to impairment, and a statute passed in the legitimate exercise of police power, although it incidentally
destroys existing contract rights, must be upheld by the courts. This has special application to contracts regulating relations between
capital and labor which are not merely contractual, and said labor contracts, for being impressed with public interest, must yield to the
common good. 27chanrobles virtual law library

In several occasions this Court declared that the prohibition against impairing the obligations of contracts has no application to statutes
relating to public subjects within the domain of the general legislative powers of the state involving public welfare. 28Thus, this Court
also held that the Blue Sunday Law was not an infringement of the obligation of a contract that required the employer to furnish work on
Sundays to his employees, the law having been enacted to secure the well-being and happiness of the laboring class, and being,
furthermore, a legitimate exercise of the police power. 29chanrobles virtual law library

In order to determine whether legislation unconstitutionally impairs contract obligations, no unchanging yardstick, applicable at all times
and under all circumstances, by which the validity of each statute may be measured or determined, has been fashioned, but every case
must be determined upon its own circumstances. Legislation impairing the obligation of contracts can be sustained when it is enacted
for the promotion of the general good of the people, and when the means adopted to secure that end are reasonable. Both the end
sought and the means adopted must be legitimate, i.e., within the scope of the reserved power of the state construed in harmony with
the constitutional limitation of that power. 30chanrobles virtual law library

What then was the purpose sought to be achieved by Republic Act No. 3350? Its purpose was to insure freedom of belief and religion,
and to promote the general welfare by preventing discrimination against those members of religious sects which prohibit their members
from joining labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits of which work are usually
the only means whereby they can maintain their own life and the life of their dependents. It cannot be gainsaid that said purpose is
legitimate.chanroblesvirtualawlibrarychanrobles virtual law library

The questioned Act also provides protection to members of said religious sects against two aggregates of group strength from which
the individual needs protection. The individual employee, at various times in his working life, is confronted by two aggregates of power -
collective labor, directed by a union, and collective capital, directed by management. The union, an institution developed to organize
labor into a collective force and thus protect the individual employee from the power of collective capital, is, paradoxically, both the
champion of employee rights, and a new source of their frustration. Moreover, when the Union interacts with management, it produces
yet a third aggregate of group strength from which the individual also needs protection - the collective bargaining
relationship. 31chanrobles virtual law library

The aforementioned purpose of the amendatory law is clearly seen in the Explanatory Note to House Bill No. 5859, which later became
Republic Act No. 3350, as follows:

It would be unthinkable indeed to refuse employing a person who, on account of his religious beliefs and convictions, cannot accept
membership in a labor organization although he possesses all the qualifications for the job. This is tantamount to punishing such person
for believing in a doctrine he has a right under the law to believe in. The law would not allow discrimination to flourish to the detriment of
those whose religion discards membership in any labor organization. Likewise, the law would not commend the deprivation of their right
to work and pursue a modest means of livelihood, without in any manner violating their religious faith and/or belief. 32chanrobles virtual
law library

It cannot be denied, furthermore, that the means adopted by the Act to achieve that purpose - exempting the members of said religious
sects from coverage of union security agreements - is reasonable.chanroblesvirtualawlibrarychanrobles virtual law library

It may not be amiss to point out here that the free exercise of religious profession or belief is superior to contract rights. In case of
conflict, the latter must, therefore, yield to the former. The Supreme Court of the United States has also declared on several occasions
that the rights in the First Amendment, which include freedom of religion, enjoy a preferred position in the constitutional
system. 33Religious freedom, although not unlimited, is a fundamental personal right and liberty, 34and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom of religion. It is only where unavoidably necessary to prevent an
immediate and grave danger to the security and welfare of the community that infringement of religious freedom may be justified, and
only to the smallest extent necessary to avoid the danger.chanroblesvirtualawlibrarychanrobles virtual law library

3. In further support of its contention that Republic Act No. 3350 is unconstitutional, appellant Union averred that said Act discriminates
in favor of members of said religious sects in violation of Section 1 (7) of Article Ill of the 1935 Constitution, and which is now Section 8
of Article IV of the 1973 Constitution, which provides:

No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without discrimination and preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.
The constitutional provision into only prohibits legislation for the support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship, 35but also assures the free
exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the religion clauses of the Constitution
are all designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good. 36Any
legislation whose effect or purpose is to impede the observance of one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized as being only indirect. 37But if the stage regulates conduct by
enacting, within its power, a general law which has for its purpose and effect to advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. 38chanrobles virtual law library

In Aglipay v. Ruiz 39, this Court had occasion to state that the government should not be precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. 40Assessed by these criteria, Republic Act No. 3350 cannot be said to violate the constitutional inhibition
of the "no-establishment" (of religion) clause of the Constitution.chanroblesvirtualawlibrarychanrobles virtual law library

The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not spiritual or religious or holy and eternal. It was intended to
serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be
refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of
livelihood, by reason of union security agreements. To help its citizens to find gainful employment whereby they can make a living to
support themselves and their families is a valid objective of the state. In fact, the state is enjoined, in the 1935 Constitution, to afford
protection to labor, and regulate the relations between labor and capital and industry. 41More so now in the 1973 Constitution where it is
mandated that "the State shall afford protection to labor, promote full employment and equality in employment, ensure equal work
opportunities regardless of sex, race or creed and regulate the relation between workers and employers. 42chanrobles virtual law library

The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members
from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their religious beliefs; and by eliminating to a certain extent economic insecurity
due to unemployment, which is a serious menace to the health, morals, and welfare of the people of the State, the Act also promotes
the well-being of society. It is our view that the exemption from the effects of closed shop agreement does not directly advance, or
diminish, the interests of any particular religion. Although 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. The
"establishment clause" (of religion) does not ban regulation on conduct whose reason or effect merely happens to coincide or
harmonize with the tenets of some or all religions. 43The free exercise clause of the Constitution has been interpreted to require that
religious exercise be preferentially aided. 44chanrobles virtual law library

We believe that in enacting Republic Act No. 3350, Congress acted consistently with the spirit of the constitutional provision. It acted
merely to relieve the exercise of religion, by certain persons, of a burden that is imposed by union security agreements. It was
Congress itself that imposed that burden when it enacted the Industrial Peace Act (Republic Act 875), and, certainly, Congress, if it so
deems advisable, could take away the same burden. It is certain that not every conscience can be accommodated by all the laws of the
land; but when general laws conflict with scrupples of conscience, exemptions ought to be granted unless some "compelling state
interest" intervenes. 45In the instant case, We see no such compelling state interest to withhold
exemption.chanroblesvirtualawlibrarychanrobles virtual law library

Appellant bewails that while Republic Act No. 3350 protects members of certain religious sects, it leaves no right to, and is silent as to
the protection of, labor organizations. The purpose of Republic Act No. 3350 was not to grant rights to labor unions. The rights of labor
unions are amply provided for in Republic Act No. 875 and the new Labor Code. As to the lamented silence of the Act regarding the
rights and protection of labor unions, suffice it to say, first, that the validity of a statute is determined by its provisions, not by its
silence 46; and, second, the fact that the law may work hardship does not render it unconstitutional. 47chanrobles virtual law library

It would not be amiss to state, regarding this matter, that to compel persons to join and remain members of a union to keep their jobs in
violation of their religious scrupples, would hurt, rather than help, labor unions, Congress has seen it fit to exempt religious objectors
lest their resistance spread to other workers, for religious objections have contagious potentialities more than political and philosophic
objections.chanroblesvirtualawlibrarychanrobles virtual law library

Furthermore, let it be noted that coerced unity and loyalty even to the country, and a fortiori to a labor - union assuming that such unity
and loyalty can be attained through coercion - is not a goal that is constitutionally obtainable at the expense of religious liberty. 48A
desirable end cannot be promoted by prohibited means.chanroblesvirtualawlibrarychanrobles virtual law library

4. Appellants' fourth contention, that Republic Act No. 3350 violates the constitutional prohibition against requiring a religious test for
the exercise of a civil right or a political right, is not well taken. The Act does not require as a qualification, or condition, for joining any
lawful association membership in any particular religion or in any religious sect; neither does the Act require affiliation with a religious
sect that prohibits its members from joining a labor union as a condition or qualification for withdrawing from a labor union. Joining or
withdrawing from a labor union requires a positive act. Republic Act No. 3350 only exempts members with such religious affiliation from
the coverage of closed shop agreements. So, under this Act, a religious objector is not required to do a positive act - to exercise the
right to join or to resign from the union. He is exempted ipso jure without need of any positive act on his part. A conscientious religious
objector need not perform a positive act or exercise the right of resigning from the labor union - he is exempted from the coverage of
any closed shop agreement that a labor union may have entered into. How then can there be a religious test required for the exercise of
a right when no right need be exercised?chanrobles virtual law library

We have said that it was within the police power of the State to enact Republic Act No. 3350, and that its purpose was legal and in
consonance with the Constitution. It is never an illegal evasion of a constitutional provision or prohibition to accomplish a desired result,
which is lawful in itself, by discovering or following a legal way to do it. 49chanrobles virtual law library

5. Appellant avers as its fifth ground that Republic Act No. 3350 is a discriminatory legislation, inasmuch as it grants to the members of
certain religious sects undue advantages over other workers, thus violating Section 1 of Article III of the 1935 Constitution which forbids
the denial to any person of the equal protection of the laws. 50chanrobles virtual law library

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. 51It 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.chanroblesvirtualawlibrarychanrobles virtual law library

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. 52The 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. 53All 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. 54This 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. 55chanrobles virtual law library

In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. 56It is not necessary that the classification be based on scientific or marked
differences of things or in their relation. 57Neither is it necessary that the classification be made with mathematical nicety. 58Hence
legislative classification may in many cases properly rest on narrow distinctions, 59for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.chanroblesvirtualawlibrarychanrobles virtual law library

We believe that Republic Act No. 3350 satisfies the aforementioned requirements. The Act classifies employees and workers, as to the
effect and coverage of union shop security agreements, into those who by reason of their religious beliefs and convictions cannot sign
up with a labor union, and those whose religion does not prohibit membership in labor unions. Tile classification rests on real or
substantial, not merely imaginary or whimsical, distinctions. There is such real distinction in the beliefs, feelings and sentiments of
employees. Employees do not believe in the same religious faith and different religions differ in their dogmas and cannons. Religious
beliefs, manifestations and practices, though they are found in all places, and in all times, take so many varied forms as to be almost
beyond imagination. There are many views that comprise the broad spectrum of religious beliefs among the people. There are diverse
manners in which beliefs, equally paramount in the lives of their possessors, may be articulated. Today the country is far more
heterogenous in religion than before, differences in religion do exist, and these differences are important and should not be
ignored.chanroblesvirtualawlibrarychanrobles virtual law library

Even from the phychological point of view, the classification is based on real and important differences. Religious beliefs are not mere
beliefs, mere ideas existing only in the mind, for they carry with them practical consequences and are the motives of certain rules. of
human conduct and the justification of certain acts. 60Religious sentiment makes a man view things and events in their relation to his
God. It gives to human life its distinctive character, its tone, its happiness or unhappiness its enjoyment or irksomeness. Usually, a
strong and passionate desire is involved in a religious belief. To certain persons, no single factor of their experience is more important
to them than their religion, or their not having any religion. Because of differences in religious belief and sentiments, a very poor person
may consider himself better than the rich, and the man who even lacks the necessities of life may be more cheerful than the one who
has all possible luxuries. Due to their religious beliefs people, like the martyrs, became resigned to the inevitable and accepted
cheerfully even the most painful and excruciating pains. Because of differences in religious beliefs, the world has witnessed turmoil, civil
strife, persecution, hatred, bloodshed and war, generated to a large extent by members of sects who were intolerant of other religious
beliefs. The classification, introduced by Republic Act No. 3350, therefore, rests on substantial
distinctions.chanroblesvirtualawlibrarychanrobles virtual law library

The classification introduced by said Act is also germane to its purpose. The purpose of the law is precisely to avoid those who cannot,
because of their religious belief, join labor unions, from being deprived of their right to work and from being dismissed from their work
because of union shop security agreements.chanroblesvirtualawlibrarychanrobles virtual law library
Republic Act No. 3350, furthermore, is not limited in its application to conditions existing at the time of its enactment. The law does not
provide that it is to be effective for a certain period of time only. It is intended to apply for all times as long as the conditions to which the
law is applicable exist. As long as there are closed shop agreements between an employer and a labor union, and there are employees
who are prohibited by their religion from affiliating with labor unions, their exemption from the coverage of said agreements
continues.chanroblesvirtualawlibrarychanrobles virtual law library

Finally, the Act applies equally to all members of said religious sects; this is evident from its provision. The fact that the law grants a
privilege to members of said religious sects cannot by itself render the Act unconstitutional, for as We have adverted to, the Act only
restores to them their freedom of association which closed shop agreements have taken away, and puts them in the same plane as the
other workers who are not prohibited by their religion from joining labor unions. The circumstance, that the other employees, because
they are differently situated, are not granted the same privilege, does not render the law unconstitutional, for every classification
allowed by the Constitution by its nature involves inequality.chanroblesvirtualawlibrarychanrobles virtual law library

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.
A classification otherwise reasonable does not offend the constitution simply because in practice it results in some inequality. 61Anent
this matter, it has been said that whenever it is apparent from the scope of the law that its object is for the benefit of the public and the
means by which the benefit is to be obtained are of public character, the law will be upheld even though incidental advantage may
occur to individuals beyond those enjoyed by the general public. 62chanrobles virtual law library

6. Appellant's further contention that Republic Act No. 3350 violates the constitutional provision on social justice is also baseless. Social
justice is intended to promote the welfare of all the people. 63Republic Act No. 3350 promotes that welfare insofar as it looks after the
welfare of those who, because of their religious belief, cannot join labor unions; the Act prevents their being deprived of work and of the
means of livelihood. In determining whether any particular measure is for public advantage, it is not necessary that the entire state be
directly benefited - it is sufficient that a portion of the state be benefited thereby.chanroblesvirtualawlibrarychanrobles virtual law library

Social justice also means the adoption by the Government of measures calculated to insure economic stability of all component
elements of society, through the maintenance of a proper economic and social equilibrium in the inter-relations of the members of the
community. 64Republic Act No. 3350 insures economic stability to the members of a religious sect, like the Iglesia ni Cristo, who are
also component elements of society, for it insures security in their employment, notwithstanding their failure to join a labor union having
a closed shop agreement with the employer. The Act also advances the proper economic and social equilibrium between labor unions
and employees who cannot join labor unions, for it exempts the latter from the compelling necessity of joining labor unions that have
closed shop agreements and equalizes, in so far as opportunity to work is concerned, those whose religion prohibits membership in
labor unions with those whose religion does not prohibit said membership. Social justice does not imply social equality, because social
inequality will always exist as long as social relations depend on personal or subjective proclivities. Social justice does not require legal
equality because legal equality, being a relative term, is necessarily premised on differentiations based on personal or natural
conditions. 65Social justice guarantees equality of opportunity 66, and this is precisely what Republic Act No. 3350 proposes to
accomplish - it gives laborers, irrespective of their religious scrupples, equal opportunity for work.chanroblesvirtualawlibrarychanrobles
virtual law library

7. As its last ground, appellant contends that the amendment introduced by Republic Act No. 3350 is not called for - in other words, the
Act is not proper, necessary or desirable. Anent this matter, it has been held that a statute which is not necessary is not, for that reason,
unconstitutional; that in determining the constitutional validity of legislation, the courts are unconcerned with issues as to the necessity
for the enactment of the legislation in question. 67Courts do inquire into the wisdom of laws. 68Moreover, legislatures, being chosen by
the people, are presumed to understand and correctly appreciate the needs of the people, and it may change the laws
accordingly. 69The fear is entertained by appellant that unless the Act is declared unconstitutional, employers will prefer employing
members of religious sects that prohibit their members from joining labor unions, and thus be a fatal blow to unionism. We do not agree.
The threat to unionism will depend on the number of employees who are members of the religious sects that control the demands of the
labor market. But there is really no occasion now to go further and anticipate problems We cannot judge with the material now before
Us. At any rate, the validity of a statute is to be determined from its general purpose and its efficacy to accomplish the end desired, not
from its effects on a particular case. 70The essential basis for the exercise of power, and not a mere incidental result arising from its
exertion, is the criterion by which the validity of a statute is to be measured. 71chanrobles virtual law library

II. We now pass on the second assignment of error, in support of which the Union argued that the decision of the trial court ordering the
Union to pay P500 for attorney's fees directly contravenes Section 24 of Republic Act No. 875, for the instant action involves an
industrial dispute wherein the Union was a party, and said Union merely acted in the exercise of its rights under the union shop
provision of its existing collective bargaining contract with the Company; that said order also contravenes Article 2208 of the Civil Code;
that, furthermore, Appellee was never actually dismissed by the defendant Company and did not therefore suffer any damage at all
. 72chanrobles virtual law library

In refuting appellant Union's arguments, Appellee claimed that in the instant case there was really no industrial dispute involved in the
attempt to compel Appellee to maintain its membership in the union under pain of dismissal, and that the Union, by its act, inflicted
intentional harm on Appellee; that since Appellee was compelled to institute an action to protect his right to work, appellant could legally
be ordered to pay attorney's fees under Articles 1704 and 2208 of the Civil Code. 73chanrobles virtual law library

The second paragraph of Section 24 of Republic Act No. 875 which is relied upon by appellant provides that:
No suit, action or other proceedings shall be maintainable in any court against a labor organization or any officer or member thereof for
any act done by or on behalf of such organization in furtherance of an industrial dispute to which it is a party, on the ground only that
such act induces some other person to break a contract of employment or that it is in restraint of trade or interferes with the trade,
business or employment of some other person or with the right of some other person to dispose of his capital or labor. (Emphasis
supplied)

That there was a labor dispute in the instant case cannot be disputed for appellant sought the discharge of respondent by virtue of the
closed shop agreement and under Section 2 (j) of Republic Act No. 875 a question involving tenure of employment is included in the
term "labor dispute". 74The discharge or the act of seeking it is the labor dispute itself. It being the labor dispute itself, that very same act
of the Union in asking the employer to dismiss Appellee cannot be "an act done ... in furtherance of an industrial dispute". The mere fact
that appellant is a labor union does not necessarily mean that all its acts are in furtherance of an industrial dispute. 75Appellant Union,
therefore, cannot invoke in its favor Section 24 of Republic Act No. 875. This case is not intertwined with any unfair labor practice case
existing at the time when Appellee filed his complaint before the lower court.chanroblesvirtualawlibrarychanrobles virtual law library

Neither does Article 2208 of the Civil Code, invoked by the Union, serve as its shield. The article provides that attorney's fees and
expenses of litigation may be awarded "when the defendant's act or omission has compelled the plaintiff ... to incur expenses to protect
his interest"; and "in any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be
recovered". In the instant case, it cannot be gainsaid that appellant Union's act in demanding Appellee's dismissal caused Appellee to
incur expenses to prevent his being dismissed from his job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be
allowed as a matter of course to the prevailing party.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the instant appeal is dismissed, and the decision, dated August 26, 1965, of the Court of First Instance of Manila, in its
Civil Case No. 58894, appealed from is affirmed, with costs against appellant Union. It is so ordered.

Makalintal, C.J, Castro, Teehankee, Barredo, Makasiar, Antonio, Esguerra, Muñoz Palma and Aquino, JJ., concur.
U.S. Supreme Court
Cantwell v. Connecticut, 310 U.S. 296 (1940)

Cantwell v. Connecticut

No. 632

Argued March 29, 1940

Decided May 20, 1940

310 U.S. 296

APPEAL FROM AND CERTIORARI TO THE SUPREME COURT

OF ERRORS OF CONNECTICUT

Syllabus

1. The fundamental concept of liberty embodied in the Fourteenth Amendment embraces the liberties guaranteed by the First
Amendment. P. 310 U. S. 303.

2. The enactment by a State of any law respecting an establishment of religion or prohibiting the free exercise thereof is forbidden by
the Fourteenth Amendment. P. 310 U. S. 303.

3. Under the constitutional guaranty, freedom of conscience and of religious belief is absolute; although freedom to act in the exercise
of religion is subject to regulation for the protection of society. Such regulation, however, in attaining a permissible end, must not unduly
infringe the protected freedom. Pp.310 U. S. 303-304.

4. A state statute which forbids any person to solicit money or valuables for any alleged religious cause, unless a certificate therefor
shall first have been procured from a designated official, who is required to determine whether such cause is a religious one and who
may withhold his approval if he determines that it is not, is a previous restraint upon the free exercise of religion, and a deprivation of
liberty without due process of law in violation of the Fourteenth Amendment. P. 310 U. S. 304.

So held as it was applied to persons engaged in distributing literature purporting to be religious, and soliciting contributions to be used
for the publication of such literature.

A State constitutionally may, by general and nondiscriminatory legislation, regulate the time, place and manner of soliciting upon its
streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order and comfort of the community.

Page 310 U. S. 297

The statute here, however, is not such a regulation. If a certificate is issued, solicitation is permitted without other restriction; but if a
certificate is denied, solicitation is altogether prohibited.

5. The fact that arbitrary or capricious action by the licensing officer is subject to judicial review cannot validate the statute. A previous
restraint by judicial decision after trial is as obnoxious under the Constitution as restraint by administrative action. P. 310 U. S. 306.

6. The common law offense of breach of the peace may be committed not only by acts of violence, but also by acts and words likely to
produce violence in others. P. 310 U. S. 308.

7. Defendant, while on a public street endeavoring to interest passerby in the purchase of publications, or in making contributions, in the
interest of what he believed to be true religion, induced individuals to listen to the playing of a phonograph record describing the
publications. The record contained a verbal attack upon the religious denomination of which the listeners were members, provoking
their indignation and a desire on their part to strike the defendant, who thereupon picked up his books and phonograph and went on his
way. There was no showing that defendant's deportment was noisy, truculent, overbearing, or offensive; nor was it claimed that he
intended to insult or affront the listeners by playing the record; nor was it shown that the sound of the phonograph disturbed persons
living nearby, drew a crowd, or impeded traffic.

Held, that defendant's conviction of the common law offense of breach of the peace was violative of constitutional guarantees of
religious liberty and freedom of speech. Pp. 310 U. S. 307 et seq.
126 Conn. 1; 8 A.2d 533, reversed.

APPEAL from, and certiorari (309 U.S. 626) to review, a judgment which sustained the conviction of all the defendants on one count of
an information and the conviction of one of the defendants on another count. The convictions were challenged as denying the
constitutional rights of the defendants.

Page 310 U. S. 300

MR. JUSTICE ROBERTS delivered the opinion of the Court.

Newton Cantwell and his two sons, Jesse and Russell, members of a group known as Jehovah's Witnesses and claiming to be
ordained ministers, were arrested in New Haven, Connecticut, and each was charged by information in five counts, with statutory and
common law offenses. After trial in the Court of Common Pleas of New Haven County, each of them was convicted on the third count,
which charged a violation of § 294 of the General Statutes of Connecticut, [Footnote 1] and on the fifth count, which charged
commission of the common law offense of inciting a breach of the peace. On appeal to the Supreme Court, the conviction of all three on
the third count was affirmed. The conviction of Jesse Cantwell on the fifth count was also affirmed, but the conviction of Newton and
Russell on that count was reversed, and a new trial ordered as to them. [Footnote 2]

By demurrers to the information, by requests for rulings of law at the trial, and by their assignments of error in the State Supreme Court,
the appellants pressed the contention that the statute under which the third count was drawn was offensive to the due process clause of
the Fourteenth Amendment because, on its face and as construed and applied, it denied them freedom of speech and prohibited their
free exercise of religion. In like manner,

Page 310 U. S. 301

they made the point that they could not be found guilty on the fifth count without violation of the Amendment.

We have jurisdiction on appeal from the judgments on the third count, as there was drawn in question the validity of a state statute
under the Federal Constitution and the decision was in favor of validity. Since the conviction on the fifth count was not based upon a
statute, but presents a substantial question under the Federal Constitution, we granted the writ of certiorari in respect of it.

The facts adduced to sustain the convictions on the third count follow. On the day of their arrest, the appellants were engaged in going
singly from house to house on Cassius Street in New Haven. They were individually equipped with a bag containing books and
pamphlets on religious subjects, a portable phonograph, and a set of records, each of which, when played, introduced, and was a
description of, one of the books. Each appellant asked the person who responded to his call for permission to play one of the records. If
permission was granted, he asked the person to buy the book described, and, upon refusal, he solicited such contribution towards the
publication of the pamphlets as the listener was willing to make. If a contribution was received, a pamphlet was delivered upon
condition that it would be read.

Cassius Street is in a thickly populated neighborhood where about ninety percent of the residents are Roman Catholics. A phonograph
record, describing a book entitled "Enemies," included an attack on the Catholic religion. None of the persons interviewed were
members of Jehovah's Witnesses.

The statute under which the appellants were charged provides:

"No person shall solicit money, services, subscriptions or any valuable thing for any alleged religious, charitable

Page 310 U. S. 302

or philanthropic cause, from other than a member of the organization for whose benefit such person is soliciting or within the county in
which such person or organization is located unless such cause shall have been approved by the secretary of the public welfare
council. Upon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or
is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and, if he shall so find,
shall approve the same and issue to the authority in charge a certificate to that effect. Such certificate may be revoked at any time. Any
person violating any provision of this section shall be fined not more than one hundred dollars or imprisoned not more than thirty days
or both."

The appellants claimed that their activities were not within the statute, but consisted only of distribution of books, pamphlets, and
periodicals. The State Supreme Court construed the finding of the trial court to be that,

"in addition to the sale of the books and the distribution of the pamphlets, the defendants were also soliciting contributions or donations
of money for an alleged religious cause, and thereby came within the purview of the statute."
It overruled the contention that the Act, as applied to the appellants, offends the due process clause of the Fourteenth Amendment
because it abridges or denies religious freedom and liberty of speech and press. The court stated that it was the solicitation that brought
the appellants within the sweep of the Act, and not their other activities in the dissemination of literature. It declared the legislation
constitutional as an effort by the State to protect the public against fraud and imposition in the solicitation of funds for what purported to
be religious, charitable, or philanthropic causes.

The facts which were held to support the conviction of Jesse Cantwell on the fifth count were that he stopped

Page 310 U. S. 303

two men in the street, asked, and received, permission to play a phonograph record, and played the record "Enemies," which attacked
the religion and church of the two men, who were Catholics. Both were incensed by the contents of the record, and were tempted to
strike Cantwell unless he went away. On being told to be on his way, he left their presence. There was no evidence that he was
personally offensive or entered into any argument with those he interviewed.

The court held that the charge was not assault or breach of the peace or threats on Cantwell's part, but invoking or inciting others to
breach of the peace, and that the facts supported the conviction of that offense.

First. We hold that the statute, a construed and applied to the appellants, deprives them of their liberty without due process of law in
contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties
guaranteed by the First Amendment. [Footnote 3] The First Amendment declares that Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states
as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double
aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom
of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be
restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two
concepts -- freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the

Page 310 U. S. 304

second cannot be. Conduct remains subject to regulation for the protection of society. [Footnote 4] The freedom to act must have
appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not,
in attaining a permissible end, unduly to infringe the protected freedom. No one would contest the proposition that a State may not, by
statute, wholly deny the right to preach or to disseminate religious views. Plainly, such a previous and absolute restraint would violate
the terms of the guarantee. [Footnote 5] It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the
times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard
the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth
Amendment. The appellants are right in their insistence that the Act in question is not such a regulation. If a certificate is procured,
solicitation is permitted without restraint, but, in the absence of a certificate, solicitation is altogether prohibited.

The appellants urge that to require them to obtain a certificate as a condition of soliciting support for their views amounts to a prior
restraint on the exercise of their religion within the meaning of the Constitution. The State insists that the Act, as construed by the
Supreme Court of Connecticut, imposes no previous restraint upon the dissemination of religious views or teaching, but merely
safeguards against the perpetration of frauds under the cloak of religion. Conceding that this is so, the question remains whether the
method adopted by Connecticut to

Page 310 U. S. 305

that end transgresses the liberty safeguarded by the Constitution.

The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably
obstruct or delay the collection of funds is not open to any constitutional objection, even though the collection be for a religious purpose.
Such regulation would not constitute a prohibited previous restraint on the free exercise of religion or interpose an inadmissible obstacle
to its exercise.

It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is
empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If
he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His
decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to
withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining
its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the
Fourteenth.
The State asserts that, if the licensing officer acts arbitrarily, capriciously, or corruptly, his action is subject to judicial correction.
Counsel refer to the rule prevailing in Connecticut that the decision of a commission or an administrative official will be reviewed upon a
claim that

"it works material damage to individual or corporate rights, or invades or threatens such rights, or is so unreasonable as to justify
judicial intervention, or is not consonant with justice, or that a legal duty has not

Page 310 U. S. 306

been performed. [Footnote 6]"

It is suggested that the statute is to be read as requiring the officer to issue a certificate unless the cause in question is clearly not a
religious one, and that, if he violates his duty, his action will be corrected by a court.

To this suggestion there are several sufficient answers. The line between a discretionary and a ministerial act is not always easy to
mark, and the statute has not been construed by the state court to impose a mere ministerial duty on the secretary of the welfare
council. Upon his decision as to the nature of the cause the right to solicit depends. Moreover, the availability of a judicial remedy for
abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have
held inadmissible. A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is
as obnoxious to the Constitution as one providing for like restraint by administrative action. [Footnote 7]

Nothing we have said is intended even remotely to imply that, under the cloak of religion, persons may, with impunity, commit frauds
upon the public. Certainly penal laws are available to punish such conduct. Even the exercise of religion may be at some slight
inconvenience in order that the State may protect its citizens from injury. Without doubt, a State may protect its citizens from fraudulent
solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his
identity and his authority to act for the cause which he purports to represent. [Footnote 8] The State is likewise free to regulate the time

Page 310 U. S. 307

and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of
aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state
authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

Second. We hold that, in the circumstances disclosed, the conviction of Jesse Cantwell on the fifth count must be set aside. Decision as
to the lawfulness of the conviction demands the weighing of two conflicting interests. The fundamental law declares the interest of the
United States that the free exercise of religion be not prohibited and that freedom to communicate information and opinion be not
abridged. The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her
borders. We must determine whether the alleged protection of the State's interest, means to which end would, in the absence of
limitation by the Federal Constitution, lie wholly within the State's discretion, has been pressed, in this instance, to a point where it has
come into fatal collision with the overriding interest protected by the federal compact.

Conviction on the fifth count was not pursuant to a statute evincing a legislative judgment that street discussion of religious affairs,
because of its tendency to provoke disorder, should be regulated, or a judgment that the playing of a phonograph on the streets should
in the interest of comfort or privacy be limited or prevented. Violation of an Act exhibiting such a legislative judgment and narrowly
drawn to prevent the supposed evil would pose a question differing from that we must here answer. [Footnote 9] Such a declaration of
the State's policy

Page 310 U. S. 308

would weigh heavily in any challenge of the law as infringing constitutional limitations. Here, however, the judgment is based on a
common law concept of the most general and undefined nature. The court below has held that the petitioner's conduct constituted the
commission of an offense under the state law, and we accept its decision as binding upon us to that extent.

The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It
includes not only violent acts, but acts and words likely to produce violence in others. No one would have the hardihood to suggest that
the principle of freedom of speech sanctions incitement to riot, or that religious liberty connotes the privilege to exhort others to physical
attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public
streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.
Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of
conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of
conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its
application.
Having these considerations in mind, we note that Jesse Cantwell, on April 26, 1938, was upon a public street, where he had a right to
be and where he had a right peacefully to impart his views to others. There is no showing that his deportment was noisy, truculent,
overbearing or offensive. He requested of two pedestrians permission to play to them a phonograph record. The permission was
granted. It is not claimed that he

Page 310 U. S. 309

intended to insult or affront the hearers by playing the record. It is plain that he wished only to interest them in his propaganda. The
sound of the phonograph is not shown to have disturbed residents of the street, to have drawn a crowd, or to have impeded traffic.
Thus far, he had invaded no right or interest of the public, or of the men accosted.

The record played by Cantwell embodies a general attack on all organized religious systems as instruments of Satan and injurious to
man; it then singles out the Roman Catholic Church for strictures couched in terms which naturally would offend not only persons of
that persuasion, but all others who respect the honestly held religious faith of their fellows. The hearers were, in fact, highly offended.
One of them said he felt like hitting Cantwell, and the other that he was tempted to throw Cantwell off the street. The one who testified
he felt like hitting Cantwell said, in answer to the question "Did you do anything else or have any other reaction?" "No, sir, because he
said he would take the victrola, and he went." The other witness testified that he told Cantwell he had better get off the street before
something happened to him, and that was the end of the matter, as Cantwell picked up his books and walked up the street.

Cantwell's conduct, in the view of the court below, considered apart from the effect of his communication upon his hearers, did not
amount to a breach of the peace. One may, however, be guilty of the offense if he commit acts or make statements likely to provoke
violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but
examination discloses that, in practically all, the provocative language which was held to amount to a breach of the peace consisted of
profane, indecent, or abusive remarks directed to the person of the hearer. Resort to epithets or

Page 310 U. S. 310

personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment
as a criminal act would raise no question under that instrument.

We find in the instant case no assault or threatening of bodily harm, no truculent bearing, no intentional discourtesy, no personal abuse.
On the contrary, we find only an effort to persuade a willing listener to buy a book or to contribute money in the interest of what
Cantwell, however misguided others may think him, conceived to be true religion.

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

The essential characteristic of these liberties is that, under their shield, many types of life, character, opinion and belief can develop
unmolested and unobstructed. Nowhere is this shield more necessary than in our own country, for a people composed of many races
and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those
who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal
right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States
appropriately may punish.

Page 310 U. S. 311

Although the contents of the record not unnaturally aroused animosity, we think that, in the absence of a statute narrowly drawn to
define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's
communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and
order as to render him liable to conviction of the common law offense in question. [Footnote 10]

The judgment affirming the convictions on the third and fifth counts is reversed, and the cause is remanded for further proceedings not
inconsistent with this opinion.

Reversed.
U.S. Supreme Court
United States v. Ballard, 322 U.S. 78 (1944)

United States v. Ballard

No. 472

Argued March 3, 6, 1944

Decided April 24, 1944

322 U.S. 78

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Upon an indictment charging use of the mails to defraud, and conspiracy so to do, respondents were convicted in the District Court. The
indictment charged a scheme to defraud through representations -- involving respondents' religious doctrines or beliefs -- which were
alleged to be false and known by the respondents to be false. Holding that the District Court had restricted the jury to the issue of
respondents' good faith and that this was error, the Circuit Court of Appeals reversed and granted a new trial.

Held:

1. The only issue submitted to the jury by the District Court was whether respondents believed the representations to be true. P. 322 U.
S. 84.

2. Respondents did not acquiesce in the withdrawal from the jury of the issue of the truth of their religious doctrines or beliefs, and are
not barred by the rule of Johnson v. United States, 318 U. S. 189, from reasserting here that no part of the indictment should have been
submitted to the jury. P. 322 U. S. 85.

3. The District Court properly withheld from the jury all questions concerning the truth or falsity of respondents' religious beliefs or
doctrines. This course was required by the First Amendment's guarantee of religious freedom. P. 322 U. S. 86.

The preferred position given freedom of religion by the First Amendment is not limited to any particular religious group or to any
particular type of religion but applies to all. P. 322 U. S. 87.

4. Respondents may urge in support of the judgment of the Circuit Court of Appeals points which that court reserved, but, since these
were not fully presented here either in the briefs or oral argument, they may more appropriately be considered by that court upon
remand. P. 322 U. S. 88.

138 F.2d 540 reversed.

Certiorari, 320 U.S. 733, to review the reversal of convictions for using the mails to defraud and conspiracy.

Page 322 U. S. 79

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Respondents were indicted and convicted for using, and conspiring to use, the mails to defraud. § 215 Criminal Code, 18 U.S.C. § 338;
§ 37 Criminal Code, 18 U.S.C. § 88. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting
the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature
distributed and sold, funds solicited, and memberships in the I Am movement sought "by means of false and fraudulent representations,
pretenses and promises." The false representations charged were eighteen in number. It is sufficient at this point to say that they
covered respondents' alleged religious doctrines or beliefs. They were all set forth in the first count. The following are representative:

"that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and
thereby designated by the alleged 'ascertained masters,' Saint Germain, as a divine messenger, and that the words of 'ascended
masters' and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said
Guy W. Ballard;"

"that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments
and righteous conduct, had been selected as divine messengers through which the words of the alleged 'ascended masters,' including

Page 322 U. S. 80

the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the 'I Am' movement;"

"that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the
power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did
falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of
those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being
incurable diseases, and did further represent that the three designated persons had in fact cured either by the activity of one, either, or
all of said persons, hundreds of persons afflicted with diseases and ailments;"

Each of the representations enumerated in the indictment was followed by the charge that respondents "well knew" it was false. After
enumerating the eighteen misrepresentations the indictment also alleged:

"At the time of making all of the afore-alleged representations by the defendants, and each of them, the defendants, and each of them,
well knew that all of said aforementioned representations were false and untrue and were made with the intention on the part of the
defendants, and each of them, to cheat, wrong, and defraud persons intended to be defrauded, and to obtain from persons intended to
be defrauded by the defendants, money, property, and other things of value and to convert the same to the use and the benefit of the
defendants, and each of them;"

The indictment contained twelve counts, one of which charged a conspiracy to defraud. The first count set forth all of the eighteen
representations, as we have said. Each of the other counts incorporated and realleged all of them and added no additional ones. There
was a demurrer and a motion to quash each of which asserted, among other things, that the indictment attacked the religious beliefs

Page 322 U. S. 81

of respondents and sought to restrict the free exercise of their religion in violation of the Constitution of the United States. These
motions were denied by the District Court. Early in the trial, however, objections were raised to the admission of certain evidence
concerning respondents' religious beliefs. The court conferred with counsel in absence of the jury and, with the acquiescence of
counsel for the United States and for respondents, confined the issues on this phase of the case to the question of the good faith of
respondents. At the request of counsel for both sides, the court advised the jury of that action in the following language:

"Now, gentlemen, here is the issue in this case:"

"First, the defendants in this case made certain representations of belief in a divinity and in a supernatural power. Some of the
teachings of the defendants, representations, might seem extremely improbable to a great many people. For instance, the appearance
of Jesus to dictate some of the works that we have had introduced in evidence, as testified to here at the opening transcription, or
shaking hands with Jesus, to some people that might seem highly improbable. I point that out as one of the many statements."

"Whether that is true or not is not the concern of this Court and is not the concern of the jury -- and they are going to be told so in their
instructions. As far as this Court sees the issue, it is immaterial what these defendants preached or wrote or taught in their classes.
They are not going to be permitted to speculate on the actuality of the happening of those incidents. Now, I think I have made that as
clear as I can. Therefore, the religious beliefs of these defendants cannot be an issue in this court."

"The issue is: did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make
it any clearer than that."

"If these defendants did not believe those things, they did not believe that Jesus came down and dictated,

Page 322 U. S. 82

or that Saint Germain came down and dictated, did not believe the things that they wrote, the things that they preached, but used the
mail for the purpose of getting money, the jury should find them guilty. Therefore, gentlemen, religion cannot come into this case."

The District Court reiterated that admonition in the charge to the jury, and made it abundantly clear. The following portion of the charge
is typical:
"The question of the defendants' good faith is the cardinal question in this case. You are not to be concerned with the religious belief of
the defendants, or any of them. The jury will be called upon to pass on the question of whether or not the defendants honestly and in
good faith believed the representations which are set forth in the indictment, and honestly and in good faith believed that the benefits
which they represented would flow from their belief to those who embraced and followed their teachings, or whether these
representations were mere pretenses without honest belief on the part of the defendants or any of them, and, were the representations
made for the purpose of procuring money, and were the mails used for this purpose."

As we have said, counsel for the defense acquiesced in this treatment of the matter, made no objection to it during the trial, and indeed
treated it without protest as the law of the case throughout the proceedings prior to the verdict. Respondents did not change their
position before the District Court after verdict and contend that the truth or verity of their religious doctrines or beliefs should have been
submitted to the jury. In their motion for new trial, they did contend, however, that the withdrawal of these issues from the jury was error
because it was, in effect, an amendment of the indictment. That was also one of their specifications of errors on appeal. And other
errors urged on appeal included the overruling of the demurrer to the indictment and the motion to quash, and the

Page 322 U. S. 83

disallowance of proof of the truth of respondents' religious doctrines or beliefs.

The Circuit Court of Appeals reversed the judgment of conviction and granted a new trial, one judge dissenting. 138 F.2d 540. In its
view, the restriction of the issue in question to that of good faith was error. Its reason was that the scheme to defraud alleged in the
indictment was that respondents made the eighteen alleged false representations, and that, to prove that defendants devised the
scheme described in the indictment,

"it was necessary to prove that they schemed to make some at least, of the [eighteen] representations . . . and that some, at least, of
the representations which they schemed to make were false."

138 F.2d 545. One judge thought that the ruling of the District Court was also error because it was "as prejudicial to the issue of honest
belief as to the issue of purposeful misrepresentation." Id., p. 546.

The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.

The United States contends that the District Court withdrew from the jury's consideration only the truth or falsity of those
representations which related to religious concepts or beliefs, and that there were representations charged in the indictment which fell
within a different category. * The argument is that this latter group of

Page 322 U. S. 84

representations was submitted to the jury, that they were adequate to constitute an offense under the Act, and that they were supported
by the requisite evidence. It is thus sought to bring the case within the rule of Hall v. United States, 168 U. S. 632, 168 U. S. 639-640,
which held that, where an indictment contained "all the necessary averments to constitute an offense created by the statute," a
conviction would not be set aside because a "totally immaterial fact" was averred but not proved. We do not stop to ascertain the
relevancy of that rule to this case, for we are of the view that all of the representations charged in the indictment which related at least
in part to the religious doctrines or beliefs of respondents were withheld from the jury. The trial judge did not differentiate them. He
referred in the charge to the "religious beliefs" and "doctrines taught by the defendants" as matters withheld from the jury. And, in
stating that the issue of good faith was the "cardinal question" in the case, he charged, as already noted, that

"The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the
representations which are set forth in the indictment."

Nowhere in the charge were any of the separate representations submitted to the jury. A careful reading of the whole charge leads us
to agree with the Circuit Court of Appeals on this phase of the case that the only issue submitted to the jury was the question as stated
by the District Court, of respondents' "belief in their representations and promises."

The United States contends that respondents acquiesced in the withdrawal from the jury of the truth of their religious

Page 322 U. S. 85

doctrines or beliefs and that their consent bars them from insisting on a different course once that one turned out to be unsuccessful.
Reliance for that position is sought in Johnson v. United States, 318 U. S. 189. That case stands for the proposition that, apart from
situations involving an unfair trial, an appellate court will not grant a new trial to a defendant on the ground of improper introduction of
evidence or improper comment by the prosecutor where the defendant acquiesced in that course and made no objection to it. In
fairness to respondents, that principle cannot be applied here. The real objection of respondents is not that the truth of their religious
doctrines or beliefs should have been submitted to the jury. Their demurrer and motion to quash made clear their position that that
issue should be withheld from the jury on the basis of the First Amendment. Moreover, their position at all times was, and still is, that
the court should have gone the whole way and withheld from the jury both that issue and the issue of their good faith. Their demurrer
and motion to quash asked for dismissal of the entire indictment. Their argument that the truth of their religious doctrines or beliefs
should have gone to the jury when the question of their good faith was submitted was and is merely an alternative argument. They
never forsook their position that the indictment should have been dismissed, and that none of it was good. Moreover, respondents'
motion for new trial challenged the propriety of the action of the District Court in withdrawing from the jury the issue of the truth of their
religious doctrines or beliefs without also withdrawing the question of their good faith. So we conclude that the rule of Johnson v. United
States, supra, does not prevent respondents from reasserting now that no part of the indictment should have been submitted to the jury.

As we have noted, the Circuit Court of Appeals held that the question of the truth of the representations concerning

Page 322 U. S. 86

respondent's religious doctrines or beliefs should have been submitted to the jury. And it remanded the case for a new trial. It may be
that the Circuit Court of Appeals took that action because it did not think that the indictment could be properly construed as charging a
scheme to defraud by means other than misrepresentations of respondents' religious doctrines or beliefs. Or that court may have
concluded that the withdrawal of the issue of the truth of those religious doctrines or beliefs was unwarranted because it resulted in a
substantial change in the character of the crime charged. But, on whichever basis that court rested its action, we do not agree that the
truth or verity of respondents' religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment
might require, the First Amendment precludes such a course, as the United States seems to concede. "The law knows no heresy, and
is committed to the support of no dogma, the establishment of no sect." Watson v. Jones, 13 Wall. 679,80 U. S. 728. The First
Amendment has a dual aspect. It not only "forestalls compulsion by law of the acceptance of any creed or the practice of any form of
worship," but also "safeguards the free exercise of the chosen form of religion." Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303.

"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."

Id., pp. 310 U. S. 303-304. Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. Board of
Education by Barnette, 319 U. S. 624. It embraces the right to maintain theories of life and of death and of the hereafter which are rank
heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They
may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be
incomprehensible to others.

Page 322 U. S. 87

Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law. Many take their
gospel from the New Testament. But it would hardly be supposed that they could be tried before a jury charged with the duty of
determining whether those teachings contained false representations. The miracles of the New Testament, the Divinity of Christ, life
after death, the power of prayer are deep in the religious convictions of many. If one could be sent to jail because a jury in a hostile
environment found those teachings false, little indeed would be left of religious freedom. The Fathers of the Constitution were not
unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one
religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration
of conflicting views. Man's relation to his God was made no concern of the state. He was granted the right to worship as he pleased,
and to answer to no man for the verity of his religious views. The religious views espoused by respondents might seem incredible, if not
preposterous, to most people. But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the
same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The
First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that
position. Murdock v. Pennsylvania, 319 U. S. 105. As stated in Davis v. Beason, 133 U. S. 333, 133 U. S. 342:

"With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made
by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its
peace and prosperity, and the morals of its people, are not interfered with."

See Prince

Page 322 U. S. 88

v. Massachusetts, 321 U. S. 158. So we conclude that the District Court ruled properly when it withheld from the jury all questions
concerning the truth or falsity of the religious beliefs or doctrines of respondents.

Respondents maintain that the reversal of the judgment of conviction was justified on other distinct grounds. The Circuit Court of
Appeals did not reach those questions. Respondents may, of course, urge them here in support of the judgment of the Circuit Court of
Appeals. Langnes v. Green, 282 U. S. 531, 282 U. S. 538-539; Story Parchment Co. v. Paterson Co., 282 U. S. 555, 282 U. S.
560, 282 U. S. 567-568. But since attention was centered on the issues which we have discussed, the remaining questions were not
fully presented to this Court either in the briefs or oral argument. In view of these circumstances, we deem it more appropriate to
remand the cause to the Circuit Court of Appeals so that it may pass on the questions reserved. Lutcher & Moore Lumber Co. v.
Knight, 217 U. S. 257, 217 U. S. 267-268; Brown v. Fletcher, 237 U. S. 583. If any questions of importance survive and are presented
here, we will then have the benefit of the views of the Circuit Court of Appeals. Until that additional consideration is had, we cannot be
sure that it will be necessary to pass on any of the other constitutional issues which respondents claim to have reserved.

The judgment is reversed, and the cause is remanded to the Circuit Court of Appeals for further proceedings in conformity to this
opinion.

Reversed.

* Petitioner has placed three representations in this group: (1) A portion of the scheme as to healing which we have already quoted and
which alleged that respondents "had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons
afflicted with diseases and ailments;" (2) The portion of the scheme relating to certain religious experiences described in certain books
(Unveiled Mysteries and The Magic Presence) and concerning which the indictment alleged

"that the defendants represented that Guy W. Ballard, Edna W. Ballard, and Donald Ballard actually encountered the experiences
pertaining to each of their said names as related and set forth in said books, whereas in truth and in fact none of said persons did
encounter the experiences;"

(3) The part of the scheme concerning phonograph records sold by respondents on representations that they would bestow on
purchasers "great blessings and rewards in their aim to achieve salvation," whereas respondents "well knew that said . . . records were
man-made, and had no ability to aid in achieving salvation."

MR. CHIEF JUSTICE STONE, dissenting.

I am not prepared to say that the constitutional guaranty of freedom of religion affords immunity from criminal prosecution for the
fraudulent procurement of money by false statements as to one's religious experiences

Page 322 U. S. 89

more than it renders polygamy or libel immune from criminal prosecution. Davis v. Beason, 133 U. S. 333; see Chaplinsky v. New
Hampshire, 315 U. S. 568, 315 U. S. 572; cf. Patterson v. Colorado, 205 U. S. 454, 205 U. S. 462; Near v. Minnesota, 283 U. S.
697, 283 U. S. 715. I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false
statements about one's religious experiences. To go no further, if it were shown that a defendant in this case had asserted as a part of
the alleged fraudulent scheme, that he had physically shaken hands with St. Germain in San Francisco on a day named, or that, as the
indictment here alleges, by the exertion of his spiritual power, he "had in fact cured . . . hundreds of persons afflicted with diseases and
ailments," I should not doubt that it would be open to the Government to submit to the jury proof that he had never been in San
Francisco and that no such cures had ever been effected. In any event, I see no occasion for making any pronouncement on this
subject in the present case.

The indictment charges respondents' use of the mails to defraud and a conspiracy to commit that offense by false statements of their
religious experiences which had not in fact occurred. But it also charged that the representations were "falsely and fraudulently" made,
that respondents "well knew" that these representations were untrue, and that they were made by respondents with the intent to cheat
and defraud those to whom they were made. With the assent of the prosecution and the defense, the trial judge withdrew from the
consideration of the jury the question whether the alleged religious experiences had in fact occurred, but submitted to the jury the single
issue whether petitioners honestly believed that they had occurred, with the instruction that, if the jury did not so find, then it should
return a verdict of guilty. On this

Page 322 U. S. 90

issue, the jury, on ample evidence that respondents were without belief in the statements which they had made to their victims, found a
verdict of guilty. The state of one's mind is a fact as capable of fraudulent misrepresentation as is one's physical condition or the state
of his bodily health. See Seven Cases v. United States, 239 U. S. 510, 239 U. S. 517; cf. Durland v. United States, 161 U. S. 306, 161
U. S. 313. There are no exceptions to the charge, and no contention that the trial court rejected any relevant evidence which petitioners
sought to offer. Since the indictment and the evidence support the conviction, it is irrelevant whether the religious experiences alleged
did or did not in fact occur or whether that issue could or could not, for constitutional reasons, have been rightly submitted to the jury.
Certainly none of respondents' constitutional rights are violated if they are prosecuted for the fraudulent procurement of money by false
representations as to their beliefs, religious or otherwise.

Obviously if the question whether the religious experiences in fact occurred could not constitutionally have been submitted to the jury,
the court rightly withdrew it. If it could have been submitted, I know of no reason why the parties could not, with the advice of counsel,
assent to its withdrawal from the jury. And where, as here, the indictment charges two sets of false statements, each independently
sufficient to sustain the conviction, I cannot accept respondents' contention that the withdrawal of one set and the submission of the
other to the jury amounted to an amendment of the indictment.
An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury. Ex parte Bain, 121 U.
S. 1. But here there was no alteration of the indictment, Salinger v. United States, 272 U. S. 542, 272 U. S. 549, nor did the court's
action, in effect, and anything to it by submitting to the jury matters which

Page 322 U. S. 91

it did not charge. United States v. Norris, 281 U. S. 619, 281 U. S. 622. In Salinger v. United States, supra, 272 U. S. 548-549, we
explicitly held that, where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal
from the jury's consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the
indictment. See also Goto v. Lane, 265 U. S. 393, 265 U. S. 402-403; Ford v. United States, 273 U. S. 593, 273 U. S. 602. Were the
rule otherwise, the common practice of withdrawing from the jury's consideration one count of an indictment while submitting others for
its verdict, sustained in Dealy v. United States, 152 U. S. 539, 152 U. S. 542, would be a fatal error.

We may assume that, under some circumstances, the submission to the jury of part only of the matters alleged in the indictment might
result in such surprise to the defendant as to amount to the denial of a fair trial. But, as in the analogous case of a variance between
pleading and proof, a conviction can be reversed only upon a showing of injury to the "substantial rights" of the accused. Berger v.
United States, 295 U. S. 78,295 U. S. 82. Here, no claim of surprise has been or could be made. The indictment plainly charged both
falsity of, and lack of good faith belief in, the representations made, and it was agreed at the outset of the trial, without objection from
the defendants, that only the issue of respondents' good faith belief in the representations of religious experiences would be submitted
to the jury. Respondents, who were represented by counsel, at no time in the course of the trial offered any objection to this limitation of
the issues, or any contention that it would result in a prohibited amendment of the indictment. So far as appears from the record before
us, the point was raised for the first time in the specifications of errors in the Circuit Court of Appeals. It is asserted that it was argued to
the District Court on

Page 322 U. S. 92

motions for new trial and in arrest of judgment. If so, there was still no surprise by a ruling to which, as we have said, respondents'
counsel assented when it was made.

On the issue submitted to the jury in this case, it properly rendered a verdict of guilty. As no legally sufficient reason for disturbing it
appears, I think the judgment below should be reversed, and that of the District Court reinstated.

MR. JUSTICE ROBERTS and MR. JUSTICE FRANKFURTER join in this opinion.

MR. JUSTICE JACKSON, dissenting.

I should say the defendants have done just that for which they are indicted. If I might agree to their conviction without creating a
precedent, I cheerfully would do so. I can see in their teachings nothing but humbug, untainted by any trace of truth. But that does not
dispose of the constitutional question whether misrepresentation of religious experience or belief is prosecutable; it rather emphasizes
the danger of such prosecutions.

The Ballard family claimed miraculous communication with the spirit world and supernatural power to heal the sick. They were brought
to trial for mail fraud on an indictment which charged that their representations were false and that they "well knew" they were false.
The trial judge, obviously troubled, ruled that the court could not try whether the statements were untrue, but could inquire whether the
defendants knew them to be untrue, and, if so, they could be convicted.

I find it difficult to reconcile this conclusion with our traditional religious freedoms.

In the first place, as a matter of either practice or philosophy, I do not see how we can separate an issue as to what is believed from
considerations as to what is believable. The most convincing proof that one believes his statements is to show that they have been true
in his experience.

Page 322 U. S. 93

Likewise, that one knowingly falsified is best proved by showing that what he said happened never did happen. How can the
Government prove these persons knew something to be false which it cannot prove to be false? If we try religious sincerity severed
from religious verity, we isolate the dispute from the very considerations which, in common experience, provide its most reliable answer.

In the second place, any inquiry into intellectual honesty in religion raises profound psychological problems. William James, who wrote
on these matters as a scientist, reminds us that it is not theology and ceremonies which keep religion going. Its vitality is in the religious
experiences of many people.
"If you ask what these experiences are, they are conversations with the unseen, voices and visions, responses to prayer, changes of
heart, deliverances from fear, inflowings of help, assurances of support, whenever certain persons set their own internal attitude in
certain appropriate ways. [Footnote 1]"

If religious liberty includes, as it must, the right to communicate such experiences to others, it seems to me an impossible task for juries
to separate fancied ones from real ones, dreams from happenings, and hallucinations from true clairvoyance. Such experiences, like
some tones and colors, have existence for one, but none at all for another. They cannot be verified to the minds of those whose field of
consciousness does not include religious insight. When one comes to trial which turns on any aspect of religious belief or
representation, unbelievers among his judges are likely not to understand, and are almost certain not to believe, him.

And then I do not know what degree of skepticism or disbelief in a religious representation amounts to actionable fraud. James points
out that "Faith means belief

Page 322 U. S. 94

in something concerning which doubt is theoretically possible." [Footnote 2] Belief in what one may demonstrate to the senses is not
faith. All schools of religious thought make enormous assumptions, generally on the basis of revelations authenticated by some sign or
miracle. The appeal in such matters is to a very different plane of credibility than is invoked by representations of secular fact in
commerce. Some who profess belief in the Bible read literally what others read as allegory or metaphor, as they read Aesop's fables.
Religious symbolism is even used by some with the same mental reservations one has in teaching of Santa Claus or Uncle Sam or
Easter bunnies or dispassionate judges. It is hard in matters so mystical to say how literally one is bound to believe the doctrine he
teaches, and even more difficult to say how far it is reliance upon a teacher's literal belief which induces followers to give him money.

There appear to be persons -- let us hope not many -- who find refreshment and courage in the teachings of the "I Am" cult. If the
members of the sect get comfort from the celestial guidance of their "Saint Germain," however doubtful it seems to me, it is hard to say
that they do not get what they pay for. Scores of sects flourish in this country by teaching what, to me, are queer notions. It is plain that
there is wide variety in American religious taste. The Ballards are not alone in catering to it with a pretty dubious product.

The chief wrong which false prophets do to their following is not financial. The collections aggregate a tempting total, but individual
payments are not ruinous. I doubt if the vigilance of the law is equal to making money stick by over-credulous people. But the real harm
is on the mental and spiritual plane. There are those who hunger and thirst after higher values which they feel wanting in

Page 322 U. S. 95

their humdrum lives. They live in mental confusion or moral anarchy, and seek vaguely for truth and beauty and moral support. When
they are deluded and then disillusioned, cynicism and confusion follow. The wrong of these things, as I see it, is not in the money the
victims part with half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond
the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay
for, a good deal of rubbish.

Prosecutions of this character easily could degenerate into religious persecution. I do not doubt that religious leaders may be convicted
of fraud for making false representations on matters other than faith or experience, as, for example, if one represents that funds are
being used to construct a church when in fact they are being used for personal purposes. But that is not this case, which reaches into
wholly dangerous ground. When does less than full belief in a professed credo become actionable fraud if one is soliciting gifts or
legacies? Such inquiries may discomfort orthodox, as well as unconventional, religious teachers, for even the most regular of them are
sometimes accused of taking their orthodoxy with a grain of salt.

I would dismiss the indictment and have done with this business of judicially examining other people's faiths.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA
TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL OYAO, represented by their parents MR. & MRS.
ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS; SARA
OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO,
represented by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents MR. & MRS.
MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA
ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR,
represented by their parents ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS.
GENEROSO ALFAR; MARTINO VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA &
CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his parents MR.
& MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES,
represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO, represented by her parents MR. &
MRS. MANUEL MONTECILLO; ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA &
FLORA TANGAHA, represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his
parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their
father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS. LUMAKANG;
EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their parents MR. & MRS. VIRGILIO
SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON TABLASON &
MASTERLOU TABLASON, represented by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, JOEBERT ALSADO & RUDYARD
ALSADO, represented by their parents MR. & MRS. ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH
ALSADO, represented by their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her parents
ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO
CARMELOTES; BABY JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO,
represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented by their parents
MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA, represented by their parents MR. & MRS.
JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE MAHINAY and MAGDALENE MAHINAY, represented by their
parents MR. & MRS. FELIX MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE
ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and
ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON
PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise essentially the
same issue: whether school children who are members or a religious sect known as Jehovah's Witnesses may be expelled
from school (both public and private), for refusing, on account of their religious beliefs, to take part in the flag ceremony
which includes playing (by a band) or singing the Philippine national anthem, saluting the Philippine flag and reciting the
patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog, Cebu
District Supervisor," the petitioners are 43 high school and elementary school students in the towns of Daan Bantayan,
Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by their parents who belong to the religious
group known as Jehovah's Witnesses which claims some 100,000 "baptized publishers" in the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio A. Sangutan," the
petitioners are 25 high school and grade school students enrolled in public schools in Asturias, Cebu, whose parents are
Jehovah's Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu for refusing to
salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955,
and by Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture and Sports (DECS) making the
flag ceremony compulsory in all educational institutions. Republic Act No. 1265 provides:

Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall be simple and
dignified and shall include the playing or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and
regulations for the proper conduct of the flag ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance with rules and
regulations issued by the Secretary of Education, after proper notice and hearing, shall subject the
educational institution concerned and its head to public censure as an administrative punishment which
shall be published at least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag-ceremony provided by this Act, the Secretary of
Education, after proper notice and hearing, shall cause the cancellation of the recognition or permit of the
private educational institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL
INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every school day
throughout the year. It shall be raised at sunrise and lowered at sunset. The flag-staff must be straight,
slightly and gently tapering at the end, and of such height as would give the Flag a commanding position in
front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning except
when it is raining, in which event the ceremony may be conducted indoors in the best way possible. A retreat
shall be held in the afternoon of the same day. The flag-raising ceremony in the morning shall be conducted
in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its premises
shall assemble in formation facing the flag. At command, books shall be put away or held in
the left hand and everybody shall come to attention. Those with hats shall uncover. No one
shall enter or leave the school grounds during the ceremony.

b. The assembly shall sing the Philippine National Anthem accompanied by the school band
or without the accompaniment if it has none; or the anthem may be played by the school
band alone. At the first note of the Anthem, the flag shall be raised briskly. While the flag is
being raised, all persons present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing the hat over the heart. Those without hat may stand
with their arms and hands down and straight at the sides. Those in military or Boy Scout
uniform shall give the salute prescribed by their regulations. The salute shall be started as
the Flag rises, and completed upon last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in unison the
following patriotic pledge (English or vernacular version), which may bring the ceremony to
a close. This is required of all public schools and of private schools which are intended for
Filipino students or whose population is predominantly Filipino.

English Version
 I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the patriotic
pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they "cannot
conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard
ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the State (p. 10, Rollo). They think
the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on the State's
power and invades the sphere of the intellect and spirit which the Constitution protect against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from school for
disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before this Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs.
Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national sovereignty,
of national unity and cohesion and of freedom and liberty which it and the Constitution guarantee and
protect. Under a system of complete separation of church and state in the government, the flag is utterly
devoid of any religious significance. Saluting the flag does not involve any religious ceremony. The flag
salute is no more a religious ceremony than the taking of an oath of office by a public official or by a
candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education is not
imposing a religion or religious belief or a religious test on said students. It is merely enforcing a
non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant or
Jehovah's Witness. The State is merely carrying out the duty imposed upon it by the Constitution which
charges it with supervision over and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all schools aim to develop, among
other things, civic conscience and teach the duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony. They have
no valid right to such exemption. Moreover, exemption to the requirement will disrupt school discipline and
demoralize the rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean exemption from or
non-compliance with reasonable and non-discriminatory laws, rules and regulations promulgated by
competent authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to promulgate said
Department Order, and its provisions requiring the observance of the flag salute, not being a religious
ceremony but an act and profession of love and allegiance and pledge of loyalty to the fatherland which the
flag stands for, does not violate the constitutional provision on freedom of religion. (Balbuna, et al. vs.
Secretary of Education, et al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI, Chapter 9 of the Administrative
Code of 1987 (Executive Order No. 292) which took effect on September 21, 1988 (one year after its publication in the Official
Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling in Gerona,
thus:

5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may be dismissed
after due investigation.
However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new Administrative
Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the Jehovah's
Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine national anthem, salute the
Philippine flag and recite the patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu Division of
DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent, recalling this Court's decision in Gerona, issued
Division Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors,
High School Principals and Heads of Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers, pupils, students, and school
employees in public schools who refuse to salute the Philippine flag or participate in the daily flag ceremony
because of some religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order No. 8, Series of
1955 (Implementing Rules and Regulations) but also strikes at the heart of the DECS sustained effort to
inculcate patriotism and nationalism.

3. Let it be stressed that any belief that considers the flag as an image is not in any manner whatever a
justification for not saluting the Philippine flag or not participating in flag ceremony. Thus, the Supreme
Court of the Philippine says:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of
national sovereignty, of national unity and cohesion and freedom and liberty which it and
the Constitution guarantee and protect. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil.
11.)

4. As regards the claim for freedom of belief, which an objectionist may advance, the Supreme Court asserts:

But between the freedom of belief and the exercise of said belief, there is quite a stretch of
road to travel. If the exercise of said religious belief clashes with the established institutions
of society and with the law, then the former must yield and give way to the latter. (Gerona, et
al. vs. Sec. of Education, et al., 106 Phil. 11.)

5. Accordingly, teachers and school employees who choose not to participate in the daily flag ceremony or
to obey the flag salute regulation spelled out in Department Order No. 8, Series of 1955, shall be considered
removed from the service after due process.

6. In strong language about pupils and students who do the same the Supreme Court has this to say:

If they choose not to obey the flag salute regulation, they merely lost the benefits of public
education being maintained at the expense of their fellow Citizens, nothing more. According
to a popular expression, they could take it or leave it! Having elected not to comply with the
regulation about the flag salute they forfeited their right to attend public schools. (Gerona,
et al. vs. Sec. of Education, et al., 106 Phil. 15.)

7. School administrators shall therefore submit to this Office a report on those who choose not to participate
in flag ceremony or salute the Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the
memorandum. In the Buenavista Elementary School, the children were asked to sign an Agreement (Kasabutan) in the
Cebuano dialect promising to sing the national anthem, place their right hand on their breast until the end of the song and
recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of G.R. No. 95887), but they
refused to sign the "Kasabutan" (p. 20, Rolloof G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's Witnesses' parents,
as disclosed in his letter of October 17, 1990, excerpts from which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on October 2, 1990 and
yesterday due to their firm stand not to salute the flag of the Republic of the Philippines during Flag
Ceremony and other occasions, as mandated by law specifically Republic Act No. 1265, this Office hereby
orders the dropping from the list in the School Register (BPS Form I) of all teachers, all Jehovah Witness
pupils from Grade I up to Grade VI effective today.
 xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated November 17, 1989 by virtue of
Department Order No. 8 s. 1955 dated July 21, 1955 in accordance with Republic Act No. 1265 and Supreme
Court Decision of a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable Secretary of
Education, et al., Respondents and Appellees' dated August 12, 1959 against their favor. (p. 149, Rollo of G.R.
No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping from the rolls" of students
who "opted to follow their religious belief which is against the Flag Salute Law" on the theory that "they forfeited their right to
attend public schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary School with the
information that this office is sad to order the dropping of Jeremias Diamos and Jeaneth Diamos, Grades III
and IV pupils respectively from the roll since they opted to follow their religious belief which is against the
Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of 1955, having elected not to comply with the
regulation about the flag salute they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of
Education, et al., 106 Philippines 15). However, should they change their mind to respect and follow the Flag
Salute Law they may be re-accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School, Agujo
Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School, Tabuelan Central School,
Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and Northern
Central Elementary School of San Fernando, Cebu, upon order of then Acting Division Superintendent Marcelo Bacalso,
prompted some Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro Cariño but the latter did not
answer their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina, who
succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of his predecessor.
Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions for Mandamus, Certiorari and Prohibition
alleging that the public respondents acted without or in excess of their jurisdiction and with grave abuse of discretion — (1) in
ordering their expulsion without prior notice and hearing, hence, in violation of their right to due process, their right to free
public education, and their right to freedom of speech, religion and worship (p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the rolls of herein petitioners from
their respective schools;

ii. prohibiting and enjoining respondent from further barring the petitioners from their
classes or otherwise implementing the expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him to admit and order the re-
admission of petitioners to their respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining order be issued enjoining the
respondents from enforcing the expulsion of the petitioners and to re-admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory injunction
commanding the respondents to immediately re-admit the petitioners to their respective classes until further orders from this
Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be impleaded as
respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the expulsion
orders issued by the public respondents on the grounds that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-social school children
and consequently disloyal and mutant Filipino citizens.

2. There are no new and valid grounds to sustain the charges of the Jehovah's Witnesses that the DECS'
rules and regulations on the flag salute ceremonies are violative of their freedom of religion and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of country,
for which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful regulations in question do not warrant
exemption of the school children of the Jehovah's Witnesses from the flag salute ceremonies on the basis of
their own self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and jurisprudence.

6. State's power to regulate repressive and unlawful religious practices justified, besides having scriptural
basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No. 292 (The
Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute law and
approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in the
Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea that one may be
compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being
dismissed from one's job or of being expelled from school, is alien to the conscience of the present generation of Filipinos
who cut their teeth on the Bill of Rights which guarantees their rights to free speech ** and the free exercise of religious
profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7],
1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among human
rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate opinion in German
vs. Barangan, 135 SCRA 514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and freedom to
act on one's belief. The first is absolute as long as the belief is confined within the realm of thought. The
second is subject to regulation where the belief is translated into external acts that affect the public welfare
(J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage in "external
acts" or behavior that would offend their countrymen who believe in expressing their love of country through the observance
of the flag ceremony. They quietly stand at attention during the flag ceremony to show their respect for the right of those who
choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48).
Since they do not engage in disruptive behavior, there is no warrant for their expulsion.

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 vs. 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.

The situation that the Court directly predicted in Gerona that:

 The flag ceremony will become a thing of the past or perhaps conducted with very few participants, and the
time will come when we would have citizens untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and patriotism — a pathetic, even tragic
situation, and all because a small portion of the school population imposed its will, demanded and was
granted an exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag, singing the
national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a "small portion of the
school population" will shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and
unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes" (Gerona vs. Sec. of
Education, 106 Phil. 2, 24). After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from
the public schools where they may study the Constitution, the democratic way of life and form of government, and learn not
only the arts, sciences, Philippine history and culture but also receive training for a vocation of profession and be taught the
virtues of "patriotism, respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and
moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court had feared in Gerona. Forcing a small religious
group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be
conducive to love of country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead
of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. . . .
When they [diversity] are so harmless to others or to the State as those we deal with here, the price is not too
great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate their right
as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the State to "protect and
promote the right of all citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art. XIV).

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

. . . 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
interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct. 1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others. Nevertheless, their
right not to participate in the flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing the
warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest regard must be afforded their right to
the free exercise of their religion, "this should not be taken to mean that school authorities are powerless to discipline them"
if they should commit breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of other
persons. If they quietly stand at attention during the flag ceremony while their classmates and teachers salute the flag, sing
the national anthem and recite the patriotic pledge, we do not see how such conduct may possibly disturb the peace, or pose
"a grave and present danger 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 (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944 when every
Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed before every
Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, they would not quibble now about
saluting the Philippine flag. For when liberation came in 1944 and our own flag was proudly hoisted aloft again, it was a
beautiful sight to behold that made our hearts pound with pride and joy over the newly-regained freedom and sovereignty of
our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the Philippine flag
on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our country will not be necessary
in order for our countrymen to appreciate and cherish the Philippine flag.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public respondents
against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order which was issued by this
Court is hereby made permanent.

SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave.

EN BANC

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

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

DECISION
PUNO, J.:

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

I. Facts

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

DECLARATION OF PLEDGING FAITHFULNESS

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

III. Applicable Laws

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

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

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

xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.

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

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

IV. Old World Antecedents of the American Religion Clauses

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

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

The Hebrew theocracy existed in its pure form from Moses to Samuel. In this period, religion was not only superior to the state, but it was
all of the state. The Law of God as transmitted through Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master, of religion. Saul and David each received their kingdom
from Samuel the prophet and disciple of Eli the priest, but soon the king dominated prophet and priest. Saul disobeyed and even sought
to slay Samuel the prophet of God.[38] Under Solomon, the subordination of religion to state became complete; he used religion as an
engine to further the states purposes. He reformed the order of priesthood established by Moses because the high priest under that order
endorsed the claim of his rival to the throne.[39]
The subordination of religion to the state was also true in pre-Christian Rome which engaged in emperor-worship. When Augustus
became head of the Roman state and the priestly hierarchy, he placed religion at a high esteem as part of a political plan to establish the
real religion of pre-Christian Rome - the worship of the head of the state. He set his great uncle Julius Caesar among the gods, and
commanded that worship of Divine Julius should not be less than worship of Apollo, Jupiter and other gods. When Augustus died, he also
joined the ranks of the gods, as other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as the Christians dogmatic exclusiveness prevented them from
paying homage to publicly accepted gods. In the first two centuries after the death of Jesus, Christians were subjected to persecution. By
the time of the emperor Trajan, Christians were considered outlaws. Their crime was hatred of the human race, placing them in the same
category as pirates and brigands and other enemies of mankind who were subject to summary punishments. [41]
In 284, Diocletian became emperor and sought to reorganize the empire and make its administration more efficient. But the closely-
knit hierarchically controlled church presented a serious problem, being a state within a state over which he had no control. He had two
options: either to force it into submission and break its power or enter into an alliance with it and procure political control over it. He opted
for force and revived the persecution, destroyed the churches, confiscated sacred books, imprisoned the clergy and by torture forced
them to sacrifice.[42] But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance. Constantine joined with Galerius and Licinius, his two co-rulers
of the empire, in issuing an edict of toleration to Christians on condition that nothing is done by them contrary to discipline.[43] A year later,
after Galerius died, Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313), a document of monumental importance
in the history of religious liberty. It provided that liberty of worship shall not be denied to any, but that the mind and will of every
individual shall be free to manage divine affairs according to his own choice. (emphasis supplied) Thus, all restrictive statutes were
abrogated and it was enacted that every person who cherishes the desire to observe the Christian religion shall freely and unconditionally
proceed to observe the same without let or hindrance. Furthermore, it was provided that the same free and open power to follow their
own religion or worship is granted also to others, in accordance with the tranquillity of our times, in order that every person may have
free opportunity to worship the object of his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired privilege, then prestige, and eventually, exclusive
power. Religion became an engine of state policy as Constantine considered Christianity a means of unifying his complex empire. Within
seven years after the Edict of Milan, under the emperors command, great Christian edifices were erected, the clergy were freed from
public burdens others had to bear, and private heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in religious affairs. Constantine and his successors
called and dismissed church councils, and enforced unity of belief and practice. Until recently the church had been the victim of
persecution and repression, but this time it welcomed the states persecution and repression of the nonconformist and the orthodox on
the belief that it was better for heretics to be purged of their error than to die unsaved.
 Both in theory as in practice, the partnership between church and state was not easy. It was a constant struggle of one claiming
dominance over the other. In time, however, after the collapse and disintegration of the Roman Empire, and while monarchical
states were gradually being consolidated among the numerous feudal holdings, the church stood as the one permanent, stable
and universal power. Not surprisingly, therefore, it claimed not merely equality but superiority over the secular states. This
claim, symbolized by Pope Leos crowning of Charlemagne, became the churchs accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and state was now a union of the state in the church. The rulers of the states
did not concede to this claim of supremacy. Thus, while Charlemagne received his crown from the Pope, he himself crowned his own son
as successor to nullify the inference of supremacy.[45] The whole history of medieval Europe was a struggle for supremacy between
prince and Pope and the resulting religious wars and persecution of heretics and nonconformists. At about the second quarter of
the 13th century, the Inquisition was established, the purpose of which was the discovery and extermination of heresy. Accused heretics
were tortured with the approval of the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation aimed at reforming the Catholic Church and resulting in
the establishment of Protestant churches. While Protestants are accustomed to ascribe to the Reformation the rise of religious liberty and
its acceptance as the principle governing the relations between a democratic state and its citizens, history shows that it is more accurate
to say that the same causes that gave rise to the Protestant revolution also resulted in the widespread acceptance of the principle of
religious liberty, and ultimately of the principle of separation of church and state. [46] Pleas for tolerance and freedom of conscience can
without doubt be found in the writings of leaders of the Reformation. But just as Protestants living in the countries of papists pleaded for
toleration of religion, so did the papists that lived where Protestants were dominant.[47] Papist and Protestant governments alike accepted
the idea of cooperation between church and state and regarded as essential to national unity the uniformity of at least the outward
manifestations of religion.[48] Certainly, Luther, leader of the Reformation, stated that neither pope, nor bishop, nor any man whatever has
the right of making one syllable binding on a Christian man, unless it be done with his own consent. [49] But when the tables had turned
and he was no longer the hunted heretic, he likewise stated when he made an alliance with the secular powers that (h)eretics are not to
be disputed with, but to be condemned unheard, and whilst they perish by fire, the faithful ought to pursue the evil to its source, and bathe
their hands in the blood of the Catholic bishops, and of the Pope, who is a devil in disguise. [50] To Luther, unity among the peoples in the
interests of the state was an important consideration. Other personalities in the Reformation such as Melanchton, Zwingli and Calvin
strongly espoused theocracy or the use of the state as an engine to further religion. In establishing theocracy in Geneva, Calvin made
absence from the sermon a crime, he included criticism of the clergy in the crime of blasphemy punishable by death, and to el iminate
heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious liberty. Erasmus, who belonged to the Renaissance than the
Reformation, wrote that (t)he terrible papal edict, the more terrible imperial edict, the imprisonments, the confiscations, the recantations,
the fagots and burnings, all these things I can see accomplish nothing except to make the evil more widespread. [52] The minority or
dissident sects also ardently advocated religious liberty. The Anabaptists, persecuted and despised, along with the Socinians
(Unitarians) and the Friends of the Quakers founded by George Fox in the 17 th century, endorsed the supremacy and freedom of the
individual conscience. They regarded religion as outside the realm of political governments. [53] The English Baptists proclaimed that the
magistrate is not to meddle with religion or matters of conscience, nor compel men to this or that form of religion. [54]
Thus, out of the Reformation, three rationalizations of church-state relations may be distinguished: the Erastian (after the German
doctor Erastus), the theocratic, and the separatist. The first assumed state superiority in ecclesiastical affairs and the use of religion as
an engine of state policy as demonstrated by Luthers belief that civic cohesion could not exist without religious unity so that coercion to
achieve religious unity was justified. The second was founded on ecclesiastical supremacy and the use of state machinery to further
religious interests as promoted by Calvin. The third, which was yet to achieve ultimate and complete expression in the New World,
was discernibly in its incipient form in the arguments of some dissident minorities that the magistrate should not intermeddle
in religious affairs.[55] After the Reformation, Erastianism pervaded all Europe except for Calvins theocratic Geneva. In England,
perhaps more than in any other country, Erastianism was at its height. To illustrate, a statute was enacted by Parliament in 1678,
which, to encourage woolen trade, imposed on all clergymen the duty of seeing to it that no person was buried in a shroud made of any
substance other than wool.[56] Under Elizabeth, supremacy of the crown over the church was complete: ecclesiastical offices were
regulated by her proclamations, recusants were fined and imprisoned, Jesuits and proselytizing priests were put to death for high treason,
the thirty-nine Articles of the Church of England were adopted and English Protestantism attained its present doctrinal status.[57] Elizabeth
was to be recognized as the only Supreme Governor of this realm . . . as well in all spiritual or ecclesiastical things or causes as temporal.
She and her successors were vested, in their dominions, with all manner of jurisdictions, privileges, and preeminences, in any wise
touching or concerning any spiritual or ecclesiastical jurisdiction. [58] Later, however, Cromwell established the constitution in 1647 which
granted full liberty to all Protestant sects, but denied toleration to Catholics. [59] In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except Catholics. The Catholics achieved religious liberty in the 19th century
when the Roman Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when they were finally permitted to sit in
Parliament.[60]
When the representatives of the American states met in Philadelphia in 1787 to draft the constitutional foundation of the
new republic, the theocratic state which had flourished intermittently in Israel, Judea, the Holy Roman Empire and Geneva was
completely gone. The prevailing church-state relationship in Europe was Erastianism embodied in the system of jurisdictionalism whereby
one faith was favored as the official state-supported religion, but other faiths were permitted to exist with freedom in various degrees. No
nation had yet adopted as the basis of its church-state relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used as an engine to further the policies of the other, although
the principle was in its seminal form in the arguments of some dissident minorities and intellectual leaders of the
Renaissance. The religious wars of 16th and 17th century Europe were a thing of the past by the time America declared its
independence from the Old World, but their memory was still vivid in the minds of the Constitutional Fathers as expressed by
the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to maintain their absolute political and religious supremacy. With
the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had
persecuted Catholics, Protestant sects had persecuted other protestant sects, Catholics of one shade of belief had persecuted
Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever
religious group happened to be on top and in league with the government of a particular time and place, men and women had been
fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as
speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions
of non-belief in their doctrines, and failure to pay taxes and tithes to support them.[61]

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

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

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

V. Factors Contributing to the Adoption

of the American Religion Clauses

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

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

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

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

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

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

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

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

xxx xxx xxx

Be it therefore enacted by the General Assembly. That no man shall be compelled to frequent or support any religious worship, place or
ministry whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on
account of his religious opinions or beliefs, but that all men shall be free to profess, and by argument to maintain, their opinions
in matters of religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. [98] (emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually ended any thought of a general or particular establishment
in Virginia.[99] But the passage of this law was obtained not only because of the influence of the great leaders in Virginia but also because
of substantial popular support coming mainly from the two great dissenting sects, namely the Presbyterians and the Baptists. The former
were never established in Virginia and an underprivileged minority of the population. This made them anxious to pull down the existing
state church as they realized that it was impossible for them to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates of separation [100] grounded on rational, secular arguments
and to the language of natural religion. [101] Influenced by Roger Williams, the Baptists, on the other hand, assumed that religion was
essentially a matter of concern of the individual and his God, i.e., subjective, spiritual and supernatural, having no relation with the social
order.[102] To them, the Holy Ghost was sufficient to maintain and direct the Church without governmental assistance and state-supported
religion was contrary ti the spirit of the Gospel.[103] Thus, separation was necessary.[104] Jeffersons religious freedom statute was
a milestone in the history of religious freedom. The United States Supreme Court has not just once acknowledged that the provisions
of the First Amendment of the U.S. Constitution had the same objectives and intended to afford the same protection against
government interference with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the Constitution of 1787. This could be deduced from the prohibition of any
religious test for federal office in Article VI of the Constitution and the assumed lack of power of Congress to act on any subject not
expressly mentioned in the Constitution.[105] However, omission of an express guaranty of religious freedom and other natural rights
nearly prevented the ratification of the Constitution.[106] In the ratifying conventions of almost every state, some objection was expressed
to the absence of a restriction on the Federal Government as regards legislation on religion. [107] Thus, in 1791, this restriction was made
explicit with the adoption of the religion clauses in the First Amendment as they are worded to this day, with the first part usually referred
to as the Establishment Clause and the second part, the Free Exercise Clause, viz:

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

VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards

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

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

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

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

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

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

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

A. Free Exercise Clause

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

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

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

The Court then held, viz:

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

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

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

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

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

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

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

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

Plainly enough, appellees conscientious objection to Saturday work constitutes no conduct prompted by religious principles of a kind
within the reach of state legislation. If, therefore, the decision of the South Carolina Supreme Court is to withstand appellants
constitutional challenge, it must be either because her disqualification as a beneficiary represents no infringement by the State
of her constitutional rights of free exercise, or because any incidental burden on the free exercise of appellants religion may
be justified by a compelling state interest in the regulation of a subject within the States constitutional power to regulate. .
. NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied)

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

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

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

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

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

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

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

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

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

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

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

B. Establishment Clause

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

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

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

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

The Court then ended the opinion, viz:

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

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

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

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

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

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

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

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

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

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

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

The Court added that the exemption was not establishing religion but sparing the exercise of religion from the burden of property taxation
levied on private profit institutions[224] and preventing excessive entanglement between state and religion. At the same time, the Court
acknowledged the long-standing practice of religious tax exemption and the Courts traditional deference to legislative bodies with respect
to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life, beginning with pre-Revolutionary colonial times, than
for the government to exercise . . . this kind of benevolent neutrality toward churches and religious exercise generally so long
as none was favored over others and none suffered interference.[225] (emphasis supplied)

C. Strict Neutrality v. Benevolent Neutrality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

VII. Religion Clauses in the Philippines

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

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

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

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

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

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

This was followed by the Philippine Independence Law or Tydings-McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It enjoined Filipinos to include freedom of religion in drafting their
constitution preparatory to the grant of independence. The law prescribed that (a)bsolute toleration of religious sentiment shall be secured
and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship. [303]
The Constitutional Convention then began working on the 1935 Constitution. In their proceedings, Delegate Jose P. Laurel as
Chairman of the Committee on Bill of Rights acknowledged that (i)t was the Treaty of Paris of December 10, 1898, which first introduced
religious toleration in our country. President McKinleys Instructions to the Second Philippine Commission reasserted this right which later
was incorporated into the Philippine Bill of 1902 and in the Jones Law. [304] In accordance with the Tydings-McDuffie Law, the 1935
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:

Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

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

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

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

B. Jurisprudence

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

1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether
direct or indirect, in the practice of ones religion. The Free Exercise Clause principally guarantees voluntarism, although the Establishment
Clause also assures voluntarism by placing the burden of the advancement of religious groups on their intrinsic merits and not on the
support of the state.[312]
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty. The early case of Gerona v. Secretary of
Education[313] is instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by ones imagination and thought. So is the freedom of
belief, including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. [314]

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

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

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

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

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

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

It was held that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the
singing of the national anthem as it speaks only of love of country, patriotism, liberty and the glory of suffering and dying for it. The Court
upheld the questioned Order and the expulsion of petitioners children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government policies, the wisdom and legality of laws, even the correctness
of judicial decisions and decrees; but in the field of love of country, reverence for the flag, national unity and patriotism, they can hardly
afford to differ, for these are matters in which they are mutually and vitally interested, for to them, they mean national existence and
survival as a nation or national extinction.[322]

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

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

It stated in categorical terms, viz:

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

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

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

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

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

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

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

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

. . . Thus the (First) amendment embraces two concepts - freedom to believe and freedom to act. The first is absolute, but in the nature
of things, the second cannot be.[337]

The Court reiterated the Gerona ruling, viz:

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

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

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

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

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

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

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

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

The Court added, viz:

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

Barnette also found its way to the opinion, viz:

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

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

In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the Iglesia ni Cristo, from
the coverage of a closed shop agreement between their employer and a union because it would violate the teaching of their church not
to join any group:
x x x It is certain that not every conscience can be accommodated by all the laws of the land; but when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some compelling state interest intervenes. (Sherbert vs. Verner, 374
U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)

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

The Court annulled the orders expelling petitioners from school.

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

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

Replying to the challenge on the applicability of the clear and present danger test to the case, the Court acknowledged the permutations
that the test has undergone, but stressed that the test is still applied to four types of speech: speech that advocates dangerous ideas,
speech that provokes a hostile audience reaction, out of court contempt and release of information that endangers a fair trial [351] and
ruled, viz:

. . . even allowing the drift of American jurisprudence, there is reason to apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily provoke hostile audience reaction. It cannot be doubted that religious
truths disturb and disturb terribly.[352]

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

2. Establishment Clause

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

VIII. Free Exercise Clause vis--vis Establishment Clause

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

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

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

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

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

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

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

IX. Philippine Religion Clauses: Nature, Purpose, Tests

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

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

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

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

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

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

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

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

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

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

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

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

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

(W)ithin regular class hours was approved.

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

. . . It is true, I maintain, that as a legal statement the sentence The separation of Church and State is inviolable, is almost a useless
statement; but at the same time it is a harmless statement. Hence, I am willing to tolerate it there, because, in the end, if we look at the
jurisprudence on Church and State, arguments are based not on the statement of separation of church and state but on the non-
establishment clause in the Bill of Rights.[398]

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

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

A. The Religion Clauses and Morality

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

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

xxx xxx xxx

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

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

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

But, it may be asked, would this proposed article obliterate the boundary line between morality and law? The answer is that, in the last
analysis, every good law draws its breath of life from morals, from those principles which are written with words of fire in the
conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages. When it is reflected that while codes of law and statutes have changed
from age to age, the conscience of man has remained fixed to its ancient moorings, one can not but feel that it is safe and salutary
to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought
to be one of its superlative attributes.

Furthermore, there is no belief of more baneful consequence upon the social order than that a person may with impunity cause damage
to his fellow-men so long as he does not break any law of the State, though he may be defying the most sacred postulates of
morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief.

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

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

B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar

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

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

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

SECOND DIVISION

A.M. No. RTJ-15-2417 July 22, 2015

[Formerly known as OCA IPI No. 10-3466-RTJ]

ELADIO D. PERFECTO, Complainant,

vs.
JUDGE ALMA CONSUELO D. ESIDERA, Respondent.

RESOLUTION

LEONEN, J.:

On July 15, 2010, Eladio Perfecto filed an administrative Complaint 1 against Judge Alma Consuelo Desales-Esidera of Branch 20 of the
Regional Trial Court of Catarman, Northern Samar for falsification of public document and dishonesty.

Eladio Perfecto (Perfecto) alleged that Judge Alma Consuelo Desales-Esidera (Judge Desales-Esidera) was first married to Richard
Tang Tepace on May 7, 1987 at the Metropolitan Trial Court of Manila. 2

On October 3, 1990, Judge Desales-Esidera gave birth to a daughter with Renato Verano Esidera at Capitol Medical Center in Quezon
City.3 Her marriage to Richard Tang Tepace was later declared void on January 27, 1992. 4

Based on her certification of marriage records dated February 21, 2009, Judge Desales-Esidera married Renato Verano Esidera on
June 3, 1992.5

Perfecto further alleged that Judge Desales-Esidera falsified her daughter’s birth certificate to make it appear that she and Renato
Verano Esidera were married on March 18, 1990 and that their daughter was a legitimate child.6 No marriage took place on that date
based on a certification of no marriage issued by the Office of the City Civil Registrar of Paranaque City.7 Judge Desales-Esidera did
not take any step to rectify the error on her daughter’s birth certificate. 8

Perfecto prays for Judge Desales-Esidera’s dismissal from office for her alleged dishonesty.9 Judge Desales-Esidera filed her
Comment with Motion to Dismiss on December 30, 2010. 10 She argued that Perfecto did not comply with the requirement of personal
knowledge under Rule 140, Section 1.11 He should have supported his Complaint "with affidavits of persons who knew her personally or
with authenticated copies of documents that supported his allegations." 12 Otherwise, Perfecto’s allegations were nothing more than
"tsismis" or hearsay.13Perfecto perjured himself when he subscribed to facts that were not based on his personal knowledge. 14

Judge Desales-Esidera brought this court’s attention to the allegedly malicious means by which Perfecto obtained the documents
supporting his allegations.15 According to her, the documents were secured in connivance with persons involved in or were related to
parties in other administrative cases. Perfecto also connived with court employees who violated either the law or Supreme Court
circulars by bringing court records outside the court without the judge’s knowledge or consent. 16 Judge Desales-Esidera claimed that
this affects Perfecto’s credibility and integrity.17

Moreover, Judge Desales-Esidera claimed that the persons involved in obtaining the documents "desperately want[ed] [her] out of the
judiciary so that they could continue their illegal activities in the office[,] like temporary borrowing of funds in the Office of the Clerk of
Court . . . and the abuse of the accreditation of [Perfecto][,] whose newspaper [was] not printed and circulated generally and regularly in
Northern Samar."18

Judge Desales-Esidera further argued that the charges against her were personal and not judicial.19 She did not participate in the
accomplishment of the birth certificate.20 She had planned to correct her daughter’s birth certificate, but she and her husband decided
against it for the best interest of her daughter.21

On the question of integrity, honesty, and morality, Judge Desales-Esidera argued that everything she did was legal and in accordance
with her religious beliefs. She was, indeed, married to her second husband on March 18, 1990, but only under recognized Catholic
rites.22 The priest who officiated their marriage had no authority to solemnize marriages under the civil law.

Further, Judge Desales-Esidera argued that while her religious marriage was done before the declaration of nullity of her first marriage,
the prevailing jurisprudence at that time was that "there was no need for a judicial decree to establish the invalidity of void
marriage."23 She described her state of mind and motivations for her acts as follows:
When I got married the first time, it was not our intention to live together as husband and wife. It was a secret marriage solemnized by a
judge. We planned of a church wedding supposedly on my birthday of the same year. However, Richard reasoned out that he was still
confused because his mother was sick while his father, a Chinese, would not agree because it was the Year of the Dragon. As
established by the evidence in the annulment case (Decision, page 4 onwards, Annex C of Complaint), I continued living with my
parents and using my paternal name. Never for a moment did we live together as husband and wife. For some reasons we cooled off
and finally called it quits. When I met my second husband, I found it very much unfair to be bound in a marriage that was never
consummated. I wanted the marriage annulled. But the annulment process was long and I was not getting any younger. Then, I got
pregnant. I knew it was against my values but I had no choice. I heard that getting pregnant beyond thirty was more risky.

Renato and I are both religious. We both wanted to correct what we have started wrongly. I consulted at least two priests who were
knowledgeable on Canon Law, a certain Fr. Albarico from San Sebastian Church and Rev. Fr. David J. Tither, C.SS.R of the
Redemptorist Church in Baclaran. I also made my own research on Catholic annulment and got a copy of the deliberations on
"psychological incapacity" as a ground for annulment under the Family Code. I need not over emphasize that in view of the separation
of the Church and the State, civil marriages are not recognized by the Catholic Church. Couples who are civilly married are considered
living in state of sin, and may be ex-communicated. They cannot receive the sacraments. Thus, my marriage to Richard Tang was not
recognized by the Catholic Church. Moreover, in my research I found this digest in Vol. 1, Civil Code Annotated, Ambrosio Padilla, p.
454, 1975 edition:

"People vs. Whipkey, (CA) 69, O.G. 9678. – Pursuant to Art. 66 of the Civil Code, before a marriage license can be obtained by a
citizen or subject of a foreign country, he must first present a certificate of legal capacity to contract marriage to be issued by the
diplomatic or consular official of his own country. The law stresses the mandatory character of this requirement by the use of the word
"necessary", so that marriage license secured in violation of Article 66 of the Civil Code is a void license."

I need not go into details. But anybody knows that a marriage solemnized with a void license is no marriage at all. My marriage to
Richard Tang, a Chinese, was void ab initio. If I am not mistaken, at that time, the jurisprudence was that there was no need for a
judicial decree to establish the invalidity of void marriage. (People vs. Aragon, 100 Phil. 1033, cited on page 470 of the same book).

The logical conclusion, therefore, was that there was no impediment for Renato and I to get married although we still need the court
order to cancel the registration. But we both can receive the sacrament. Our primary purpose in availing of the Sacrament of Holy
Matrimony was to continue living in a state of grace while waiting for the result of the annulment case which came two years later. So
after consultations and a little catechesis with Fr. David Tither, he finally officiated the sacramental marriage rite in one of the
confessional rooms in the parish office of Baclaran Church with two other priests. Rev. Fr. Patrick J. Deane, C.SS.R and Rev. Fr.
Desmond de Souza, C.SS.R., as witnesses. Our second marriage on June 3, 1992 was again in a religious ceremony but with all the
formalities required by law.

That pregnancy was very complicated. In fact, it was diagnosed as ectopic pregnancy. After two sessions with Fr. David Tither, also a
known healer and exorcist, the fetus finally went down from the fallopian tube to the womb but was born prematurely. It was also
difficult and painful giving birth to her. So, my husband Renato took charge of everything, including the preparation for the registration of
the baby.

Complainant accuses me of falsifying the birth certificate of my daughter, Mary Joyce. However, her certificate of live birth form was
accomplished by her father in his own handwriting and signed by him. My husband Renato is not a lawyer. To him, what matters is that
our union is blessed by God and that before the eyes of the Almighty, our daughter is legitimate.

The date of marriage which my husband supplied in the birth certificate of our daughter, Mary Joyce, is the date we received the
Sacrament of Holy Matrimony on March 18, 1990. Fr. David Tither had no license to solemnize marriage from the National Archives or
from the civil government. . . . It was a purely sacramental marriage rite, without legal effect but definitely valid and recognized by the
Roman Catholic Church. It is called "matrimoña de conciencia". All he could give us was a blank certificate of marriage but signed by
him and the two priest witnesses, a certification and a covering letter (Annex E, F and G). The need referred to in the covering letter did
not arrive because our second marriage (June 3, 1992) came before Mary Joyce attended the pre-school, so the form remained blank
up to this date. If I were as scheming as my accusers, I should have filled it up a long time ago. But I am too honest and honorable to
do that. According to the Order to comment, I am also accused of immorality. The basis of morality is generally the do’s and don’ts set
by the Church of whatever religion. As Catholics, we have the Ten Commandments. I have sinned against one but I took advantage of
the Sacrament of Reconciliation and the Sacrament of Matrimony. I did not, and do not live with anybody not my husband as defined by
my Catholic faith. Chastity is a virtue. Even if one is civilly married but if there is no religious ratification, in the eyes of my God, the
spouses are living in sin and cannot take the Sacrament of the Holy Eucharist.

From the day I saw the certified copy of the birth certificate of our daughter, I already planned to correct it. But, being married, anything
that would affect our family must be a conjugal decision. We decided against it, not because I am a lawbreaker, dishonest or immoral,
but because not to disturb her birth record will serve her best interest and welfare. It will save her the embarrassment of being different
in some way from her sisters; and the repercussion of being branded an "illegitimate" by her teachers and peers. As a mother, I have to
protect her from everything detrimental to her well-being. More than a judge, I am a mother and a wife. As a lawyer, I agreed because it
can always be corrected when the time or need comes. This case has already affected my daughter emotionally, especially when she
learned that somebody secured her birth certificate and pretended to be "Mary Joyce." She could not understand why she should be
dragged in this controversy using her birth certificate which is supposed to be confidential. Neither do I. If the Xerox copies appended to
the Complaint were perused carefully, my children, especially Mary Joyce, would have been saved from emotional shock and trauma.
Being appointed to the Judiciary is not a license to pry on our personal life before I became a judge and criticize our wisdom.

Finally, my life and the status of our firstborn could not have escaped the scrutiny of all those involved in the selection process in the
appointment to the Judiciary, including those who conducted the background investigation. It is personal and has nothing to do with my
professional life then, and now, with my judicial life. My love story is the best proof of my morality and my honesty. I never kept it a
secret; but I cannot allow it also to be publicized unnecessarily. The first civil marriage was never consummated because of our
agreement to have a church wedding first. The second marriage was purely a sacramental rite in obedience to the Law of God, so that
my husband and I would continue living together without offending our God until the annulment process was finalized. The third
marriage was made to finally formalize our status in the eyes of the law of man.

The reason for these administrative cases is that I cannot be like my accusers. I cannot join them because I value my dignity and my
peace of mind.

We all have our stories to tell. Nobody’s perfect. What is important is we learn from our mistakes, amend our lives and avoid further
wrongdoings. If the Honorable Court Administrator, through the Legal Office, would only conduct discreet investigation on the life of my
accusers and their lifestyles, the Office would realize who among us is leading an immoral life.24 (Emphasis in the original)

On September 29, 2014, the Office of the Court Administrator recommended that Judge Desales-Esidera be found guilty of disgraceful,
immoral, or dishonest conduct and that she be suspended from judicial service for 15 days with the warning that a repetition of a similar
offense would be dealt with more severely.25

The Office of the Court Administrator found that Judge Desales-Esidera condoned the misrepresentation made on her child’s birth
certificate.26

The Office of the Court Administrator also found that Judge Desales-Esidera engaged in an "illicit affair" and contracted a second
marriage while another marriage subsisted.27 She contracted the second marriage knowing that there were legal impediments to that
marriage.28 Judge Desales-Esidera "did not comport herself according to her Roman Catholic faith." 29

We find that Judge Desales-Esidera’s omission to correct her child’s birth certificate is not sufficient to render her administratively liable
under the circumstances. The error in the birth certificate cannot be attributed to her. She did not participate in filling in the required
details in the document. The birth certificate shows that it was her husband who signed it as informant. 30 Judge Desales-Esidera is also
not guilty of disgraceful and immoral conduct under the Code of Professional Responsibility.

Morality refers to what is good or right conduct at a given circumstance. In Estrada v. Escritor, 31 this court described morality as "‘how
we ought to live’ and why."32

Morality may be religious, in which case what is good depends on the moral prescriptions of a high moral authority or the beliefs of a
particular religion. Religion, as this court defined in Aglipay v. Ruiz, 33 is "a profession of faith to an active power that binds and elevates
man to his Creator."34 A conduct is religiously moral if it is consistent with and is carried out in light of the divine set of beliefs and
obligations imposed by the active power.

Morality may also be secular, in which case it is independent of any divine moral prescriptions. What is good or right at a given
circumstance does not derive its basis from any religious doctrine but from the independent moral sense shared as humans.

The non-establishment clause35 bars the State from establishing, through laws and rules, moral standards according to a specific
religion. Prohibitions against immorality should be based on a purpose that is independent of religious beliefs. When it forms part of our
laws, rules, and policies, morality must be secular. Laws and rules of conduct must be based on a secular purpose.36

In the same way, this court, in resolving cases that touch on issues of morality, is bound to remain neutral and to limit the bases of its
judgment on secular moral standards. When laws or rules refer to morals or immorality, courts should be careful not to overlook the
distinction between secular and religious morality if it is to keep its part in upholding constitutionally guaranteed rights.37

There is the danger of "compelled religion"38 and, therefore, of negating the very idea of freedom of belief and non-establishment of
religion when religious morality is incorporated in government regulations and policies. As explained in Estrada v. Escritor: 39

Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion" anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.
Expansive religious freedom therefore requires that government be neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality. 40
The Office of the Court Administrator recommended that we find respondent judge guilty of immoral conduct based on, among others,
her alleged affair and her failure to comport herself according to the Roman Catholic faith.

This court may not sit as judge of what is moral according to a particular religion. We do not have jurisdiction over and is not the proper
authority to determine which conduct contradicts religious doctrine. We have jurisdiction over matters of morality only insofar as it
involves conduct that affects the public or its interest.

Thus, for purposes of determining administrative liability of lawyers and judges, "immoral conduct" should relate to their conduct as
officers of the court. To be guilty of "immorality" under the Code of Professional Responsibility, a lawyer’s conduct must be so depraved
as to reduce the public’s confidence in the Rule of Law. Religious morality is not binding whenever this court decides the administrative
liability of lawyers and persons under this court’s supervision. At best, religious morality weighs only persuasively on us.

Therefore, we cannot properly conclude that respondent judge’s acts of contracting a second marriage during the subsistence of her
alleged first marriage and having an alleged "illicit" affair are "immoral" based on her Catholic faith. This court is not a judge of religious
morality.

We also do not find that respondent judge’s acts constitute immorality for purposes of administrative liability. Under the circumstances,
respondent judge’s second marriage and her alleged affair with her second husband were not of such depravity as to reduce
confidence in the Rule of Law. Respondent judge and her first husband never really lived together as husband and wife. She claimed
that her first husband did not want to have a church wedding. She and her husband did not have a child. She claimed that this marriage
was not recognized by her church. Eventually, their marriage was declared void, 41 and she was wed civilly to her second husband, with
whom respondent judge allegedly had an affair.

Moreover, respondent judge’s acts were not intrinsically harmful. When respondent judge married her second husband, no harm was
inflicted upon any one, not even the complainant. There was no evidence on the records that the first husband, who was the most
interested person in the issue, even objected to the second marriage.

While we do not find respondent judge administratively liable for immorality, we can determine if she is administratively liable for
possible misconduct. The Code of Professional Responsibility directs lawyers to obey the laws and promote respect for the law.42

We cannot conclude that, for purposes of determining administrative liability, respondent judge disobeyed the law against bigamy when
she and her second husband conducted a marriage ceremony on March 18, 1990.

Respondent judge claimed that this marriage was merely a sacramental marriage entered into only to comply with the requirements of
their religious beliefs. It was valid only under the Roman Catholic Church but has no legal effect. Their solemnizing officer was not
licensed to solemnize marriage from the National Archives or from the civil government.43

Article 349 of the Revised Penal Code prohibits a second or subsequent marriage before the legal dissolution of a first marriage:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent
marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by
means of a judgment rendered in the proper proceedings.

The second or subsequent marriage contemplated under this provision is the marriage entered into under the law. Article 1 of the
Family Code defines marriage as "a special contract of permanent union between a man and a woman entered into in accordance with
law for the establishment of conjugal and family life[.]"

Thus, the validity of the second marriage, if not for the subsistence of the first marriage, is considered one of the elements of the crime
of bigamy. The elements of bigamy are:

(a) the offender has been legally married; (b) the marriage has not been legally dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead according to the Civil Code; (c) that he contracts a second or subsequent marriage;
and (d) the second or subsequent marriage has all the essential requisites for validity. The felony is consummated on the celebration of
the second marriage or subsequent marriage. It is essential in the prosecution for bigamy that the alleged second marriage, having all
the essential requirements, would be valid were it not for the subsistence of the first marriage. 44 (Emphasis supplied, citations omitted)

Respondent judge’s act of participating in the marriage ceremony as governed only by the rules of her religion is not inconsistent with
our law against bigamy. What the law prohibits is not second marriage during a subsisting marriage per se. What the law prohibits is a
second marriage that would have been valid had it not been for the subsisting marriage. Under our law, respondent judge’s marriage in
1990 was invalid because of the solemnizing officer’s lack of authority.

Marriages entered into in accordance with the law may or may not include marriages recognized in certain religions. Religious
marriages are recognized in and may be governed by our laws only if they conform to legal requirements. Religious marriages that lack
some or all the requirements under the law are invalid. 45 They are not considered to have been entered into. They do not enjoy the
benefits, consequences, and incidents of marriage provided under the law.

The lack of authority of the officer that solemnized respondent judge’s marriage in 1990 renders such marriage invalid. It is not
recognized in our law. Hence, no second marriage can be imputed against respondent judge while her first marriage subsisted.

However, respondent judge may have disobeyed the law, particularly Article 350 of the Revised Penal Code, which prohibits knowingly
contracting marriages against the provisions of laws. Article 350 of the Revised Penal Code provides:

ART. 350. Marriage contracted against provisions of laws. – The penalty of prision correccional in its medium and maximum periods
shall be imposed upon any person who, without being included in the provisions of the next preceding article, shall contract marriage
knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment.
(Emphasis supplied)

Respondent judge knew that the solemnizing officer during her and her husband’s marriage in 1990 had no civil authority to solemnize
marriages. It is clear from her Comment that she and her husband’s only consideration for their 1990 marriage was the recognition from
the Roman Catholic Church. She stated that:

Fr. David Tither had no license to solemnize marriage from the National Archives or from the civil government. Hence, he was not
under obligation to register our marriage. It was a purely sacramental marriage rite, without legal effect but definitely valid and
recognized by the Roman Catholic Church. It is called "matrimoña de conciencia." 46

However, Article 350 may be of doubtful constitutionality when applied to religious exercise and expression insofar as it prescribes upon
individuals and religious communities formal requirements for the conduct of their religious ceremonies. It puts a burden 47 upon the
exercise of beliefs by criminalizing marriages performed in accordance with those beliefs, but lacks some or all the requisites of a valid
marriage under the law. These requirements include not only age and consent, but also formal requisites such as marriage license and
civil authority of the solemnizing officer even though violence, fraud, or intimidation was not present under the circumstances. It may,
therefore, limit religious exercise and expression to the formalities of law.

Thus, unless respondent judge’s act of participating in a marriage ceremony according to her religious beliefs violates other peoples’
rights or poses grave and imminent danger to the society, 48 we cannot rule that respondent judge is administratively liable for her
participation in her religious marriage ceremony.49

In Estrada,50 this court ruled that in religious freedom cases, the test of benevolent neutrality should be applied. Under the test of
benevolent neutrality, religious freedom is weighed against a compelling state interest:

Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold
religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is
secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests.51 (Emphasis in the original)

We find that there is no compelling state interest that may limit respondent judge’s right to participate in religious and merely ceremonial
acts that are non-violative of other people’s rights and with no legally binding effect. The institution of marriage is not threatened when
we accommodate respondent judge’s freedom to participate in such ceremonies even if they have secular counterparts under our laws.

In any case, respondent judge did not ask that she and her husband be given the same rights as civilly married partners before their
civil wedding in 1992. She does not ask that our laws recognize her marriage in 1990 as valid. Respondent judge also does not seem to
be against civil marriages. She and her husband were even civilly wed after her marriage with her first spouse was declared void.

However, benevolent neutrality and claims of religious freedom cannot shield respondent judge from liability for misconduct under our
laws. Respondent judge knowingly entered into a civil marriage with her first husband. She knew its effects under our laws. She had
sexual relations with her second husband while her first marriage was subsisting.

Respondent judge cannot claim that engaging in sexual relations with another person during the subsistence of a marriage is an
exercise of her religious expression. Legal implications and obligations attach to any person who chooses to enter civil marriages. This
is regardless of how civil marriages are treated in that person’s religion.

Moreover, respondent judge, as a lawyer and even more so as a judge, is expected to abide by the law. Her conduct affects the
credibility of the courts in dispensing justice. Thus, in finding respondent judge administratively liable for a violation of her marriage
obligations under our laws, this court protects the credibility of the judiciary in administering justice. In the words of Justice Carpio in his
dissenting opinion in Estrada:

Court employees, from the highest magistrate to the lowliest clerk, are expected to abide scrupulously with the law.1âwphi1They are
held to a higher standard since they are part of the judicial machinery that dispenses justice. . . . [T]here exists a compelling state
interest to hold Escritor to the same standards required of every court employee. If unsanctioned, Escritor’s unlawful conduct would
certainly impair the integrity and credibility of the judiciary. 52

Lawyers are not and should not be expected to be saints. What they do as citizens of their faiths are beyond this court’s power to judge.
Lawyers, however, are officers of court. They are expected to care about and sustain the law. This court’s jurisdiction over their actions
is limited to their acts that may affect public confidence in the Rule of Law. Our state has secular interests to protect. This court cannot
be expected to condone misconduct done knowingly on account of religious freedom or expression.

Finally, the Office of the Court Administrator and the Administrators of lower courts should look into the motives of persons who file
complaints against our judges and officers of court when allegations point to possible administrative violations. This is not to say that
complainants’ motives are relevant to their causes of actions. However, complainants who come to court with unclean hands should not
be spared from liability just because they were the first to submit their accusations.

WHEREFORE, we find respondent Judge Alma Consuelo Desales-Esidera guilty of violating Canon 1 of the Code of Professional
Responsibility. Respondent Judge Desales-Esidera is SUSPENDED from judicial service for one (1) month with a warning that
repetition of a similar offense will be dealt with more severely. She is STERNLY WARNED that repetition of the same violations in the
future will be dealt with more severely.

The Office of the Court Administrator is ORDERED to conduct an investigation regarding respondent's claims of illegal court activities.

SO ORDERED.

MARVIC M.V.F. LEONEN

Associate Justice