1
FAMILY CODE
REPEAL OR AMMENDMENT
ARUEGO VS CA GR NO. 112192
ERNESTINA BERNABE, petitioner, vs. CAROLINA ALEJO as guardian
ad litem for the minor ADRIAN BERNABE, respondent.
DECISION
PANGANIBAN, J.:
The right to seek recognition granted by the Civil Code to
illegitimate children who were still minors at the time the Family Code
took effect cannot be impaired or taken away. The minors have up to four
years from attaining majority age within which to file an action for
recognition.
Statement of the Case
Before us is a Petition[1] for Review on Certiorari under Rule 45 of
the Rules of Court, praying for (1) the nullification of the July 7, 1999 Court
of Appeals[2] (CA) Decision[3] in CA-GR CV No. 51919 and the October 14,
1999 CA Resolution[4] denying petitioners Motion for Reconsideration, as
well as (2) the reinstatement of the two Orders issued by the Regional
Trial Court (RTC) of Pasay City (Branch 109) concerning the same case.
The dispositive portion of the assailed Decision reads as follows:
WHEREFORE, premises considered, the order of the lower court dismissing
Civil Case No. 94-0562 is REVERSED and SET ASIDE. Let the records of this
case be remanded to the lower court for trial on the merits.[5]
The Facts
The undisputed facts are summarized by the Court of Appeals in this
wise:
The late Fiscal Ernesto A. Bernabe allegedly fathered a son with his
secretary of twenty-three (23) years, herein plaintiff-appellant
Carolina Alejo. The son was born on September 18, 1981 and was named
Adrian Bernabe. Fiscal Bernabe died on August 13, 1993, while his wife
Rosalina died on December 3 of the same year, leaving Ernestina as the
sole surviving heir.
On May 16, 1994, Carolina, in behalf of Adrian, filed the aforesaid
complaint praying that Adrian be declared an acknowledged illegitimate
son of Fiscal Bernabe and as such he (Adrian) be given his share in
Fiscal Bernabes estate, which is now being held by Ernestina as the sole
surviving heir.
On July 16, 1995, the Regional Trial Court dismissed the complaint, ruling
that under the provisions of the Family Code as well as the case
of Uyguangco vs. Court of Appeals, the complaint is now barred x xx.[6]
Orders of the Trial Court
In an Order dated July 26, 1995, the trial court granted
Ernestina Bernabes Motion for Reconsideration of the trial courts Decision
and ordered the dismissal of the Complaint for recognition. Citing Article
175 of the Family Code, the RTC held that the death of the putative father
had barred the action.
In its Order dated October 6, 1995, the trial court added that since
the putative father had not acknowledged or recognized
Adrian Bernabe in writing, the action for recognition should have been
filed during the lifetime of the alleged father to give him the opportunity
to either affirm or deny the childs filiation.
Ruling of the Court of Appeals
On the other hand, the Court of Appeals ruled that in the interest of
justice, Adrian should be allowed to prove that he was the illegitimate son
of Fiscal Bernabe. Because the boy was born in 1981, his rights are
governed by Article 285 of the Civil Code, which allows an action for
recognition to be filed within four years after the child has attained the
age of majority. The subsequent enactment of the Family Code did not
take away that right.
Hence, this appeal.[7]
Issues
In her Memorandum,[8] petitioner raises the following issues for our
consideration:
I
Whether or not respondent has a cause of action to file a case against
petitioner, the legitimate daughter of the putative father, for recognition
and partition with accounting after the putative fathers death in the
absence of any written acknowledgment of paternity by the latter.
II
Whether or not the Honorable Court of Appeals erred in ruling that
respondents had four years from the attainment of minority to file an
action for recognition as provided in Art. 285 of the Civil Code, in complete
disregard of its repeal by the [express] provisions of the Family Code and
the applicable jurisprudence as held by the Honorable Court of Appeals.
III
Whether or not the petition for certiorari filed by the petition[er] is fatally
defective for failure to implead the Court of Appeals as one of the
respondents.[9]
The Courts Ruling
 2
The Petition has no merit.
First and Second Issues: Period to File Action for Recognition
Because the first and the second issues are interrelated, we shall
discuss them jointly.
Petitioner contends that respondent is barred from filing an action
for recognition, because Article 285 of the Civil Code has been supplanted
by the provisions of the Family Code. She argues that the latter Code
should be given retroactive effect, since no vested right would be
impaired. We do not agree.
Article 285 of the Civil Code provides the period for filing an action
for recognition as follows:
ART. 285. The action for the recognition of natural children may be
brought only during the lifetime of the presumed parents, except in the
following cases:
(1) If the father or mother died during the minority of the
child, in which case the latter may file the action
before the expiration of four years from the
attainment of his majority;
(2) If after the death of the father or of the mother a
document should appear of which nothing had been
heard and in which either or both parents recognize
the child.
In this case, the action must be commenced within four years from the
finding of the document.
The two exceptions provided under the foregoing provision, have
however been omitted by Articles 172, 173 and 175 of the Family Code,
which we quote:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 173. The action to claim legitimacy may be brought by the child
during his or her lifetime and shall be transmitted to the heirs should the
child die during minority or in a state of insanity. In these cases, the heirs
shall have a period of five years within which to institute the action.
The action already commenced by the child shall survive notwithstanding
the death of either or both of the parties.
ART. 175. Illegitimate children may establish their illegitimate filiation in
the same way and on the same, evidence as legitimate children.
The action must be brought within the same period specified in Article 173,
except when the action is based on the second paragraph of Article 172, in
which case the action may be brought during the lifetime of the alleged
parent.
Under the new law, an action for the recognition of an illegitimate
child must be brought within the lifetime of the alleged parent. The Family
Code makes no distinction on whether the former was still a minor when
the latter died. Thus, the putative parent is given by the new Code a
chance to dispute the claim, considering that illegitimate children are
usually begotten and raised in secrecy and without the legitimate family
being aware of their existence. x x x The putative parent should thus be
given the opportunity to affirm or deny the childs filiation, and this, he or
she cannot do if he or she is already dead.[10]
Nonetheless, the Family Code provides the caveat that rights that
have already vested prior to its enactment should not be prejudiced or
impaired as follows:
ART. 255. This Code shall have retroactive effect insofar as it does not
prejudice or impair vested or acquired rights in accordance with the Civil
Code or other laws.
The crucial issue to be resolved therefore is whether Adrians right
to an action for recognition, which was granted by Article 285 of the Civil
Code, had already vested prior to the enactment of the Family Code. Our
answer is affirmative.
A vested right is defined as one which is absolute, complete and
unconditional, to the exercise of which no obstacle exists, and which is
immediate and perfect in itself and not dependent upon a contingency
x x x.[11] Respondent however contends that the filing of an action for
recognition is procedural in nature and that as a general rule, no vested
right may attach to [or] arise from procedural laws.[12]
Bustos v. Lucero[13] distinguished substantive from procedural law in
these words:
x x x. Substantive law creates substantive rights and the two terms in this
respect may be said to be synonymous. Substantive rights is a term which
includes those rights which one enjoys under the legal system prior to the
disturbance of normal relations. Substantive law is that part of the law
which creates, defines and regulates rights, or which regulates the rights
and duties which give rise to a cause of action; that part of the law which
courts are established to administer; as opposed to adjective or remedial
law, which prescribes the method of enforcing rights or obtains redress
for their invasion.[14](Citations omitted)
Recently, in Fabian v. Desierto,[15] the Court laid down the test for
determining whether a rule is procedural or substantive:
[I]n determining whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges, or modifies
any substantive right, the test is whether the rule really regulates
procedure, that is, the judicial process for enforcing rights and duties
 3
recognized by substantive law and for justly administering remedy and
redress for a disregard or infraction of them. If the rule takes away a
vested right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter; but if it
operates as a means of implementing an existing right then the rule deals
merely with procedure.[16]
Applying the foregoing jurisprudence, we hold that Article 285 of
the Civil Code is a substantive law, as it gives Adrian the right to file his
petition for recognition within four years from attaining majority age.
Therefore, the Family Code cannot impair or take Adrians right to file an
action for recognition, because that right had already vested prior to its
enactment.
Uyguangco v. Court of Appeals[17] is not applicable to the case at bar,
because the plaintiff therein sought recognition as an illegitimate child
when he was no longer a minor. On the other hand, in Aruego Jr. v. Court
of Appeals[18] the Court ruled that an action for recognition filed while the
Civil Code was in effect should not be affected by the subsequent
enactment of the Family Code, because the right had already vested.
Not Limited to Natural Children
To be sure, Article 285 of the Civil Code refers to the action for
recognition of natural children. Thus, petitioner contends that the
provision cannot be availed of by respondent, because at the time of his
conception, his parents were impeded from marrying each other. In other
words, he is not a natural child.
A natural child is one whose parents, at the time of conception,
were not disqualified by any legal impediment from marrying each other.
Thus, in De Santos v. Angeles,[19] the Court explained:
A childs parents should not have been disqualified to marry each other at
the time of conception for him to qualify as a natural child.[20]
A strict and literal interpretation of Article 285 has already been
frowned upon by this Court in the aforesaid case of Aruego, which allowed
minors to file a case for recognition even if their parents were disqualified
from marrying each other. There, the Complaint averred that the late
Jose Aruego Sr., a married man, had an extramarital liason with Luz Fabian.
Out of this relationship were born two illegitimate children who in 1983
filed an action for recognition. The two children were born in 1962 and
1963, while the alleged putative father died in 1982. In short, at the time
of their conception, the two childrens parents were legally disqualified
from marrying each other. The Court allowed the Complaint to prosper,
even though it had been filed almost a year after the death of the
presumed father. At the time of his death, both children were still minors.
Moreover, in the earlier case Divinagracia v. Rovira,[21] the Court
said that the rules on voluntary and compulsory acknowledgment of
natural children, as well as the prescriptive period for filing such action,
may likewise be applied to spurious children. Pertinent portions of the
case are quoted hereunder:
The so-called spurious children, or illegitimate children other than natural
children, commonly known as bastards, include those adulterous children
or those born out of wedlock to a married woman cohabiting with a man
other than her husband or to a married man cohabiting with a woman
other than his wife. They are entitled to support and successional rights.
But their filiation must be duly proven.
How should their filiation be proven? Article 289 of the Civil Code allows
the investigation of the paternity or maternity or spurious children under
the circumstances specified in articles 283 and 284 of the Civil Code. The
implication is that the rules on compulsory recognition of natural children
are applicable to spurious children.
Spurious children should not be in a better position than natural children.
The rules on proof of filiation of natural children or the rules on voluntary
and compulsory acknowledgment for natural children may be applied to
spurious children.
That does not mean that spurious children should be acknowledged, as
that term is used with respect to natural children. What is simply meant is
that the grounds or instances for the acknowledgment of natural children
are utilized to establish the filiation of spurious children.
A spurious child may prove his filiation by means of a record of birth, a will,
a statement before a court of record, or in any authentic writing. These
are the modes of voluntary recognition of natural children.
In case there is no evidence on the voluntary recognition of the spurious
child, then his filiation may be established by means of the circumstances
or grounds for compulsory recognition prescribed in the aforementioned
articles 283 and 284.
The prescriptive period for filing the action for compulsory recognition in
the case of natural children, as provided for in article 285 of the Civil Code,
applies to spurious children.[22] (Citations omitted, italics supplied)
Thus, under the Civil Code, natural children have
superior successional rights over spurious ones.[23] However, Rovira treats
them as equals with respect to other rights, including the right to
recognition granted by Article 285.
To emphasize, illegitimate children who were still minors at the time
the Family Code took effect and whose putative parent died during their
minority are thus given the right to seek recognition (under Article 285 of
the Civil Code) for a period of up to four years from attaining majority age.
This vested right was not impaired or taken away by the passage of the
Family Code.
Indeed, our overriding consideration is to protect the vested rights
of minors who could not have filed suit, on their own, during the lifetime
of their putative parents. As respondent aptly points out in his
Memorandum,[24] the State as parens patriae should protect a minors
right. Born in 1981, Adrian was only seven years old when the Family Code
took effect and only twelve when his alleged father died in 1993. The
minor must be given his day in court.
Third Issue: Failure to Implead the CA
Under Section 4(a) of Rule 45 of the current Rules of Court, it is
no longer required to implead the lower courts or judges x x x either as
petitioners or respondents. Under Section 3, however, the lower tribunal
should still be furnished a copy of the petition. Hence, the failure of
petitioner to implead the Court of Appeals as a party is not a reversible
error; it is in fact the correct procedure.
 4

WHEREFORE, the Petition is hereby DENIED and the assailed

Decision and Resolution AFFIRMED. Costs against petitioner. was unable to comply with these conditions, the Fuentes spouses would

SO ORDERED. become owners of the lot without any further formality and payment.

Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.

Vitug, J., no part. Relationship with family. The parties left their signed agreement with Atty. Plagata who then

worked on the other requirements of the sale. According to the lawyer, he

MANUEL O. FUENTES LETICIA L. FUENTES VS ROCA went to see Rosario in one of his trips to Manila and had her sign an
and G.R. No. 178902 affidavit of consent.[3] As soon as Tarciano met the other conditions, Atty.
x ---------------------------------------------------------------------------------------- x
Plagata notarized Rosarios affidavit in Zamboanga City. On January 11,
DECISION
1989 Tarciano executed a deed of absolute sale[4] in favor of the Fuentes
ABAD, J.: spouses. They then paid him the additional P140,000.00 mentioned in

their agreement. A new title was issued in the name of the spouses [5] who
This case is about a husbands sale of conjugal real property,
immediately constructed a building on the lot. On January 28,
employing a challenged affidavit of consent from an estranged wife. The
1990 Tarciano passed away, followed by his wife Rosario who died nine
buyers claim valid consent, loss of right to declare nullity of sale, and
months afterwards.
prescription.

Eight years later in 1997, the children of Tarciano and Rosario, namely,
The Facts and the Case
respondents Conrado G. Roca, Annabelle R. Joson, and Rose Marie R.

Cristobal, together with Tarcianos sister, Pilar R. Malcampo, represented

Sabina Tarroza owned a titled 358-square meter lot in
by her son, John Paul M. Trinidad (collectively, the Rocas), filed an action
Canelar, Zamboanga City. On October 11, 1982 she sold it to her son,
for annulment of sale and reconveyance of the land against the Fuentes
Tarciano T. Roca (Tarciano) under a deed of absolute sale.[1] But Tarciano
spouses before the Regional Trial Court (RTC) of Zamboanga City in Civil
did not for the meantime have the registered title transferred to his name.
Case 4707. The Rocas claimed that the sale to the spouses was void since

Tarcianos wife, Rosario, did not give her consent to it. Her signature on
Six years later in 1988, Tarciano offered to sell the lot to petitioners
the affidavit of consent had been forged. They thus prayed that the
Manuel and Leticia Fuentes (the Fuentes spouses). They arranged to meet
property be reconveyed to them upon reimbursement of the price that
at the office of Atty. Romulo D. Plagata whom they asked to prepare the
the Fuentes spouses paid Tarciano.[6]
documents of sale. They later signed an agreement to sell that Atty.

Plagata prepared[2] dated April 29, 1988, which agreement expressly

The spouses denied the Rocas allegations. They presented Atty. Plagata
stated that it was to take effect in six months.
who testified that he personally saw Rosario sign the affidavit at her

residence in Paco, Manila, on September 15, 1988. He admitted, however,

The agreement required the Fuentes spouses to pay Tarciano a
that he notarized the document in Zamboanga City four months later
down payment of P60,000.00 for the transfer of the lots title to him. And,
on January 11, 1989.[7] All the same, the Fuentes spouses pointed out that
within six months, Tarciano was to clear the lot of structures and
the claim of forgery was personal to Rosario and she alone could invoke
occupants and secure the consent of his estranged wife, Rosario Gabriel
it. Besides, the four-year prescriptive period for nullifying the sale on
Roca (Rosario), to the sale. Upon Tarcianos compliance with these
ground of fraud had already lapsed.
conditions, the Fuentes spouses were to take possession of the lot and

pay him an additional P140,000.00 or P160,000.00, depending on whether

Both the Rocas and the Fuentes spouses presented handwriting experts at
or not he succeeded in demolishing the house standing on it. If Tarciano
the trial. Comparing Rosarios standard signature on the affidavit with
 5

those on various documents she signed, the Rocas expert testified that the transaction. Consequently, the action that the Rocas, her heirs, brought in

signatures were not written by the same person. Making the same 1997 fell within 10 years of the January 11, 1989 sale.

comparison, the spouses expert concluded that they were.[8]

On February 1, 2005 the RTC rendered judgment, dismissing the case. It Considering, however, that the sale between the Fuentes spouses and

ruled that the action had already prescribed since the ground cited by the Tarciano was merely voidable, the CA held that its annulment entitled the

Rocas for annulling the sale, forgery or fraud, already prescribed under spouses to reimbursement of what they paid him plus legal interest

Article 1391 of the Civil Code four years after its discovery. In this case, the computed from the filing of the complaint until actual payment. Since the

Rocas may be deemed to have notice of the fraud from the date the deed Fuentes spouses were also builders in good faith, they were entitled under

of sale was registered with the Registry of Deeds and the new title was Article 448 of the Civil Code to payment of the value of the improvements

issued. Here, the Rocas filed their action in 1997, almost nine years after they introduced on the lot. The CA did not award damages in favor of the

the title was issued to the Fuentes spouses on January 18, 1989.[9] Rocas and deleted the award of attorneys fees to the Fuentes spouses.[13]

Moreover, the Rocas failed to present clear and convincing evidence of

the fraud. Mere variance in the signatures of Rosario was not conclusive Unsatisfied with the CA decision, the Fuentes spouses came to this court

proof of forgery.[10] The RTC ruled that, although the Rocas presented a by petition for review.[14]

handwriting expert, the trial court could not be bound by his opinion since The Issues Presented

the opposing expert witness contradicted the same. Atty. Plagatas

testimony remained technically unrebutted.[11] The case presents the following issues:

1. Whether or not Rosarios signature on the document of

Finally, the RTC noted that Atty. Plagatas defective notarization of the consent to her husband Tarcianos sale of their conjugal land to the
affidavit of consent did not invalidate the sale. The law does not require Fuentes spouses was forged;

spousal consent to be on the deed of sale to be valid. Neither does the 2. Whether or not the Rocas action for the declaration of nullity
of that sale to the spouses already prescribed; and
irregularity vitiate Rosarios consent. She personally signed the affidavit in

the presence of Atty. Plagata.[12] 3. Whether or not only Rosario, the wife whose consent was not
had, could bring the action to annul that sale.

On appeal, the Court of Appeals (CA) reversed the RTC decision. The CA
The Courts Rulings
found sufficient evidence of forgery and did not give credence to Atty.

Plagatas testimony that he saw Rosario sign the document in Quezon

First. The key issue in this case is whether or not Rosarios
City. Its jurat said differently. Also, upon comparing the questioned
signature on the document of consent had been forged. For, if the
signature with the specimen signatures, the CA noted significant variance
signature were genuine, the fact that she gave her consent to her
between them. That Tarciano and Rosario had been living separately for
husbands sale of the conjugal land would render the other issues merely
30 years since 1958 also reinforced the conclusion that her signature had
academic.
been forged.

The CA found that Rosarios signature had been forged. The CA

Since Tarciano and Rosario were married in 1950, the CA concluded that
observed a marked difference between her signature on the affidavit of
their property relations were governed by the Civil Code under which an
consent[15] and her specimen signatures.[16] The CA gave no weight to Atty.
action for annulment of sale on the ground of lack of spousal consent may
Plagatas testimony that he saw Rosario sign the document in Manila on
be brought by the wife during the marriage within 10 years from the
September 15, 1988 since this clashed with his declaration in
 6
the jurat that Rosario signed the affidavit in Zamboanga City on January 11,
1989.
The Court agrees with the CAs observation that Rosarios
signature strokes on the affidavit appears heavy, deliberate, and
forced. Her specimen signatures, on the other hand, are consistently of a
lighter stroke and more fluid. The way the letters R and s were written is
also remarkably different. The variance is obvious even to the untrained
eye.
Significantly, Rosarios specimen signatures were made at about
the time that she signed the supposed affidavit of consent. They were,
therefore, reliable standards for comparison. The Fuentes spouses
presented no evidence that Rosario suffered from any illness or disease
that accounted for the variance in her signature when she signed the
affidavit of consent. Notably, Rosario had been living separately from
Tarciano for 30 years since 1958. And she resided so far away in Manila. It
would have been quite tempting for Tarciano to just forge her signature
and avoid the risk that she would not give her consent to the sale or
demand a stiff price for it.
What is more, Atty. Plagata admittedly falsified the jurat of the
affidavit of consent. That jurat declared that Rosario swore to the
document and signed it in ZamboangaCity on January 11, 1989 when, as
Atty. Plagata testified, she supposedly signed it about four months earlier
at her residence in Paco, Manila on September 15, 1988. While a defective
notarization will merely strip the document of its public character and
reduce it to a private instrument, that falsified jurat, taken together with
the marks of forgery in the signature, dooms such document as proof
of Rosarios consent to the sale of the land. That the Fuentes spouses
honestly relied on the notarized affidavit as proof of Rosarios consent
does not matter. The sale is still void without an authentic consent.
Second. Contrary to the ruling of the Court of Appeals, the law
that applies to this case is the Family Code, not the Civil Code. Although
Tarciano and Rosario got married in 1950, Tarciano sold the conjugal
property to the Fuentes spouses on January 11, 1989, a few months after
the Family Code took effect on August 3, 1988.
When Tarciano married Rosario, the Civil Code put in place the system of
conjugal partnership of gains on their property relations. While its Article
165 made Tarciano the sole administrator of the conjugal partnership,
Article 166[17] prohibited him from selling commonly owned real property
without his wifes consent. Still, if he sold the same without his wifes
consent, the sale is not void but merely voidable. Article 173
gave Rosario the right to have the sale annulled during the marriage
within ten years from the date of the sale. Failing in that, she or her heirs
may demand, after dissolution of the marriage, only the value of the
property that Tarciano fraudulently sold. Thus:
Art. 173. The wife may, during the
marriage, and within ten years from the transaction
questioned, ask the courts for the annulment of any
contract of the husband entered into without her
consent, when such consent is required, or any act
or contract of the husband which tends to defraud
her or impair her interest in the conjugal
partnership property. Should the wife fail to
exercise this right, she or her heirs, after the
dissolution of the marriage, may demand the value
of property fraudulently alienated by the husband.
But, as already stated, the Family Code took effect on August 3,
1988. Its Chapter 4 on Conjugal Partnership of Gains expressly superseded
Title VI, Book I of the Civil Code on Property Relations Between Husband
and Wife.[18] Further, the Family Code provisions were also made to apply
to already existing conjugal partnerships without prejudice to vested
rights.[19] Thus:
Art. 105. x x x The provisions of this Chapter shall
also apply to conjugal partnerships of gains already
established between spouses before the effectivity
of this Code, without prejudice to vested rights
already acquired in accordance with the Civil Code
or other laws, as provided in Article 256. (n)
Consequently, when Tarciano sold the conjugal lot to the Fuentes spouses
on January 11, 1989, the law that governed the disposal of that lot was
already the Family Code.
In contrast to Article 173 of the Civil Code, Article 124 of the
Family Code does not provide a period within which the wife who gave no
consent may assail her husbands sale of the real property. It simply
 7

provides that without the other spouses written consent or a court order The Fuentes spouses of course argue that the RTC nullified the

allowing the sale, the same would be void. Article 124 thus provides: sale to them based on fraud and that, therefore, the applicable
Art. 124. x x x In the event that one
spouse is incapacitated or otherwise unable to prescriptive period should be that which applies to fraudulent transactions,
participate in the administration of the conjugal namely, four years from its discovery. Since notice of the sale may be
properties, the other spouse may assume sole
powers of administration. These powers do not deemed given to the Rocas when it was registered with the Registry of
include the powers of disposition or encumbrance
Deeds in 1989, their right of action already prescribed in 1993.
which must have the authority of the court or the
written consent of the other spouse. In the absence
of such authority or consent, the disposition or
encumbrance shall be void. x x x But, if there had been a victim of fraud in this case, it would be

the Fuentes spouses in that they appeared to have agreed to buy the

Under the provisions of the Civil Code governing contracts, a property upon an honest belief that Rosarios written consent to the sale

void or inexistent contract has no force and effect from the very was genuine. They had four years then from the time they learned that

beginning. And this rule applies to contracts that are declared void by her signature had been forged within which to file an action to annul the

positive provision of law,[20] as in the case of a sale of conjugal property sale and get back their money plus damages. They never exercised the

without the other spouses written consent. A void contract is equivalent right.

to nothing and is absolutely wanting in civil effects. It cannot be validated

either by ratification or prescription.[21] If, on the other hand, Rosario had agreed to sign the document

of consent upon a false representation that the property would go to their

But, although a void contract has no legal effects even if no children, not to strangers, and it turned out that this was not the case,

action is taken to set it aside, when any of its terms have been performed, then she would have four years from the time she discovered the fraud

an action to declare its inexistence is necessary to allow restitution of within which to file an action to declare the sale void. But that is not the

what has been given under it.[22] This action, according to Article 1410 of case here. Rosario was not a victim of fraud or misrepresentation. Her

the Civil Code does not prescribe. Thus: consent was simply not obtained at all. She lost nothing since the sale

without her written consent was void. Ultimately, the Rocas ground for
Art. 1410. The action or defense for the declaration annulment is not forgery but the lack of written consent of their mother
of the inexistence of a contract does not prescribe.
to the sale. The forgery is merely evidence of lack of consent.

Here, the Rocas filed an action against the Fuentes spouses in

Third. The Fuentes spouses point out that it was to Rosario,
1997 for annulment of sale and reconveyance of the real property that
whose consent was not obtained, that the law gave the right to bring an
Tarciano sold without their mothers (his wifes) written consent. The
action to declare void her husbands sale of conjugal land. But
passage of time did not erode the right to bring such an action.
here, Rosario died in 1990, the year after the sale. Does this mean that the

right to have the sale declared void is forever lost?

Besides, even assuming that it is the Civil Code that applies to

the transaction as the CA held, Article 173 provides that the wife may
The answer is no. As stated above, that sale was void from the
bring an action for annulment of sale on the ground of lack of spousal
beginning. Consequently, the land remained the property of Tarciano and
consent during the marriage within 10 years from the
Rosario despite that sale. When the two died, they passed on the
transaction. Consequently, the action that the Rocas, her heirs, brought in
ownership of the property to their heirs, namely, the Rocas. [23] As lawful
1997 fell within 10 years of the January 11, 1989 sale. It did not yet
owners, the Rocas had the right, under Article 429 of the Civil Code, to
prescribe.
exclude any person from its enjoyment and disposal.
 8
In fairness to the Fuentes spouses, however, they should be
entitled, among other things, to recover from Tarcianos heirs, the Rocas,
the P200,000.00 that they paid him, with legal interest until fully paid,
chargeable against his estate.
Further, the Fuentes spouses appear to have acted in good faith
in entering the land and building improvements on it. Atty. Plagata, whom
the parties mutually entrusted with closing and documenting the
transaction, represented that he got Rosarios signature on the affidavit of
consent. The Fuentes spouses had no reason to believe that the lawyer
had violated his commission and his oath. They had no way of knowing
that Rosario did not come to Zamboanga to give her consent. There is no
evidence that they had a premonition that the requirement of consent
presented some difficulty. Indeed, they willingly made a 30 percent down
payment on the selling price months earlier on the assurance that it was
forthcoming.
Further, the notarized document appears to have comforted
the Fuentes spouses that everything was already in order when Tarciano
executed a deed of absolute sale in their favor on January 11, 1989. In fact,
they paid the balance due him. And, acting on the documents submitted
to it, the Register of Deeds of Zamboanga City issued a new title in the
names of the Fuentes spouses. It was only after all these had passed that
the spouses entered the property and built on it. He is deemed a
possessor in good faith, said Article 526 of the Civil Code, who is not aware
that there exists in his title or mode of acquisition any flaw which
invalidates it.
As possessor in good faith, the Fuentes spouses were under no
obligation to pay for their stay on the property prior to its legal
interruption by a final judgment against them.[24] What is more, they are
entitled under Article 448 to indemnity for the improvements they
introduced into the property with a right of retention until the
reimbursement is made. Thus:
Art. 448. The owner of the land on which anything
has been built, sown or planted in good faith, shall
have the right to appropriate as his own the works,
sowing or planting, after payment of the indemnity
provided for in Articles 546 and 548, or to oblige the
one who built or planted to pay the price of the land,
and the one who sowed, the proper rent. However,
the builder or planter cannot be obliged to buy the
land if its value is considerably more than that of the
building or trees. In such case, he shall pay
reasonable rent, if the owner of the land does not
choose to appropriate the building or trees after
proper indemnity. The parties shall agree upon the
terms of the lease and in case of disagreement, the
court shall fix the terms thereof. (361a)
The Rocas shall of course have the option, pursuant to Article
546 of the Civil Code,[25] of indemnifying the Fuentes spouses for the costs
of the improvements or paying the increase in value which the property
may have acquired by reason of such improvements.
WHEREFORE, the Court DENIES the petition and AFFIRMS WITH
MODIFICATION the decision of the Court of Appeals in CA-G.R. CV 00531
dated February 27, 2007as follows:
1. The deed of sale dated January 11, 1989 that Tarciano T. Roca
executed in favor of Manuel O. Fuentes, married to Leticia L. Fuentes, as
well as the Transfer Certificate of Title T-90,981 that the Register of Deeds
of Zamboanga City issued in the names of the latter spouses pursuant to
that deed of sale are DECLARED void;
2. The Register of Deeds of Zamboanga City is DIRECTED to
reinstate Transfer Certificate of Title 3533 in the name of Tarciano T. Roca,
married to Rosario Gabriel;
3. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose
Marie R. Cristobal, and Pilar Malcampo are ORDERED to pay petitioner
spouses Manuel and Leticia Fuentes the P200,000.00 that the latter paid
Tarciano T. Roca, with legal interest from January 11, 1989 until fully paid,
chargeable against his estate;
4. Respondents Gonzalo G. Roca, Annabelle R. Joson, Rose
Marie R. Cristobal, and Pilar Malcampo are further ORDERED, at their
option, to indemnify petitioner spouses Manuel and Leticia Fuentes with
their expenses for introducing useful improvements on the subject land or
pay the increase in value which it may have acquired by reason of those
 9
improvements, with the spouses entitled to the right of retention of the
land until the indemnity is made; and
5. The RTC of Zamboanga City from which this case originated
is DIRECTED to receive evidence and determine the amount of indemnity
to which petitioner spouses Manuel and Leticia Fuentes are entitled.
SO ORDERED.
MARRIAGE
ART. 1 CONCEPT AND NATURE:
PRESUMPTION:
G.R. No. L-57062 January 24, 1992
MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners,
vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI
and PAULINA MARIATEGUI, respondents.
Montesa, Albon & Associates for petitioners.
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late
Maria del Rosario Mariategui.
Tinga, Fuentes & Tagle Firm for private respondents.
BIDIN, J.:
This is a petition for review on certiorari of the decision * of the Court of
Appeals dated December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto
Mariategui, et al. v. Maria del Rosario Mariategui, et al.," reversing the
judgment of the then Court of First Instance of Rizal, Branch VIII ** at
Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for
respondents, Rollo, pp. 116; 8). During his lifetime, Lupo Mariategui
contracted three (3) marriages. With his first wife, Eusebia Montellano,
who died on November 8, 1904, he begot four (4) children, namely:
Baldomera, Maria del Rosario, Urbana and Ireneo. Baldomera died and
was survived by her children named Antero, Rufina, Catalino, Maria,
Gerardo, Virginia and Federico, all surnamed Espina. Ireneo also died and
left a son named Ruperto. With his second wife, Flaviana Montellano, he
begot a daughter named Cresenciana who was born on May 8, 1910 (Rollo,
Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married
sometime in 1930. They had three children, namely: Jacinto, born on July
3, 1929, Julian, born on February 16, 1931 and Paulina, born on April 19,
1938. Felipa Velasco Mariategui died in 1941 (Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties which he
acquired when he was still unmarried (Brief for respondents, Rollo, pp.
116; 4). These properties are described in the complaint as Lots Nos. 163,
66, 1346 and 156 of the Muntinglupa Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second
marriages, namely, Maria del Rosario, Urbana, Ruperto, Cresencia, all
surnamed Mariategui and Antero, Rufina, Catalino, Maria, Gerardo,
Virginia and Federico, all surnamed Espina, executed a deed of
extrajudicial partition whereby they adjudicated unto themselves Lot No.
163 of the Muntinglupa Estate. Thereafter, Lot No. 163 was the subject of
a voluntary registration proceedings filed by the adjudicatees under Act
No. 496, and the land registration court issued a decree ordering the
registration of the lot. Thus, on April 1, 1971, OCT No. 8828 was issued in
the name of the above-mentioned heirs. Subsequently, the registered
owners caused the subdivision of the said lot into Lots Nos. 163-A to
163-H, for which separate transfer certificates of title were issued to the
respective parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco
(Jacinto, Julian and Paulina) filed with the lower court an amended
complaint claiming that Lot No. 163 together with Lots Nos. 669, 1346 and
154 were owned by their common father, Lupo Mariategui, and that, with
the adjudication of Lot No. 163 to their co-heirs, they (children of the third
marriage) were deprived of their respective shares in the lots. Plaintiffs
pray for partition of the estate of their deceased father and annulment of
the deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo,
p. 10). Cresencia Mariategui Abas, Flaviana Mariategui Cabrera and Isabel
Santos were impleaded in the complaint as unwilling defendants as they
would not like to join the suit as plaintiffs although they acknowledged the
status and rights of the plaintiffs and agreed to the partition of the parcels
of land as well as the accounting of their fruits (Ibid., Rollo, p. 8; Record on
Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim
(Amended Record on Appeal, p. 13). Thereafter, they filed a motion to
dismiss on the grounds of lack of cause of action and prescription. They
specifically contended that the complaint was one for recognition of
natural children. On August 14, 1974, the motion to dismiss was denied by
the trial court, in an order the dispositive portion of which reads:
It is therefore the opinion of the Court that Articles 278 and 285 of the
Civil Code cited by counsel for the defendants are of erroneous application
to this case. The motion to dismiss is therefore denied for lack of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners'
counterclaim were dismissed by the trial court, in its decision stating thus:
The plaintiffs' right to inherit depends upon the acknowledgment or
recognition of their continuous enjoyment and possession of status of
children of their supposed father. The evidence fails to sustain either
premise, and it is clear that this action cannot be sustained. (Ibid, Rollo, pp.
67-68)
 10
The plaintiffs elevated the case to the Court of Appeals on the ground that
the trial court committed an error ". . . in not finding that the parents of
the appellants, Lupo Mariategui and Felipa Velasco (were) lawfully
married, and in holding (that) they (appellants) are not legitimate children
of their said parents, thereby divesting them of their inheritance . . . "
(Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a decision
declaring all the children and descendants of Lupo Mariategui, including
appellants Jacinto, Julian and Paulina (children of the third marriage) as
entitled to equal shares in the estate of Lupo Mariategui; directing the
adjudicatees in the extrajudicial partition of real properties who
eventually acquired transfer certificates of title thereto, to execute deeds
of reconveyance in favor, and for the shares, of Jacinto, Julian and Paulina
provided rights of innocent third persons are not prejudiced otherwise the
said adjudicatees shall reimburse the said heirs the fair market value of
their shares; and directing all the parties to submit to the lower court a
project of partition in the net estate of Lupo Mariategui after payment of
taxes, other government charges and outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of said
decision but it was denied for lack of merit. Hence, this petition which was
given due course by the court on December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or
not prescription barred private respondents' right to demand the partition
of the estate of Lupo Mariategui, and (b) whether or not the private
respondents, who belatedly filed the action for recognition, were able to
prove their successional rights over said estate. The resolution of these
issues hinges, however, on the resolution of the preliminary matter, i.e.,
the nature of the complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the
children of the deceased spouses Lupo Mariategui . . . and Felipa Velasco";
that "during his lifetime, Lupo Mariategui had repeatedly acknowledged
and confirmed plaintiffs as his children and the latter, in turn, have
continuously enjoyed such status since their birth"; and "on the basis of
their relationship to the deceased Lupo Mariategui and in accordance with
the law on intestate succession, plaintiffs are entitled to inherit shares in
the foregoing estate (Record on Appeal, pp. 5 & 6). It prayed, among
others, that plaintiffs be declared as children and heirs of Lupo Mariategui
and adjudication in favor of plaintiffs their lawful shares in the estate of
the decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows that
the action is principally one of partition. The allegation with respect to the
status of the private respondents was raised only collaterally to assert
their rights in the estate of the deceased. Hence, the Court of Appeals
correctly adopted the settled rule that the nature of an action filed in
court is determined by the facts alleged in the complaint constituting the
cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one which
may be granted under the law, it does not characterize or determine the
nature of plaintiffs' action, and the relief to which plaintiff is entitled
based on the facts alleged by him in his complaint, although it is not the
relief demanded, is what determines the nature of the action (1 Moran, p.
127, 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for
partition of the estate of Lupo Mariategui, the Court of Appeals aptly held
that the private respondents are legitimate children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been lawfully
married in or about 1930. This fact is based on the declaration
communicated by Lupo Mariategui to Jacinto who testified that "when
(his) father was still living, he was able to mention to (him) that he and (his)
mother were able to get married before a Justice of the Peace of Taguig,
Rizal." The spouses deported themselves as husband and wife, and were
known in the community to be such. Although no marriage certificate was
introduced to this effect, no evidence was likewise offered to controvert
these facts. Moreover, the mere fact that no record of the marriage exists
does not invalidate the marriage, provided all requisites for its validity are
present (People vs. Borromeo, 133 SCRA 106 [1984]).
Under these circumstances, a marriage may be presumed to have taken
place between Lupo and Felipa. The laws presume that a man and a
woman, deporting themselves as husband and wife, have entered into a
lawful contract of marriage; that a child born in lawful wedlock, there
being no divorce, absolute or from bed and board is legitimate; and that
things have happened according to the ordinary course of nature and the
ordinary habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court;
Corpus v. Corpus, 85 SCRA 567 [1978]; Saurnaba v. Workmen's
Compensation, 85 SCRA 502 [1978]; Alavado v. City Gov't. of Tacloban,
139 SCRA 230 [1985]; Reyes v. Court of Appeals, 135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it is
founded on the following rationale:
The basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract, but it is a
new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any counterpresumption or
evidence special to that case, to be in fact married. The reason is that such
is the common order of society and if the parties were not what they thus
hold themselves out as being, they would be living in the constant
violation of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in
Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband and wife
and such relationship is not denied nor contradicted, the presumption of
their being married must be admitted as a fact (Alavado v. City Gov't. of
Tacloban,supra).
The Civil Code provides for the manner under which legitimate filiation
may be proven. However, considering the effectivity of the Family Code of
the Philippines, the case at bar must be decided under a new if not
entirely dissimilar set of rules because the parties have been overtaken by
events, to use the popular phrase (Uyguangco vs. Court of Appeals, G.R.
No. 76873, October 26, 1989). Thus, under Title VI of the Family Code,
there are only two classes of children — legitimate and illegitimate. The
fine distinctions among various types of illegitimate children have been
eliminated (Castro vs. Court of Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate
children may be established by the record of birth appearing in the civil
 11
register or a final judgment or by the open and continuous possession of
the status of a legitimate child.
Evidence on record proves the legitimate filiation of the private
respondents. Jacinto's birth certificate is a record of birth referred to in
the said article. Again, no evidence which tends to disprove facts
contained therein was adduced before the lower court. In the case of the
two other private respondents, Julian and Paulina, they may not have
presented in evidence any of the documents required by Article 172 but
they continuously enjoyed the status of children of Lupo Mariategui in the
same manner as their brother Jacinto.
While the trial court found Jacinto's testimonies to be inconsequential and
lacking in substance as to certain dates and names of relatives with whom
their family resided, these are but minor details. The nagging fact is that
for a considerable length of time and despite the death of Felipa in 1941,
the private respondents and Lupo lived together until Lupo's death in
1953. It should be noted that even the trial court mentioned in its decision
the admission made in the affidavit of Cresenciana Mariategui Abas, one
of the petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui
ay pawang mga kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that
private respondents are legitimate children and heirs of Lupo Mariategui
and therefore, the time limitation prescribed in Article 285 for filing an
action for recognition is inapplicable to this case. Corollarily, prescription
does not run against private respondents with respect to the filing of the
action for partition so long as the heirs for whose benefit prescription is
invoked, have not expressly or impliedly repudiated the co-ownership. In
other words, prescription of an action for partition does not lie except
when the co-ownership is properly repudiated by the co-owner (Del Banco
vs. Intermediate Appellate Court, 156 SCRA 55 [1987] citing Jardin vs.
Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share of
the other co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners (Mariano vs. De Vega, 148 SCRA
342 [1987]). Furthermore, an action to demand partition is imprescriptible
and cannot be barred by laches (Del Banco vs. IAC, 156 SCRA 55 [1987]).
On the other hand, an action for partition may be seen to be at once an
action for declaration of co-ownership and for segregation and
conveyance of a determinate portion of the property involved (Roque vs.
IAC, 165 SCRA 118 [1988]).
Petitioners contend that they have repudiated the co-ownership when
they executed the extrajudicial partition excluding the private
respondents and registered the properties in their own names (Petition, p.
16; Rollo, p. 20). However, no valid repudiation was made by petitioners
to the prejudice of private respondents. Assuming petitioners' registration
of the subject lot in 1971 was an act of repudiation of the co-ownership,
prescription had not yet set in when private respondents filed in 1973 the
present action for partition (Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their
demands, petitioners, except the unwilling defendants in the lower court,
failed and refused to acknowledge and convey their lawful shares in the
estate of their father (Record on Appeal, p. 6). This allegation, though
denied by the petitioners in their answer (Ibid, p. 14), was never
successfully refuted by them. Put differently, in spite of petitioners'
undisputed knowledge of their relationship to private respondents who
are therefore their co-heirs, petitioners fraudulently withheld private
respondent's share in the estate of Lupo Mariategui. According to
respondent Jacinto, since 1962, he had been inquiring from petitioner
Maria del Rosario about their (respondents) share in the property left by
their deceased father and had been assured by the latter (Maria del
Rosario) not to worry because they will get some shares. As a matter of
fact, sometime in 1969, Jacinto constructed a house where he now resides
on Lot No. 163 without any complaint from petitioners.
Petitioners' registration of the properties in their names in 1971 did not
operate as a valid repudiation of the co-ownership. In Adille vs. Court of
Appeals (157 SCRA 455, 461-462 [1988]), the Court held:
Prescription, as a mode of terminating a relation of co-ownership, must
have been preceded by repudiation (of the co-ownership). The act of
repudiation, in turn, is subject to certain conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act of repudiation is clearly
made known to the other co-owners; (3) the evidence thereon is clear and
conclusive; and (4) he has been in possession through open, continuous,
exclusive, and notorious possession of the property for the period
required by law.
xxx xxx xxx
It is true that registration under the Torrens system is constructive notice
of title, but it has likewise been our holding that the Torrens title does not
furnish shield for fraud. It is therefore no argument to say that the act of
registration is equivalent to notice of repudiation, assuming there was one,
notwithstanding the long-standing rule that registration operates as a
universal notice of title.
Inasmuch as petitioners registered the properties in their names in fraud
of their co-heirs prescription can only be deemed to have commenced
from the time private respondents discovered the petitioners' act of
defraudation (Adille vs. Court of Appeals, supra). Hence, prescription
definitely may not be invoked by petitioners because private respondents
commenced the instant action barely two months after learning that
petitioners had registered in their names the lots involved.
WHEREFORE, the petition is DENIED and the assailed decision of the Court
of Appeals dated December 24, 1980 is Affirmed.
SO ORDERED.
Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur.
MARRIAGE NOT SUBJECT TO STIPULATION:
Panganiban September 9, 1933
JOSE R. PAÑGANIBAN, complainant,
vs.
ELIAS BORROMEO, respondent.
The Respondent in his own behalf.
Office of the Solicitor-General Hilado for the Government.
MALCOLM, J.:
 12
These proceedings looking to the disbarment of the respondent attorney
are before us on the representations of the Solicitor-General that the
respondent appear and show cause, if any he has, why he should not be
proceeded against for professional malpractice. The respondent admits
that, in his capacity as notary public he legalized the document which is
the basis of the complaint against him, and that the document contains
provisions contrary to law, morals and good customs, but by way of
defense disclaims any previous knowledge of the illegal character of the
document.
On November 25, 1931, Alejandro Pabro and Juana Mappala husband and
wife, subscribed a contract before the notary public Elias Borromeo, who
was at that time a regularly admitted member of the Philippine Bar. The
contract in question had been prepared by the municipal secretary of
Naguilian, Isabela. Attorney Borromeo cooperated in the execution of the
document and had, at lease, some knowledge of its contents, although he
may not have been fully informed because of a difference in dialect. The
contract in substance purported to formulate an agreement between the
husband and the wife which permitted the husband to take unto himself a
concubine and the wife to live in adulterous relationship with another
man, without opposition from either one of them.
Two questions are suggested by the record. The first concerns the points
of whether or not the contract sanctioned an illicit and immoral purpose.
The second concerns the point, on the supposition that the contract did
sanction an illicit and immoral purpose, of whether a lawyer may be
disciplined for misconduct as a notary public.
The contract of the spouses, it will be recalled, was executed at a time
when the Spanish Penal Code, as modified by Act No. 1773 was in force.
Conceding, however, that the more liberal provisions of the Revised Penal
Code should be given application, it is herein provided that the consent or
pardon given by the offended party constitutes a bar to prosecution for
adultery or concubinage. In this instance, if the spouses should retain their
present frame of mind, no prosecution of either one by the other could be
expected. Nevertheless, we think it far from the purpose of the Legislature
to legalize adultery and concubinage. They still remain crimes, with the
qualification that prosecution cannot be instituted if the offended party
consent to the act or pardon the offender. This is a matter of future
contingency and is not matter for legalization in wanton disregard of good
morals. We hold the contract to contain provisions contrary to law, morals
and public order, and as a consequence not judicially recognizable.
Passing to the second question, we think there can be no question as to
the right of the court to discipline an attorney who, in his capacity as
notary public, has been guilty of misconduct. To the office of notary public
there is not attached such importance under present conditions as under
the Spanish administration. Even so, the notary public exercise duties
calling for carefulness and faithfulness. It is for the notary to inform
himself of the facts to which he intends to certify, and to take part in no
illegal enterprise. The notary public is usually a person who has been
admitted to the practice of law, and such, in the commingling of his duties
as notary and lawyer, must be held responsible for both. We are led to
hold that a member of the bar who performs an act as a notary public of a
disgraceful or immoral character may be held to account by the court
even to the extent of disbarment. (See 2 Thornton on Attorneys At Law,
pp. 1258, 1259; In re Chappell [1909], 115 N.Y.S., 868; In re Bernard [1912],
136 N.Y.S., 185; In re Arctander [1879], 1 N.W., 43; In re Terrell [1903], 2
Phil., 266; In re Adriatico [1906], 7 Phil., 173; U.S. vs. Kilayko [1916], 34
Phil., 796; De la Cruz vs. Capinpin and Albea [1918], 38 Phil., 492.)
It now becomes necessary to pronounce sentence. As mitigating
circumstances, there may be taken into consideration (1) that the
attorney may not have realized the full purport of the document to which
he took acknowledgment, (2) that no falsification of facts was attempted,
and (3) that the commission of the respondent as a notary public has been
revoked. Accordingly, we are disposed in this case to exercise clemency
and to confine our discipline of the respondent to severe censure. So
ordered.
Avanceña, C.J., Street, Villa-Real, Abad Santos, Hull, Vickers, and Imperial,
JJ., concur.
A.M. No. 804-CJ May 19, 1975
SATURNINO SELANOVA, complainant,
vs.
ALEJANDRO E. MENDOZA, City Judge of Mandaue City, respondent.
RESOLUTION
AQUINO, J.:ñé+.£ªwph!1
Saturnino Selanova charged Judge Alejandro E. Mendoza of Mandaue City
with gross ignorance of the law for having prepared and ratified a
document dated November 21, 1972, extrajudicially liquidating the
conjugal partnership of the complainant and his wife, Avelina Ceniza. One
condition of the liquidation was that either spouse (as the case may be)
would withdraw the complaint for adultery or concubinage which each
had filed against the other and that they waived their "right to prosecute
each other for whatever acts of infidelity" either one would commit
against the other.
Judge Mendoza in his comment on the charge purposed to convey the
impression that he was aware of the invalidity of the agreement but he
nevertheless ratified it and gave it his nihil obstat on the assurance of the
spouses that they would ask the Court of First Instance of Negros Oriental
(where they were residing) to approve the agreement. That pretension is
disbelieved by the Judicial Consultant.
Respondent Judge alleged that he relied on the provision that "the
husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval" (Par. 4, Art.
191, Civil Code).
He argues that to give the prohibition against an extrajudicial liquidation
of the conjugal partnership during the marriage "an unqualified and literal
legal construction" would lender nugatory the aforequoted provisions of
article 191. He cites Lacson vs. San Jose-Lacson, L-23482, L-23767 and
L-24259, August 30, 1968, 24 SCRA 837 as authority for the propriety of an
extrajudicial agreement for the dissolution during the marriage of the
conjugal partnership as long as the agreement is subsequently approved
by the court.
However, the respondent overlooks the unmistakable ruling of this Court
in the Lacson case that judicial sanction for the dissolution of the conjugal
partnership during the marriage should be "secured beforehand."
 13
Respondent Judge surmised that Selanova's complaint was instigated by a
lawyer whose case was adversely decided by the Judge. That speculation
was denied by Selanova who also belied Judge Mendoza's version that the
complainant and his wife, Avelina Ceniza, "together with their parents",
came to the office of Judge Mendoza and solicited his help in the amicable
settlement of their marital imbroglio.
According to Selanova, in 1972 his father was already dead and his mother
was ninety-one years old. They could not possibly have come to Judge
Mendoza's office. Selanova said that only he and his brother-in-law,
Arcadio Ceniza, an alleged classmate of Judge Mendoza, were the persons
who went to the Judge's office. But that version may be inaccurate and
oversimplified, considering that the agreement was signed before Judge
Mendoza not only by Selanova but also by his wife and two witnesses,
Lamberts M. Ceniza and Florencio C. Pono.
Judge Mendoza retired on February 27, 1975 when he reached the age of
seventy. In his letter of April 8, 1975 he asked for a compassionate view of
his case considering his forty-three years' service in the government (he
started his public career in 1932 as a policeman and became a justice of
the peace in 1954). He also cited the financial predicament of his big
family occasioned by the delay in the payment of his retirement and
terminal leave pay.
The case was not referred to a Judge of the Court of First Instance for
investigation because actually no factual issues necessitate a hearing and
presentation of evidence. Respondent Judge admitted that he was
responsible for the execution of the questioned document, an
extrajudicial "Liquidation of Conjugal Properties", which he caused
complainant Saturnino Selanova and his wife, Avelina Ceniza, to sign.
In that instrument Judge Mendoza divided the two pieces of conjugal
assets of the spouses by allocating to the husband a thirteen-hectare
riceland and to the wife the residential house and lot. The last paragraph
of the instrument, which licensed either spouse to commit any act of
infidelity, was in effect a ratification of their personal separation. The
agreement in question is void because it contravenes the following
provisions of the Civil Code:têñ.£îhqwâ£
ART. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extrajudicial agreement, during marriage, for the dissolution of
the conjugal partnership of gains or of the absolute community of
property between husband and wife;
xxx xxx xxx
Even before the enactment of the new Civil Code, this Court held that the
extrajudicial dissolution of the conjugal partnership without judicial
approval was void (Quintana vs. Lerma, 24 Phil. 285; De Luna vs. Linatoc,
74 Phil. 15, De La Rosa vs. Barruga, L-2368, June 30, 1950, 4 ROP Digest
171, sec. 29).
On the other hand, disciplinary action had been taken against notaries
who authenticated agreements for the personal separation of spouses
wherein either spouse was permitted to commit acts of infidelity.
Thus, in Panganiban vs. Borromeo, 58 Phil. 367, a lawyer was severely
censured for having notarized a document containing "an agreement
between the husband and the wife which permitted the husband to take
unto himself a concubine and the wife to live in adulterous relationship
with another man, without opposition from either one of them". The
document was prepared by another person.
In that case this Court noted that while adultery and concubinage are
private crimes, "they still remain crimes" and a contract legalizing their
commission is "contrary to law, morals and public order, and as a
consequence not judicially recognizable". Since the notary's commission
was already revoked, this Court did not disbar him. The fact that he "may
not have realized the full purport of the document to which he took
acknowledgment' was considered mitigating.
Severe censure was also administered to a notary of Cebu City who
ratified a document entitled "Legal Separation", executed by husband and
wife, wherein they agreed that they separated mutually and voluntarily,
that they renounced their rights and obligations, and that they authorized
each other to remarry, renouncing any action to which they might be
entitled and each promising not to be a witness against the other. Those
covenants are contrary to law, morals and good customs and tend to
subvert the vital foundation of the legitimate family (Biton vs. Momongon,
62 Phil. 7).
In the Santiago case respondent lawyer prepared for a married couple
(who had been separated for nine years) a document wherein it was
stipulated, inter alia, that they authorized each other to marry again, at
the same time renouncing whatever right of action one might have against
the other. When the husband inquired if there would be no trouble,
respondent lawyer pointed to his diploma which was hanging on the wall
and said: "I would tear that off if this document turns out not to be valid."
The husband remarried. The respondent was suspended from the practice
of law for one year for having been ignorant of the law or being careless in
giving legal advice (In re Santiago, 70 Phil. 66).
In Balinon vs. De Leon, 94 Phil. 277, Attorney Celestino M. de Leon
prepared an affidavit wherein he declared that he was married to
Vertudes Marquez, from whom he had been separated, their conjugal
partnership having been dissolved, and that he was consorting with
Regina S. Balinon his "new found life-partner," to whom he would "remain
loyal and faithful" "as a lawful and devoted loving husband for the rest of"
his life "at all costs". Attorney Justo T. Velayo notarized that affidavit. This
Court reprimanded Velayo and suspended De Leon from the practice of
law for three years.
In the instant case, respondent Judge, due to his unawareness of the legal
prohibition against contracts for the personal separation of husband and
wife and for the extrajudicial dissolution of their conjugal partnership,
prepared the said void agreement which was acknowledged before him as
"City Judge and Notary Public Ex-Officio". (Because he was admitted to the
bar in 1948 and, consequently, he did not study the new Civil Code in the
law school, he might not have been cognizant of its aforecited article 221).
Taking into account that circumstance and his apparent good faith and
honest desire to terminate the marital conflict between the complainant
and his wife, we are of the opinion that a drastic penalty should not be
imposed on him. But he deserves a severe censure for his mistake in
preparing and notarizing the aforementioned immoral and illegal
agreement. Such severe reprimand should not be an obstacle to his
 14
enjoyment of retirement privileges, assuming that there are no causes for
depriving him of such benefits.
WHEREFORE, the respondent is severely censured.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ.,
concur.1äwphï1.ñët
G.R. No. 80965 June 6, 1990
SYLVIA LICHAUCO DE LEON, petitioner,
vs.
THE HON. COURT OF APPEALS, MACARIA DE LEON AND JOSE VICENTE DE
LEON, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
De Jesus & Associates for Macaria de Leon.
Quisumbing, Torres & Evangelista for Jose Vicente de Leon.
MEDIALDEA, J.:
This is a petition for review on certiorari of the decision of the Court of
Appeals in CA-G.R. CV No. 06649 dated June 30, 1987 the decision of the
Regional Trial Court of Pasig in SP Proc. No. 8492 dated December 29,
1983; and its resolution dated November 24, 1987 denying the motion for
reconsideration.
The antecedent facts are as follows:
On October 18, 1969, private respondent Jose Vicente De Leon and
petitioner Sylvia Lichauco De Leon were united in wedlock before the
Municipal Mayor of Binangonan, Rizal. On August 28, 1971, a child named
Susana L. De Leon was born from this union.
Sometime in October, 1972, a de facto separation between the spouses
occured due to irreconcilable marital differences, with Sylvia leaving the
conjugal home. Sometime in March, 1973, Sylvia went to the United
States where she obtained American citizenship.
On November 23, 1973, Sylvia filed with the Superior Court of California,
County of San Francisco, a petition for dissolution of marriage against Jose
Vicente. In the said divorce proceedings, Sylvia also filed claims for
support and distribution of properties. It appears, however, that since
Jose Vicente was then a Philippine resident and did not have any assets in
the United States, Sylvia chose to hold in abeyance the divorce
proceedings, and in the meantime, concentrated her efforts to obtain
some sort of property settlements with Jose Vicente in the Philippines.
Thus, on March 16, 1977, Sylvia succeeded in entering into a
Letter-Agreement with her mother-in-law, private respondent Macaria De
Leon, which We quote in full, as follows (pp. 40-42, Rollo):
March 16, 1977
Mrs. Macaria Madrigal de Leon
12 Jacaranda, North Forbes Park
Makati, Metro Manila
Dear Dora Macaria:
This letter represents a contractual undertaking among (A) the
undersigned (B) your son, Mr. Jose Vicente de Leon, represented by you,
and (C) yourself in your personal capacity.
You hereby bind yourself jointly and severally to answer for the
undertakings of Joe Vincent under this contract.
In consideration for a peaceful and amicable termination of relations
between the undersigned and her lawfully wedded husband, Jose Vicente
de Leon, your son, the following are agreed upon:
Obligations of Jose Vicente de Leon and/ or yourself in a joint and several
capacity:
1. To deliver with clear title free from all liens and encumbrances and
subject to no claims in any form whatsoever the following properties to
Sylvia Lichauco-de Leon hereinafter referred to as the wife:
A. Suite 11-C, Avalon Condominium, Ortigas Ave., corner Xavier St.,
Mandaluyong, Rizal, Philippines.
B. Apartment 702, Wack Wack Condominium, Mandaluyong, Rizal,
Philippines.
C. The rights to assignment of 2 Ayala lots in Alabang, Rizal (Corner lots,
801 s q. meters each). (Fully paid).
D. 2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18 Block
22 Westborough Unit No. 2). (Fully paid).
E. 1) The sum of One Hundred Thousand Pesos (P100,000)
2) $30,000
3) $5,000
2. To give monthly support payable six (6) months in advance every year
to any designated assignee of the wife for the care and upbringing of
Susana Lichauco de Leon which is hereby pegged at the exchange rate of
7.50 to the dollar subject to adjustments in the event of monetary
exchange fluctuations. Subsequent increase on actual need upon
negotiation.
3. To respect the custody of said minor daughter as pertaining exclusively
to the wife except as herein provided.
 15
Obligations of the wife:
1. To agree to a judicial separation of property in accordance with
Philippine law and in this connection to do all that may be necessary to
secure said separation of property including her approval in writing of a
joint petition or consent decree.
2. To amend her complaint in the United States before the Federal Court
of California, U.S.A. entitled "Sylvia Lichauco de Leon vs. Jose V. de Leon"
in a manner compatible with the objectives of this herein agreement. It is
the stated objective of this agreement that said divorce proceedings will
continue.
3. All the properties herein described for assignment to the wife must be
assigned to Sylvia Lichauco de Leon upon the decree of the Court of First
Instance in the Joint Petition for Separation of Property; except for the
P100,000, $30,000 and $5,000 which will be paid immediately.
4. This contract is intended to be applicable both in the Republic of the
Philippines and in the United States of America. It is agreed that this will
constitute an actionable document in both jurisdictions and the parties
herein waive their right to object to the use of this document in the event
a legal issue should arise relating to the validity of this document. In the
event of a dispute, this letter is subject to interpretation under the laws of
California, U.S.A.
5. To allow her daughter to spend two to three months each year with the
father upon mutual convenience.
Very truly yours,
(Sgd.) Sylvia de Leon t/ SYLVIA L. DE LEON
CONFORME:
s/t/MACARIA M. DE LEON
with my marital consent:
s/t/JUAN L. DE LEON
On the same date, Macaria made cash payments to Sylvia in the amount
of P100,000 and US$35,000.00 or P280,000.00, in compliance with her
obligations as stipulated in the aforestated Letter-Agreement.
On March 30, 1977, Sylvia and Jose Vicente filed before the then Court of
First Instance of Rizal a joint petition for judicial approval of dissolution of
their conjugal partnership, the main part of which reads as follows (pp.
37-38, Rollo):
5. For the best interest of each of them and of their minor child,
petitioners have agreed to dissolve their conjugal partnership and to
partition the assets thereof, under the following terms and conditions-this
document, a pleading being intended by them to embody and evidence
their agreement:
xxx xxx xxx
(c) The following properties shall be adjudicated to petitioner Sylvia
Lichauco De Leon. These properties will be free of any and all liens and
encumbrances, with clear title and subject to no claims by third parties.
Petitioner Jose Vicente De Leon fully assumes all responsibility and liability
in the event these properties shall not be as described in the previous
sentence:
Sedan (1972 model)
Suite 11-C, Avalon Condominium,
Ortigas Ave., comer Xavier St.,
Mandaluyong, Rizal, Philippines
Apt. 702, Wack-Wack Condominium,
Mandaluyong, Rizal, Philippines
The rights to assignment of 2 Ayala lots in Alabang Rizal (corner lots, 801
sq. meters each) (Fully paid)
2470 Wexford Ave., South San Francisco, California, U.S.A. (Lot 18, Block
22 Westborough Unit 2) (Fully paid)
The sum of One Hundred Thousand Pesos (P100,000.00)
$30,000.00 at current exchange rate
$5,000.00 at current exchange rate
After ex-parte hearings, the trial court issued an Order dated February 19,
1980 approving the petition, the dispositive portion of which reads (p.
143, Rollo):
WHEREFORE, it is hereby declared that the conjugal partnership of the
Spouses is DISSOLVED henceforth, without prejudice to the terms of their
agreement that each spouse shall own, dispose of, possess, administer
and enjoy his or her separate estate, without the consent of the other,
and all earnings from any profession, business or industries shall likewise
belong to each spouse.
On March 17, 1980, Sylvia moved for the execution of the
above-mentioned order. However, Jose Vicente moved for a
reconsideration of the order alleging that Sylvia made a verbal
reformation of the petition as there was no such agreement for the
payment of P4,500.00 monthly support to commence from the alleged
date of separation in April, 1973 and that there was no notice given to him
that Sylvia would attempt verbal reformation of the agreement contained
in the joint petition
While the said motion for reconsideration was pending resolution, on
April 20, 1980, Macaria filed with the trial court a motion for leave to
intervene alleging that she is the owner of the properties involved in the
case. The motion was granted. On October 29, 1980, Macaria, assisted by
her husband Juan De Leon, filed her complaint in intervention. She
assailed the validity and legality of the Letter-Agreement which had for its
purpose, according to her, the termination of marital relationship
between Sylvia and Jose Vicente. However, before any hearing could be
had, the judicial reorganization took place and the case was transferred to
the-Regional Trial Court of Pasig. On December 29, 1983, the trial court
rendered judgment, the dispositive portion of which reads (pp.
35-36, Rollo):
WHEREFORE, judgment is hereby rendered on the complaint in
intervention in favor of the intervenor, declaring null and void the letter
agreement dated March 16, 1977 (Exhibits 'E' to 'E-2'), and ordering
 16
petitioner Sylvia Lichauco De Leon to restore to intervenor the amount of
P380,000.00 plus legal interest from date of complaint, and to pay
intervenor the amount of P100,000.00 as and for attorney's fees, and to
pay the costs of suit.
Judgment is likewise rendered affirming the order of the Court dated
February 19, 1980 declaring the conjugal partnership of the spouses Jose
Vicente De Leon and Sylvia Lichauco De Leon DISSOLVED; and adjudicating
to each of them his or her share of the properties and assets of said
conjugal partnership in accordance with the agreement embodied in
paragraph 5 of the petition, except insofar as the adjudication to
petitioner Sylvia L. De Leon of the properties belonging to and owned by
Intervenor Macaria De Leon is concerned.
Henceforth, (a) each spouse shall own, dispose of, possess, administer and
enjoy his or her separate estate, present and future without the consent
of the other; (b) an earnings from any profession, business or industry
shall likewise belong to each of them separately; (c) the minor child
Susana De Leon shall stay with petitioner Sylvia Lichauco De Leon for two
to three months every year-the transportation both ways of the child for
the trip to the Philippines to be at the expense of the petitioner Jose
Vicente De Leon; and (d) petitioner Jose Vicente De Leon shall give
petitioner Sylvia Lichauco De Leon the sum of P4,500.00 as monthly
support for the minor child Susana to commence from February 19, 1980.
Sylvia appealed to the respondent Court of Appeals raising the following
errors:
1) The trial court erred in finding that the cause or consideration of the
Letter- Agreement is the termination of marital relations;
2) The trial court failed to appreciate testimonial and documentary
evidence proving that Macaria de Leon's claims of threat, intimidation and
mistake are baseless; and
3) The trial court erred in finding that Sylvia Lichauco de Leon committed
breach of the Letter-Agreement; and further, failed to appreciate evidence
proving Macaria de Leon's material breach thereof.
The respondent court affirmed the decision in toto. The motion for
reconsideration was denied. Hence, the present petition.
The only basis by which Sylvia may lay claim to the properties which are
the subject matter of the Letter-Agreement, is the Letter-Agreement itself.
The main issue, therefore, is whether or not the Letter-Agreement is valid.
The third paragraph of the Letter-Agreement, supra, reads:
In consideration for a peaceful and amicable termination
of relations between the undersigned and her lawfully wedded husband,
Jose Vicente De Leon, your son, the following are agreed upon: (emphasis
supplied)
It is readily apparent that the use of the word "relations" is ambiguous,
perforce, it is subject to interpretation. There being a doubt as to the
meaning of this word taken by itself, a consideration of the general scope
and purpose of the instrument in which it occurs (see Germann and Co. v.
Donaldson, Sim and Co., 1 Phil. 63) and Article 1374 of the Civil Code
which provides that the various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones that sense which
may result from all of them taken jointly, is necessary.
Sylvia insists that the consideration for her execution of the
Letter-Agreement was the termination of property relations with her
husband. Indeed, Sylvia and Jose Vicente subsequently filed a joint
petition for judicial approval of the dissolution of their conjugal
partnership, sanctioned by Article 191 of the Civil Code. On the other hand,
Macaria and Jose Vicente assert that the consideration was the
termination of marital relationship.
We sustain the observations and conclusion made by the trial court, to wit
(pp. 44- 46, Rollo):
On page two of the letter agreement (Exhibit' E'), the parties
contemplated not only to agree to a judicial separation of property of the
spouses but likewise to continue with divorce proceedings (paragraphs 1
and 2, Obligations of the Wife, Exhibit 'E-1'). If taken with the apparently
ambiguous provisions in Exhibit E' regarding termination of 'relations', the
parties clearly contemplated not only the termination of property
relationship but likewise of marital relationship in its entirety. Furthermore,
it would be safe to assume that the parties in Exhibit 'E' not having
specified the particular relationship which they wanted to peacefully and
amicably terminate had intended to terminate all kinds of relations, both
marital and property. While there could be inherent benefits to a
termination of conjugal property relationship between the spouses, the
court could not clearly perceive the underlying benefit for the intervenor
insofar as termination of property relationship between petitioners is
concerned, unless the underlying consideration for intervenor is the
termination of marital relationship by divorce proceedings between her
son Jose Vicente and his wife petitioner Sylvia. The last sentence of
paragraph 2 under "Obligations of the Wife" unequivocally states: "It is
the stated objective of this agreement that said divorce proceedings (in
the United States) will continue. "There is merit in concluding that the
consideration by which Intervenor executed Exhibit 'E' to 'E-2' was to
secure freedom for her son petitioner Jose Vicente De Leon, especially if
Exhibit 'R'-Intervenor, which is (sic) agreement signed by petitioner Sylvia
to consent to and pardon Jose Vicente De Leon for adultery and
concubinage (among others) would be considered. In the light, therefore,
of the foregoing circumstances, this Court finds credible the testimony of
intervenor as follows:
Q Will you please go over the Exhibit 'E' to 'E-2'- intervenor consisting of
three pages and inform us whether or not this is the letter of March 16,
1977 which you just referred to?
A Yes, this is the letter.
Why did you affix your signature to this Exh. 'E'-intervenor (sic)?
A Because at that time when I signed it I want to buy peace for myself and
for the whole family.
Q From whom did you want to buy peace and/or what kind of peace?
A I wanted to buy peace from Sylvia Lichauco whom I knew was kind of
'matapang;' so I want peace for me and primarily for the peaceful and
amicable termination of marital relationship between my son, Joe Vincent
and Sylvia. (Deposition dated September 6, 1983-Macaria de Leon, p. 6-7)
This Court, therefore, finds and holds that the cause or consideration for
the intervenor Macaria De Leon in having executed Exhibits 'E' to 'E-2' was
 17
the termination of the marital relationship between her son Jose Vicente
De Leon and Sylvia Lichauco de Leon.
Article 1306 of the New Civil Code provides:
Art. 1306. The contracting parties may establish such stipulations, clauses,
terms, and conditions as they may deem convenient, provided they are
not contrary to law, morals, good customs, public order or public policy.
If the stipulation is contrary to law, morals or public policy, the contract is
void and inexistent from the beginning.
Art. 1409. The following contracts are inexistent and void from the
beginning:
Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy;
xxx xxx xxx
(7) Those expressly prohibited or declared void by law.
These contracts cannot be ratified. Neither can the right to set up the
defense of illegality be waived.
But marriage is not a mere contract but a sacred social institution. Thus,
Art. 52 of the Civil Code provides:
Art. 52. Marriage is not a mere contract but an inviolable social institution.
Its nature, consequences and incidents are governed by law and not
subject to stipulations...
From the foregoing provisions of the New Civil Code, this court is of the
considered opinion and so holds that intervenor's undertaking under
Exhibit 'E' premised on the termination of marital relationship is not only
contrary to law but contrary to Filipino morals and public Policy. As such,
any agreement or obligations based on such unlawful consideration and
which is contrary to public policy should be deemed null and void.
(emphasis supplied)
Additionally, Article 191 of the Civil Case contemplates properties
belonging to the spouses and not those belonging to a third party, who, in
the case at bar., is Macaria. In the petition for the dissolution of the
conjugal partnership, it was made to appear that the said properties are
conjugal in nature. However, Macaria was able to prove that the
questioned properties are owned by her. Neither Sylvia nor Jose Vicente
adduced any contrary evidence.
Granting, in gratia argumenti, that the consideration of the
Letter-Agreement was the termination of property relations, We agree
with the respondent court that (pp. 46-47, Rollo):
... the agreement nevertheless is void because it contravenes the
following provisions of the Civil Code:
Art. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extra-judicial agreement, during marriage, for the dissolution of
the conjugal partnership of gains or of the absolute community of
property between husband and wife;
Besides, the Letter-Agreement shows on its face that it was prepared by
Sylvia, and in this regard, the ambiguity in a contract is to be taken contra
proferentem, i.e., construed against the party who caused the ambiguity
and could have also avoided it by the exercise of a little more care. Thus,
Article 1377 of the Civil Code provides: "The interpretation of obscure
words of stipulations in a contract shall not favor the party who caused
the obscurity" (see Equitable Banking Corp. vs. IAC, G.R. No. 74451, May
25, 1988, 161 SCRA 518).
Sylvia alleges further that since the nullity of the Letter-Agreement
proceeds from the unlawful consideration solely of Macaria, applying
the pari delicto rule, it is clear that she cannot recover what she has given
by reason of the Letter-Agreement nor ask for the fulfillment of what has
been promised her. On her part, Macaria raises the defenses of
intimidation and mistake which led her to execute the Letter-Agreement.
In resolving this issue, the trial court said (pp. 148-151, Rollo):
In her second cause of action, intervenor claims that her signing of
Exhibits 'E' to 'E- 2' was due to a fear of an unpeaceful and troublesome
separation other son with petitioner Sylvia Lichauco de Leon. In support of
her claim, intervenor testified as follows:
Q Will you please inform us how did Sylvia Lichauco disturb or threaten
your son or yourself?
A Despite the fact that Sylvia Lichauco voluntarily left my son Joe Vincent
and abandoned him, she unashamedly nagged Joe and me to get money
and when her demands were not met she resorted to threats like, she
threatened to bring Joe to court for support. Sylvia threatened to
scandalize our family by these baseless suits; in fact she caused the service
of summons to Joe when he went to the United States. (Intervenor's
deposition dated Sept. 6, 1983, p. 8).
On the other hand, petitioner Sylvia claims that it was intervenor and
petitioner Jose Vicente who initiated the move to convince her to agree to
a dissolution of their conjugal partnership due to the alleged extra-marital
activities of petitioner Jose Vicente de Leon. She testified as follows:
Q Now in her testimony, Macaria Madrigal de Leon also said that you
threatened her by demanding money and nagged her until she agreed to
the letter agreement of March 1977, what can you say about that?
A I think with all the people sitting around with Atty. Quisumbing, Atty.
Chuidian, my father-in-law, my sister-in-law and I, you know, it can be
shown that this was a friendly amicable settlement that they were much
really interested in settling down as I was. I think there were certain
reasons that they wanted to get done or planned, being at that time Jose
was already remarried and had a child. That since she then found out that
since she was worried about what might be, you know, involved in any
future matters. She just wanted to do what she could. She just want me
out of the picture. So in no way, it cannot be said that I nagged and
threatened her. (TSN dated December 8, 1983, p. 137-138)
In resolving this issue, this Court leans heavily on Exhibit 'R'-intervenor,
which was not controverted by petitioner Sylvia. A reading of Exhibit 'R'
would show that petitioner Sylvia would consent to and pardon petitioner
 18
Jose Vicente, son of intervenor, for possible crimes of adultery and/or
concubinage, with a sizing attached; that is, the transfer of the properties
subject herein to her. There appears some truth to the apprehensions of
intervenor for in petitioner Sylvia's testimony she confirms the worry of
intervenor as follows:'... being at that time Jose (De Leon) was already
remarried and had a child. That since she (intervenor) found out that, she
was worried about what might be, you know, involved in any future
matters. She just want me out of the picture." The aforesaid fear of
intervenor was further corroborated by her witness Concepcion Tagudin
who testified as follows:
Q Now, you mentioned that you were present when Mrs. Macaria De Leon
signed this Exhibit 'E-2, ' will you inform us whether there was anything
unusual which you noticed when Mrs. Macaria M. De Leon signed this
Exhibit 'E-2'?
A Mrs. Macaria M. De Leon was in a state of tension and anger. She was so
mad that she remarked: 'Punetang Sylvia ito bakit ba niya ako ginugulo.
Ipakukulong daw niya si Joe Vincent kung hindi ko pipirmahan ito. Sana
matapos na itong problemang ito pagkapirmang ito,' sabi niya.'
(Deposition-Concepcion Tagudin, Oct. 21, 1983, pp. 10-11)
In her third cause of action, intervenor claims mistake or error in having
signed Exhibits '1' to 'E-2' alleging in her testimony as follows:
Q Before you were told such by your lawyers what if any were your basis
to believe that Sylvia would no longer have inheritance rights from your
son, Joe Vincent?
A Well, that was what Sylvia told me. That she will eliminate any
inheritance rights from me or my son Joe Vincent's properties if I sign the
document amicably. ... (Intervenor's deposition-Sept. 6, 1983, pp. 9-10).
On the other hand, petitioner Sylvia claims that intervenor could not have
been mistaken in her having signed the document as she was under advice
of counsel during the time that Exhibits 'E' to 'E-2' was negotiated. To
support such claims by Sylvia Lichauco De Leon, the deposition testimony
of Atty. Vicente Chuidian was presented before this Court:
Atty. Herbosa: Now you mentioned Atty. Norberto Quisumbing, would
you be able to tell us in what capacity he was present in that negotiation?
Atty. Chuidian: He was counsel for Dona Macaria and for Joe Vincent, the
spouse of Sylvia. (Deposition of V. Chuidian, December 16, 1983, p. 8)
The New Civil Code provides:
Art. 1330. A contract where consent is given through mistake, violence,
intimidation, undue influence or fraud is voidable.
Art. 1331. In order that mistake may invalidate consent, it should refer to
the substance of the thing which is the object of the contract, or to those
conditions which have principally moved one or both parties to enter into
a contract. ...
The preponderance of evidence leans in favor of intervenor who even
utilized the statement of the divorce lawyer of petitioner Sylvia (Mr.
Penrod) in support of the fact that intervenor was mistaken in having
signed Exhibits 'E' to 'E-2' because when she signed said Exhibits she
believed that fact that petitioner Sylvia would eliminate her inheritance
rights and there is no showing that said intervenor was properly advised
by any American lawyer on the fact whether petitioner Sylvia, being an
American citizen, could rightfully do the same. Transcending, however, the
issue of whether there was mistake of fact on the part of intervenor or not,
this Court could not. see a valid cause or consideration in favor of
intervenor Macaria De Leon having signed Exhibits 'E' to 'E-2.' For even if
petitioner Sylvia had confirmed Mr. Penrod's statement during the divorce
proceedings in the United States that she would undertake to eliminate
her hereditary rights in the event of the property settlement, under
Philippine laws, such contract would likewise be voidable, for under Art.
1347 of the New Civil Code 'no contract may be entered into upon future
inheritance.
We do not subscribe to the aforestated view of the trial court. Article 1335
of the Civil Code provides:
xxx xxx xxx
There is intimidation when one of the contracting parties is compelled by
a reasonable and well-grounded fear of an imminent and grave evil upon
his person or property, or upon the person or property of his spouse,
descendants or ascendants, to give his consent.
To determine the degree of the intimidation, the age, sex and condition of
the person shall be borne in mind.
A threat to enforce one's claim through competent authority, if the claim
is just or legal, does not vitiate consent.
In order that intimidation may vitiate consent and render the contract
invalid, the following requisites must concur: (1) that the intimidation
must be the determining cause of the contract, or must have caused the
consent to be given; (2) that the threatened act be unjust or unlawful; (3)
that the threat be real and serious, there being an evident disproportion
between the evil and the resistance which all men can offer, leading to the
choice of the contract as the lesser evil; and (4) that it produces a
reasonable and well-grounded fear from the fact that the person from
whom it comes has the necessary means or ability to inflict the threatened
injury. Applying the foregoing to the present case, the claim of Macaria
that Sylvia threatened her to bring Jose Vicente to court for support, to
scandalize their family by baseless suits and that Sylvia would pardon Jose
Vicente for possible crimes of adultery and/or concubinage subject to the
transfer of certain properties to her, is obviously not the intimidation
referred to by law. With respect to mistake as a vice of consent, neither is
Macaria's alleged mistake in having signed the Letter-Agreement because
of her belief that Sylvia will thereby eliminate inheritance rights from her
and Jose Vicente, the mistake referred to in Article 1331 of the Civil
Code, supra. It does not appear that the condition that Sylvia "will
eliminate her inheritance rights" principally moved Macaria to enter into
the contract. Rather, such condition was but an incident of the
consideration thereof which, as discussed earlier, is the termination of
marital relations.
In the ultimate analysis, therefore, both parties acted in violation of the
laws. However, the pari delicto rule, expressed in the maxims "Ex dolo
malo non oritur actio" and "In pari delicto potior est conditio
defendentis," which refuses remedy to either party to an illegal
agreement and leaves them where they are, does not apply in this case.
Contrary to the ruling of the respondent Court that (pp. 47-48, Rollo):
 19
... [C]onsequently, intervenor appellees' obligation under the said
agreement having been annulled, the contracting parties shall restore to
each other that things which have been subject matter of the contract,
their fruits and the price or its interest, except as provided by law (Art.
1398, Civil Code).
Article 1414 of the Civil Code, which is an exception to the pari delicto rule,
is the proper law to be applied. It provides:
When money is paid or property delivered for an illegal purpose, the
contract may be repudiated by one of the parties before the purpose has
been accomplished, or before any damage has been caused to a third
person. In such case, the courts may, if the public interest wig thus be
subserved, allow the party repudiating the contract to recover the money
or property.
Since the Letter-Agreement was repudiated before the purpose has been
accomplished and to adhere to the pari delicto rule in this case is to put a
premium to the circumvention of the laws, positive relief should be
granted to Macaria. Justice would be served by allowing her to be placed
in the position in which she was before the transaction was entered into.
With the conclusions thus reached, We find it unnecessary to discuss the
other issues raised.
ACCORDINGLY, the petition is hereby DENIED. The decision of the
respondent Court of Appeals dated June 30, 1987 and its resolution dated
November 24, 1987 are AFFIRMED.
SO ORDERED.
Narvasa (Chairman), Cruz and Gancayco, JJ., concur.
Griño-Aquino, J., is on leave.
A.M. No. P-94-1054 March 11, 2003
EDWIN A. ACEBEDO, petitioner,
vs.
EDDIE P. ARQUERO, respondent.
CARPIO MORALES, J.:
By letter-complaint1 dated June 1, 1994, Edwin A. Acebedo charged Eddie
P. Arquero, Process Server of the Municipal Trial Court (MTC) of Brooke's
Point, Palawan for immorality.
Complainant alleged that his wife, Dedje Irader Acebedo, a former
stenographer of the MTC Brooke's Point, and respondent unlawfully and
scandalously cohabited as husband and wife at Bancudo Pulot, Brooke's
Point, Palawan as a result of which a girl, Desiree May Irader Arquero, was
born to the two on May 21, 1989. Attached to the letter-complaint was
the girl's Baptismal Certificate2 reflecting the names of respondent and
Dedje Irader as her parents. Also attached to the letter-complaint was a
copy of a marriage contract 3 showing that complainant and Dedje Irader
contracted marriage on July 10, 1979.
By Resolution of September 7, 1994, this Court required respondent to file
an answer to the complaint.4
By his Answer5 of October 6, 1994, respondent vehemently denied the
charge of immorality, claiming that it is "just a (sic) mere harassment and
a product of complainant's hatred and extreme jealousy to (sic) his
wife."6 Attached to the answer were the September 27, 1987 affidavit of
desistance7 executed by complainant in favor of his wife with respect to
an administrative complaint he had much earlier filed against her, and
complainant's sworn statement8dated September 13, 1994 acknowledging
paternity of a child born out of wedlock, which documents, respondent
claims, support his contention that the complaint filed against him is but a
malicious scheme concocted by complainant to harass him.
Additionally, respondent claimed that sometime in 1991, complainant
likewise instituted a criminal complaint against him for "adultery" which
was, however, dismissed after preliminary investigation.
Finally, respondent claimed that complainant himself had been cohabiting
with another woman.
By Resolution of February 6, 1995, this Court referred the case to then
Executive Judge Filomeno A. Vergara of the Regional Trial Court of Puerto
Princesa, Palawan for investigation, report and recommendation. 9 Judge
Vergara having retired during the pendency of the investigation, the case
was referred to Executive Judge Nelia Y. Fernandez who was, by
Resolution of August 16, 2000, directed by this Court to (1) verify the
authenticity of the marriage certificate and baptismal certificate
submitted by complainant; (2) conduct an investigation as to the
information contained in the said baptismal certificate and the
circumstances under which it was issued, and such other verifiable
matters relevant to the charge; and (3) submit her report and
recommendation thereon.10
In her Investigation Report of February 12, 2001, Judge Fernandez
recommends that the complaint be dismissed for failure to adduce
adequate evidence to show that respondent is guilty of the charge. 11 The
report focuses on the non-appearance of complainant and Dedje Irader
Acebedo, thusly:
xxx xxx xxx
Having appeared that the complainant Edwin Acebedo and Dedjie Irader
who per reliable information cannot be notified for reason that subject
persons are no longer residing in their given address and their
whereabouts is unknown as shown by the return of the subpoena dated
November 7, 2000, and the inadmissibility of the baptismal certificate
alleging therein that the father of Desiree Arquero is the respondent
herein, and for the reason that the same had not been testified to by
Dedje Irader who is the informant of the entries contained therein, this
Court had not received adequate proof or relevant evidence to support a
conclusion that respondent herein could be held liable of the charge
imputed against him, hence, he should be absolved from any liability.
xxx xxx xxx12 (Quoted verbatim).
By Resolution of April 25, 2001, this Court referred the case to the Office
of the Court Administrator (OCA) for evaluation, report and
recommendation.
By Memorandum of December 12, 2001, the OCA, disagreeing with the
recommendation of the Investigating Judge that the case should be
dismissed, recommends that respondent be held guilty of immorality and
 20

that he be suspended from office for a period of one (1) year without
pay.13 Thus the OCA ratiocinates:
. . . [R]espondent admitted the fact that for eight (8) to nine (9) months,
he a single man maintained relations with Dedje Irader Acebedo, wife of
herein complainant, attended with "sexual union" (TSN dated 23
November 2000, pp. 14-15). Based on his testimony, we observed
that respondent justified his having a relationship with Dedje I. Acebedo
solely on the written document purportedly a "Kasunduan" or
agreement entered into by complainant and his wife, consenting to and
giving freedom to either of them to seek any partner and to live with
him or her. Being a court employee respondent should have known that
said agreement was void despite it having been notarized. Even granting
that Dedjie I. Acebedo was separated from her husband during their short
lived relation, to hold on to said scandalous agreement and enter an
immoral relationship with a very much married woman and a co-court
employee at that is highly improper. It is contrary to the Code of Conduct
and Ethical Standards of Public Officials and Employees which provides
that public employees of which respondent is one, . . . "shall at all times
(sic) respect the rights of others, and shall refrain from doing acts contrary
to law, good morals, good customs, public policy, public order, public
safety and public interest. Moreover, respondent cannot seek refuge and
"sling mud" at complainant for having executed an Affidavit dated
September 13, 1994, acknowledging that he bore a woman other than his
wife, a child. It would seem that respondent would want to apply the
principle of in pari delicto in the instant case. Respondent would have it
appear that a married man with an extra-marital relation and an
illegitimate child is precluded from complaining if his wife enters into a
relationship with another man.
Second, the records show that an Affidavit of Desistance was executed by
herein complainant. However, a cursory reading of said document reveals
that it favors only Dedje Irader Acebedo and not herein respondent.
Interestingly, the date of said affidavit is 2 September 1987. Respondent
had the temerity to claim it as evidence in his favor when the instant
complaint was only filed sometime in 1994.
Third, when respondent was asked by the investigating judge if he
attended the baptism of the daughter of Dedje Irader Acebedo, his former
co-employee and ex-intimate friend, he answered, "I did not. I'm not sure
the child is mine". From his answer, we could infer that respondent did
not categorically rule out the possibility that said child might be her (sic)
daughter, only that he is doubtful of her paternity.
in conformity with the rites of the Catholic Church by the priest who
baptized the child, but it does not prove the veracity of the declarations
and statements contained therein which concern the relationship of the
person baptized.17 It merely attests to the fact which gave rise to its issue,
and the date thereof, to wit, the fact of the administration of the
sacrament on the date stated, but not the truth of the statement therein
as to the percentage of the child baptized.18
By respondent's own admission, however, he had an illicit relationship
with complainant's wife:
Q: During the formal offer of the possible nature of your testimony
before the Court by your counsel, did the Court get it correct that there
has been a short lived relation between you and Dedgie Irader, am I
correct in my impression?
A: During that time that I have heard she and her husband have
parted ways already, I joking informed her that she is now being separated,
she is now single and is free to have some commitment. So, I courted her
and she accepted me, so we have a short lived relation and after that we
parted ways.
Q: For how long was this short lived relation you made mention a
while ago?
A: May be (sic) about eight (8) to nine (9) months.
Q: When you said you have (sic) a short lived relationship from 8
to 9 months, you mean to tell the Court that you have (sic) a sexual union
with this woman?
A: Yes ma'am.19 (Emphasis and underscoring supplied).
Respondent justified his pursuing a relationship with complainant's wife
with the spouses having priorly entered into a settlement with respect to
their marriage which was embodied in a "Kasunduan", the pertinent
portions of which are reproduced hereunder:
Kami, EDWIN AGUINALDO ACEBEDO at DEDJE IRADER ACEBEDO, may
sapat na taong gulang, mag-asawa, Pilipino, at kasalukuyang nakatira sa
Poblacion, Broke's (sic) Point, Palawan, ay malayang nagkasundo ng mga
sumusunod:

xxx xxx xxx14 (Emphasis supplied; underscoring in the

1. Na, yayamang hindi kami magkasundo bilang mag-asawa, at magiging
original)
miserable lamang ang aming mga buhay kung aming ipagpapatuloy pa
ang aming pagsasama bilang mag-asawa, kami ay malayang nagkasundo
While the complainant appears to have lost interest in the prosecution of ngayon na maghiwalay na bilang mag-asawa, at ang bawat isa sa amin ay
the present case, the same does not ipso facto warrant its dismissal. Once may kalayaan na humanap na ng kaniyang makakasama sa buhay bilang
administrative charges have been filed, this Court may not be divested of asawa at hindi kami maghahabol sa isat isa sa alin pa mang hukuman;
its jurisdiction to investigate and ascertain the truth thereof. 15 For it has
an interest in the conduct of those in the service of the Judiciary and in
xxx xxx xxx20 (Italics supplied)
improving the delivery of justice to the people, and its efforts in the
direction may not be derailed by the complainant's desistance from
prosecuting the case he initiated.16 Respondent's justification fails. Being an employee of the judiciary,
respondent ought to have known that the Kasunduan had absolutely no
force and effect on the validity of the marriage between complainant and
On the merits of the case, the entry of respondent's name as father in the
his wife. Article 1 of the Family Code provides that marriage is "an
baptismal certificate of Desiree May I. Arquero cannot be used to prove
inviolable social institution whose nature, consequences, and incidents are
for her filiation and, therefore, cannot be availed of to imply that
governed by law and not subject to stipulation." It is an institution of
respondent maintained illicit relations with Dedje Irader Acebedo. A
canonical certificate is conclusive proof only of the baptism administered,
 21
public order or policy, governed by rules established by law which cannot
be made inoperative by the stipulation of the parties.21
Republic Act 6713, otherwise known as the Code of Conduct and Ethical
Standards for Public Officials and Employees, enunciates the State's policy
of promoting a high standard of ethics and utmost responsibility in the
public service.22
Although every office in the government service is a public trust, no
position exacts a greater demand for moral righteousness and uprightness
from an individual than in the judiciary.23 That is why this Court has firmly
laid down exacting standards morality and decency expected of those in
the service of the judiciary.24 Their conduct, not to mention behavior, is
circumscribed with the heavy burden of responsibility,25 characterized by,
among other things, propriety and decorum so as to earn and keep the
public's respect and confidence in the judicial service.26 It must be free
from any whiff of impropriety, not only with respect to their duties in the
judicial branch but also to their behaviour outside the court as private
individuals.27 There is no dichotomy of morality; court employees are also
judged by their private morals.28
Respondent's act of having illicit relations with complainant's wife is,
within the purview of Section 46(5) of Subtitle A, Title I, Book V of
Executive Order No. 292, otherwise known as the Administrative Code of
1987, a disgraceful and immoral conduct.
Under Rule IV, Section 52A(15) of the Revised Uniform Rules on
Administrative Cases in the Civil Service, an immoral conduct is classified
as a grave offense which calls for a penalty of suspension for six (6)
months and one (1) day to one (1) year for the first offense, and dismissal
is imposed for the second offense.
Since the present charge of immorality against respondent constitutes his
first offense, his suspension for six (6) months and one (1) day is in order.
WHEREFORE, this Court finds respondent Eddie P. Arquero, Process Server
of the Municipal Trial Court of Brooke's Point, Palawan, GUILTY of
immorality, for which he is hereby SUSPENDED for six (6) months and one
(1) day without pay with a STERN WARNING that commission of the same
or similar acts shall be dealt with severely.
Let a copy of this decision be filed in the personal record of respondent.
SO ORDERED.
Puno, Panganiban, Sandoval-Gutierrez and Corona, JJ ., concur.
A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, complainant,
vs.
SOLEDAD S. ESCRITOR, respondent.
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state. To
be held on balance are the state's interest and the respondent's religious
freedom. In this highly sensitive area of law, the task of balancing between
authority and liberty is most delicate because to the person invoking
religious freedom, the consequences of the case are not only temporal.
The task is not made easier by the American origin of our religion clauses
and the wealth of U.S. jurisprudence on these clauses for in the United
States, there is probably no more intensely controverted area of
constitutional interpretation than the religion clauses.1 The U.S. Supreme
Court itself has acknowledged that in this constitutional area, there is
"considerable internal inconsistency in the opinions of the Court." 2 As
stated by a professor of law, "(i)t is by now notorious that legal doctrines
and judicial decisions in the area of religious freedom are in serious
disarray. In perhaps no other area of constitutional law have confusion
and inconsistency achieved such undisputed sovereignty." 3 Nevertheless,
this thicket is the only path to take to conquer the mountain of a legal
problem the case at bar presents. Both the penetrating and panoramic
view this climb would provide will largely chart the course of religious
freedom in Philippine jurisdiction. That the religious freedom question
arose in an administrative case involving only one person does not alter
the paramount importance of the question for the "constitution
commands the positive protection by government of religious freedom
-not only for a minority, however small- not only for a majority, however
large- but for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail in her
plea of religious freedom. It is necessary therefore to lay down the facts in
detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro
Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Piñas City, requesting for an investigation of
rumors that respondent Soledad Escritor, court interpreter in said court, is
living with a man not her husband. They allegedly have a child of eighteen
to twenty years old. Estrada is not personally related either to Escritor or
her partner and is a resident not of Las Piñas City but of Bacoor, Cavite.
Nevertheless, he filed the charge against Escritor as he believes that she is
committing an immoral act that tarnishes the image of the court, thus she
should not be allowed to remain employed therein as it might appear that
the court condones her act.5
Judge Caoibes referred the letter to Escritor who stated that "there is no
truth as to the veracity of the allegation" and challenged Estrada to
"appear in the open and prove his allegation in the proper forum."6 Judge
Caoibes set a preliminary conference on October 12, 2000. Escritor moved
for the inhibition of Judge Caoibes from hearing her case to avoid
suspicion and bias as she previously filed an administrative complaint
against him and said case was still pending in the Office of the Court
Administrator (OCA). Escritor's motion was denied. The preliminary
conference proceeded with both Estrada and Escritor in attendance.
Estrada confirmed that he filed the letter-complaint for immorality against
Escritor because in his frequent visits to the Hall of Justice of Las Piñas City,
he learned from conversations therein that Escritor was living with a man
not her husband and that she had an eighteen to twenty-year old son by
this man. This prompted him to write to Judge Caoibes as he believed that
employees of the judiciary should be respectable and Escritor's live-in
arrangement did not command respect.7
Respondent Escritor testified that when she entered the judiciary in
1999,8 she was already a widow, her husband having died in 1998. 9 She
admitted that she has been living with Luciano Quilapio, Jr. without the
benefit of marriage for twenty years and that they have a son. But as a
 22
member of the religious sect known as the Jehovah's Witnesses and the
Watch Tower and Bible Tract Society, their conjugal arrangement is in
conformity with their religious beliefs. In fact, after ten years of living
together, she executed on July 28, 1991 a "Declaration of Pledging
Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.
Quilapio, Jr., as my mate in marital relationship; that I have done all within
my ability to obtain legal recognition of this relationship by the proper
public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this
marital relationship.
I recognize this relationship as a binding tie before 'Jehovah' God and
before all persons to be held to and honored in full accord with the
principles of God's Word. I will continue to seek the means to obtain legal
recognition of this relationship by the civil authorities and if at any future
time a change in circumstances make this possible, I promise to legalize
this union.
Signed this 28th day of July 1991.10
Escritor's partner, Quilapio, executed a similar pledge on the same
day.11 Both pledges were executed in Atimonan, Quezon and signed by
three witnesses. At the time Escritor executed her pledge, her husband
was still alive but living with another woman. Quilapio was likewise
married at that time, but had been separated in fact from his wife. During
her testimony, Escritor volunteered to present members of her
congregation to confirm the truthfulness of their "Declarations of Pledging
Faithfulness," but Judge Caoibes deemed it unnecessary and considered
her identification of her signature and the signature of Quilapio sufficient
authentication of the documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.
Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of
Acting Court Administrator Zenaida N. Elepaño, directed Escritor to
comment on the charge against her. In her comment, Escritor reiterated
her religious congregation's approval of her conjugal arrangement with
Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates
to state with candor that there is no truth as to the veracity of same
allegation. Included herewith are documents denominated as Declaration
of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both
respondent and her mate in marital relationship with the witnesses
concurring their acceptance to the arrangement as approved by the
WATCH TOWER BIBLE and TRACT SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before
"JEHOVAH" God and before all persons to be held to and honored in full
accord with the principles of God's Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court
with verification from the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch . . . to which undersigned believes to be a high authority
in relation to her case.13
Deputy Court Administrator Christopher O. Lock recommended that the
case be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch
255, Las Piñas City for investigation, report and recommendation. In the
course of Judge Maceda's investigation, Escritor again testified that her
congregation allows her conjugal arrangement with Quilapio and it does
not consider it immoral. She offered to supply the investigating judge
some clippings which explain the basis of her congregation's belief and
practice regarding her conjugal arrangement. Escritor started living with
Quilapio twenty years ago when her husband was still alive but living with
another woman. She met this woman who confirmed to her that she was
living with her (Escritor's) husband.14
Gregorio Salazar, a member of the Jehovah's Witnesses since 1985, also
testified. He had been a presiding minister since 1991 and in such capacity
is aware of the rules and regulations of their congregation. He explained
the import of and procedure for executing a "Declaration of Pledging
Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can
you cite some particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all
the parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge
of faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the
elders of the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the congregation.
Q: What standard rules and regulations do you have in relation
with this document?
A: Actually, sir, the signing of that document, ah, with the couple
has consent to marital relationship (sic) gives the Christian Congregation
view that the couple has put themselves on record before God and man
that they are faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or
a document between the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic)
pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the
one who contracted with the opposite member of my congregation,
opposite sex, and that this document will give us the right to a marital
relationship.
 23
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or
living under the same roof?
A: Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in the Book
of Matthew, Chapter Five, Verse Twenty-two. So, in that verse of the Bible,
Jesus said "that everyone divorcing his wife, except on account of
fornication, makes her a subject for adultery, and whoever marries a
divorced woman commits adultery.15
Escritor and Quilapio transferred to Salazar's Congregation, the Almanza
Congregation in Las Piñas, in May 2001. The declarations having been
executed in Atimonan, Quezon in 1991, Salazar had no personal
knowledge of the personal circumstances of Escritor and Quilapio when
they executed their declarations. However, when the two transferred to
Almanza, Salazar inquired about their status from the Atimonan
Congregation, gathered comments of the elders therein, and requested a
copy of their declarations. The Almanza Congregation assumed that the
personal circumstances of the couple had been considered by the
Atimonan Congregation when they executed their declarations.
Escritor and Quilapio's declarations are recorded in the Watch Tower
Central office. They were executed in the usual and approved form
prescribed by the Watch Tower Bible and Tract Society which was lifted
from the article, "Maintaining Marriage in Honor Before God and
Men,"16 in the March 15, 1977 issue of the Watch Tower magazine,
entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah's
Witnesses congregation and is binding within the congregation all over the
world except in countries where divorce is allowed. The Jehovah's
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities' approval of the marital
relationship because of legal impediments. It is thus standard practice of
the congregation to check the couple's marital status before giving
imprimatur to the conjugal arrangement. The execution of the declaration
finds scriptural basis in Matthew 5:32 that when the spouse commits
adultery, the offended spouse can remarry. The marital status of the
declarants and their respective spouses' commission of adultery are
investigated before the declarations are executed. Thus, in the case of
Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved
and the declaration is valid everywhere, including the Almanza
Congregation. That Escritor's and Quilapio's declarations were approved
are shown by the signatures of three witnesses, the elders in the
Atimonan Congregation. Salazar confirmed from the congregation's
branch office that these three witnesses are elders in the Atimonan
Congregation. Although in 1998 Escritor was widowed, thereby lifting the
legal impediment to marry on her part, her mate is still not capacitated to
remarry. Thus, their declarations remain valid. Once all legal impediments
for both are lifted, the couple can already register their marriage with the
civil authorities and the validity of the declarations ceases. The elders in
the congregations can then solemnize their marriage as authorized by
Philippine law. In sum, therefore, insofar as the congregation is concerned,
there is nothing immoral about the conjugal arrangement between
Escritor and Quilapio and they remain members in good standing in the
congregation.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovah's Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the
Philippines, Inc., presented the original copy of the magazine article
entitled, "Maintaining Marriage Before God and Men" to which Escritor
and Minister Salazar referred in their testimonies. The article appeared in
the March 15, 1977 issue of the Watchtower magazine published in
Pennsylvania, U.S.A. Felix S. Fajardo, President of the Watch Tower Bible
and Tract Society of the Philippines, Inc., authorized Reyes to represent
him in authenticating the article. The article is distributed to the Jehovah's
Witnesses congregations which also distribute them to the public.18
The parties submitted their respective memoranda to the investigating
judge. Both stated that the issue for resolution is whether or not the
relationship between respondent Escritor and Quilapio is valid and binding
in their own religious congregation, the Jehovah's Witnesses. Complainant
Estrada adds however, that the effect of the relationship to Escritor's
administrative liability must likewise be determined. Estrada argued,
through counsel, that the Declaration of Pledging Faithfulness recognizes
the supremacy of the "proper public authorities" such that she bound
herself "to seek means to . . . legalize their union." Thus, even assuming
arguendo that the declaration is valid and binding in her congregation, it is
binding only to her co-members in the congregation and serves only the
internal purpose of displaying to the rest of the congregation that she and
her mate are a respectable and morally upright couple. Their religious
belief and practice, however, cannot override the norms of conduct
required by law for government employees. To rule otherwise would
create a dangerous precedent as those who cannot legalize their live-in
relationship can simply join the Jehovah's Witnesses congregation and use
their religion as a defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice of
her religion, the Jehovah's Witnesses. She quoted portions of the
magazine article entitled, "Maintaining Marriage Before God and Men," in
her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2") executed
by the respondent and her mate greatly affect the administrative liability
of respondent. Jehovah's Witnesses admit and recognize (sic) the
supremacy of the proper public authorities in the marriage arrangement.
However, it is helpful to understand the relative nature of Caesar's
authority regarding marriage. From country to country, marriage and
divorce legislation presents a multitude of different angles and aspects.
Rather than becoming entangled in a confusion of technicalities, the
Christian, or the one desiring to become a disciple of God's Son, can be
guided by basic Scriptural principles that hold true in all cases.
God's view is of first concern. So, first of all the person must consider
whether that one's present relationship, or the relationship into which he
or she contemplates entering, is one that could meet with God's approval,
or whether in itself, it violates the standards of God's Word. Take, for
 24
example, the situation where a man lives with a wife but also spends time
living with another woman as a concubine. As long as such a state of
concubinage prevails, the relationship of the second woman can never be
harmonized with Christian principles, nor could any declaration on the
part of the woman or the man make it so. The only right course is
cessation of the relationship. Similarly with an incestuous relationship
with a member of one's immediate family, or a homosexual relationship
or other such situation condemned by God's Word. It is not the lack of any
legal validation that makes such relationships unacceptable; they are in
themselves unscriptural and hence, immoral. Hence, a person involved in
such a situation could not make any kind of "Declaration of Faithfulness,"
since it would have no merit in God's eyes.
If the relationship is such that it can have God's approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of one's marital union in the eyes of all. (Heb. 13:4). If
divorce is possible, then such step should now be taken so that, having
obtained the divorce (on whatever legal grounds may be available), the
present union can receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the
principles of God's Word, and if one has done all that can reasonably be
done to have it recognized by civil authorities and has been blocked in
doing so, then, a Declaration Pledging Faithfulness can be signed. In some
cases, as has been noted, the extreme slowness of official action may
make accomplishing of legal steps a matter of many, many years of effort.
Or it may be that the costs represent a crushingly heavy burden that the
individual would need years to be able to meet. In such cases, the
declaration pledging faithfulness will provide the congregation with the
basis for viewing the existing union as honorable while the individual
continues conscientiously to work out the legal aspects to the best of his
ability.
Keeping in mind the basic principles presented, the respondent as a
Minister of Jehovah God, should be able to approach the matter in a
balanced way, neither underestimating nor overestimating the validation
offered by the political state. She always gives primary concern to God's
view of the union. Along with this, every effort should be made to set a
fine example of faithfulness and devotion to one's mate, thus, keeping the
marriage "honorable among all." Such course will bring God's blessing and
result to the honor and praise of the author of marriage, Jehovah God. (1
Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge that
complainant's Memorandum came from Judge Caoibes' chambers 21 whom
she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritor's factual allegations credible as they were supported by
testimonial and documentary evidence. He also noted that "(b)y strict
Catholic standards, the live-in relationship of respondent with her mate
should fall within the definition of immoral conduct, to wit: 'that which is
willful, flagrant, or shameless, and which shows a moral indifference to
the opinion of the good and respectable members of the community' (7
C.J.S. 959)' (Delos Reyes vs. Aznar, 179 SCRA, at p. 666)." He pointed out,
however, that "the more relevant question is whether or not to exact
from respondent Escritor, a member of 'Jehovah's Witnesses,' the strict
moral standards of the Catholic faith in determining her administrative
responsibility in the case at bar."22 The investigating judge acknowledged
that "religious freedom is a fundamental right which is entitled to the
highest priority and the amplest protection among human rights, for it
involves the relationship of man to his Creator (at p. 270, EBRALINAG
supra, citing Chief Justice Enrique M. Fernando's separate opinion in
German vs. Barangan, 135 SCRA 514, 530-531)" and thereby
recommended the dismissal of the complaint against Escritor.23
After considering the Report and Recommendation of Executive Judge
Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda
but departed from his recommendation to dismiss the complaint. DCA
Lock stressed that although Escritor had become capacitated to marry by
the time she joined the judiciary as her husband had died a year before,
"it is due to her relationship with a married man, voluntarily carried on,
that respondent may still be subject to disciplinary action."24 Considering
the ruling of the Court in Dicdican v. Fernan, et al.25 that "court personnel
have been enjoined to adhere to the exacting standards of morality and
decency in their professional and private conduct in order to preserve the
good name and integrity of the court of justice," DCA Lock found Escritor's
defense of freedom of religion unavailing to warrant dismissal of the
charge of immorality. Accordingly, he recommended that respondent be
found guilty of immorality and that she be penalized with suspension of
six months and one day without pay with a warning that a repetition of a
similar act will be dealt with more severely in accordance with the Civil
Service Rules.26
II. Issue
Whether or not respondent should be found guilty of the administrative
charge of "gross and immoral conduct." To resolve this issue, it is
necessary to determine the sub-issue of whether or not respondent's right
to religious freedom should carve out an exception from the prevailing
jurisprudence on illicit relations for which government employees are held
administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral conduct"
under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised
Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the
Civil Service shall be suspended or dismissed except for cause as provided
by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman's terms, invokes the
religious beliefs and practices and moral standards of her religion, the
Jehovah's Witnesses, in asserting that her conjugal arrangement with a
man not her legal husband does not constitute disgraceful and immoral
conduct for which she should be held administratively liable. While not
articulated by respondent, she invokes religious freedom under Article III,
Section 5 of the Constitution, which provides, viz:
 25
Sec. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be
well to understand not only its birth in the United States, but its
conception in the Old World. One cannot understand, much less
intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the
ancient and medieval world and in the American experience.27 This fresh
look at the religion clauses is proper in deciding this case of first
impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive man's life, from birth to death, was
marked by religious ceremonies. Tribal society survived because religious
sanctions effectively elicited adherence to social customs. A person who
broke a custom violated a taboo which would then bring upon him "the
wrathful vengeance of a superhuman mysterious power."28 Distinction
between the religious and non-religious would thus have been
meaningless to him. He sought protection from all kinds of evil - whether a
wild beast or tribe enemy and lightning or wind - from the same person.
The head of the clan or the Old Man of the tribe or the king protected his
wards against both human and superhuman enemies. In time, the king not
only interceded for his people with the divine powers, but he himself was
looked upon as a divine being and his laws as divine decrees.29
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently differentiated
from the responsibility of leading the tribe in war and policing it in peace
as to require the full-time services of a special priest class. This saw the
birth of the social and communal problem of the competing claims of the
king and priest. Nevertheless, from the beginning, the king and not the
priest was superior. The head of the tribe was the warrior, and although
he also performed priestly functions, he carried out these functions
because he was the head and representative of the community.30
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between man
and man promulgated laws concerning man's obligations to the
supernatural. This authority was the king who was the head of the state
and the source of all law and who only delegated performance of rituals
and sacrifice to the priests. The Code of Hammurabi, king of Babylonia,
imposed penalties for homicide, larceny, perjury, and other crimes;
regulated the fees of surgeons and the wages of masons and tailors and
prescribed rules for inheritance of property;31 and also catalogued the
gods and assigned them their places in the divine hierarchy so as to put
Hammurabi's own god to a position of equality with existing gods. 32 In
sum, the relationship of religion to the state (king) in pre-Hebreic times
may be characterized as a union of the two forces, with the state almost
universally the dominant partner.33
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion:
theocracy. The authority and power of the state was ascribed to
God.34 The Mosaic creed was not merely regarded as the religion of the
state, it was (at least until Saul) the state itself. Among the Hebrews,
patriarch, prophet, and priest preceded king and prince. As man of God,
Moses decided when the people should travel and when to pitch camp,
when they should make war and when peace. Saul and David were made
kings by the prophet Samuel, disciple of Eli the priest. Like the Code of
Hammurabi, the Mosaic code combined civil laws with religious mandates,
but unlike the Hammurabi Code, religious laws were not of secondary
importance. On the contrary, religious motivation was primary and
all-embracing: sacrifices were made and Israel was prohibited from
exacting usury, mistreating aliens or using false weights, all because God
commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion
as an engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its
city-god to a primary position over the previous reigning gods.35 Moses, on
the other hand, capitalized on the natural yearnings of the Hebrew slaves
for freedom and independence to further God's purposes. Liberation and
Exodus were preludes to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the building of the temple and
the full worship of God.36
Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of
religion in western civilization, but equally, the future of the relationship
between religion and state in the west. This fact is acknowledged by many
writers, among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and
universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion. Ancient religions
were regarded as confined to each separate people believing in them, and
the question of change from one religious belief to another did not arise.
It was not until an exclusive fellowship, that the questions of proselytism,
change of belief and liberty of religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In
this period, religion was not only superior to the state, but it was all of the
state. The Law of God as transmitted through Moses and his successors
was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom from
Samuel the prophet and disciple of Eli the priest, but soon the king
dominated prophet and priest. Saul disobeyed and even sought to slay
Samuel the prophet of God.38 Under Solomon, the subordination of
religion to state became complete; he used religion as an engine to
further the state's purposes. He reformed the order of priesthood
established by Moses because the high priest under that order endorsed
the claim of his rival to the throne.39
The subordination of religion to the state was also true in pre-Christian
Rome which engaged in emperor-worship. When Augustus became head
of the Roman state and the priestly hierarchy, he placed religion at a high
esteem as part of a political plan to establish the real religion of
pre-Christian Rome - the worship of the head of the state. He set his great
uncle Julius Caesar among the gods, and commanded that worship of
Divine Julius should not be less than worship of Apollo, Jupiter and other
gods. When Augustus died, he also joined the ranks of the gods, as other
emperors before him.40
 26
The onset of Christianity, however, posed a difficulty to the emperor as
the Christians' dogmatic exclusiveness prevented them from paying
homage to publicly accepted gods. In the first two centuries after the
death of Jesus, Christians were subjected to persecution. By the time of
the emperor Trajan, Christians were considered outlaws. Their crime was
"hatred of the human race", placing them in the same category as pirates
and brigands and other "enemies of mankind" who were subject to
summary punishments.41
In 284, Diocletian became emperor and sought to reorganize the empire
and make its administration more efficient. But the closely-knit
hierarchically controlled church presented a serious problem, being a
state within a state over which he had no control. He had two options:
either to force it into submission and break its power or enter into an
alliance with it and procure political control over it. He opted for force and
revived the persecution, destroyed the churches, confiscated sacred books,
imprisoned the clergy and by torture forced them to sacrifice.42 But his
efforts proved futile.
The later emperor, Constantine, took the second option of alliance.
Constantine joined with Galerius and Licinius, his two co-rulers of the
empire, in issuing an edict of toleration to Christians "on condition that
nothing is done by them contrary to discipline."43 A year later, after
Galerius died, Constantine and Licius jointly issued the epochal Edict of
Milan (312 or 313), a document of monumental importance in the history
of religious liberty. It provided "that liberty of worship shall not be denied
to any, but that the mind and will of every individual shall be free to
manage divine affairs according to his own choice." (emphasis supplied)
Thus, all restrictive statutes were abrogated and it was enacted "that
every person who cherishes the desire to observe the Christian religion
shall freely and unconditionally proceed to observe the same without let
or hindrance." Furthermore, it was provided that the "same free and open
power to follow their own religion or worship is granted also to others, in
accordance with the tranquillity of our times, in order that every person
may have free opportunity to worship the object of his choice."(emphasis
supplied)44
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became
an engine of state policy as Constantine considered Christianity a means
of unifying his complex empire. Within seven years after the Edict of Milan,
under the emperor's command, great Christian edifices were erected, the
clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in
religious affairs. Constantine and his successors called and dismissed
church councils, and enforced unity of belief and practice. Until recently
the church had been the victim of persecution and repression, but this
time it welcomed the state's persecution and repression of the
nonconformist and the orthodox on the belief that it was better for
heretics to be purged of their error than to die unsaved.
Both in theory as in practice, the partnership between church and state
was not easy. It was a constant struggle of one claiming dominance over
the other. In time, however, after the collapse and disintegration of the
Roman Empire, and while monarchical states were gradually being
consolidated among the numerous feudal holdings, the church stood as
the one permanent, stable and universal power. Not surprisingly,
therefore, it claimed not merely equality but superiority over the secular
states. This claim, symbolized by Pope Leo's crowning of Charlemagne,
became the church's accepted principle of its relationship to the state in
the Middle Ages. As viewed by the church, the union of church and state
was now a union of the state in the church. The rulers of the states did not
concede to this claim of supremacy. Thus, while Charlemagne received his
crown from the Pope, he himself crowned his own son as successor to
nullify the inference of supremacy.45 The whole history of medieval
Europe was a struggle for supremacy between prince and Pope and the
resulting religious wars and persecution of heretics and nonconformists.
At about the second quarter of the 13th century, the Inquisition was
established, the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the church in
the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting in the
establishment of Protestant churches. While Protestants are accustomed
to ascribe to the Reformation the rise of religious liberty and its
acceptance as the principle governing the relations between a democratic
state and its citizens, history shows that it is more accurate to say that the
"same causes that gave rise to the Protestant revolution also resulted in
the widespread acceptance of the principle of religious liberty, and
ultimately of the principle of separation of church and state."46 Pleas for
tolerance and freedom of conscience can without doubt be found in the
writings of leaders of the Reformation. But just as Protestants living in the
countries of papists pleaded for toleration of religion, so did the papists
that lived where Protestants were dominant.47 Papist and Protestant
governments alike accepted the idea of cooperation between church and
state and regarded as essential to national unity the uniformity of at least
the outward manifestations of religion. 48 Certainly, Luther, leader of the
Reformation, stated that "neither pope, nor bishop, nor any man
whatever has the right of making one syllable binding on a Christian man,
unless it be done with his own consent."49 But when the tables had turned
and he was no longer the hunted heretic, he likewise stated when he
made an alliance with the secular powers that "(h)eretics are not to be
disputed with, but to be condemned unheard, and whilst they perish by
fire, the faithful ought to pursue the evil to its source, and bathe their
hands in the blood of the Catholic bishops, and of the Pope, who is a devil
in disguise."50 To Luther, unity among the peoples in the interests of the
state was an important consideration. Other personalities in the
Reformation such as Melanchton, Zwingli and Calvin strongly espoused
theocracy or the use of the state as an engine to further religion. In
establishing theocracy in Geneva, Calvin made absence from the sermon a
crime, he included criticism of the clergy in the crime of blasphemy
punishable by death, and to eliminate heresy, he cooperated in the
Inquisition.51
There were, however, those who truly advocated religious liberty.
Erasmus, who belonged to the Renaissance than the Reformation, wrote
that "(t)he terrible papal edict, the more terrible imperial edict, the
imprisonments, the confiscations, the recantations, the fagots and
burnings, all these things I can see accomplish nothing except to make the
evil more widespread."52 The minority or dissident sects also ardently
advocated religious liberty. The Anabaptists, persecuted and despised,
along with the Socinians (Unitarians) and the Friends of the Quakers
founded by George Fox in the 17th century, endorsed the supremacy and
freedom of the individual conscience. They regarded religion as outside
the realm of political governments.53 The English Baptists proclaimed that
the "magistrate is not to meddle with religion or matters of conscience,
nor compel men to this or that form of religion."54
 27
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German doctor
Erastus), the theocratic, and the separatist. The first assumed state
superiority in ecclesiastical affairs and the use of religion as an engine of
state policy as demonstrated by Luther's belief that civic cohesion could
not exist without religious unity so that coercion to achieve religious unity
was justified. The second was founded on ecclesiastical supremacy and
the use of state machinery to further religious interests as promoted by
Calvin. The third, which was yet to achieve ultimate and complete
expression in the New World, was discernibly in its incipient form in the
arguments of some dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation, Erastianism
pervaded all Europe except for Calvin's theocratic Geneva. In England,
perhaps more than in any other country, Erastianism was at its height. To
illustrate, a statute was enacted by Parliament in 1678, which, to
encourage woolen trade, imposed on all clergymen the duty of seeing to it
that no person was buried in a shroud made of any substance other than
wool.56 Under Elizabeth, supremacy of the crown over the church was
complete: ecclesiastical offices were regulated by her proclamations,
recusants were fined and imprisoned, Jesuits and proselytizing priests
were put to death for high treason, the thirty-nine Articles of the Church
of England were adopted and English Protestantism attained its present
doctrinal status.57 Elizabeth was to be recognized as "the only Supreme
Governor of this realm . . . as well in all spiritual or ecclesiastical things or
causes as temporal." She and her successors were vested, in their
dominions, with "all manner of jurisdictions, privileges, and preeminences,
in any wise touching or concerning any spiritual or ecclesiastical
jurisdiction."58 Later, however, Cromwell established the constitution in
1647 which granted full liberty to all Protestant sects, but denied
toleration to Catholics.59 In 1689, William III issued the Act of Toleration
which established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19th century when the Roman
Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858
when they were finally permitted to sit in Parliament.60
When the representatives of the American states met in Philadelphia in
1787 to draft the constitutional foundation of the new republic, the
theocratic state which had flourished intermittently in Israel, Judea, the
Holy Roman Empire and Geneva was completely gone. The prevailing
church-state relationship in Europe was Erastianism embodied in the
system of jurisdictionalism whereby one faith was favored as the official
state-supported religion, but other faiths were permitted to exist with
freedom in various degrees. No nation had yet adopted as the basis of its
church-state relations the principle of the mutual independence of
religion and government and the concomitant principle that neither might
be used as an engine to further the policies of the other, although the
principle was in its seminal form in the arguments of some dissident
minorities and intellectual leaders of the Renaissance. The religious wars
of 16th and 17th century Europe were a thing of the past by the time
America declared its independence from the Old World, but their memory
was still vivid in the minds of the Constitutional Fathers as expressed by
the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the power
of government supporting them, at various times and places, Catholics
had persecuted Protestants, Protestants had persecuted Catholics,
Protestant sects had persecuted other protestant sects, Catholics of one
shade of belief had persecuted Catholics of another shade of belief, and all
of these had from time to time persecuted Jews. In efforts to force loyalty
to whatever religious group happened to be on top and in league with the
government of a particular time and place, men and women had been
fined, cast in jail, cruelly tortured, and killed. Among the offenses for
which these punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established
churches, non-attendance at those churches, expressions of non-belief in
their doctrines, and failure to pay taxes and tithes to support them.61
In 1784, James Madison captured in this statement the entire history of
church-state relations in Europe up to the time the United States
Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the
secular arm to extinguish religious discord, by proscribing all differences in
religious opinions.62
In sum, this history shows two salient features: First, with minor
exceptions, the history of church-state relationships was characterized by
persecution, oppression, hatred, bloodshed, and war, all in the name of
the God of Love and of the Prince of Peace. Second, likewise with minor
exceptions, this history witnessed the unscrupulous use of religion by
secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the
favors and mundane benefits conferred by ambitious princes and
emperors in exchange for religion's invaluable service. This was the
context in which the unique experiment of the principle of religious
freedom and separation of church and state saw its birth in American
constitutional democracy and in human history.63
V. Factors Contributing to the Adoption of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American colonies.
British thought pervaded these colonies as the immigrants brought with
them their religious and political ideas from England and English books
and pamphlets largely provided their cultural fare.64 But although these
settlers escaped from Europe to be freed from bondage of laws which
compelled them to support and attend government favored churches,
some of these settlers themselves transplanted into American soil the
oppressive practices they escaped from. The charters granted by the
English Crown to the individuals and companies designated to make the
laws which would control the destinies of the colonials authorized them to
erect religious establishments, which all, whether believers or not, were
required to support or attend. 65 At one time, six of the colonies
established a state religion. Other colonies, however, such as Rhode Island
and Delaware tolerated a high degree of religious diversity. Still others,
which originally tolerated only a single religion, eventually extended
support to several different faiths.66
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of the
experiment cannot be attributed to a single cause or event. Rather, a
number of interdependent practical and ideological factors contributed in
bringing it forth. Among these were the "English Act of Toleration of 1689,
the multiplicity of sects, the lack of church affiliation on the part of most
Americans, the rise of commercial intercourse, the exigencies of the
Revolutionary War, the Williams-Penn tradition and the success of their
experiments, the writings of Locke, the social contract theory, the Great
Awakening, and the influence of European rationalism and deism."67 Each
of these factors shall be briefly discussed.
 28
First, the practical factors. England's policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in
the colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies
were large financial investments which would be profitable only if people
would settle there. It would be difficult to engage in trade with persons
one seeks to destroy for religious belief, thus tolerance was a necessity.
This tended to distract the colonies from their preoccupations over their
religion and its exclusiveness, encouraging them "to think less of the
Church and more of the State and of commerce."68 The diversity brought
about by the colonies' open gates encouraged religious freedom and
non-establishment in several ways. First, as there were too many
dissenting sects to abolish, there was no alternative but to learn to live
together. Secondly, because of the daily exposure to different religions,
the passionate conviction in the exclusive rightness of one's religion,
which impels persecution for the sake of one's religion, waned. Finally,
because of the great diversity of the sects, religious uniformity was not
possible, and without such uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically, there
was a scarcity of adherents. Only about four percent of the entire
population of the country had a church affiliation at the time the republic
was founded.70 This might be attributed to the drifting to the American
colonies of the skepticism that characterized European
Enlightenment.71 Economic considerations might have also been a factor.
The individualism of the American colonist, manifested in the multiplicity
of sects, also resulted in much unaffiliated religion which treated religion
as a personal non-institutional matter. The prevalence of lack of church
affiliation contributed to religious liberty and disestablishment as persons
who were not connected with any church were not likely to persecute
others for similar independence nor accede to compulsory taxation to
support a church to which they did not belong.72
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant dissenters
the right to hold public services subject to registration of their ministers
and places of worship.73 Although the toleration accorded to Protestant
dissenters who qualified under its terms was only a modest advance in
religious freedom, it nevertheless was of some influence to the American
experiment.74 Even then, for practical considerations, concessions had to
be made to other dissenting churches to ensure their cooperation in the
War of Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th
century, an evangelical religious revival originating in New England, caused
a break with formal church religion and a resistance to coercion by
established churches. This movement emphasized an emotional, personal
religion that appealed directly to the individual, putting emphasis on the
rights and duties of the individual conscience and its answerability
exclusively to God. Thus, although they had no quarrel with orthodox
Christian theology as in fact they were fundamentalists, this group
became staunch advocates of separation of church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a community
of Baptists, Quakers and other nonconformists. In this colony, religious
freedom was not based on practical considerations but on the concept of
mutual independence of religion and government. In 1663, Rhode Island
obtained a charter from the British crown which declared that settlers
have it "much on their heart to hold forth a livelie experiment that a most
flourishing civil state may best be maintained . . . with full libertie in
religious concernments."76 In Williams' pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference between
Truth and Peace,77 he articulated the philosophical basis for his argument
of religious liberty. To him, religious freedom and separation of church
and state did not constitute two but only one principle. Religious
persecution is wrong because it "confounds the Civil and Religious" and
because "States . . . are proved essentially Civil. The "power of true
discerning the true fear of God" is not one of the powers that the people
have transferred to Civil Authority.78 Williams' Bloudy Tenet is considered
an epochal milestone in the history of religious freedom and the
separation of church and state.79
William Penn, proprietor of the land that became Pennsylvania, was also
an ardent advocate of toleration, having been imprisoned for his religious
convictions as a member of the despised Quakers. He opposed coercion in
matters of conscience because "imposition, restraint and persecution for
conscience sake, highly invade the Divine prerogative." Aside from his
idealism, proprietary interests made toleration in Pennsylvania necessary.
He attracted large numbers of settlers by promising religious toleration,
thus bringing in immigrants both from the Continent and Britain. At the
end of the colonial period, Pennsylvania had the greatest variety of
religious groups. Penn was responsible in large part for the "Concessions
and agreements of the Proprietors, Freeholders, and inhabitants of West
Jersey, in America", a monumental document in the history of civil liberty
which provided among others, for liberty of conscience.80 The Baptist
followers of Williams and the Quakers who came after Penn continued the
tradition started by the leaders of their denominations. Aside from the
Baptists and the Quakers, the Presbyterians likewise greatly contributed
to the evolution of separation and freedom.81 The Constitutional fathers
who convened in Philadelphia in 1787, and Congress and the states that
adopted the First Amendment in 1791 were very familiar with and
strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82
Undeniably, John Locke and the social contract theory also contributed to
the American experiment. The social contract theory popularized by Locke
was so widely accepted as to be deemed self-evident truth in America's
Declaration of Independence. With the doctrine of natural rights and
equality set forth in the Declaration of Independence, there was no room
for religious discrimination. It was difficult to justify inequality in religious
treatment by a new nation that severed its political bonds with the English
crown which violated the self-evident truth that all men are created
equal.83
The social contract theory was applied by many religious groups in arguing
against establishment, putting emphasis on religion as a natural right that
is entirely personal and not within the scope of the powers of a political
body. That Locke and the social contract theory were influential in the
development of religious freedom and separation is evident from the
memorial presented by the Baptists to the Continental Congress in
1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention
in every one the better to preserve himself, his liberty and property. The
power of the society, or Legislature constituted by them, can never be
supposed to extend any further than the common good, but is obliged to
secure every one's property. To give laws, to receive obedience, to compel
with the sword, belong to none but the civil magistrate; and on this
ground we affirm that the magistrate's power extends not to establishing
 29
any articles of faith or forms of worship, by force of laws; for laws are of
no force without penalties. The care of souls cannot belong to the civil
magistrate, because his power consists only in outward force; but pure
and saving religion consists in the inward persuasion of the mind, without
which nothing can be acceptable to God.84 (emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction ("render unto
Caesar that which is Caesar's"; "my kingdom is not of this world") and to
the rationalist, the power to act in the realm of religion was not one of the
powers conferred on government as part of the social contract.85
Not only the social contract theory drifted to the colonies from Europe.
Many of the leaders of the Revolutionary and post-revolutionary period
were also influenced by European deism and rationalism,86 in general, and
some were apathetic if not antagonistic to formal religious worship and
institutionalized religion. Jefferson, Paine, John Adams, Washington,
Franklin, Madison, among others were reckoned to be among the
Unitarians or Deists. Unitarianism and Deism contributed to the emphasis
on secular interests and the relegation of historic theology to the
background.87 For these men of the enlightenment, religion should be
allowed to rise and fall on its own, and the state must be protected from
the clutches of the church whose entanglements has caused intolerance
and corruption as witnessed throughout history.88 Not only the leaders
but also the masses embraced rationalism at the end of the eighteenth
century, accounting for the popularity of Paine's Age of Reason.89
Finally, the events leading to religious freedom and separation in Virginia
contributed significantly to the American experiment of the First
Amendment. Virginia was the "first state in the history of the world to
proclaim the decree of absolute divorce between church and
state."90 Many factors contributed to this, among which were that half to
two-thirds of the population were organized dissenting sects, the Great
Awakening had won many converts, the established Anglican Church of
Virginia found themselves on the losing side of the Revolution and had
alienated many influential laymen with its identification with the Crown's
tyranny, and above all, present in Virginia was a group of political leaders
who were devoted to liberty generally,91 who had accepted the social
contract as self-evident, and who had been greatly influenced by Deism
and Unitarianism. Among these leaders were Washington, Patrick Henry,
George Mason, James Madison and above the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the
following provision in the Bill of Rights of the state's first constitution:
That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force
or violence; and therefore, all men are equally entitled to the free exercise
of religion according to the dictates of conscience; and that it is the
mutual duty of all to practice Christian forbearance, love, and charity
towards each other.92 (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While
the majority of the population were dissenters, a majority of the
legislature were churchmen. The legislature compromised and enacted a
bill in 1776 abolishing the more oppressive features of establishment and
granting exemptions to the dissenters, but not guaranteeing separation. It
repealed the laws punishing heresy and absence from worship and
requiring the dissenters to contribute to the support of the
establishment.93 But the dissenters were not satisfied; they not only
wanted abolition of support for the establishment, they opposed the
compulsory support of their own religion as others. As members of the
established church would not allow that only they would pay taxes while
the rest did not, the legislature enacted in 1779 a bill making permanent
the establishment's loss of its exclusive status and its power to tax its
members; but those who voted for it did so in the hope that a general
assessment bill would be passed. Without the latter, the establishment
would not survive. Thus, a bill was introduced in 1779 requiring every
person to enroll his name with the county clerk and indicate which
"society for the purpose of Religious Worship" he wished to support. On
the basis of this list, collections were to be made by the sheriff and turned
over to the clergymen and teachers designated by the religious
congregation. The assessment of any person who failed to enroll in any
society was to be divided proportionately among the societies. 94 The bill
evoked strong opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for Teachers of
the Christian Religion" was introduced requiring all persons "to pay a
moderate tax or contribution annually for the support of the Christian
religion, or of some Christian church, denomination or communion of
Christians, or for some form of Christian worship."95 This likewise aroused
the same opposition to the 1779 bill. The most telling blow against the
1784 bill was the monumental "Memorial and Remonstrance against
Religious Assessments" written by Madison and widely distributed before
the reconvening of legislature in the fall of 1785.96 It stressed natural
rights, the government's lack of jurisdiction over the domain of religion,
and the social contract as the ideological basis of separation while also
citing practical considerations such as loss of population through
migration. He wrote, viz:
Because we hold it for a 'fundamental and undeniable truth,' that religion,
or the duty which we owe to our creator, and the manner of discharging it,
can be directed only by reason and conviction, not by force or violence.
The religion, then, of every man, must be left to the conviction and
conscience of every man; and it is the right of every man to exercise it as
these may dictate. This right is, in its nature, an unalienable right. It is
unalienable, because the opinions of men, depending only on the
evidence contemplated in their own minds, cannot follow the dictates of
other men; it is unalienable, also, because what is here a right towards
men, is a duty towards the creator. It is the duty of every man to render
the creator such homage, and such only as he believes to be acceptable to
him; this duty is precedent, both in order of time and degree of obligation,
to the claims of civil society. Before any man can be considered as a
member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters into
any subordinate association, must always do it with a reservation of his
duty to the general authority, much more must every man who becomes a
member of any particular civil society do it with the saving his allegiance
to the universal sovereign.97 (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as
indicated by the great number of signatures appended to the Memorial.
The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779
bill of Jefferson which had not been voted on, the "Bill for Establishing
Religious Freedom", and it was finally passed in January 1786. It
provided, viz:
 30
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and meanness,
and are a departure from the plan of the Holy Author of our religion, who
being Lord both of body and mind, yet chose not to propagate it by
coercions on either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be
compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in
his body or goods, nor shall otherwise suffer on account of his religious
opinions or beliefs, but that all men shall be free to profess, and by
argument to maintain, their opinions in matters of religion, and that the
same shall in no wise diminish, enlarge or affect their civil
capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular establishment in
Virginia.99 But the passage of this law was obtained not only because of
the influence of the great leaders in Virginia but also because of
substantial popular support coming mainly from the two great dissenting
sects, namely the Presbyterians and the Baptists. The former were never
established in Virginia and an underprivileged minority of the population.
This made them anxious to pull down the existing state church as they
realized that it was impossible for them to be elevated to that privileged
position. Apart from these expediential considerations, however, many of
the Presbyterians were sincere advocates of separation100 grounded on
rational, secular arguments and to the language of natural
religion.101 Influenced by Roger Williams, the Baptists, on the other hand,
assumed that religion was essentially a matter of concern of the individual
and his God, i.e., subjective, spiritual and supernatural, having no relation
with the social order.102 To them, the Holy Ghost was sufficient to
maintain and direct the Church without governmental assistance and
state-supported religion was contrary ti the spirit of the Gospel.103 Thus,
separation was necessary.104 Jefferson's religious freedom statute was a
milestone in the history of religious freedom. The United States Supreme
Court has not just once acknowledged that the provisions of the First
Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference
with religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government
had no power to legislate in the area of religion by restricting its free
exercise or establishing it was implicit in the Constitution of 1787. This
could be deduced from the prohibition of any religious test for federal
office in Article VI of the Constitution and the assumed lack of power of
Congress to act on any subject not expressly mentioned in the
Constitution.105 However, omission of an express guaranty of religious
freedom and other natural rights nearly prevented the ratification of the
Constitution.106 In the ratifying conventions of almost every state, some
objection was expressed to the absence of a restriction on the Federal
Government as regards legislation on religion. 107 Thus, in 1791, this
restriction was made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day, with the first part
usually referred to as the Establishment Clause and the second part, the
Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes an equally broad disagreement as to
what these clauses specifically require, permit and forbid. No agreement
has been reached by those who have studied the religion clauses as
regards its exact meaning and the paucity of records in Congress renders it
difficult to ascertain its meaning. 108 Consequently, the jurisprudence in
this area is volatile and fraught with inconsistencies whether within a
Court decision or across decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.109 Government runs even family planning, sex education, adoption
and foster care programs.110 Stated otherwise and with some
exaggeration, "(w)hereas two centuries ago, in matters of social life which
have a significant moral dimension, government was the handmaid of
religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of
government."111 With government regulation of individual conduct having
become more pervasive, inevitably some of those regulations would reach
conduct that for some individuals are religious. As a result, increasingly,
there may be inadvertent collisions between purely secular government
actions and religion clause values.112
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and cults.
Churches run day-care centers, retirement homes, hospitals, schools at all
levels, research centers, settlement houses, halfway houses for prisoners,
sports facilities, theme parks, publishing houses and mass media programs.
In these activities, religious organizations complement and compete with
commercial enterprises, thus blurring the line between many types of
activities undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as a
necessary outgrowth of religious faith as witnessed in pastoral letters on
war and peace, economic justice, and human life, or in ringing affirmations
for racial equality on religious foundations. Inevitably, these
developments have brought about substantial entanglement of religion
and government. Likewise, the growth in population density, mobility and
diversity has significantly changed the environment in which religious
organizations and activities exist and the laws affecting them are made. It
is no longer easy for individuals to live solely among their own kind or to
shelter their children from exposure to competing values. The result is
disagreement over what laws should require, permit or prohibit; 113 and
agreement that if the rights of believers as well as non-believers are all to
be respected and given their just due, a rigid, wooden interpretation of
the religion clauses that is blind to societal and political realities must be
avoided.114
Religion cases arise from different circumstances. The more obvious ones
arise from a government action which purposely aids or inhibits religion.
These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining
 31
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.119It was in the 1890 case of Davis
v. Beason120 that the United States Supreme Court first had occasion to
define religion, viz:
The term 'religion' has reference to one's views of his relations to his
Creator, and to the obligations they impose of reverence for his being and
character, and of obedience to his will. It is often confounded with the
cultus or form of worship of a particular sect, but is distinguishable from
the latter. The First Amendment to the Constitution, in declaring that
Congress shall make no law respecting the establishment of religion, or
forbidding the free exercise thereof, was intended to allow everyone
under the jurisdiction of the United States to entertain such notions
respecting his relations to his Maker and the duties they impose as may be
approved by his judgment and conscience, and to exhibit his sentiments in
such form of worship as he may think proper, not injurious to the equal
rights of others, and to prohibit legislation for the support of any religious
tenets, or the modes of worship of any sect.121
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 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. Seeger126 which involved four men who
claimed "conscientious objector" status in refusing to serve in the Vietnam
War. One of the four, Seeger, was not a member of any organized religion
opposed to war, but when specifically asked about his belief in a Supreme
Being, Seeger stated that "you could call (it) a belief in a Supreme Being or
God. These just do not happen to be the words that I use." Forest Peter,
another one of the four claimed that after considerable meditation and
reflection "on values derived from the Western religious and philosophical
tradition," he determined that it would be "a violation of his moral code to
take human life and that he considered this belief superior to any
obligation to the state." The Court avoided a constitutional question by
broadly interpreting not the Free Exercise Clause, but the statutory
definition of religion in the Universal Military Training and Service Act of
1940 which exempt from combat anyone "who, by reason of religious
training and belief, is conscientiously opposed to participation in war in
any form." Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression 'Supreme Being' rather than the
designation 'God,' was merely clarifying the meaning of religious tradition
and belief so as to embrace all religions and to exclude essentially political,
sociological, or philosophical views (and) the test of belief 'in relation to a
Supreme Being' is whether a given belief that is sincere and meaningful
occupies a place in the life of its possessor parallel to the orthodox belief
in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger
to include even non-theistic beliefs such as Taoism or Zen Buddhism. It has
been proposed that basically, a creed must meet four criteria to qualify as
religion under the First Amendment. First, there must be belief in God or
some parallel belief that occupies a central place in the believer's life.
Second, the religion must involve a moral code transcending individual
belief, i.e., it cannot be purely subjective. Third, a demonstrable sincerity
in belief is necessary, but the court must not inquire into the truth or
reasonableness of the belief.127 Fourth, there must be some associational
ties,128 although there is also a view that religious beliefs held by a single
person rather than being part of the teachings of any kind of group or sect
are entitled to the protection of the Free Exercise Clause.129
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the court then
has to draw lines to determine what is or is not permissible under the
religion clauses. In this task, the purpose of the clauses is the yardstick.
Their purpose is singular; they are two sides of the same coin. 130 In
devoting two clauses to religion, the Founders were stating not two
opposing thoughts that would cancel each other out, but two
complementary thoughts that apply in different ways in different
circumstances.131 The purpose of the religion clauses - both in the
restriction it imposes on the power of the government to interfere with
the free exercise of religion and the limitation on the power of
government to establish, aid, and support religion - is the protection and
promotion of religious liberty.132 The end, the goal, and the rationale of
the religion clauses is this liberty.133 Both clauses were adopted to prevent
government imposition of religious orthodoxy; the great evil against which
they are directed is government-induced homogeneity.134 The Free
Exercise Clause directly articulates the common objective of the two
clauses and the Establishment Clause specifically addresses a form of
interference with religious liberty with which the Framers were most
familiar and for which government historically had demonstrated a
propensity.135 In other words, free exercise is the end, proscribing
establishment is a necessary means to this end to protect the rights of
those who might dissent from whatever religion is established. 136 It has
even been suggested that the sense of the First Amendment is captured if
it were to read as "Congress shall make no law respecting an
establishment of religion or otherwise prohibiting the free exercise
thereof" because the fundamental and single purpose of the two religious
clauses is to "avoid any infringement on the free exercise of
religions"137 Thus, the Establishment Clause mandates separation of
church and state to protect each from the other, in service of the larger
goal of preserving religious liberty. The effect of the separation is to limit
the opportunities for any religious group to capture the state apparatus to
the disadvantage of those of other faiths, or of no faith at all138 because
 32
history has shown that religious fervor conjoined with state power is likely
to tolerate far less religious disagreement and disobedience from those
who hold different beliefs than an enlightened secular state.139 In the
words of the U.S. Supreme Court, the two clauses are interrelated, viz:
"(t)he structure of our government has, for the preservation of civil liberty,
rescued the temporal institutions from religious interference. On the
other hand, it has secured religious liberty from the invasion of the civil
authority."140
In upholding religious liberty as the end goal in religious clause cases, the
line the court draws to ensure that government does not establish and
instead remains neutral toward religion is not absolutely straight. Chief
Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely
straight line; rigidity could well defeat the basic purpose of these
provisions, which is to insure that no religion be sponsored or favored,
none commanded and none inhibited.141 (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,142 even opposing, strains of jurisprudence on the religion clauses:
separation (in the form of strict separation or the tamer version of strict
neutrality or separation) and benevolent neutrality or accommodation. A
view of the landscape of U.S. religion clause cases would be useful in
understanding these two strains, the scope of protection of each clause,
and the tests used in religious clause cases. Most of these cases are cited
as authorities in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of
Reynolds v. United States.143 This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives
and that the failure to practice polygamy by male members of his religion
when circumstances would permit would be punished with damnation in
the life to come. Reynolds' act of contracting a second marriage violated
Section 5352, Revised Statutes prohibiting and penalizing bigamy, for
which he was convicted. The Court affirmed Reynolds' conviction, using
what in jurisprudence would be called the belief-action test which allows
absolute protection to belief but not to action. It cited Jefferson's Bill
Establishing Religious Freedom which, according to the Court, declares
"the true distinction between what properly belongs to the Church and
what to the State."144 The bill, making a distinction between belief and
action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once
destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against
peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was
left free to reach actions which were in violation of social duties or
subversive of good order. . .
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with practices.
Suppose one believed that human sacrifice were a necessary part of
religious worship, would it be seriously contended that the civil
government under which he lived could not interfere to prevent a sacrifice?
Or if a wife religiously believed it was her duty to burn herself upon the
funeral pile of her dead husband, would it be beyond the power of the
civil government to prevent her carrying her belief into practice?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages shall
not be allowed. Can a man excuse his practices to the contrary because of
his religious belief? To permit this would be to make the professed
doctrines of religious belief superior to the law of the land, and in effect to
permit every citizen to become a law unto himself. Government could
exist only in name under such circumstances.146
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but placed
no restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection
because any statute designed to prohibit a particular religious belief
unaccompanied by any conduct would most certainly be motivated only
by the legislature's preference of a competing religious belief. Thus, all
cases of regulation of belief would amount to regulation of religion for
religious reasons violative of the Free Exercise Clause. On the other hand,
most state regulations of conduct are for public welfare purposes and
have nothing to do with the legislature's religious preferences. Any burden
on religion that results from state regulation of conduct arises only when
particular individuals are engaging in the generally regulated conduct
because of their particular religious beliefs. These burdens are thus usually
inadvertent and did not figure in the belief-action test. As long as the
Court found that regulation address action rather than belief, the Free
Exercise Clause did not pose any problem.147 The Free Exercise Clause thus
gave no protection against the proscription of actions even if considered
central to a religion unless the legislature formally outlawed the belief
itself.148
This belief-action distinction was held by the Court for some years as
shown by cases where the Court upheld other laws which burdened the
practice of the Mormon religion by imposing various penalties on
polygamy such as the Davis case and Church of Latter Day Saints v. United
States.149 However, more than a century since Reynolds was decided, the
Court has expanded the scope of protection from belief to speech and
conduct. But while the belief-action test has been abandoned, the rulings
in the earlier Free Exercise cases have gone unchallenged. The
belief-action distinction is still of some importance though as there
remains an absolute prohibition of governmental proscription of beliefs. 150
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs 151 and proscribes government from
questioning a person's beliefs or imposing penalties or disabilities based
solely on those beliefs. The Clause extends protection to both beliefs and
unbelief. Thus, in Torcaso v. Watkins,152 a unanimous Court struck down a
state law requiring as a qualification for public office an oath declaring
belief in the existence of God. The protection also allows courts to look
into the good faith of a person in his belief, but prohibits inquiry into the
truth of a person's religious beliefs. As held in United States v.
Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may
believe what they cannot prove. They may not be put to the proof of their
religious doctrines or beliefs."
 33
Next to belief which enjoys virtually absolute protection, religious speech
and expressive religious conduct are accorded the highest degree of
protection. Thus, in the 1940 case of Cantwell v. Connecticut,154 the Court
struck down a state law prohibiting door-to-door solicitation for any
religious or charitable cause without prior approval of a state agency. The
law was challenged by Cantwell, a member of the Jehovah's Witnesses
which is committed to active proselytizing. The Court invalidated the state
statute as the prior approval necessary was held to be a censorship of
religion prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the rankest
error to his neighbor. To persuade others to his point of view, the pleader,
as we know, resorts to exaggeration, to vilification of men who have been,
or are, prominent in church or state, and even to false statement. But the
people of this nation have ordained in the light of history, that, in spite of
the probability of excesses and abuses, these liberties are, in the long view,
essential to enlightened opinion and right conduct on the part of citizens
of a democracy.155
Cantwell took a step forward from the protection afforded by the
Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and
freedom to act. The first is absolute but, in the nature of things, the
second cannot be. Conduct remains subject to regulation for the
protection of society. . . In every case, the power to regulate must be so
exercised as not, in attaining a permissible end, unduly to infringe the
protected freedom. (emphasis supplied)156
The Court stated, however, that government had the power to regulate
the times, places, and manner of solicitation on the streets and assure the
peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,157 ruled that police could not prohibit members of the Jehovah's
Witnesses from peaceably and orderly proselytizing on Sundays merely
because other citizens complained. In another case likewise involving the
Jehovah's Witnesses, Niemotko v. Maryland,158 the Court unanimously
held unconstitutional a city council's denial of a permit to the Jehovah's
Witnesses to use the city park for a public meeting. The city council's
refusal was because of the "unsatisfactory" answers of the Jehovah's
Witnesses to questions about Catholicism, military service, and other
issues. The denial of the public forum was considered blatant censorship.
While protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-religious
speech. Religious proselytizing in congested areas, for example, may be
limited to certain areas to maintain the safe and orderly flow of
pedestrians and vehicular traffic as held in the case of Heffron v.
International Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in this
realm depends on the character of the action and the government
rationale for regulating the action.160 The Mormons' religious conduct of
polygamy is an example of unconventional religious practice. As discussed
in the Reynolds case above, the Court did not afford protection to the
practice. Reynolds was reiterated in the 1890 case of Davis again involving
Mormons, where the Court held, viz: "(c)rime is not the less odious
because sanctioned by what any particular sect may designate as
religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory. Under
this test, regulation of religiously dictated conduct would be upheld no
matter how central the conduct was to the exercise of religion and no
matter how insignificant was the government's non-religious regulatory
interest so long as the government is proscribing action and not belief.
Thus, the Court abandoned the simplistic belief-action distinction and
instead recognized the deliberate-inadvertent distinction, i.e., the
distinction between deliberate state interference of religious exercise for
religious reasons which was plainly unconstitutional and government's
inadvertent interference with religion in pursuing some secular
objective.162 In the 1940 case of Minersville School District v.
Gobitis,163 the Court upheld a local school board requirement that all
public school students participate in a daily flag salute program, including
the Jehovah's Witnesses who were forced to salute the American flag in
violation of their religious training, which considered flag salute to be
worship of a "graven image." The Court recognized that the general
requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses' practice of their religion, but justified the government
regulation as an appropriate means of attaining national unity, which was
the "basis of national security." Thus, although the Court was already
aware of the deliberate-inadvertent distinction in government
interference with religion, it continued to hold that the Free Exercise
Clause presented no problem to interference with religion that was
inadvertent no matter how serious the interference, no matter how trivial
the state's non-religious objectives, and no matter how many alternative
approaches were available to the state to pursue its objectives with less
impact on religion, so long as government was acting in pursuit of a
secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette164 which involved a similar set of facts and issue. The Court
recognized that saluting the flag, in connection with the pledges, was a
form of utterance and the flag salute program was a compulsion of
students to declare a belief. The Court ruled that "compulsory unification
of opinions leads only to the unanimity of the graveyard" and exempt the
students who were members of the Jehovah's Witnesses from saluting the
flag. A close scrutiny of the case, however, would show that it was decided
not on the issue of religious conduct as the Court said, "(n)or does the
issue as we see it turn on one's possession of particular religious views or
the sincerity with which they are held. While religion supplies appellees'
motive for enduring the discomforts of making the issue in this case, many
citizens who do not share these religious views hold such a compulsory
rite to infringe constitutional liberty of the individual." (emphasis
supplied)165 The Court pronounced, however, that, "freedoms of speech
and of press, of assembly, and of worship . . . are susceptible only of
restriction only to prevent grave and immediate danger to interests which
the state may lawfully protect."166 The Court seemed to recognize the
extent to which its approach in Gobitis subordinated the religious liberty
of political minorities - a specially protected constitutional value - to the
common everyday economic and public welfare objectives of the majority
in the legislature. This time, even inadvertent interference with religion
must pass judicial scrutiny under the Free Exercise Clause with only grave
and immediate danger sufficing to override religious liberty. But the seeds
of this heightened scrutiny would only grow to a full flower in the
1960s.167
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence.168 A
 34
two-part balancing test was established in Braunfeld v. Brown169 where
the Court considered the constitutionality of applying Sunday closing laws
to Orthodox Jews whose beliefs required them to observe another day as
the Sabbath and abstain from commercial activity on Saturday. Chief
Justice Warren, writing for the Court, found that the law placed a severe
burden on Sabattarian retailers. He noted, however, that since the burden
was the indirect effect of a law with a secular purpose, it would violate the
Free Exercise Clause only if there were alternative ways of achieving the
state's interest. He employed a two-part balancing test of validity where
the first step was for plaintiff to show that the regulation placed a real
burden on his religious exercise. Next, the burden would be upheld only if
the state showed that it was pursuing an overriding secular goal by the
means which imposed the least burden on religious practices. 170 The Court
found that the state had an overriding secular interest in setting aside a
single day for rest, recreation and tranquility and there was no alternative
means of pursuing this interest but to require Sunday as a uniform rest
day.
Two years after came the stricter compelling state interest test in the
1963 case of Sherbert v. Verner.171 This test was similar to the two-part
balancing test in Braunfeld,172 but this latter test stressed that the state
interest was not merely any colorable state interest, but must be
paramount and compelling to override the free exercise claim. In this case,
Sherbert, a Seventh Day Adventist, claimed unemployment compensation
under the law as her employment was terminated for refusal to work on
Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for
determining whether the denial of benefits could withstand constitutional
scrutiny, the Court ruled, viz:
Plainly enough, appellee's conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within
the reach of state legislation. If, therefore, the decision of the South
Carolina Supreme Court is to withstand appellant's constitutional
challenge, it must be either because her disqualification as a beneficiary
represents no infringement by the State of her constitutional rights of free
exercise, or because any incidental burden on the free exercise of
appellant's religion may be justified by a 'compelling state interest in the
regulation of a subject within the State's constitutional power to
regulate. . .'NAACP v. Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct
328.173 (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is
not sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. "(I)n this
highly sensitive constitutional area, '[o]nly the gravest abuses,
endangering paramount interests, give occasion for permissible
limitation.' Thomas v. Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct
315."174 The Court found that there was no such compelling state interest
to override Sherbert's religious liberty. It added that even if the state
could show that Sherbert's exemption would pose serious detrimental
effects to the unemployment compensation fund and scheduling of work,
it was incumbent upon the state to show that no alternative means of
regulations would address such detrimental effects without infringing
religious liberty. The state, however, did not discharge this burden. The
Court thus carved out for Sherbert an exemption from the Saturday work
requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial of
Sherbert's benefits would force her to choose between receiving benefits
and following her religion. This choice placed "the same kind of burden
upon the free exercise of religion as would a fine imposed against (her) for
her Saturday worship." This germinal case of Sherbert firmly established
the exemption doctrine,175 viz:
It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some 'compelling
state interest' intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or
even as early as Braunfeld), the Court moved from the doctrine that
inadvertent or incidental interferences with religion raise no problem
under the Free Exercise Clause to the doctrine that such interferences
violate the Free Exercise Clause in the absence of a compelling state
interest - the highest level of constitutional scrutiny short of a holding of a
per se violation. Thus, the problem posed by the belief-action test and the
deliberate-inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied. In Thomas
v. Review Board177 and Hobbie v. Unemployment Appeals Division,178 for
example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold
unemployment compensation from an employee who resigned or was
discharged due to unwillingness to depart from religious practices and
beliefs that conflicted with job requirements. But not every governmental
refusal to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or
heightened scrutiny is applied. In United States v. Lee,179 for instance, the
Court using strict scrutiny and referring to Thomas, upheld the federal
government's refusal to exempt Amish employers who requested for
exemption from paying social security taxes on wages on the ground of
religious beliefs. The Court held that "(b)ecause the broad public interest
in maintaining a sound tax system is of such a high order, religious belief in
conflict with the payment of taxes affords no basis for resisting the
tax."180 It reasoned that unlike in Sherbert, an exemption would
significantly impair government's achievement of its objective - "the fiscal
vitality of the social security system;" mandatory participation is
indispensable to attain this objective. The Court noted that if an
exemption were made, it would be hard to justify not allowing a similar
exemption from general federal taxes where the taxpayer argues that his
religious beliefs require him to reduce or eliminate his payments so that
he will not contribute to the government's war-related activities, for
example.
The strict scrutiny and compelling state interest test significantly increased
the degree of protection afforded to religiously motivated conduct. While
not affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with
religious practices. Although the members of the Court often disagreed
over which governmental interests should be considered compelling,
thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the
free exercise of religion.181
Heightened scrutiny was also used in the 1972 case of Wisconsin v.
Yoder182 where the Court upheld the religious practice of the Old Order
Amish faith over the state's compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their
children beyond the eighth grade. Chief Justice Burger, writing for the
majority, held, viz:
 35
It follows that in order for Wisconsin to compel school attendance beyond
the eighth grade against a claim that such attendance interferes with the
practice of a legitimate religious belief, it must appear either that the
State does not deny the free exercise of religious belief by its requirement,
or that there is a state interest of sufficient magnitude to override the
interest claiming protection under the Free Exercise Clause. Long before
there was general acknowledgement of the need for universal education,
the Religion Clauses had specially and firmly fixed the right of free exercise
of religious beliefs, and buttressing this fundamental right was an equally
firm, even if less explicit, prohibition against the establishment of any
religion. The values underlying these two provisions relating to religion
have been zealously protected, sometimes even at the expense of other
interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that
only those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause. It is
true that activities of individuals, even when religiously based, are often
subject to regulation by the States in the exercise of their undoubted
power to promote the health, safety, and general welfare, or the Federal
government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police
power of the State is not to deny that there are areas of conduct
protected by the Free Exercise Clause of the First Amendment and thus
beyond the power of the State to control, even under regulations of
general applicability. . . .This case, therefore, does not become easier
because respondents were convicted for their "actions" in refusing to send
their children to the public high school; in this context belief and action
cannot be neatly confined in logic-tight compartments. . .183
The onset of the 1990s, however, saw a major setback in the protection
afforded by the Free Exercise Clause. In Employment Division, Oregon
Department of Human Resources v. Smith,184 the sharply divided
Rehnquist Court dramatically departed from the heightened scrutiny and
compelling justification approach and imposed serious limits on the scope
of protection of religious freedom afforded by the First Amendment. In
this case, the well-established practice of the Native American Church, a
sect outside the Judeo-Christian mainstream of American religion, came in
conflict with the state's interest in prohibiting the use of illicit drugs.
Oregon's controlled substances statute made the possession of peyote a
criminal offense. Two members of the church, Smith and Black, worked as
drug rehabilitation counselors for a private social service agency in Oregon.
Along with other church members, Smith and Black ingested peyote, a
hallucinogenic drug, at a sacramental ceremony practiced by Native
Americans for hundreds of years. The social service agency fired Smith and
Black citing their use of peyote as "job-related misconduct". They applied
for unemployment compensation, but the Oregon Employment Appeals
Board denied their application as they were discharged for job-related
misconduct. Justice Scalia, writing for the majority, ruled that "if
prohibiting the exercise of religion . . . is . . . merely the incidental effect of
a generally applicable and otherwise valid law, the First Amendment has
not been offended." In other words, the Free Exercise Clause would be
offended only if a particular religious practice were singled out for
proscription. The majority opinion relied heavily on the Reynolds case and
in effect, equated Oregon's drug prohibition law with the anti-polygamy
statute in Reynolds. The relevant portion of the majority opinion held, viz:
We have never invalidated any governmental action on the basis of the
Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The government's ability to enforce
generally applicable prohibitions of socially harmful conduct, like its ability
to carry out other aspects of public policy, "cannot depend on measuring
the effects of a governmental action on a religious objector's spiritual
development." . . .To make an individual's obligation to obey such a law
contingent upon the law's coincidence with his religious beliefs except
where the State's interest is "compelling" - permitting him, by virtue of his
beliefs, "to become a law unto himself," . . . - contradicts both
constitutional tradition and common sense.
Justice O'Connor wrote a concurring opinion pointing out that the
majority's rejection of the compelling governmental interest test was the
most controversial part of the decision. Although she concurred in the
result that the Free Exercise Clause had not been offended, she sharply
criticized the majority opinion as a dramatic departure "from well-settled
First Amendment jurisprudence. . . and . . . (as) incompatible with our
Nation's fundamental commitment to religious liberty." This portion of her
concurring opinion was supported by Justices Brennan, Marshall and
Blackmun who dissented from the Court's decision. Justice O'Connor
asserted that "(t)he compelling state interest test effectuates the First
Amendment's command that religious liberty is an independent liberty,
that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless
required by clear and compelling government interest 'of the highest
order'." Justice Blackmun registered a separate dissenting opinion, joined
by Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law
concerning the Religion Clauses of our Constitution." He pointed out that
the Native American Church restricted and supervised the sacramental
use of peyote. Thus, the state had no significant health or safety
justification for regulating the sacramental drug use. He also observed
that Oregon had not attempted to prosecute Smith or Black, or any Native
Americans, for that matter, for the sacramental use of peyote. In
conclusion, he said that "Oregon's interest in enforcing its drug laws
against religious use of peyote (was) not sufficiently compelling to
outweigh respondents' right to the free exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith. The
Court's standard in Smith virtually eliminated the requirement that the
government justify with a compelling state interest the burdens on
religious exercise imposed by laws neutral toward religion. The Smith
doctrine is highly unsatisfactory in several respects and has been criticized
as exhibiting a shallow understanding of free exercise
jurisprudence.185 First, the First amendment was intended to protect
minority religions from the tyranny of the religious and political majority.
A deliberate regulatory interference with minority religious freedom is the
worst form of this tyranny. But regulatory interference with a minority
religion as a result of ignorance or sensitivity of the religious and political
majority is no less an interference with the minority's religious freedom. If
the regulation had instead restricted the majority's religious practice, the
majoritarian legislative process would in all probability have modified or
rejected the regulation. Thus, the imposition of the political majority's
 36
non-religious objectives at the expense of the minority's religious interests
implements the majority's religious viewpoint at the expense of the
minority's. Second, government impairment of religious liberty would
most often be of the inadvertent kind as in Smith considering the political
culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not
afford protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith doctrine simply defies
common sense. The state should not be allowed to interfere with the
most deeply held fundamental religious convictions of an individual in
order to pursue some trivial state economic or bureaucratic objective. This
is especially true when there are alternative approaches for the state to
effectively pursue its objective without serious inadvertent impact on
religion.186
Thus, the Smith decision has been criticized not only for increasing the
power of the state over religion but as discriminating in favor of
mainstream religious groups against smaller, more peripheral groups who
lack legislative clout,187 contrary to the original theory of the First
Amendment.188 Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions and Smith
virtually wiped out their judicial recourse for exemption.189 Thus, the
Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.190 So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993. The RFRA prohibited government at all
levels from substantially burdening a person's free exercise of religion,
even if such burden resulted from a generally applicable rule, unless the
government could demonstrate a compelling state interest and the rule
constituted the least restrictive means of furthering that interest. 191 RFRA,
in effect, sought to overturn the substance of the Smith ruling and restore
the status quo prior to Smith. Three years after the RFRA was enacted,
however, the Court, dividing 6 to 3, declared the RFRA unconstitutional
in City of Boerne v. Flores.192 The Court ruled that "RFRA contradicts vital
principles necessary to maintain separation of powers and the federal
balance." It emphasized the primacy of its role as interpreter of the
Constitution and unequivocally rejected, on broad institutional grounds, a
direct congressional challenge of final judicial authority on a question of
constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah193 which was ruled consistent with the Smith doctrine. This case
involved animal sacrifice of the Santeria, a blend of Roman Catholicism
and West African religions brought to the Carribean by East African slaves.
An ordinance made it a crime to "unnecessarily kill, torment, torture, or
mutilate an animal in public or private ritual or ceremony not for the
primary purpose of food consumption." The ordinance came as a response
to the local concern over the sacrificial practices of the Santeria. Justice
Kennedy, writing for the majority, carefully pointed out that the
questioned ordinance was not a generally applicable criminal prohibition,
but instead singled out practitioners of the Santeria in that it forbade
animal slaughter only insofar as it took place within the context of
religious rituals.
It may be seen from the foregoing cases that under the Free Exercise
Clause, religious belief is absolutely protected, religious speech and
proselytizing are highly protected but subject to restraints applicable to
non-religious speech, and unconventional religious practice receives less
protection; nevertheless conduct, even if its violates a law, could be
accorded protection as shown in Wisconsin.194
B. Establishment Clause
The Court's first encounter with the Establishment Clause was in the 1947
case of Everson v. Board of Education.195 Prior cases had made passing
reference to the Establishment Clause196 and raised establishment
questions but were decided on other grounds.197 It was in the Everson
case that the U.S. Supreme Court adopted Jefferson's metaphor of "a wall
of separation between church and state" as encapsulating the meaning of
the Establishment Clause. The often and loosely used phrase "separation
of church and state" does not appear in the U.S. Constitution. It became
part of U.S. jurisprudence when the Court in the 1878 case of Reynolds v.
United States198 quoted Jefferson's famous letter of 1802 to the Danbury
Baptist Association in narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man
and his God; that he owes account to none other for his faith or his
worship; that the legislative powers of the Government reach actions only,
and not opinions, I contemplate with sovereign reverence that act of the
whole American people which declared that their Legislature should 'make
no law respecting an establishment of religion or prohibiting the free
exercise thereof,' thus building a wall of separation between Church and
State.199 (emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, "(c)oming as
this does from an acknowledged leader of the advocates of the measure,
it may be accepted almost as an authoritative declaration of the scope and
effect of the amendment thus secured."200
The interpretation of the Establishment Clause has in large part been in
cases involving education, notably state aid to private religious schools
and prayer in public schools.201 In Everson v. Board of Education, for
example, the issue was whether a New Jersey local school board could
reimburse parents for expenses incurred in transporting their children to
and from Catholic schools. The reimbursement was part of a general
program under which all parents of children in public schools and
nonprofit private schools, regardless of religion, were entitled to
reimbursement for transportation costs. Justice Hugo Black, writing for a
sharply divided Court, justified the reimbursements on the child benefit
theory, i.e., that the school board was merely furthering the state's
legitimate interest in getting children "regardless of their religion, safely
and expeditiously to and from accredited schools." The Court, after
narrating the history of the First Amendment in Virginia, interpreted the
Establishment Clause, viz:
The 'establishment of religion' clause of the First Amendment means at
least this: Neither a state nor the Federal Government can set up a church.
Neither can pass laws which aid one religion, aid all religions, or prefer
one religion over another. Neither can force nor influence a person to go
to or remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for
entertaining or professing religious beliefs or disbeliefs, for church
attendance or non-attendance. No tax in any amount, large or small, can
be levied to support any religious activities or institutions, whatever they
may be called, or whatever form they may adopt to teach or practice
religion. Neither a state nor the Federal Government can, openly or
secretly participate in the affairs of any religious organizations or groups
and vice versa. In the words of Jefferson, the clause against establishment
of religion by law was intended to erect "a wall of separation between
Church and State."202
The Court then ended the opinion, viz:
 37
The First Amendment has erected a wall between church and state. That
wall must be kept high and impregnable. We could not approve the
slightest breach. New Jersey has not breached it here.203
By 1971, the Court integrated the different elements of the Court's
Establishment Clause jurisprudence that evolved in the 1950s and 1960s
and laid down a three-pronged test in Lemon v. Kurtzman204 in
determining the constitutionality of policies challenged under the
Establishment Clause. This case involved a Pennsylvania statutory program
providing publicly funded reimbursement for the cost of teachers' salaries,
textbooks, and instructional materials in secular subjects and a Rhode
Island statute providing salary supplements to teachers in parochial
schools. The Lemon test requires a challenged policy to meet the following
criteria to pass scrutiny under the Establishment Clause. "First, the statute
must have a secular legislative purpose; second, its primary or principal
effect must be one that neither advances nor inhibits religion (Board of
Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S Ct 1923
[1968]); finally, the statute must not foster 'an excessive entanglement
with religion.' (Walz v.Tax Commission, 397 US 664, 668, 25 L Ed 2d 697,
701, 90 S Ct 1409 [1970])" (emphasis supplied)205Using 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. Schempp208 and Murray v. Curlett209 where
the Court struck down the practice of Bible reading and the recitation of
the Lord's prayer in the Pennsylvania and Maryland schools. The Court
held that to withstand the strictures of the Establishment Clause, a statute
must have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. It reiterated, viz:
The wholesome 'neutrality' of which this Court's cases speak thus stems
from a recognition of the teachings of history that powerful sects or
groups might bring about a fusion of governmental and religious functions
or a concert or dependency of one upon the other to the end that official
support of the State of Federal Government would be placed behind the
tenets of one or of all orthodoxies. This the Establishment Clause prohibits.
And a further reason for neutrality is found in the Free Exercise Clause,
which recognizes the value of religious training, teaching and observance
and, more particularly, the right of every person to freely choose his own
course with reference thereto, free of any compulsion from the state.210
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.211 On several occasions,
constitutional amendments have been introduced in Congress to overturn
the school prayer decisions. Still, the Court has maintained its position and
has in fact reinforced it in the 1985 case of Wallace v. Jaffree212 where the
Court struck down an Alabama law that required public school students to
observe a moment of silence "for the purpose of meditation or voluntary
prayer" at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction within
public school premises and instructional time were declared offensive of
the Establishment Clause in the 1948 case of McCollum v. Board of
Education,213 decided just a year after the seminal Everson case. In this
case, interested members of the Jewish, Roman Catholic and a few
Protestant faiths obtained permission from the Board of Education to
offer classes in religious instruction to public school students in grades
four to nine. Religion classes were attended by pupils whose parents
signed printed cards requesting that their children be permitted to attend.
The classes were taught in three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were held weekly from thirty to
forty minutes during regular class hours in the regular classrooms of the
school building. The religious teachers were employed at no expense to
the school authorities but they were subject to the approval and
supervision of the superintendent of schools. Students who did not
choose to take religious instruction were required to leave their
classrooms and go to some other place in the school building for their
secular studies while those who were released from their secular study for
religious instruction were required to attend the religious classes. The
Court held that the use of tax-supported property for religious instruction
and the close cooperation between the school authorities and the
religious council in promoting religious education amounted to a
prohibited use of tax-established and tax-supported public school system
to aid religious groups spread their faith. The Court rejected the claim that
the Establishment Clause only prohibited government preference of one
religion over another and not an impartial governmental assistance of all
religions. In Zorach v. Clauson,214 however, the Court upheld released
time programs allowing students in public schools to leave campus upon
parental permission to attend religious services while other students
attended study hall. Justice Douglas, the writer of the opinion, stressed
that "(t)he First Amendment does not require that in every and all
respects there shall be a separation of Church and State." The Court
distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction
and the force of the public school was used to promote that instruction. . .
We follow the McCollum case. But we cannot expand it to cover the
present released time program unless separation of Church and State
means that public institutions can make no adjustments of their schedules
to accommodate the religious needs of the people. We cannot read into
the Bill of Rights such a philosophy of hostility to religion.215
In the area of government displays or affirmations of belief, the Court has
given leeway to religious beliefs and practices which have acquired a
secular meaning and have become deeply entrenched in history. For
instance, in McGowan v. Maryland,216 the Court upheld laws that
prohibited certain businesses from operating on Sunday despite the
obvious religious underpinnings of the restrictions. Citing the secular
purpose of the Sunday closing laws and treating as incidental the fact that
this day of rest happened to be the day of worship for most Christians, the
Court held, viz:
 38
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions and
people with no religion regard Sunday as a time for family activity, for
visiting friends and relatives, for later sleeping, for passive and active
entertainments, for dining out, and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to invalidate
Nebraska's policy of beginning legislative sessions with prayers offered by
a Protestant chaplain retained at the taxpayers' expense. The majority
opinion did not rely on the Lemon test and instead drew heavily from
history and the need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative sessions
with prayer has become the fabric of our society. To invoke Divine
guidance on a public body entrusted with making the laws is not, in these
circumstances, an "establishment" of religion or a step toward
establishment; it is simply a tolerable acknowledgement of beliefs widely
held among the people of this country. As Justice Douglas observed, "(w)e
are a religious people whose institutions presuppose a Supreme Being."
(Zorach c. Clauson, 343 US 306, 313 [1952])219 (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
"inevitably be embarrassed if it were to attempt to strike down a practice
that occurs in nearly every legislature in the United States, including the
U.S. Congress."220 That Marsh was not an aberration is suggested by
subsequent cases. In the 1984 case of Lynch v. Donnelly,221 the Court
upheld a city-sponsored nativity scene in Rhode Island. By a 5-4 decision,
the majority opinion hardly employed the Lemon test and again relied on
history and the fact that the creche had become a "neutral harbinger of
the holiday season" for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been
exempt from local property taxes and their income exempt from federal
and state income taxes. In the 1970 case of Walz v. Tax
Commission,222 the New York City Tax Commission's grant of property tax
exemptions to churches as allowed by state law was challenged by Walz
on the theory that this required him to subsidize those churches indirectly.
The Court upheld the law stressing its neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of
religious worship within a broad class of property owned by non-profit,
quasi-public corporations . . . The State has an affirmative policy that
considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in the
public interest.223
The Court added that the exemption was not establishing religion but
"sparing the exercise of religion from the burden of property taxation
levied on private profit institutions"224 and preventing excessive
entanglement between state and religion. At the same time, the Court
acknowledged the long-standing practice of religious tax exemption and
the Court's traditional deference to legislative bodies with respect to the
taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life,
beginning with pre-Revolutionary colonial times, than for the government
to exercise . . . this kind of benevolent neutrality toward churches and
religious exercise generally so long as none was favored over others and
none suffered interference.225(emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of the
hundreds of religion clauses cases that the U.S. Supreme Court has passed
upon. Court rulings contrary to or making nuances of the above cases may
be cited. Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian
minister to lead the legislature in daily prayers (Marsh v. Chambers, 463
US783, 792-93[1983]), but unconstitutional for a state to set aside a
moment of silence in the schools for children to pray if they want to
(Wallace v. Jaffree, 472 US 38, 56 [1985]). It is unconstitutional for a state
to require employers to accommodate their employees' work schedules to
their sabbath observances (Estate of Thornton v. Caldor, Inc., 472 US 703,
709-10 [1985]) but constitutionally mandatory for a state to require
employers to pay workers compensation when the resulting inconsistency
between work and sabbath leads to discharge (. . .Sherbert v. Verner, 374
US 398, 403-4 [1963]). It is constitutional for the government to give
money to religiously-affiliated organizations to teach adolescents about
proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611 [1988]), but
not to teach them science or history (Lemon v. Kurtzman, 403 US 602,
618-619 [1971]). It is constitutional for the government to provide
religious school pupils with books (Board of Education v. Allen, 392 US 236,
238 [1968]), but not with maps (Wolman v. Walter, 433 US 229, 249-51
[1977]); with bus rides to religious schools (Everson v. Board of Education,
330 US 1, 17 [1947]), but not from school to a museum on a field trip
(Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee for Pub. Educ. and
Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for
safety-related maintenance (Committee for Pub. Educ v. Nyquist, 413 US
756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law
regarding particular religious beliefs or conduct colliding with particular
government regulations. Rather, the cases discussed above suffice to
show that, as legal scholars observe, this area of jurisprudence has
demonstrated two main standards used by the Court in deciding religion
clause cases: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality or
accommodation. The weight of current authority, judicial and in terms of
sheer volume, appears to lie with the separationists, strict or tame.227 But
the accommodationists have also attracted a number of influential
scholars and jurists.228 The two standards producing two streams of
jurisprudence branch out respectively from the history of the First
Amendment in England and the American colonies and climaxing in
Virginia as narrated in this opinion and officially acknowledged by the
Court in Everson, and from American societal life which reveres religion
and practices age-old religious traditions. Stated otherwise, separation -
strict or tame - protects the principle of church-state separation with a
rigid reading of the principle while benevolent neutrality protects religious
realities, tradition and established practice with a flexible reading of the
principle.229 The latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress intended to
allow government support of religion, at least as long as that support did
not discriminate in favor of one particular religion. . . the Supreme Court
 39
has overlooked many important pieces of history. Madison, for example,
was on the congressional committee that appointed a chaplain, he
declared several national days of prayer and fasting during his presidency,
and he sponsored Jefferson's bill for punishing Sabbath breakers;
moreover, while president, Jefferson allowed federal support of religious
missions to the Indians. . . And so, concludes one recent book, 'there is no
support in the Congressional records that either the First Congress, which
framed the First Amendment, or its principal author and sponsor, James
Madison, intended that Amendment to create a state of complete
independence between religion and government. In fact, the evidence in
the public documents goes the other way.230 (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent
neutrality that gives room for accommodation, less than twenty-four
hours after Congress adopted the First Amendment's prohibition on laws
respecting an establishment of religion, Congress decided to express its
thanks to God Almighty for the many blessings enjoyed by the nation with
a resolution in favor of a presidential proclamation declaring a national
day of Thanksgiving and Prayer. Only two members of Congress opposed
the resolution, one on the ground that the move was a "mimicking of
European customs, where they made a mere mockery of thanksgivings",
the other on establishment clause concerns. Nevertheless, the salutary
effect of thanksgivings throughout Western history was acknowledged
and the motion was passed without further recorded discussion. 231 Thus,
accommodationists also go back to the framers to ascertain the meaning
of the First Amendment, but prefer to focus on acts rather than words.
Contrary to the claim of separationists that rationalism pervaded America
in the late 19th century and that America was less specifically Christian
during those years than at any other time before or
since,232accommodationaists claim that American citizens at the time of
the Constitution's origins were a remarkably religious people in
particularly Christian terms.233
The two streams of jurisprudence - separationist or accommodationist -
are anchored on a different reading of the "wall of separation." The strict
separtionist view holds that Jefferson meant the "wall of separation" to
protect the state from the church. Jefferson was a man of the
Enlightenment Era of the eighteenth century, characterized by the
rationalism and anticlericalism of that philosophic bent. 234 He has often
been regarded as espousing Deism or the rationalistic belief in a natural
religion and natural law divorced from its medieval connection with divine
law, and instead adhering to a secular belief in a universal
harmony.235 Thus, according to this Jeffersonian view, the Establishment
Clause being meant to protect the state from the church, the state's
hostility towards religion allows no interaction between the two. 236 In fact,
when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises and the
Constitution prohibited the government from intermeddling with
religion.237 This approach erects an absolute barrier to formal
interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on
believers.238 Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a
free choice among political views thus a strict "wall of separation" is
necessary.239 Strict separation faces difficulties, however, as it is deeply
embedded in history and contemporary practice that enormous amounts
of aid, both direct and indirect, flow to religion from government in return
for huge amounts of mostly indirect aid from religion. Thus, strict
separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely to.240
A tamer version of the strict separationist view, the strict neutrality or
separationist view is largely used by the Court, showing the Court's
tendency to press relentlessly towards a more secular society. 241 It finds
basis in the Everson case where the Court declared that Jefferson's "wall
of separation" encapsulated the meaning of the First Amendment but at
the same time held that the First Amendment "requires the state to be
neutral in its relations with groups of religious believers and non-believers;
it does not require the state to be their adversary. State power is no more
to be used so as to handicap religions than it is to favor them." (emphasis
supplied)242 While the strict neutrality approach is not hostile to religion, it
is strict in holding that religion may not be used as a basis for classification
for purposes of governmental action, whether the action confers rights or
privileges or imposes duties or obligations. Only secular criteria may be
the basis of government action. It does not permit, much less require,
accommodation of secular programs to religious belief.243 Professor
Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion
clauses of the first amendment is that the freedom and separation clauses
should be read as a single precept that government cannot utilize religion
as a standard for action or inaction because these clauses prohibit
classification in terms of religion either to confer a benefit or to impose a
burden.244
The Court has repeatedly declared that religious freedom means
government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government
from acting except for secular purposes and in ways that have primarily
secular effects.245
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent, in the
public schools as in Engel and Schempp.246 The McCollum case prohibiting
optional religious instruction within public school premises during regular
class hours also demonstrates strict neutrality. In these education cases,
the Court refused to uphold the government action as they were based
not on a secular but on a religious purpose. Strict neutrality was also used
in Reynolds and Smith which both held that if government acts in pursuit
of a generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has not been
offended. However, if the strict neutrality standard is applied in
interpreting the Establishment Clause, it could de facto void religious
expression in the Free Exercise Clause. As pointed out by Justice Goldberg
in his concurring opinion in Schempp, strict neutrality could lead to "a
brooding and pervasive devotion to the secular and a passive, or even
active, hostility to the religious" which is prohibited by the
Constitution.247 Professor Laurence Tribe commented in his authoritative
treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the
very idea of a free exercise clause. The Framers, whatever specific
applications they may have intended, clearly envisioned religion as
something special; they enacted that vision into law by guaranteeing the
free exercise of religion but not, say, of philosophy or science. The strict
neutrality approach all but erases this distinction. Thus it is not surprising
that the Supreme Court has rejected strict neutrality, permitting and
sometimes mandating religious classifications.248
The separationist approach, whether strict or tame, is caught in a dilemma
because while the Jeffersonian wall of separation "captures the spirit of
the American ideal of church-state separation", in real life church and
 40
state are not and cannot be totally separate.249 This is all the more true in
contemporary times when both the government and religion are growing
and expanding their spheres of involvement and activity, resulting in the
intersection of government and religion at many points.250
Consequently, the Court has also decided cases employing benevolent
neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the "wall of separation" associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howe's
classic, The Garden and the Wilderness, he asserts that to the extent the
Founders had a wall of separation in mind, it was unlike the Jeffersonian
wall that is meant to protect the state from the church; instead, the wall is
meant to protect the church from the state, 251 i.e., the "garden" of the
church must be walled in for its own protection from the "wilderness" of
the world252 with its potential for corrupting those values so necessary to
religious commitment.253 Howe called this the "theological" or
"evangelical" rationale for church-state separation while the wall
espoused by "enlightened" statesmen such as Jefferson and Madison, was
a "political" rationale seeking to protect politics from intrusions by the
church.254 But it has been asserted that this contrast between the Williams
and Jeffersonian positions is more accurately described as a difference in
kinds or styles of religious thinking, not as a conflict between "religious"
and "secular (political)"; the religious style was biblical and evangelical in
character while the secular style was grounded in natural religion, more
generic and philosophical in its religious orientation.255
The Williams wall is, however, breached for the church is in the state and
so the remaining purpose of the wall is to safeguard religious liberty.
Williams' view would therefore allow for interaction between church and
state, but is strict with regard to state action which would threaten the
integrity of religious commitment.256 His conception of separation is not
total such that it provides basis for certain interactions between church
and state dictated by apparent necessity or practicality.257 This
"theological" view of separation is found in Williams' writings, viz:
. . . when they have opened a gap in the hedge or wall of separation
between the garden of the church and the wilderness of the world, God
hath ever broke down the wall itself, removed the candlestick, and made
his garden a wilderness, as this day. And that therefore if He will eer
please to restore His garden and paradise again, it must of necessity be
walled in peculiarly unto Himself from the world. . .258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all that has
been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with
religion. Short of those expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent neutrality which will
permit religious exercise to exist without sponsorship and without
interference.259(emphasis supplied)
The Zorach case expressed the doctrine of accommodation,260 viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously
defines the manner, the specific ways, in which there shall be no concert
or union or dependency one or the other. That is the common sense of
the matter. Otherwise, the state and religion would be aliens to each
other - hostile, suspicious, and even unfriendly. Churches could not be
required to pay even property taxes. Municipalities would not be
permitted to render police or fire protection to religious groups.
Policemen who helped parishioners into their places of worship would
violate the Constitution. Prayers in our legislative halls; the appeals to the
Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God" in our courtroom
oaths- these and all other references to the Almighty that run through our
laws, our public rituals, our ceremonies would be flouting the First
Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: 'God save the
United States and this Honorable Court.
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being.
We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities
by adjusting the schedule of public events, it follows the best of our
traditions. For it then respects the religious nature of our people and
accommodates the public service to their spiritual needs. To hold that it
may not would be to find in the Constitution a requirement that the
government show a callous indifference to religious groups. . . But we find
no constitutional requirement which makes it necessary for government
to be hostile to religion and to throw its weight against efforts to widen
their effective scope of religious influence.261(emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that
religion serves a function essential to the survival of society itself, thus
there is no human society without one or more ways of performing the
essential function of religion. Although for some individuals there may be
no felt need for religion and thus it is optional or even dispensable, for
society it is not, which is why there is no human society without one or
more ways of performing the essential function of religion. Even in
ostensibly atheistic societies, there are vigorous underground religion(s)
and surrogate religion(s) in their ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain functional
prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . .
Most writers list religion among the functional prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no known
human society without something which modern social scientists would
classify as a religion…Religion is as much a human universal as
language."264
Benevolent neutrality thus recognizes that religion plays an important role
in the public life of the United States as shown by many traditional
government practices which, to strict neutrality, pose Establishment
Clause questions. Among these are the inscription of "In God We Trust" on
American currency, the recognition of America as "one nation under God"
in the official pledge of allegiance to the flag, the Supreme Court's
time-honored practice of opening oral argument with the invocation "God
save the United States and this honorable Court," and the practice of
Congress and every state legislature of paying a chaplain, usually of a
particular Protestant denomination to lead representatives in
prayer.265 These practices clearly show the preference for one theological
viewpoint -the existence of and potential for intervention by a god - over
the contrary theological viewpoint of atheism. Church and government
agencies also cooperate in the building of low-cost housing and in other
 41
forms of poor relief, in the treatment of alcoholism and drug addiction, in
foreign aid and other government activities with strong moral
dimension.266 The persistence of these de facto establishments are in large
part explained by the fact that throughout history, the evangelical theory
of separation, i.e., Williams' wall, has demanded respect for these de facto
establishments.267 But the separationists have a different explanation. To
characterize these as de jure establishments according to the principle of
the Jeffersonian wall, the U.S. Supreme Court, the many dissenting and
concurring opinions explain some of these practices as "'de minimis'
instances of government endorsement or as historic governmental
practices that have largely lost their religious significance or at least have
proven not to lead the government into further involvement with
religion.268
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
into account not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a burden on, or
facilitate the exercise of, a person's or institution's religion. As Justice
Brennan explained, the "government [may] take religion into account…to
exempt, when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices would
otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may
flourish."269 (emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect for
the conflict between the temporal and spiritual authority in which the
minority finds itself.270
Accommodation is distinguished from strict neutrality in that the latter
holds that government should base public policy solely on secular
considerations, without regard to the religious consequences of its actions.
The debate between accommodation and strict neutrality is at base a
question of means: "Is the freedom of religion best achieved when the
government is conscious of the effects of its action on the various religious
practices of its people, and seeks to minimize interferences with those
practices? Or is it best advanced through a policy of 'religious blindness' -
keeping government aloof from religious practices and issues?" An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and deliberate
efforts to avoid interference with religious freedom. On the other hand,
the strict neutrality adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid religion-specific
policy even at the cost of inhibiting religious exercise.271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position. First,
the accommodationist interpretation is most consistent with the language
of the First Amendment. The religion clauses contain two parallel
provisions, both specifically directed at "religion." The government may
not "establish" religion and neither may government "prohibit" it. Taken
together, the religion clauses can be read most plausibly as warding off
two equal and opposite threats to religious freedom - government action
that promotes the (political) majority's favored brand of religion and
government action that impedes religious practices not favored by the
majority. The substantive end in view is the preservation of the autonomy
of religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other hand,
strict neutrality interprets the religion clauses as allowing government to
do whatever it desires to or for religion, as long as it does the same to or
for comparable secular entities. Thus, for example, if government
prohibits all alcoholic consumption by minors, it can prohibit minors from
taking part in communion. Paradoxically, this view would make the
religion clauses violate the religion clauses, so to speak, since the religion
clauses single out religion by name for special protection. Second, the
accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment is that
freedom to carry out one's duties to a Supreme Being is an inalienable
right, not one dependent on the grace of legislature. Although inalienable,
it is necessarily limited by the rights of others, including the public right of
peace and good order. Nevertheless it is a substantive right and not
merely a privilege against discriminatory legislation. The accomplishment
of the purpose of the First Amendment requires more than the "religion
blindness" of strict neutrality. With the pervasiveness of government
regulation, conflicts with religious practices become frequent and intense.
Laws that are suitable for secular entities are sometimes inappropriate for
religious entities, thus the government must make special provisions to
preserve a degree of independence for religious entities for them to carry
out their religious missions according to their religious beliefs. Otherwise,
religion will become just like other secular entities subject to pervasive
regulation by majoritarian institutions. Third, the accommodationist
interpretation is particularly necessary to protect adherents of minority
religions from the inevitable effects of majoritarianism, which include
ignorance and indifference and overt hostility to the minority. In a
democratic republic, laws are inevitably based on the presuppositions of
the majority, thus not infrequently, they come into conflict with the
religious scruples of those holding different world views, even in the
absence of a deliberate intent to interfere with religious practice. At times,
this effect is unavoidable as a practical matter because some laws are so
necessary to the common good that exceptions are intolerable. But in
other instances, the injury to religious conscience is so great and the
advancement of public purposes so small or incomparable that only
indifference or hostility could explain a refusal to make exemptions.
Because of plural traditions, legislators and executive officials are
frequently willing to make such exemptions when the need is brought to
their attention, but this may not always be the case when the religious
practice is either unknown at the time of enactment or is for some reason
unpopular. In these cases, a constitutional interpretation that allows
accommodations prevents needless injury to the religious consciences of
those who can have an influence in the legislature; while a constitutional
interpretation that requires accommodations extends this treatment to
religious faiths that are less able to protect themselves in the political
arena. Fourth, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of
different faiths in a pluralistic nation. Without accommodation, many
otherwise beneficial laws would interfere severely with religious freedom.
Aside from laws against serving alcoholic beverages to minors conflicting
with celebration of communion, regulations requiring hard hats in
construction areas can effectively exclude Amish and Sikhs from the
workplace, or employment anti-discrimination laws can conflict with the
Roman Catholic male priesthood, among others. Exemptions from such
laws are easy to craft and administer and contribute much to promoting
religious freedom at little cost to public policy. Without exemptions,
legislature would be frequently forced to choose between violating
religious conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption seems
manifestly more reasonable than either of the alternative: no exemption
or no law.272
Benevolent neutrality gives room for different kinds of accommodation:
those which are constitutionally compelled, i.e., required by the Free
 42

Exercise Clause; and those which are discretionary or legislative, i.e., and potential accommodation interests. To say that there are valid exemptions
those not required by the Free Exercise Clause but nonetheless permitted buttressed by the Free Exercise Clause does not mean that all claims for
by the Establishment Clause.273 Some Justices of the Supreme Court have free exercise exemptions are valid.282 An example where accommodation
also used the term accommodation to describe government actions that was prohibited is McCollum where the Court ruled against optional
acknowledge or express prevailing religious sentiments of the community religious instruction in the public school premises.283 In effect, the last
such as display of a religious symbol on public property or the delivery of a situation would arrive at a strict neutrality conclusion.
prayer at public ceremonial events.274 Stated otherwise, using benevolent
neutrality as a standard could result to three situations of accommodation: In the first situation where accommodation is required, the approach
those where accommodation is required, those where it is permissible, follows this basic framework:
and those where it is prohibited. In the first situation, accommodation is
required to preserve free exercise protections and not unconstitutionally
If the plaintiff can show that a law or government practice inhibits the free
infringe on religious liberty or create penalties for religious freedom.
exercise of his religious beliefs, the burden shifts to the government to
Contrary to the Smith declaration that free exercise exemptions are
demonstrate that the law or practice is necessary to the accomplishment
"intentional government advancement", these exemptions merely relieve
of some important (or 'compelling') secular objective and that it is the
the prohibition on the free exercise thus allowing the burdened religious
least restrictive means of achieving that objective. If the plaintiff meets
adherent to be left alone. The state must create exceptions to laws of
this burden and the government does not, the plaintiff is entitled to
general applicability when these laws threaten religious convictions or
exemption from the law or practice at issue. In order to be protected, the
practices in the absence of a compelling state interest. 275 By allowing such
claimant's beliefs must be 'sincere', but they need not necessarily be
exemptions, the Free Exercise Clause does not give believers the right or
consistent, coherent, clearly articulated, or congruent with those of the
privilege to choose for themselves to override socially-prescribed decision;
claimant's religious denomination. 'Only beliefs rooted in religion are
it allows them to obey spiritual rather than temporal authority 276 for those
protected by the Free Exercise Clause'; secular beliefs, however sincere
who seriously invoke the Free Exercise Clause claim to be fulfilling a
and conscientious, do not suffice.284
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 In other words, a three-step process (also referred to as the "two-step
appeal to a yet more compelling duty. Of course, those denied will usually balancing process" supra when the second and third steps are combined)
not find the reason for the denial compelling. "Because they may turn out as in Sherbert is followed in weighing the state's interest and religious
to be right about the duty in question, and because, even if they are freedom when these collide. Three questions are answered in this process.
wrong, religion bears witness to that which transcends the political order, First, "(h)as the statute or government action created a burden on the free
such denials should be rare and painfully reluctant."277 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
The Yoder case is an example where the Court held that the state must
Ballard and Cantwell. The sincerity of the claimant's belief is ascertained
accommodate the religious beliefs of the Amish who objected to enrolling
to avoid the mere claim of religious beliefs to escape a mandatory
their children in high school as required by law. The Sherbert case is
regulation. As evidence of sincerity, the U.S. Supreme Court has
another example where the Court held that the state unemployment
considered historical evidence as in Wisconsin where the Amish people
compensation plan must accommodate the religious convictions of
had held a long-standing objection to enrolling their children in ninth and
Sherbert.278 In these cases of "burdensome effect", the modern approach
tenth grades in public high schools. In another case, Dobkin v. District of
of the Court has been to apply strict scrutiny, i.e., to declare the burden as
Columbia,285 the Court denied the claim of a party who refused to appear
permissible, the Court requires the state to demonstrate that the
in court on Saturday alleging he was a Sabbatarian, but the Court noted
regulation which burdens the religious exercise pursues a particularly
that he regularly conducted business on Saturday. Although it is true that
important or compelling government goal through the least restrictive
the Court might erroneously deny some claims because of a misjudgment
means. If the state's objective could be served as well or almost as well by
of sincerity, this is not as argument to reject all claims by not allowing
granting an exemption to those whose religious beliefs are burdened by
accommodation as a rule. There might be injury to the particular claimant
the regulation, such an exemption must be given.279This approach of the
or to his religious community, but for the most part, the injustice is done
Court on "burdensome effect" was only applied since the 1960s. Prior to
only in the particular case.286 Aside from the sincerity, the court may look
this time, the Court took the separationist view that as long as the state
into the centrality of those beliefs, assessing them not on an objective
was acting in pursuit of non-religious ends and regulating conduct rather
basis but in terms of the opinion and belief of the person seeking
than pure religious beliefs, the Free Exercise Clause did not pose a
exemption. In Wisconsin, for example, the Court noted that the Amish
hindrance such as in Reynolds.280 In the second situation where
people's convictions against becoming involved in public high schools
accommodation is permissible, the state may, but is not required to,
were central to their way of life and faith. Similarly, in Sherbert, the Court
accommodate religious interests. The Walz case illustrates this situation
concluded that the prohibition against Saturday work was a "cardinal
where the Court upheld the constitutionality of tax exemption given by
principle."287 Professor Lupu puts to task the person claiming
New York to church properties, but did not rule that the state was
exemption, viz:
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 On the claimant's side, the meaning and significance of the relevant
Clause."281 The Court held that New York could have an interest in religious practice must be demonstrated. Religious command should
encouraging religious values and avoiding threats to those values through outweigh custom, individual conscience should count for more than
the burden of property taxes. Other examples are the Zorach case personal convenience, and theological principle should be of greater
allowing released time in public schools and Marsh allowing payment of significance than institutional ease. Sincerity matters, (footnote omitted)
legislative chaplains from public funds. Finally, in the situation where and longevity of practice - both by the individual and within the
accommodation is prohibited, establishment concerns prevail over individual's religious tradition - reinforces sincerity. Most importantly, the
 43
law of free exercise must be inclusive and expansive, recognizing
non-Christian religions - eastern, Western, aboriginal and otherwise - as
constitutionally equal to their Christian counterparts, and accepting of the
intensity and scope of fundamentalist creed.288
Second, the court asks: "(i)s there a sufficiently compelling state interest
to justify this infringement of religious liberty?" In this step, the
government has to establish that its purposes are legitimate for the state
and that they are compelling. Government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are
granted.289 The person claiming religious freedom, on the other hand, will
endeavor to show that the interest is not legitimate or that the purpose,
although legitimate, is not compelling compared to infringement of
religious liberty. This step involves balancing, i.e., weighing the interest of
the state against religious liberty to determine which is more compelling
under the particular set of facts. The greater the state's interests, the
more central the religious belief would have to be to overcome it. In
assessing the state interest, the court will have to determine the
importance of the secular interest and the extent to which that interest
will be impaired by an exemption for the religious practice. Should the
court find the interest truly compelling, there will be no requirement that
the state diminish the effectiveness of its regulation by granting the
exemption.290
Third, the court asks: "(h)as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?"291 The analysis requires the state to show that the means in which
it is achieving its legitimate state objective is the least intrusive means, i.e.,
it has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties. In Cantwell, for example, the Court
invalidated the license requirement for the door-to-door solicitation as it
was a forbidden burden on religious liberty, noting that less drastic means
of insuring peace and tranquility existed. As a whole, in carrying out the
compelling state interest test, the Court should give careful attention to
context, both religious and regulatory, to achieve refined judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases, the
competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of 1876.
Civil authorities exercised religious functions and the friars exercised civil
powers.294 Catholics alone enjoyed the right of engaging in public
ceremonies of worship.295 Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church
in our country under the Spanish rule. Catholicism was in fact protected by
the Spanish Penal Code of 1884 which was in effect in the Philippines.
Some of the offenses in chapter six of the Penal Code entitled "Crimes
against Religion and Worship" referred to crimes against the state
religion.296The 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,
 44
benefit or support of any priest, preacher, minister, or other religious
teachers or dignitary as such.
This was followed by the Philippine Independence Law or
Tydings-McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution. It
enjoined Filipinos to include freedom of religion in drafting their
constitution preparatory to the grant of independence. The law prescribed
that "(a)bsolute toleration of religious sentiment shall be secured and no
inhabitant or religious organization shall be molested in person or
property on account of religious belief or mode of worship."303
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as Chairman of
the Committee on Bill of Rights acknowledged that "(i)t was the Treaty of
Paris of December 10, 1898, which first introduced religious toleration in
our country. President McKinley's Instructions to the Second Philippine
Commission reasserted this right which later was incorporated into the
Philippine Bill of 1902 and in the Jones Law."304 In accordance with the
Tydings-McDuffie Law, the 1935 Constitution provided in the Bill of Rights,
Article IV, Section 7, viz:
Sec. 7. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and enjoyment
of religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
This provision, borrowed from the Jones Law, was readily approved by the
Convention.305 In his speech as Chairman of the Committee on Bill of
Rights, Delegate Laurel said that modifications in phraseology of the Bill of
Rights in the Jones Law were avoided whenever possible because "the
principles must remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and interpreted
by the great statesmen and jurists that vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution contained
an almost identical provision on religious freedom in the Bill of Rights in
Article IV, Section 8, viz:
Sec. 8. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference,
shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.
This time, however, the General Provisions in Article XV added in Section
15 that "(t)he separation of church and state shall be inviolable."
Without discussion by the 1986 Constitutional Commission, the 1973
religious clauses were reproduced in the 1987 Constitution under the Bill
of Rights in Article III, Section 5.307 Likewise, the provision on separation of
church and state was included verbatim in the 1987 Constitution, but this
time as a principle in Section 6, Article II entitled Declaration of Principles
and State Policies.
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in explaining
the nature, extent and limitations of these clauses. However, a close
scrutiny of these cases would also reveal that while U.S. jurisprudence on
religion clauses flows into two main streams of interpretation - separation
and benevolent neutrality - the well-spring of Philippine jurisprudence on
this subject is for the most part, benevolent neutrality which gives room
for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of "religion". "Religion" is derived
from the Middle English religioun, from Old French religion, from Latin
religio, vaguely referring to a "bond between man and the gods."308 This
pre-Christian term for the cult and rituals of pagan Rome was first
Christianized in the Latin translation of the Bible.309 While the U.S.
Supreme Court has had to take up the challenge of defining the
parameters and contours of "religion" to determine whether a
non-theistic belief or act is covered by the religion clauses, this Court has
not been confronted with the same issue. In Philippine jurisprudence,
religion, for purposes of the religion clauses, has thus far been interpreted
as theistic. In 1937, the Philippine case of Aglipay v. Ruiz310 involving the
Establishment Clause, defined "religion" as a "profession of faith to an
active power that binds and elevates man to his Creator." Twenty years
later, the Court cited the Aglipay definition in American Bible Society v.
City of Manila,311 a case involving the Free Exercise clause. The latter also
cited the American case of Davis in defining religion, viz: "(i)t has reference
to one's views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His
Will." The Beason definition, however, has been expanded in U.S.
jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect,
in the practice of one's religion. The Free Exercise Clause principally
guarantees voluntarism, although the Establishment Clause also assures
voluntarism by placing the burden of the advancement of religious groups
on their intrinsic merits and not on the support of the state.312
In interpreting the Free Exercise Clause, the realm of belief poses no
difficulty. The early case of Gerona v. Secretary of Education313 is
instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only by
one's imagination and thought. So is the freedom of belief, including
religious belief, limitless and without bounds. One may believe in most
anything, however strange, bizarre and unreasonable the same may
appear to others, even heretical when weighed in the scales of orthodoxy
or doctrinal standards. But between the freedom of belief and the
exercise of said belief, there is quite a stretch of road to travel.314
The difficulty in interpretation sets in when belief is externalized into
speech and action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff
American Bible Society was a foreign, non-stock, non-profit, religious
missionary corporation which sold bibles and gospel portions of the bible
 45
in the course of its ministry. The defendant City of Manila required
plaintiff to secure a mayor's permit and a municipal license as ordinarily
required of those engaged in the business of general merchandise under
the city's ordinances. Plaintiff argued that this amounted to "religious
censorship and restrained the free exercise and enjoyment of religious
profession, to wit: the distribution and sale of bibles and other religious
literature to the people of the Philippines."
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of
religious profession and worship carries with it the right to disseminate
religious information. Any restraint of such right can only be justified like
other restraints of freedom of expression on the grounds that there is a
clear and present danger of any substantive evil which the State has the
right to prevent. (Tanada and Fernando on the Constitution of the
Philippines, vol. 1, 4th ed., p. 297) (emphasis supplied)
This was the Court's maiden unequivocal affirmation of the "clear and
present danger" rule in the religious freedom area, and in Philippine
jurisprudence, for that matter.315 The case did not clearly show, however,
whether the Court proceeded to apply the test to the facts and issues of
the case, i.e., it did not identify the secular value the government
regulation sought to protect, whether the religious speech posed a clear
and present danger to this or other secular value protected by
government, or whether there was danger but it could not be
characterized as clear and present. It is one thing to apply the test and
find that there is no clear and present danger, and quite another not to
apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or
occupation of selling said "merchandise" for profit. To add, the Court,
citing Murdock v. Pennsylvania,316 ruled that applying the ordinance
requiring it to secure a license and pay a license fee or tax would impair its
free exercise of religious profession and worship and its right of
dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." Thus, in
American Bible Society, the "clear and present danger" rule was laid down
but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also
involving the sale of religious books, the Court distinguished the American
Bible Society case from the facts and issues in Tolentino and did not apply
the American Bible Society ruling. In Tolentino, the Philippine Bible Society
challenged the validity of the registration provisions of the Value Added
Tax (VAT) Law as a prior restraint. The Court held, however, that the fixed
amount of registration fee was not imposed for the exercise of a privilege
like a license tax which American Bible Society ruled was violative of
religious freedom. Rather, the registration fee was merely an
administrative fee to defray part of the cost of registration which was a
central feature of the VAT system. Citing Jimmy Swaggart Ministries v.
Board of Equalization,318 the Court also declared prefatorily that "the Free
Exercise of Religion Clause does not prohibit imposing a generally
applicable sales and use tax on the sale of religious materials by a religious
organization." In the Court's resolution of the motion for reconsideration
of the Tolentino decision, the Court noted that the burden on religious
freedom caused by the tax was just similar to any other economic
imposition that might make the right to disseminate religious doctrines
costly.
Two years after American Bible Society came the 1959 case of Gerona v.
Secretary of Education,319 this time involving conduct expressive of
religious belief colliding with a rule prescribed in accordance with law. In
this case, petitioners were members of the Jehovah's Witnesses. They
challenged a Department Order issued by the Secretary of Education
implementing Republic Act No. 1265 which prescribed compulsory flag
ceremonies in all public schools. In violation of the Order, petitioner's
children refused to salute the Philippine flag, sing the national anthem, or
recite the patriotic pledge, hence they were expelled from school. Seeking
protection under the Free Exercise Clause, petitioners claimed that their
refusal was on account of their religious belief that the Philippine flag is an
image and saluting the same is contrary to their religious belief. The Court
stated, viz:
. . . If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield to the
latter. The Government steps in and either restrains said exercise or even
prosecutes the one exercising it. (emphasis supplied)320
The Court then proceeded to determine if the acts involved constituted a
religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meaning to be given to a certain
ritual or ceremony as there are religious groups or sects or followers, all
depending upon the meaning which they, though in all sincerity and good
faith, may want to give to such ritual or ceremony.321
It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the
singing of the national anthem as it speaks only of love of country,
patriotism, liberty and the glory of suffering and dying for it. The Court
upheld the questioned Order and the expulsion of petitioner's children,
stressing that:
Men may differ and do differ on religious beliefs and creeds, government
policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for the
flag, national unity and patriotism, they can hardly afford to differ, for
these are matters in which they are mutually and vitally interested, for to
them, they mean national existence and survival as a nation or national
extinction.322
In support of its ruling, the Court cited Justice Frankfurter's dissent in the
Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious
equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not
and cannot mean exemption from or non-compliance with reasonable and
 46
non-discriminatory laws, rules and regulations promulgated by competent
authority.324
Thus, the religious freedom doctrines one can derive from Gerona are: (1)
it is incumbent upon the Court to determine whether a certain ritual is
religious or not; (2) religious freedom will not be upheld if it clashes with
the established institutions of society and with the law such that when a
law of general applicability (in this case the Department Order)
incidentally burdens the exercise of one's religion, one's right to religious
freedom cannot justify exemption from compliance with the law. The
Gerona ruling was reiterated in Balbuna, et al. v. Secretary of Education,
et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde
Rope Workers Union.[326] In this unanimously decided en banc case,
Victoriano was a member of the Iglesia ni Cristo which prohibits the
affiliation of its members with any labor organization. He worked in the
Elizalde Rope Factory, Inc. and was a member of the Elizalde Rope
Workers Union which had with the company a closed shop provision
pursuant to Republic Act No. 875 allowing closed shop arrangements.
Subsequently, Republic Act No. 3350 was enacted exempting from the
application and coverage of a closed shop agreement employees
belonging to any religious sect which prohibits affiliation of their members
with any labor organization. Victoriano resigned from the union after
Republic Act No. 3350 took effect. The union notified the company of
Victoriano's resignation, which in turn notified Victoriano that unless he
could make a satisfactory arrangement with the union, the company
would be constrained to dismiss him from the service. Victoriano sought
to enjoin the company and the union from dismissing him. The court
having granted the injunction, the union came to this Court on questions
of law, among which was whether Republic Act No. 3350 was
unconstitutional for impairing the obligation of contracts and for granting
an exemption offensive of the Establishment Clause. With respect to the
first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right
and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60
S.Ct. 146) and has a preferred position in the hierarchy of values.
Contractual rights, therefore, must yield to freedom of religion. It is only
where unavoidably necessary to prevent an immediate and grave danger
to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent
necessary.327 (emphasis supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the support
of any religious tenets or the modes of worship of any sect, thus
forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148,
1153), but also assures the free exercise of one's chosen form of religion
within limits of utmost amplitude. It has been said that the religion clauses
of the Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to live,
consistent with the liberty of others and with the common good.
(footnote omitted). Any legislation whose effect or purpose is to impede
the observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10
L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting,
within its power, a general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599,
6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5
and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held that "government is not
precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect." It also
cited Board of Education v. Allen,330 which held that in order to withstand
the strictures of constitutional prohibition, a statute must have a secular
legislative purpose and a primary effect that neither advances nor inhibits
religion. Using these criteria in upholding Republic Act No. 3350, the Court
pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by
averting that certain persons be refused work, or be dismissed from work,
or be dispossessed of their right to work and of being impeded to pursue a
modest means of livelihood, by reason of union security agreements. . . .
The primary effects of the exemption from closed shop agreements in
favor of members of religious sects that prohibit their members from
affiliating with a labor organization, is the protection of said employees
against the aggregate force of the collective bargaining agreement, and
relieving certain citizens of a burden on their religious beliefs, and . . .
eliminating to a certain extent economic insecurity due to
unemployment.331
The Court stressed that "(a)lthough the exemption may benefit those who
are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
indirect."332 In enacting Republic Act No. 3350, Congress merely relieved
the exercise of religion by certain persons of a burden imposed by union
security agreements which Congress itself also imposed through the
Industrial Peace Act. The Court concluded the issue of exemption by citing
Sherbert which laid down the rule that when general laws conflict with
scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. The Court then abruptly added that
"(i)n the instant case, We see no compelling state interest to withhold
exemption."333
A close look at Victoriano would show that the Court mentioned several
tests in determining when religious freedom may be validly limited. First,
the Court mentioned the test of "immediate and grave danger to the
security and welfare of the community" and "infringement of religious
freedom only to the smallest extent necessary" to justify limitation of
religious freedom. Second, religious exercise may be indirectly burdened
by a general law which has for its purpose and effect the advancement of
the state's secular goals, provided that there is no other means by which
the state can accomplish this purpose without imposing such burden.
Third, the Court referred to the "compelling state interest" test which
grants exemptions when general laws conflict with religious exercise,
unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only
for the purpose of highlighting the importance of the protection of
religious freedom as the secular purpose of Republic Act No. 3350.
Upholding religious freedom was a secular purpose insofar as it relieved
 47
the burden on religious freedom caused by another law, i.e, the Industrial
Peace Act providing for union shop agreements. The first two tests were
only mentioned in Victoriano but were not applied by the Court to the
facts and issues of the case. The third, the "compelling state interest" test
was employed by the Court to determine whether the exemption
provided by Republic Act No. 3350 was not unconstitutional. It upheld the
exemption, stating that there was no "compelling state interest" to strike
it down. However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that the
"compelling state interest" test was not appropriate and could not find
application in the Victoriano case. In Sherbert, appellant Sherbert invoked
religious freedom in seeking exemption from the provisions of the South
Carolina Unemployment Compensation Act which disqualified her from
claiming unemployment benefits. It was the appellees, members of the
South Carolina Employment Commission, a government agency, who
propounded the state interest to justify overriding Sherbert's claim of
religious freedom. The U.S. Supreme Court, considering Sherbert's and the
Commission's arguments, found that the state interest was not sufficiently
compelling to prevail over Sherbert's free exercise claim. This situation did
not obtain in the Victoriano case where it was the government itself,
through Congress, which provided the exemption in Republic Act No. 3350
to allow Victoriano's exercise of religion. Thus, the government could not
argue against the exemption on the basis of a compelling state interest as
it would be arguing against itself; while Victoriano would not seek
exemption from the questioned law to allow the free exercose of religion
as the law in fact provides such an exemption. In sum, although Victoriano
involved a religious belief and conduct, it did not involve a free exercise
issue where the Free Exercise Clause is invoked to exempt him from the
burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,
namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y
Otros Trabajadores de Filipinas,334 Anucension v. National Labor Union,
et al.,335 and Gonzales, et al. v. Central Azucarera de Tarlac Labor
Union.336
Then came German v. Barangan in 1985 at the height of the
anti-administration rallies. Petitioners were walking to St. Jude Church
within the Malacanang security area to pray for "an end to violence" when
they were barred by the police. Invoking their constitutional freedom of
religious worship and locomotion, they came to the Court on a petition for
mandamus to allow them to enter and pray inside the St. Jude Chapel. The
Court was divided on the issue. The slim majority of six recognized their
freedom of religion but noted their absence of good faith and concluded
that they were using their religious liberty to express their opposition to
the government. Citing Cantwell, the Court distinguished between
freedom to believe and freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to
believe and freedom to act. The first is absolute, but in the nature of
things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the manner by
which they had attempted to translate the same to action. This
curtailment is in accord with the pronouncement of this Court in Gerona v.
Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said religious
belief clashes with the established institutions of society and with the law,
then the former must yield and give way to the latter. The government
steps in and either restrains said exercise or even prosecutes the one
exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was
"necessary to maintain the smooth functioning of the executive branch of
the government, which petitioners' mass action would certainly
disrupt"338 and denied the petition. Thus, without considering the tests
mentioned in Victoriano, German went back to the Gerona rule that
religious freedom will not be upheld if it clashes with the established
institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious freedom
cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth
in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983])
should guide us in resolving the issues.
1. The right to freely exercise one's religion is guaranteed in Section 8 of
our Bill of Rights. (footnote omitted) Freedom of worship, alongside with
freedom of expression and speech and peaceable assembly "along with
the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the
judiciary - even more so than on the other departments - rests the grave
and delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitously termed by Justice Holmes 'as
the sovereign prerogative of judgment.' Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of such
rights, enjoying as they do precedence and primacy.' (J.B.L. Reyes, 125
SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior
restraint although there may be subsequent punishment of any illegal acts
committed during the exercise of such basic rights. The sole justification
for a prior restraint or limitation on the exercise of these basic rights is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent (Idem, at pp. 560-561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankee's dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case
was a permit sought by retired Justice J.B.L. Reyes, on behalf of the
Anti-Bases Coalition, from the City of Manila to hold a peaceful march and
rally from the Luneta to the gates of the U.S. Embassy. Nevertheless
Bagatsing was used by Justice Teehankee in his dissent which had
overtones of petitioner German and his companions' right to assemble
and petition the government for redress of grievances.340
In 1993, the issue on the Jehovah's Witnesses' participation in the flag
ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.341 A unanimous Court overturned the Gerona
ruling after three decades. Similar to Gerona, this case involved several
 48
Jehovah's Witnesses who were expelled from school for refusing to salute
the flag, sing the national anthem and recite the patriotic pledge, in
violation of the Administrative Code of 1987. In resolving the same
religious freedom issue as in Gerona, the Court this time transported the
"grave and imminent danger" test laid down in Justice Teehankee's
dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah's Witnesses from
saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a 'small portion of
the school population' will shake up our part of the globe and suddenly
produce a nation 'untaught and uninculcated in and unimbued with
reverence for the flag, patriotism, love of country and admiration for
national heroes' (Gerona v. Secretary of Education, 106 Phil. 224). After all,
what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution,
the democratic way of life and form of government, and learn not only the
arts, sciences, Philippine history and culture but also receive training for a
vocation or profession and be taught the virtues of 'patriotism, respect for
human rights, appreciation of national heroes, the rights and duties of
citizenship, and moral and spiritual values' (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court
has feared in Gerona. Forcing a small religious group, through the iron
hand of the law, to participate in a ceremony that violates their religious
beliefs, will hardly be conducive to love of country or respect for duly
constituted authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained
through coercion- is not a goal that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by
prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042,
1046).344
Towards the end of the decision, the Court also cited the Victoriano case
and its use of the "compelling state interest" test in according exemption
to the Jehovah's Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the
coverage of a closed shop agreement between their employer and a union
because it would violate the teaching of their church not to join any
group:
'x x x It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some 'compelling
state interest' intervenes.' (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d
965, 970, 83 S.Ct. 1790)'
We hold that a similar exemption may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag ceremony out of
respect for their religious beliefs, however 'bizarre' those beliefs may
seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting
opinion in German which involved prior restraint of religious worship with
overtones of the right to free speech and assembly, was transported to
Ebralinag which did not involve prior restraint of religious worship, speech
or assembly. Although, it might be observed that the Court faintly implied
that Ebralinag also involved the right to free speech when in its
preliminary remarks, the Court stated that compelling petitioners to
participate in the flag ceremony "is alien to the conscience of the present
generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech and the free exercise of religious
profession and worship;" the Court then stated in a footnote that the "flag
salute, singing the national anthem and reciting the patriotic pledge are all
forms of utterances."346
The "compelling state interest" test was not fully applied by the Court in
Ebralinag. In the Solicitor General's consolidated comment, one of the
grounds cited to defend the expulsion orders issued by the public
respondents was that "(t)he State's compelling interests being pursued by
the DEC's lawful regulations in question do not warrant exemption of the
school children of the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious
convictions."347 The Court, however, referred to the test only towards the
end of the decision and did not even mention what the Solicitor General
argued as the compelling state interest, much less did the Court explain
why the interest was not sufficiently compelling to override petitioners'
religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni
Cristo v. Court of Appeals, et al.348Although there was a dissent with
respect to the applicability of the "clear and present danger" test in this
case, the majority opinion in unequivocal terms applied the "clear and
present danger" test to religious speech. This case involved the television
program, "Ang Iglesia ni Cristo," regularly aired over the television. Upon
petitioner Iglesia ni Cristo's submission of the VTR tapes of some of its
episodes, respondent Board of Review for Motion Pictures and Television
classified these as "X" or not for public viewing on the ground that they
"offend and constitute an attack against other religions which is expressly
prohibited by law." Invoking religious freedom, petitioner alleged that the
Board acted without jurisdiction or with grave abuse of discretion in
requiring it to submit the VTR tapes of its television program and x-rating
them. While upholding the Board's power to review the Iglesia television
show, the Court was emphatic about the preferred status of religious
freedom. Quoting Justice Cruz' commentary on the constitution, the Court
held that freedom to believe is absolute but freedom to act on one's belief,
where it affects the public, is subject to the authority of the state. The
commentary quoted Justice Frankfurter's dissent in Barnette which was
quoted in Gerona, viz: "(t)he constitutional provision on religious freedom
terminated disabilities, it did not create new privileges. It gave religious
liberty, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
 49
dogma."349 Nevertheless, the Court was quick to add the criteria by which
the state can regulate the exercise of religious freedom, that is, when the
exercise will bring about the "clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals,
or public welfare."350
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including religious
speech and the x-rating was a suppression of petitioner's freedom of
speech as much as it was an interference with its right to free exercise of
religion. Citing Cantwell, the Court recognized that the different religions
may criticize one another and their tenets may collide, but the
Establishment Clause prohibits the state from protecting any religion from
this kind of attack.
The Court then called to mind the "clear and present danger" test first laid
down in the American Bible Society case and the test of "immediate and
grave danger" with "infringement only to the smallest extent necessary to
avoid danger" in Victoriano and pointed out that the reviewing board
failed to apply the "clear and present danger" test. Applying the test, the
Court noted, viz:
The records show that the decision of the respondent Board, affirmed by
the respondent appellate court, is completely bereft of findings of facts to
justify the conclusion that the subject video tapes constitute
impermissible attacks against another religion. There is no showing
whatsoever of the type of harm the tapes will bring about especially the
gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but
only by the showing of a substantive and imminent evil which has taken
the life of a reality already on ground.
Replying to the challenge on the applicability of the "clear and present
danger" test to the case, the Court acknowledged the permutations that
the test has undergone, but stressed that the test is still applied to four
types of speech: "speech that advocates dangerous ideas, speech that
provokes a hostile audience reaction, out of court contempt and release
of information that endangers a fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to
apply the clear and present danger test to the case at bar which concerns
speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and
disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as holding that
religious freedom cannot be invoked to seek exemption from compliance
with a law that burdens one's religious exercise. It also reiterated the
"clear and present danger" test in American Bible Society and the "grave
and imminent danger" in Victoriano, but this time clearly justifying its
applicability and showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious exercise
where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values
sought to be protected by the Establishment Clause, namely, voluntarism
and insulation of the political process from interfaith dissension. The first,
voluntarism, has both a personal and a social dimension. As a personal
value, it refers to the inviolability of the human conscience which, as
discussed above, is also protected by the free exercise clause. From the
religious perspective, religion requires voluntarism because compulsory
faith lacks religious efficacy. Compelled religion is a contradiction in
terms.354 As a social value, it means that the "growth of a religious sect as
a social force must come from the voluntary support of its members
because of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved unless
the political process is insulated from religion and unless religion is
insulated from politics."355 Non-establishment thus calls for government
neutrality in religious matters to uphold voluntarism and avoid breeding
interfaith dissension.356
The neutrality principle was applied in the first significant
non-establishment case under the 1935 Constitution. In the 1937 case
of Aglipay v. Ruiz,357 the Philippine Independent Church challenged the
issuance and sale of postage stamps commemorating the Thirty-Third
International Eucharistic Congress of the Catholic Church on the ground
that the constitutional prohibition against the use of public money for
religious purposes has been violated. It appears that the Director of Posts
issued the questioned stamps under the provisions of Act No.
4052358 which appropriated a sum for the cost of plates and printing of
postage stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to the
Government." The printing and issuance of the postage stamps in
question appears to have been approved by authority of the President.
Justice Laurel, speaking for the Court, took pains explaining religious
freedom and the role of religion in society, and in conclusion, found no
constitutional infirmity in the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say
that our history, not to speak of the history of mankind, has taught us that
the union of church and state is prejudicial to both, for occasions might
arise when the state will use the church, and the church the state, as a
weapon in the furtherance of their respective ends and aims . . . It is
almost trite to say now that in this country we enjoy both religious and
civil freedom. All the officers of the Government, from the highest to the
lowest, in taking their oath to support and defend the Constitution, bind
themselves to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an active
power that binds and elevates man to his Creator is recognized. And, in so
far as it instills into the minds the purest principles of morality, its
influence is deeply felt and highly appreciated. When the Filipino people,
in the preamble of their Constitution, implored "the aid of Divine
Providence, in order to establish a government that shall embody their
ideals, conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty and
 50
democracy," they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men and
nations. The elevating influence of religion in human society is recognized
here as elsewhere. In fact, certain general concessions are indiscriminately
accorded to religious sects and denominations. . .359
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question
may be said to be inseparably linked with an event of a religious character,
the resulting propaganda, if any, received by the Roman Catholic Church,
was not the aim and purpose of the Government. We are of the opinion
that the Government should not be embarrassed in its activities simply
because of incidental results, more or less religious in character, if the
purpose had in view is one which could legitimately be undertaken by
appropriate legislation. The main purpose should not be frustrated by its
subordination to mere incidental results not contemplated. (Vide
Bradfield vs. Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed.,
168)360 (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular
purpose does not offend the Establishment Clause even if it incidentally
aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.361 Although
the Court found that the separation of church and state was not at issue
as the controversy was over who should have custody of a saint's image, it
nevertheless made pronouncements on the separation of church and
state along the same line as the Aglipay ruling. The Court held that there
was nothing unconstitutional or illegal in holding a fiesta and having a
patron saint for the barrio. It adhered to the barrio resolutions of the
barangay involved in the case stating that the barrio fiesta is a
socio-religious affair, the celebration of which is an "ingrained tradition in
rural communities" that "relieves the monotony and drudgery of the lives
of the masses." Corollarily, the Court found nothing illegal about any
activity intended to facilitate the worship of the patron saint such as the
acquisition and display of his image bought with funds obtained through
solicitation from the barrio residents. The Court pointed out that the
image of the patron saint was "purchased in connection with the
celebration of the barrio fiesta honoring the patron saint, San Vicente
Ferrer, and not for the purpose of favoring any religion nor interfering
with religious matters or the religious beliefs of the barrio residents."
Citing the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public
funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship
and banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which presented a
novel issue involving the religion clauses. In this case, Section 2175 of the
Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After
protracted deliberation, the Court was sharply divided on the issue. Seven
members of the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise
perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muñoz-Palma,
Concepcion, Jr., Santos, Fernandez, and Guerrero. Then Associate Justice
Fernando, the ponente, stated, viz: "The challenged Administrative Code
provision, certainly insofar as it declares ineligible ecclesiastics to any
elective or appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution." Citing Torcaso v.
Watkins,363 the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive
weight. What was there involved was the validity of a provision in the
Maryland Constitution prescribing that 'no religious test ought ever to be
required as a disqualification for any office or profit or trust in this State,
other than a declaration of belief in the existence of God ***.' Such a
constitutional requirement was assailed as contrary to the First
Amendment of the United States Constitution by an appointee to the
office of notary public in Maryland, who was refused a commission as he
would not declare a belief in God. He failed in the Maryland Court of
Appeals but prevailed in the United States Supreme Court, which reversed
the state court decision. It could not have been otherwise. As emphatically
declared by Justice Black: 'this Maryland religious test for public office
unconstitutionally invades the appellant's freedom of belief and religion
and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in
God that was a disqualification. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied
upon by petitioner and an express constitutional mandate.364
On the other hand, the prevailing five other members of the Court - Chief
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino -
approached the case from a non-establishment perspective and upheld
the law as a safeguard against the constant threat of union of church and
state that has marked Philippine history. Justice Makasiar stated: "To
allow an ecclesiastic to head the executive department of a municipality is
to permit the erosion of the principle of separation of Church and State
and thus open the floodgates for the violation of the cherished liberty of
religion which the constitutional provision seeks to enforce and protect."
Consequently, the Court upheld the validity of Section 2175 of the Revised
Administrative Code and declared respondent priest ineligible for the
office of municipal mayor.
Another type of cases interpreting the establishment clause deals with
intramural religious disputes. Fonacier v. Court of Appeals365 is the
leading case. The issue therein was the right of control over certain
properties of the Philippine Independent Church, the resolution of which
necessitated the determination of who was the legitimate bishop of the
church. The Court cited American Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly violates the
law it professes to administer, or is in conflict with the law of the land, it
will not be followed by the civil courts. . . In some instances, not only have
the civil courts the right to inquire into the jurisdiction of the religious
tribunals and the regularity of their procedure, but they have subjected
their decisions to the test of fairness or to the test furnished by the
constitution and the law of the church. . .367
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based
on their internal laws. To finally dispose of the property issue, the Court,
citing Watson v. Jones,368 declared that the rule in property controversies
within religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is
that the rules for resolving such controversies should be those of any
 51
voluntary association. If the congregation adopts the majority rule then
the majority should prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that should be followed.
Applying these rules, Fonacier lost the case. While the Court exercised
jurisdiction over the case, it nevertheless refused to touch doctrinal and
disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of religion
and abandonment of faith or abjuration alleged by appellant, having to do
with faith, practice, doctrine, form of worship, ecclesiastical law, custom
and rule of a church and having reference to the power of excluding from
the church those allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a
tension between the Free Exercise Clause and the Establishment Clause in
their application. There is a natural antagonism between a command not
to establish religion and a command not to inhibit its practice; this tension
between the religion clauses often leaves the courts with a choice
between competing values in religion cases.370
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of
view, and decided in opposite directions. In Pamil, the majority gave more
weight to the religious liberty of the priest in holding that the prohibition
of ecclesiastics to assume elective or appointive government positions was
violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of general
applicability are afforded by the Court to the person claiming religious
freedom; the question arises whether the exemption does not amount to
support of the religion in violation of the Establishment Clause. This was
the case in the Free Exercise Clause case of Sherbert where the U.S.
Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment" of
the Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not represent that
involvement of religious with secular institutions which it is the object of
the Establishment Clause to forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides exemption
in order to uphold free exercise as in the Walz case where the appellant
argued that the exemption granted to religious organizations, in effect,
required him to contribute to religious bodies in violation of the
Establishment Clause. But the Court held that the exemption was not a
case of establishing religion but merely upholding the Free Exercise Clause
by "sparing the exercise of religion from the burden of property taxation
levied on private profit institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion
clauses, both of which are cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash with the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held that
the exemption afforded by law to religious sects who prohibit their
members from joining unions did not offend the Establishment Clause. We
ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely
to relieve the exercise of religion, by certain persons, of a burden that is
imposed by union security agreements.373 (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment
Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan
stated: "(t)here are certain practices, conceivably violative of the
Establishment Clause, the striking down of which might seriously interfere
with certain religious liberties also protected by the First Amendment."
How the tension between the Establishment Clause and the Free Exercise
Clause will be resolved is a question for determination in the actual cases
that come to the Court. In cases involving both the Establishment Clause
and the Free Exercise Clause, the two clauses should be balanced against
each other. The courts must review all the relevant facts and determine
whether there is a sufficiently strong free exercise right that should prevail
over the Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given an edge
not only because of abundant historical evidence in the colonial and early
national period of the United States that the free exercise principle long
antedated any broad-based support of disestablishment, but also because
an Establishment Clause concern raised by merely accommodating a
citizen's free exercise of religion seems far less dangerous to the republic
than pure establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two religion
clauses, the courts convey a message of hostility to the religion that in
that case cannot be freely exercised.374 American professor of
constitutional law, Laurence Tribe, similarly suggests that the free exercise
principle "should be dominant in any conflict with the anti-establishment
principle." This dominance would be the result of commitment to religious
tolerance instead of "thwarting at all costs even the faintest appearance
of establishment."375 In our jurisdiction, Fr. Joaquin Bernas, S.J. asserts
that a literal interpretation of the religion clauses does not suffice.
Modern society is characterized by the expanding regulatory arm of
government that reaches a variety of areas of human conduct and an
expanding concept of religion. To adequately meet the demands of this
modern society, the societal values the religion clauses are intended to
protect must be considered in their interpretation and resolution of the
tension. This, in fact, has been the approach followed by the Philippine
Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests Based on
Philippine and American Religion Clause History, Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that
these clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained
in every organic Act of the Philippines under the American regime. When
the delegates of the 1934 Constitutional Convention adopted a Bill of
Rights in the 1935 Constitution, they purposely retained the phraseology
of the religion clauses in the First Amendment as contained in the Jones
Law in order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause cases in
the United States as the U.S. Supreme Court decided an Establishment
Clause issue only in the 1947 Everson case. The Free Exercise Clause cases
 52
were also scarce then. Over the years, however, with the expanding reach
of government regulation to a whole gamut of human actions and the
growing plurality and activities of religions, the number of religion clause
cases in the U.S. exponentially increased. With this increase came an
expansion of the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other times
creating contradictions so that two main streams of jurisprudence had
become identifiable. The first stream employs separation while the second
employs benevolent neutrality in interpreting the religious clauses.
Alongside this change in the landscape of U.S. religion clause
jurisprudence, the Philippines continued to adopt the 1935 Constitution
religion clauses in the 1973 Constitution and later, the 1987 Constitution.
Philippine jurisprudence and commentaries on the religious clauses also
continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence. One might simply conclude that the Philippine
Constitutions and jurisprudence also inherited the disarray of U.S. religion
clause jurisprudence and the two identifiable streams; thus, when a
religion clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S.
authorities to support it. Or, one might conclude that as the history of the
First Amendment as narrated by the Court in Everson supports the
separationist approach, Philippine jurisprudence should also follow this
approach in light of the Philippine religion clauses' history. As a result, in a
case where the party claims religious liberty in the face of a general law
that inadvertently burdens his religious exercise, he faces an almost
insurmountable wall in convincing the Court that the wall of separation
would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987,
1973 and 1935 Constitutions as shown by other provisions on religion in
all three constitutions. It is a cardinal rule in constitutional construction
that the constitution must be interpreted as a whole and apparently
conflicting provisions should be reconciled and harmonized in a manner
that will give to all of them full force and effect. 377 From this construction,
it will be ascertained that the intent of the framers was to adopt a
benevolent neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal of
construing the constitution.378
We first apply the hermeneutical scalpel to dissect the 1935 Constitution.
At the same time that the 1935 Constitution provided for an
Establishment Clause, it also provided for tax exemption of church
property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant
thereto, and all lands, buildings, and improvements used exclusively for
religious, charitable, or educational purposes shall be exempt from
taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the same effect,
the Tydings-McDuffie Law contained a limitation on the taxing power of
the Philippine government during the Commonwealth period. 379 The
original draft of the Constitution placed this provision in an ordinance to
be appended to the Constitution because this was among the provisions
prescribed by the Tydings-McDuffie Law. However, in order to have a
constitutional guarantee for such an exemption even beyond the
Commonwealth period, the provision was introduced in the body of the
Constitution on the rationale that "if churches, convents [rectories or
parsonages] and their accessories are always necessary for facilitating the
exercise of such [religious] freedom, it would also be natural that their
existence be also guaranteed by exempting them from taxation."380 The
amendment was readily approved with 83 affirmative votes against 15
negative votes.381
The Philippine constitutional provision on tax exemption is not found in
the U.S. Constitution. In the U.S. case of Walz, the Court struggled to
justify this kind of exemption to withstand Establishment Clause scrutiny
by stating that church property was not singled out but was exempt along
with property owned by non-profit, quasi-public corporations because the
state upheld the secular policy "that considers these groups as beneficial
and stabilizing influences in community life and finds this classification
useful, desirable, and in the public interest." The Court also stated that the
exemption was meant to relieve the burden on free exercise imposed by
property taxation. At the same time, however, the Court acknowledged
that the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the inclusion
of the church property tax exemption in the body of the 1935 Constitution
and not merely as an ordinance appended to the Constitution, the
benevolent neutrality referred to in the Walz case was given constitutional
imprimatur under the regime of the 1935 Constitution. The provision, as
stated in the deliberations, was an acknowledgment of the necessity of
the exempt institutions to the exercise of religious liberty, thereby
evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution or system of religion, for the
use, benefit or support of any priest, preacher, ministers or other religious
teacher or dignitary as such, except when such priest, preacher, minister,
or dignitary is assigned to the armed forces or to any penal institution,
orphanage, or leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of
section 3 of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church
denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or dignitary as
such…382
In the deliberations of this draft provision, an amendment was proposed
to strike down everything after "church denomination."383 The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence of
the Malolos Constitution to restore the situation under the Malolos
Constitution and prior to the Jones Law, when chaplains of the
revolutionary army received pay from public funds with no doubt about its
legality. It was pointed out, however, that even with the prohibition under
the Jones Law, appropriations were made to chaplains of the national
penitentiary and the Auditor General upheld its validity on the basis of a
similar United States practice. But it was also pointed out that the U.S.
Constitution did not contain a prohibition on appropriations similar to the
Jones Law.384 To settle the question on the constitutionality of payment of
salaries of religious officers in certain government institutions and to avoid
the feared situation where the enumerated government institutions could
not employ religious officials with compensation, the exception in the
1935 provision was introduced and approved. The provision garnered 74
affirmative votes against 34 negative votes.385 As pointed out in the
 53
deliberations, the U.S. Constitution does not provide for this exemption.
However, the U.S. Supreme Court in Cruz v. Beto, apparently taking a
benevolent neutrality approach, implicitly approved the state of Texas'
payment of prison chaplains' salaries as reasonably necessary to permit
inmates to practice their religion. Also, in the Marsh case, the U.S.
Supreme Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at
taxpayers' expense. The constitutional provision exempting religious
officers in government institutions affirms the departure of the Philippine
Constitution from the U.S. Constitution in its adoption of benevolent
neutrality in Philippine jurisdiction. While the provision prohibiting aid to
religion protects the wall of separation between church and state, the
provision at the same time gives constitutional sanction to a breach in the
wall.
To further buttress the thesis that benevolent neutrality is contemplated
in the Philippine Establishment Clause, the 1935 Constitution provides for
optional religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools
as now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church
established in the town where a public school is situated, either in person
or by a designated teacher of religion, to teach religion for one-half hour
three times a week, in the school building, to those public-school pupils
whose parents or guardians desire it and express their desire therefor in
writing filed with the principal of the school . . .
During the debates of the Constitutional Convention, there were three
positions on the issue of religious instruction in public schools. The first
held that the teaching of religion in public schools should be prohibited as
this was a violation of the principle of separation of church and state and
the prohibition against the use of public funds for religious purposes. The
second favored the proposed optional religious instruction as authorized
by the Administrative Code and recognized that the actual practice of
allowing religious instruction in the public schools was sufficient proof that
religious instruction was not and would not be a source of religious
discord in the schools.386 The third wanted religion to be included as a
course in the curriculum of the public schools but would only be taken by
pupils at the option of their parents or guardians. After several rounds of
debate, the second camp prevailed, thus raising to constitutional stature
the optional teaching of religion in public schools, despite the opposition
to the provision on the ground of separation of church and state.387 As in
the provisions on church property tax exemption and compensation of
religious officers in government institutions, the U.S. Constitution does
not provide for optional religious instruction in public schools. In fact, in
the McCollum case, the Court, using strict neutrality, prohibited this kind
of religious instruction where the religion teachers would conduct class
within the school premises. The constitutional provision on optional
religious instruction shows that Philippine jurisdiction rejects the strict
neutrality approach which does not allow such accommodation of religion.
Finally, to make certain the Constitution's benevolence to religion, the
Filipino people "implored (ing) the aid of Divine Providence (,) in order to
establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare, and
secure to themselves and their posterity the blessings of independence
under a regime of justice, liberty, and democracy, (in) ordain(ing) and
promulgat(ing) this Constitution." A preamble is a "key to open the mind
of the authors of the constitution as to the evil sought to be prevented
and the objects sought to be accomplished by the provisions
thereof."388 There was no debate on the inclusion of a "Divine Providence"
in the preamble. In Aglipay, Justice Laurel noted that when the Filipino
people implored the aid of Divine Providence, "(t)hey thereby manifested
their intense religious nature and placed unfaltering reliance upon Him
who guides the destinies of men and nations."389 The 1935 Constitution's
religion clauses, understood alongside the other provisions on religion in
the Constitution, indubitably shows not hostility, but benevolence, to
religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a provision
similar to Article VI, Section 22, par. 3(b) of the 1935 Constitution on
exemption of church property from taxation, with the modification that
the property should not only be used directly, but also actually and
exclusively for religious or charitable purposes. Parallel to Article VI,
Section 23(3) of the 1935 Constitution, the 1973 Constitution also
contained a similar provision on salaries of religious officials employed in
the enumerated government institutions. Article XIII, Section 5 of the 1935
Constitution on optional religious instruction was also carried to the 1973
Constitution in Article XV, Section 8(8) with the modification that optional
religious instruction shall be conducted "as may be provided by law" and
not "as now authorized by law" as stated in the 1935 Constitution. The
1973 counterpart, however, made explicit in the constitution that the
religious instruction in public elementary and high schools shall be done
"(a)t the option expressed in writing by the parents or guardians, and
without cost to them and the government." With the adoption of these
provisions in the 1973 Constitution, the benevolent neutrality approach
continued to enjoy constitutional sanction. In Article XV, Section 15 of the
General Provisions of the 1973 Constitution this provision made its
maiden appearance: "(t)he separation of church and state shall be
inviolable." The 1973 Constitution retained the portion of the preamble
"imploring the aid of Divine Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and
Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the Everson
case and reiterated in Schempp - i.e., neutrality not only as between one
religion and another but even as between religion and non-religion - is
embodied in the Philippine Constitution. The sub-committee's answer was
that it did not seem so. Citing the Aglipay case where Justice Laurel
recognized the "elevating influence of religion in human society" and the
Filipinos' imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion
over another, but may aid all religions equally or the cause of religion in
general.391 Among the position papers submitted to the Committee on
Church on State was a background paper for reconsideration of the
religion provisions of the constitution by Fr. Bernas, S.J. He stated therein
that the Philippine Constitution is not hostile to religion and in fact
recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause contemplates not a
strict neutrality but benevolent neutrality. While the Committee
introduced the provision on separation of church and state in the General
Provisions of the 1973 Constitution, this was nothing new as according to
it, this principle was implied in the 1935 Constitution even in the absence
of a similar provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision on
tax exemption of church property was retained with minor modification in
 54
Article VI, Section 28(3) of the 1987 Constitution. The same is true with
respect to the prohibition on the use of public money and property for
religious purposes and the salaries of religious officers serving in the
enumerated government institutions, now contained in Article VI, Section
29(2). Commissioner Bacani, however, probed into the possibility of
allowing the government to spend public money for purposes which might
have religious connections but which would benefit the public generally.
Citing the Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense would
be constitutional even if it results to an incidental benefit to religion. With
that explanation, Commissioner Bacani no longer pursued his proposal.394
The provision on optional religious instruction was also adopted in the
1987 Constitution in Article XIV, Section 3(3) with the modification that it
was expressly provided that optional instruction shall be conducted
"within the regular class hours" and "without additional cost to the
government". There were protracted debates on what additional cost
meant, i.e., cost over and above what is needed for normal operations
such as wear and tear, electricity, janitorial services,395 and when during
the day instruction would be conducted.396 In deliberating on the phrase
"within the regular class hours," Commissioner Aquino expressed her
reservations to this proposal as this would violate the time-honored
principle of separation of church and state. She cited the McCullom case
where religious instruction during regular school hours was stricken down
as unconstitutional and also cited what she considered the most liberal
interpretation of separation of church and state in Surach v. Clauson
where the U.S. Supreme Court allowed only release time for religious
instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to
the rule on non-establishment of religion, because if it were not necessary
to make this exception for purposes of allowing religious instruction, then
we could just drop the amendment. But, as a matter of fact, this is
necessary because we are trying to introduce something here which is
contrary to American practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.
he provision on the separation of church and state was retained but
placed under the Principles in the Declaration of Principles and State
Policies in Article II, Section 6. In opting to retain the wording of the
provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence 'The
separation of Church and State is inviolable,' is almost a useless statement;
but at the same time it is a harmless statement. Hence, I am willing to
tolerate it there, because, in the end, if we look at the jurisprudence on
Church and State, arguments are based not on the statement of
separation of church and state but on the non-establishment clause in the
Bill of Rights.398
The preamble changed "Divine Providence" in the 1935 and 1973
Constitutions to "Almighty God." There was considerable debate on
whether to use "Almighty God" which Commissioner Bacani said was more
reflective of Filipino religiosity, but Commissioner Rodrigo recalled that a
number of atheistic delegates in the 1971 Constitutional Convention
objected to reference to a personal God.399 "God of History", "Lord of
History" and "God" were also proposed, but the phrase "Almighty God"
prevailed. Similar to the 1935 and 1971 Constitutions, it is obvious that
the 1987 Constitution is not hostile nor indifferent to religion; 400 its wall of
separation is not a wall of hostility or indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption
of church property, salary of religious officers in government institutions,
optional religious instruction and the preamble all reveal without doubt
that the Filipino people, in adopting these constitutions, did not intend to
erect a high and impregnable wall of separation between the church and
state.402 The strict neutrality approach which examines only whether
government action is for a secular purpose and does not consider
inadvertent burden on religious exercise protects such a rigid barrier. By
adopting the above constitutional provisions on religion, the Filipinos
manifested their adherence to the benevolent neutrality approach in
interpreting the religion clauses, an approach that looks further than the
secular purposes of government action and examines the effect of these
actions on religious exercise. Benevolent neutrality recognizes the
religious nature of the Filipino people and the elevating influence of
religion in society; at the same time, it acknowledges that government
must pursue its secular goals. In pursuing these goals, however,
government might adopt laws or actions of general applicability which
inadvertently burden religious exercise. Benevolent neutrality gives room
for accommodation of these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the wall of separation to
uphold religious liberty, which after all is the integral purpose of the
religion clauses. The case at bar involves this first type of accommodation
where an exemption is sought from a law of general applicability that
inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate
benevolent neutrality, benevolent neutrality does not mean that the Court
ought to grant exemptions every time a free exercise claim comes before
it. But it does mean that the Court will not look with hostility or act
indifferently towards religious beliefs and practices and that it will strive
to accommodate them when it can within flexible constitutional limits; it
does mean that the Court will not simply dismiss a claim under the Free
Exercise Clause because the conduct in question offends a law or the
orthodox view for this precisely is the protection afforded by the religion
clauses of the Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve out an
exception when the religion clauses justify it. While the Court cannot
adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted
by the state to pursue its interest, the Court can set a doctrine on the ideal
towards which religious clause jurisprudence should be directed. 403 We
here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the
launching pad from which the Court should take off in interpreting religion
clause cases. The ideal towards which this approach is directed is the
protection of religious liberty "not only for a minority, however small- not
only for a majority, however large- but for each of us" to the greatest
extent possible within flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also
been recognized in Philippine jurisprudence, albeit not expressly called
"benevolent neutrality" or "accommodation". In Aglipay, the Court not
only stressed the "elevating influence of religion in human society" but
acknowledged the Constitutional provisions on exemption from tax of
church property, salary of religious officers in government institutions,
and optional religious instruction as well as the provisions of the
Administrative Code making Thursday and Friday of the Holy Week,
Christmas Day and Sundays legal holidays. In Garces, the Court not only
recognized the Constitutional provisions indiscriminately granting
 55
concessions to religious sects and denominations, but also acknowledged
that government participation in long-standing traditions which have
acquired a social character - "the barrio fiesta is a socio-religious affair" -
does not offend the Establishment Clause. In Victoriano, the Court upheld
the exemption from closed shop provisions of members of religious sects
who prohibited their members from joining unions upon the justification
that the exemption was not a violation of the Establishment Clause but
was only meant to relieve the burden on free exercise of religion. In
Ebralinag, members of the Jehovah's Witnesses were exempt from
saluting the flag as required by law, on the basis not of a statute granting
exemption but of the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin,
Philippine constitutional law has departed from the U.S. jurisprudence of
employing a separationist or strict neutrality approach. The Philippine
religion clauses have taken a life of their own, breathing the air of
benevolent neutrality and accommodation. Thus, the wall of separation in
Philippine jurisdiction is not as high and impregnable as the wall created
by the U.S. Supreme Court in Everson.404 While the religion clauses are a
unique American experiment which understandably came about as a
result of America's English background and colonization, the life that these
clauses have taken in this jurisdiction is the Philippines' own experiment,
reflective of the Filipinos' own national soul, history and tradition. After all,
"the life of the law. . . has been experience."
But while history, constitutional construction, and earlier jurisprudence
unmistakably show that benevolent neutrality is the lens with which the
Court ought to view religion clause cases, it must be stressed that the
interest of the state should also be afforded utmost protection. To do this,
a test must be applied to draw the line between permissible and
forbidden religious exercise. It is quite paradoxical that in order for the
members of a society to exercise their freedoms, including their religious
liberty, the law must set a limit when their exercise offends the higher
interest of the state. To do otherwise is self-defeating for unlimited
freedom would erode order in the state and foment anarchy, eventually
destroying the very state its members established to protect their
freedoms. The very purpose of the social contract by which people
establish the state is for the state to protect their liberties; for this
purpose, they give up a portion of these freedoms - including the natural
right to free exercise - to the state. It was certainly not the intention of the
authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that
guarantees free exercise.405
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom. Philippine
jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did
not employ it. Nevertheless, this test continued to be cited in subsequent
cases on religious liberty. The Gerona case then pronounced that the test
of permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of
general applicability may burden religious exercise provided the law is the
least restrictive means to accomplish the goal of the law. The case also
used, albeit inappropriately, the "compelling state interest" test. After
Victoriano, German went back to the Gerona rule. Ebralinag then
employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
"clear and present danger" test in the maiden case of American Bible
Society. Not surprisingly, all the cases which employed the "clear and
present danger" or "grave and immediate danger" test involved, in one
form or another, religious speech as this test is often used in cases on
freedom of expression. On the other hand, the Gerona and German cases
set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority
cited by German has been overruled by Ebralinag which employed the
"grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent
neutrality approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from religious
belief. The "compelling state interest" test is proper where conduct is
involved for the whole gamut of human conduct has different effects on
the state's interests: some effects may be immediate and short-term while
others delayed and far-reaching. A test that would protect the interests of
the state in preventing a substantive evil, whether immediate or delayed,
is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a
fundamental right that enjoys a preferred position in the hierarchy of
rights - "the most inalienable and sacred of all human rights", in the words
of Jefferson.406 This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order
of limited government is premised upon an acknowledgment of such
higher sovereignty,407 thus the Filipinos implore the "aid of Almighty God
in order to build a just and humane society and establish a government."
As held in Sherbert, only the gravest abuses, endangering paramount
interests can limit this fundamental right. A mere balancing of interests
which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state
to carry a heavy burden, a compelling one, for to do otherwise would
allow the state to batter religion, especially the less powerful ones until
they are destroyed.408 In determining which shall prevail between the
state's interest and religious liberty, reasonableness shall be the
guide.409 The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of
the state, seeks to protect the very state, without which, religious liberty
will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees
engaged in illicit relations are guilty of "disgraceful and immoral conduct"
for which he/she may be held administratively liable.410 In these cases,
there was not one dissent to the majority's ruling that their conduct was
immoral. The respondents themselves did not foist the defense that their
conduct was not immoral, but instead sought to prove that they did not
commit the alleged act or have abated from committing the act. The facts
 56
of the 1975 case of De Dios v. Alejo411 and the 1999 case of Maguad v. De
Guzman,412 are similar to the case at bar - i.e., the complainant is a mere
stranger and the legal wife has not registered any objection to the illicit
relation, there is no proof of scandal or offense to the moral sensibilities
of the community in which the respondent and the partner live and work,
and the government employee is capacitated to marry while the partner is
not capacitated but has long been separated in fact. Still, the Court found
the government employees administratively liable for "disgraceful and
immoral conduct" and only considered the foregoing circumstances to
mitigate the penalty. Respondent Escritor does not claim that there is
error in the settled jurisprudence that an illicit relation constitutes
disgraceful and immoral conduct for which a government employee is
held liable. Nor is there an allegation that the norms of morality with
respect to illicit relations have shifted towards leniency from the time
these precedent cases were decided. The Court finds that there is no such
error or shift, thus we find no reason to deviate from these rulings that
such illicit relationship constitutes "disgraceful and immoral conduct"
punishable under the Civil Service Law. Respondent having admitted the
alleged immoral conduct, she, like the respondents in the above-cited
cases, could be held administratively liable. However, there is a
distinguishing factor that sets the case at bar apart from the cited
precedents, i.e., as a defense, respondent invokes religious freedom since
her religion, the Jehovah's Witnesses, has, after thorough investigation,
allowed her conjugal arrangement with Quilapio based on the church's
religious beliefs and practices. This distinguishing factor compels the Court
to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar,
both the dissenting opinion of Mme. Justice Ynares-Santiago and the
separate opinion of Mr. Justice Vitug dwell more on the standards of
morality than on the religion clauses in deciding the instant case. A
discussion on morality is in order.
At base, morality refers to, in Socrates' words, "how we ought to live" and
why. Any definition of morality beyond Socrates' simple formulation is
bound to offend one or another of the many rival theories regarding what
it means to live morally.413 The answer to the question of how we ought to
live necessarily considers that man does not live in isolation, but in society.
Devlin posits that a society is held together by a community of ideas,
made up not only of political ideas but also of ideas about the manner its
members should behave and govern their lives. The latter are their morals;
they constitute the public morality. Each member of society has ideas
about what is good and what is evil. If people try to create a society
wherein there is no fundamental agreement about good and evil, they will
fail; if having established the society on common agreement, the
agreement collapses, the society will disintegrate. Society is kept together
by the invisible bonds of common thought so that if the bonds are too
loose, the members would drift apart. A common morality is part of the
bondage and the bondage is part of the price of society; and mankind,
which needs society, must pay its price.414 This design is parallel with the
social contract in the realm of politics: people give up a portion of their
liberties to the state to allow the state to protect their liberties. In a
constitutional order, people make a fundamental agreement about the
powers of government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by revolution
destroys the old order and creates a new one.415 Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the
manner a society's members should behave and govern their lives would
disintegrate society. Thus, society is justified in taking steps to preserve its
moral code by law as it does to preserve its government and other
essential institutions.416 From these propositions of Devlin, one cannot
conclude that Devlin negates diversity in society for he is merely saying
that in the midst of this diversity, there should nevertheless be a
"fundamental agreement about good and evil" that will govern how
people in a society ought to live. His propositions, in fact, presuppose
diversity hence the need to come to an agreement; his position also
allows for change of morality from time to time which may be brought
about by this diversity. In the same vein, a pluralistic society lays down
fundamental rights and principles in their constitution in establishing and
maintaining their society, and these fundamental values and principles are
translated into legislation that governs the order of society, laws that may
be amended from time to time. Hart's argument propounded in Mr.
Justice Vitug's separate opinion that, "Devlin's view of people living in a
single society as having common moral foundation (is) overly simplistic"
because "societies have always been diverse" fails to recognize the
necessity of Devlin's proposition in a democracy. Without fundamental
agreement on political and moral ideas, society will fall into anarchy; the
agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or
espousing religious belief, and these citizens have equal access to the
public square. In this representative democracy, the state is prohibited
from determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally designed
process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance.417 Thus, when public deliberation
on moral judgments is finally crystallized into law, the laws will largely
reflect the beliefs and preferences of the majority, i.e., the mainstream or
median groups.418 Nevertheless, in the very act of adopting and accepting
a constitution and the limits it specifies -- including protection of religious
freedom "not only for a minority, however small- not only for a majority,
however large- but for each of us" -- the majority imposes upon itself a
self-denying ordinance. It promises not to do what it otherwise could do:
to ride roughshod over the dissenting minorities.419 In the realm of
religious exercise, benevolent neutrality that gives room for
accommodation carries out this promise, provided the compelling
interests of the state are not eroded for the preservation of the state is
necessary to the preservation of religious liberty. That is why benevolent
neutrality is necessary in a pluralistic society such as the United States and
the Philippines to accommodate those minority religions which are
politically powerless. It is not surprising that Smith is much criticized for it
blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, "(t)he law is the witness and deposit of our moral
life."420 "In a liberal democracy, the law reflects social morality over a
period of time."421Occasionally 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
 57
standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking about a
proper or ideal public morality for a society"425 in pursuit of moral
progress.
In Magno v. Court of Appeals, et al.,426 we articulated the relationship
between law and public morality. We held that under the utilitarian
theory, the "protective theory" in criminal law, "criminal law is founded
upon the moral disapprobation x x x of actions which are immoral, i.e.,
which are detrimental (or dangerous) to those conditions upon which
depend the existence and progress of human society. This disapprobation
is inevitable to the extent that morality is generally founded and built
upon a certain concurrence in the moral opinions of all. x x x That which
we call punishment is only an external means of emphasizing moral
disapprobation: the method of punishment is in reality the amount of
punishment."427 Stated otherwise, there are certain standards of behavior
or moral principles which society requires to be observed and these form
the bases of criminal law. Their breach is an offense not only against the
person injured but against society as a whole.428 Thus, even if all involved
in the misdeed are consenting parties, such as in the case at bar, the injury
done is to the public morals and the public interest in the moral
order.429 Mr. Justice Vitug expresses concern on this point in his separate
opinion. He observes that certain immoral acts which appear private and
not harmful to society such as sexual congress "between a man and a
prostitute, though consensual and private, and with no injured third party,
remains illegal in this country." His opinion asks whether these laws on
private morality are justified or they constitute impingement on one's
freedom of belief. Discussion on private morality, however, is not material
to the case at bar for whether respondent's conduct, which constitutes
concubinage,430 is private in the sense that there is no injured party or the
offended spouse consents to the concubinage, the inescapable fact is that
the legislature has taken concubinage out of the sphere of private morals.
The legislature included concubinage as a crime under the Revised Penal
Code and the constitutionality of this law is not being raised in the case at
bar. In the definition of the crime of concubinage, consent of the injured
party, i.e., the legal spouse, does not alter or negate the crime unlike in
rape431 where consent of the supposed victim negates the crime. If at all,
the consent or pardon of the offended spouse in concubinage negates the
prosecution of the action,432 but does not alter the legislature's
characterization of the act as a moral disapprobation punishable by law.
The separate opinion states that, "(t)he ponencia has taken pains to
distinguish between secular and private morality, and reached the
conclusion that the law, as an instrument of the secular State should only
concern itself with secular morality." The Court does not draw this
distinction in the case at bar. The distinction relevant to the case is not, as
averred and discussed by the separate opinion, "between secular and
private morality," but between public and secular morality on the one
hand, and religious morality on the other, which will be subsequently
discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which
are not punishable by law, Articles 19 and 21 in Chapter 2 of the
Preliminary Title of the New Civil Code, dealing with Human Relations,
provide for the recognition of the wrong and the concomitant punishment
in the form of damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due and
observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commission's comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it
was approved), would vouchsafe adequate legal remedy for that untold
numbers of moral wrongs which is impossible for human foresight to
provide for specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary
line between morality and law? The answer is that, in the last analysis,
every good law draws its breath of life from morals, from those principles
which are written with words of fire in the conscience of man. If this
premise is admitted, then the proposed rule is a prudent earnest of justice
in the face of the impossibility of enumerating, one by one, all wrongs
which cause damages. When it is reflected that while codes of law and
statutes have changed from age to age, the conscience of man has
remained fixed to its ancient moorings, one can not but feel that it is safe
and salutary to transmute, as far as may be, moral norms into legal rules,
thus imparting to every legal system that enduring quality which ought to
be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the
social order than that a person may with impunity cause damage to his
fellow-men so long as he does not break any law of the State, though he
may be defying the most sacred postulates of morality. What is more, the
victim loses faith in the ability of the government to afford him protection
or relief.
A provision similar to the one under consideration is embodied in article
826 of the German Civil Code.433(emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from
establishing a religion, including the morality it sanctions. Religious
morality proceeds from a person's "views of his relations to His Creator
and to the obligations they impose of reverence to His being and
character and obedience to His Will," in accordance with this Court's
definition of religion in American Bible Society citing Davis. Religion also
dictates "how we ought to live" for the nature of religion is not just to
know, but often, to act in accordance with man's "views of his relations to
His Creator."434 But the Establishment Clause puts a negative bar against
establishment of this morality arising from one religion or the other, and
implies the affirmative "establishment" of a civil order for the resolution
of public moral disputes. This agreement on a secular mechanism is the
price of ending the "war of all sects against all"; the establishment of a
secular public moral order is the social contract produced by religious
truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for 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
 58
Mr. Justice Carpio holds. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular terms."441 Otherwise, if
government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to
what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion,"
anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear
that those whose beliefs are disapproved are second-class citizens.
Expansive religious freedom therefore requires that government be
neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality.442
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct because
it is "detrimental (or dangerous) to those conditions upon which depend
the existence and progress of human society" and not because the
conduct is proscribed by the beliefs of one religion or the other. Although
admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions
would be considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious opinions
and moral codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of society in
a uniform manner, harmonizing earth with heaven.443 Succinctly put, a law
could be religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. Otherwise, if a law has
an apparent secular purpose but upon closer examination shows a
discriminatory and prohibitory religious purpose, the law will be struck
down for being offensive of the religion clauses as in Church of the Lukumi
Babalu Aye, Inc. where the U.S. Supreme Court invalidated an ordinance
prohibiting animal sacrifice of the Santeria. Recognizing the religious
nature of the Filipinos and the elevating influence of religion in society,
however, the Philippine constitution's religion clauses prescribe not a
strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same
time strives to uphold religious liberty to the greatest extent possible
within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.
Mr. Justice Vitug's separate opinion embraces the benevolent neutrality
approach when it states that in deciding the case at bar, the approach
should consider that, "(a)s a rule . . . moral laws are justified only to the
extent that they directly or indirectly serve to protect the interests of the
larger society. It is only where their rigid application would serve to
obliterate the value which society seeks to uphold, or defeat the purpose
for which they are enacted would, a departure be justified." In religion
clause parlance, the separate opinion holds that laws of general
applicability governing morals should have a secular purpose of directly or
indirectly protecting the interests of the state. If the strict application of
these laws (which are the Civil Service Law and the laws on marriage)
would erode the secular purposes of the law (which the separate opinion
identifies as upholding the sanctity of marriage and the family), then in a
benevolent neutrality framework, an accommodation of the
unconventional religious belief and practice (which the separate opinion
holds should be respected on the ground of freedom of belief) that would
promote the very same secular purpose of upholding the sanctity of
marriage and family through the Declaration Pledging Faithfulness that
makes the union binding and honorable before God and men, is required
by the Free Exercise Clause. The separate opinion then makes a
preliminary discussion of the values society seeks to protect in adhering to
monogamous marriage, but concludes that these values and the purposes
of the applicable laws should be thoroughly examined and evidence in
relation thereto presented in the OCA. The accommodation approach in
the case at bar would also require a similar discussion of these values and
presentation of evidence before the OCA by the state that seeks to
protect its interest on marriage and opposes the accommodation of the
unconventional religious belief and practice regarding marriage.
The distinction between public and secular morality as expressed - albeit
not exclusively - in the law, on the one hand, and religious morality, on the
other, is important because the jurisdiction of the Court extends only to
public and secular morality. Whatever pronouncement the Court makes in
the case at bar should be understood only in this realm where it has
authority. More concretely, should the Court declare respondent's
conduct as immoral and hold her administratively liable, the Court will be
holding that in the realm of public morality, her conduct is reprehensible
or there are state interests overriding her religious freedom. For as long as
her conduct is being judged within this realm, she will be accountable to
the state. But in so ruling, the Court does not and cannot say that her
conduct should be made reprehensible in the realm of her church where it
is presently sanctioned and that she is answerable for her immorality to
her Jehovah God nor that other religions prohibiting her conduct are
correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique circumstances,
public morality is not offended or that upholding her religious freedom is
an interest higher than upholding public morality thus her conduct should
not be penalized. But the Court is not ruling that the tenets and practice of
her religion are correct nor that other churches which do not allow
respondent's conjugal arrangement should likewise allow such conjugal
arrangement or should not find anything immoral about it and therefore
members of these churches are not answerable for immorality to their
Supreme Being. The Court cannot speak more than what it has authority
to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire
about the truth of religious beliefs. Similarly, in Fonacier, this Court
declared that matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church…are
unquestionably ecclesiastical matters which are outside the province of
the civil courts."444 But while the state, including the Court, accords such
deference to religious belief and exercise which enjoy protection under
the religious clauses, the social contract and the constitutional order are
designed in such a way that when religious belief flows into speech and
conduct that step out of the religious sphere and overlap with the secular
and public realm, the state has the power to regulate, prohibit and
penalize these expressions and embodiments of belief insofar as they
affect the interests of the state. The state's inroad on religion exercise in
excess of this constitutional design is prohibited by the religion clauses;
the Old World, European and American history narrated above bears out
the wisdom of this proscription.
Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under
this public and secular morality fall under the phrase "disgraceful and
immoral conduct" for which a government employee may be held
administratively liable. The line is not easy to draw for it is like "a line that
 59
divides land and sea, a coastline of irregularities and indentations."445 But
the case at bar does not require us to comprehensively delineate between
those immoral acts for which one may be held administratively liable and
those to which administrative liability does not attach. We need not
concern ourselves in this case therefore whether "laziness, gluttony,
vanity, selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend too
much energy grappling with the propositions that not all immoral acts are
illegal or not all illegal acts are immoral, or different jurisdictions have
different standards of morality as discussed by the dissents and separate
opinions, although these observations and propositions are true and
correct. It is certainly a fallacious argument that because there are
exceptions to the general rule that the "law is the witness and deposit of
our moral life," then the rule is not true; in fact, that there are exceptions
only affirms the truth of the rule. Likewise, the observation that morality is
relative in different jurisdictions only affirms the truth that there is
morality in a particular jurisdiction; without, however, discounting the
truth that underneath the moral relativism are certain moral absolutes
such as respect for life and truth-telling, without which no society will
survive. Only one conduct is in question before this Court, i.e., the
conjugal arrangement of a government employee whose partner is legally
married to another which Philippine law and jurisprudence consider both
immoral and illegal. Lest the Court inappropriately engage in the
impossible task of prescribing comprehensively how one ought to live, the
Court must focus its attention upon the sole conduct in question before
us.
In interpreting "disgraceful and immoral conduct," the dissenting opinion
of Mme. Justice Ynares-Santiago groped for standards of morality and
stated that the "ascertainment of what is moral or immoral calls for the
discovery of contemporary community standards" but did not articulate
how these standards are to be ascertained. Instead, it held that, "(f)or
those in the service of the Government, provisions of law and court
precedents . . . have to be considered." It identified the Civil Service Law
and the laws on adultery and concubinage as laws which respondent's
conduct has offended and cited a string of precedents where a
government employee was found guilty of committing a "disgraceful and
immoral conduct" for maintaining illicit relations and was thereby
penalized. As stated above, there is no dispute that under settled
jurisprudence, respondent's conduct constitutes "disgraceful and immoral
conduct." However, the cases cited by the dissent do not involve the
defense of religious freedom which respondent in the case at bar invokes.
Those cited cases cannot therefore serve as precedents in settling the
issue in the case at bar.
Mme. Justice Ynares-Santiago's dissent also cites Cleveland v. United
States446 in laying down the standard of morality, viz: "(w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondent's concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact
perform, the act which it condemns." The Mann Act under consideration
in the Cleveland case declares as an offense the transportation in
interstate commerce of "any woman or girl for the purpose of prostitution
or debauchery, or for any other immoral purpose."447 The resolution of
that case hinged on the interpretation of the phrase "immoral purpose."
The U.S. Supreme Court held that the petitioner Mormons' act of
transporting at least one plural wife whether for the purpose of cohabiting
with her, or for the purpose of aiding another member of their Mormon
church in such a project, was covered by the phrase "immoral purpose." In
so ruling, the Court relied on Reynolds which held that the Mormons'
practice of polygamy, in spite of their defense of religious freedom, was
"odious among the northern and western nations of Europe,"448 "a return
to barbarism,"449 "contrary to the spirit of Christianity and of the
civilization which Christianity has produced in the Western world,"450 and
thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the
case at bar. The pronouncements of the U.S. Supreme Court that
polygamy is intrinsically "odious" or "barbaric" do not apply in the
Philippines where Muslims, by law, are allowed to practice polygamy.
Unlike in Cleveland, there is no jurisprudence in Philippine jurisdiction
holding that the defense of religious freedom of a member of the
Jehovah's Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We
cannot summarily conclude therefore that her conduct is likewise so
"odious" and "barbaric" as to be immoral and punishable by law.
While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious freedom,
Mme. Justice Ynares-Santiago's dissent nevertheless discussed
respondent's plea of religious freedom and disposed of this defense by
stating that "(a) clear and present danger of a substantive evil, destructive
to public morals, is a ground for the reasonable regulation of the free
exercise and enjoyment of religious profession. (American Bible Society v.
City of Manila, 101 Phil. 386 [1957]). In addition to the destruction of
public morals, the substantive evil in this case is the tearing down of
morality, good order, and discipline in the judiciary." However, the
foregoing discussion has shown that the "clear and present danger" test
that is usually employed in cases involving freedom of expression is not
appropriate to the case at bar which involves purely religious conduct. The
dissent also cites Reynolds in supporting its conclusion that respondent is
guilty of "disgraceful and immoral conduct." The Reynolds ruling, however,
was reached with a strict neutrality approach, which is not the approach
contemplated by the Philippine constitution. As discussed above,
Philippine jurisdiction adopts benevolent neutrality in interpreting the
religion clauses.
In the same vein, Mr. Justice Carpio's dissent which employs strict
neutrality does not reflect the constitutional intent of employing
benevolent neutrality in interpreting the Philippine religion clauses. His
dissent avers that respondent should be held administratively liable not
for "disgraceful and immoral conduct" but "conduct prejudicial to the best
interest of the service" as she is a necessary co-accused of her partner in
concubinage. The dissent stresses that being a court employee, her open
violation of the law is prejudicial to the administration of justice. Firstly,
the dissent offends due process as respondent was not given an
opportunity to defend herself against the charge of "conduct prejudicial to
the best interest of the service." In addition, there is no evidence of the
alleged prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondent's plea of religious freedom cannot
prevail without so much as employing a test that would balance
respondent's religious freedom and the state's interest at stake in the case
at bar. The foregoing discussion on the doctrine of religious freedom,
however, shows that with benevolent neutrality as a framework, the
Court cannot simply reject respondent's plea of religious freedom without
even subjecting it to the "compelling state interest" test that would
balance her freedom with the paramount interests of the state. The strict
neutrality employed in the cases the dissent cites -Reynolds, Smith and
People v. Bitdu decided before the 1935 Constitution which unmistakably
shows adherence to benevolent neutrality - is not contemplated by our
constitution.
 60
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J.
Malik451 cited in Mr. Justice Carpio's dissent decisive of the immorality
issue in the case at bar. In that case, the Court dismissed the charge of
immorality against a Tausug judge for engaging in an adulterous
relationship with another woman with whom he had three children
because "it (was) not 'immoral' by Muslim standards for Judge Malik to
marry a second time while his first marriage (existed)." Putting the quoted
portion in its proper context would readily show that the Sulu Islamic case
does not provide a precedent to the case at bar. Immediately prior to the
portion quoted by the dissent, the Court stressed, viz: "(s)ince Art. 180 of
P.D. No. 1083, otherwise known as the Code of Muslim Personal Laws of
the Philippines, provides that the penal laws relative to the crime of
bigamy 'shall not apply to a person married x x x under Muslim Law,' it is
not 'immoral' by Muslim standards for Judge Malik to marry a second time
while his first marriage exists."452 It was by law, therefore, that the Muslim
conduct in question was classified as an exception to the crime of bigamy
and thus an exception to the general standards of morality. The
constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic case.
Thus, the Court did not determine whether P.D. No. 1083 suffered from a
constitutional infirmity and instead relied on the provision excepting the
challenged Muslim conduct from the crime of bigamy in holding that the
challenged act is not immoral by Muslim standards. In contradistinction, in
the case at bar, there is no similar law which the Court can apply as basis
for treating respondent's conduct as an exception to the prevailing
jurisprudence on illicit relations of civil servants. Instead, the Free Exercise
Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the Compelling State
Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondent's claim of religious freedom to the "compelling state interest"
test from a benevolent neutrality stance - i.e. entertaining the possibility
that respondent's claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of religious
freedom will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether respondent's right to
religious freedom has been burdened. There is no doubt that choosing
between keeping her employment and abandoning her religious belief and
practice and family on the one hand, and giving up her employment and
keeping her religious practice and family on the other hand, puts a burden
on her free exercise of religion. In Sherbert, the Court found that
Sherbert's religious exercise was burdened as the denial of unemployment
benefits "forces her to choose between following the precepts of her
religion and forfeiting benefits, on the one hand, and abandoning one of
the precepts of her religion in order to accept work, on the other hand."
The burden on respondent in the case at bar is even greater as the price
she has to pay for her employment is not only her religious precept but
also her family which, by the Declaration Pledging Faithfulness, stands
"honorable before God and men."
The second step is to ascertain respondent's sincerity in her religious
belief. Respondent appears to be sincere in her religious belief and
practice and is not merely using the "Declaration of Pledging Faithfulness"
to avoid punishment for immorality. She did not secure the Declaration
only after entering the judiciary where the moral standards are strict and
defined, much less only after an administrative case for immorality was
filed against her. The Declaration was issued to her by her congregation
after ten years of living together with her partner, Quilapio, and ten years
before she entered the judiciary. Ministers from her congregation testified
on the authenticity of the Jehovah's Witnesses' practice of securing a
Declaration and their doctrinal or scriptural basis for such a practice. As
the ministers testified, the Declaration is not whimsically issued to avoid
legal punishment for illicit conduct but to make the "union" of their
members under respondent's circumstances "honorable before God and
men." It is also worthy of notice that the Report and Recommendation of
the investigating judge annexed letters453 of the OCA to the respondent
regarding her request to be exempt from attending the flag ceremony
after Circular No. 62-2001 was issued requiring attendance in the flag
ceremony. The OCA's letters were not submitted by respondent as
evidence but annexed by the investigating judge in explaining that he was
caught in a dilemma whether to find respondent guilty of immorality
because the Court Administrator and Deputy Court Administrator had
different positions regarding respondent's request for exemption from the
flag ceremony on the ground of the Jehovah's Witnesses' contrary belief
and practice. Respondent's request for exemption from the flag ceremony
shows her sincerity in practicing the Jehovah's Witnesses' beliefs and not
using them merely to escape punishment. She is a practicing member of
the Jehovah's Witnesses and the Jehovah ministers testified that she is a
member in good standing. Nevertheless, should the government, thru the
Solicitor General, want to further question the respondent's sincerity and
the centrality of her practice in her faith, it should be given the
opportunity to do so. The government has not been represented in the
case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondent's evidence on
the sincerity of her religious belief and its centrality in her faith, the case
at bar cannot still be decided using the "compelling state interest" test.
The case at bar is one of first impression, thus the parties were not aware
of the burdens of proof they should discharge in the Court's use of the
"compelling state interest" test. We note that the OCA found respondent's
defense of religious freedom unavailing in the face of the Court's ruling in
Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in the
conduct, official and otherwise, of the personnel who work thereat, from
the judge to the lowest of its personnel. Court personnel have been
enjoined to adhere to the exacting standards of morality and decency in
their professional and private conduct in order to preserve the good name
and integrity of the courts of justice.
It is apparent from the OCA's reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary by
maintaining among its ranks a high standard of morality and decency.
However, there is nothing in the OCA's memorandum to the Court that
demonstrates how this interest is so compelling that it should override
respondent's plea of religious freedom nor is it shown that the means
employed by the government in pursuing its interest is the least restrictive
to respondent's religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden of
evidence should be discharged by the proper agency of the government
which is the Office of the Solicitor General. To properly settle the issue in
the case at bar, the government should be given the opportunity to
demonstrate the compelling state interest it seeks to uphold in opposing
the respondent's stance that her conjugal arrangement is not immoral and
punishable as it comes within the scope of free exercise protection.
Should the Court prohibit and punish her conduct where it is protected by
 61

the Free Exercise Clause, the Court's action would be an unconstitutional

encroachment of her right to religious freedom.454 We cannot therefore his visits became scarce in November to December 2007, prompting her to
simply take a passing look at respondent's claim of religious freedom, but return home to Naval, Biliran. Furious, respondent brought her back to
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 San Agustin where, on his instruction, his followers tortured, brainwashed
discharge its burden of demonstrating the state's compelling interest
and injected her with drugs. When she tried to escape on December 24,
which can override respondent's religious belief and practice. To repeat,
this is a case of first impression where we are applying the "compelling 2007, the members of the group tied her spread-eagled to a bed. Made to
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 wear only a T-shirt and diapers and fed stale food, she was guarded 24
make a decisive difference in the life of the respondent who stands not hours a day by the women members including a certain Bernardita Tadeo.
only before the Court but before her Jehovah God.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court

Administrator. The Solicitor General is ordered to intervene in the case
where it will be given the opportunity (a) to examine the sincerity and
centrality of respondent's claimed religious belief and practice; (b) to
present evidence on the state's "compelling interest" to override
respondent's religious belief and practice; and (c) to show that the means
the state adopts in pursuing its interest is the least restrictive to
respondent's religious freedom. The rehearing should be concluded thirty
(30) days from the Office of the Court Administrator's receipt of this
Decision.
Her mother, Delia Tambis Vda. De Mecaral (Delia), having
received information that she was weak, pale and walking barefoot along
the streets in the mountainous area of Caibiran, sought the help of the
Provincial Social Welfare Department which immediately dispatched two
women volunteers to rescue her. The religious group refused to release
her, however, without the instruction of respondent. It took PO3 Delan G.

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.
Lee (PO3 Lee) and PO1 Arnel S. Robedillo (PO1 Robedillo) to rescue and
reunite her with her mother.
Hence, the present disbarment complaint against respondent. Additionally,
complainant charges respondent with bigamy for contracting a second
marriage to Leny H. Azur on August 2, 1996, despite the subsistence of his
marriage to his first wife, Ma. Shirley G. Yunzal.

CONCEPT:

MECARAL VS VELASQUEZ A.C NO. 8392, 29 JUNE 2010

DECISION

PER CURIAM:

Rosario T. Mecaral (complainant) charged Atty. Danilo S. Velasquez In support of her charges, complainant submitted documents

(respondent) before the Integrated Bar of the Philippines (IBP) Committee including the following: Affidavit[3] of Delia dated February 5, 2008;

on Bar Discipline (CBD)[1] with Gross Misconduct and Gross Immoral Affidavit of PO3 Lee and PO1 Robedillo[4] dated February 14, 2008;

Conduct which she detailed in her Position Paper[2] as follows: photocopy of the Certificate of Marriage[5] between respondent and Leny

H. Azur; photocopy of the Marriage Contract[6] between respondent and

Shirley G. Yunzal; National Statistics Office Certification[7] dated April 23,

2008 showing the marriage of Ma. Shirley G. Yunzal to respondent on April

After respondent hired her as his secretary in 2002, she became 27, 1990 in Quezon City and the marriage of Leny H. Azur to respondent

his lover and common-law wife. In October 2007, respondent brought her on August 2, 1996 in Mandaue City, Cebu; and certified machine copy of

to the mountainous Upper San Agustin in Caibiran, Biliran where he left the Resolution[8] of the Office of the Provincial Prosecutor of Naval, Biliran

her with a religious group known as the Faith Healers Association of and the Information[9] lodged with the RTC-Branch 37-Caibiran, Naval,

the Philippines, of which he was the leader. Although he visited her daily,
 62

Biliran, for Serious Illegal Detention against respondent and Bernardita The IBP Board of Governors of Pasig City, by

Tadeo on complaint of herein complainant. Resolution[14] dated December 11, 2008, ADOPTED the Investigating

Commissioners findings and APPROVED the recommendation for the

Despite respondents receipt of the February 22, 2008 disbarment of respondent.

Order[10] of the Director for Bar Discipline for him to submit his Answer

within 15 days from receipt thereof, and his expressed intent to properly As did the IBP Board of Governors, the Court finds the IBP Commissioners

make [his] defense in a verified pleading,[11] he did not file any Answer. evaluation and recommendation well taken.

On the scheduled Mandatory Conference set on September 2, The practice of law is not a right but a privilege bestowed by the

2008 of which the parties were duly notified, only complainants counsel state upon those who show that they possess, and continue to possess,

was present. Respondent and his counsel failed to appear. the qualifications required by law for the conferment of such

privilege.[15] When a lawyers moral character is assailed, such that his right

Investigating Commissioner Felimon C. Abelita III of the CBD, in his Report to continue

and Recommendation[12] dated September 29, 2008, found that:

[respondents] acts of converting his secretary into a mistress; practicing his cherished profession is imperiled, it behooves him to meet
contracting two marriages with Shirley and Leny,
are grossly immoral which no civilized society in the the charges squarely and present evidence, to the satisfaction of the
world can countenance. The subsequent detention
investigating body and this Court, that he is morally fit to keep his name in
and torture of the complainant is gross
misconduct [which] only a beast may be able to do. the Roll of Attorneys.[16]
Certainly, the respondent had violated Canon 1 of the
Code of Professional Responsibility which reads:

CANON 1 A lawyer shall uphold

Respondent has not discharged the burden. He never attended
the constitution, obey the
laws of the land and promote the hearings before the IBP to rebut the charges brought against him,
respect for law and legal
processes. suggesting that they are true.[17]Despite his letter dated March 28,

2008 manifesting that he would come up with his defense in a verified

xxxx
pleading, he never did.
In the long line of cases, the Supreme
Court has consistently imposed severe penalty for
grossly immoral conduct of a lawyer like the case at
bar. In the celebrated case of Joselano Guevarra vs. Aside then from the IBPs finding that respondent
Atty. Jose Manuel Eala, the [Court] ordered the violated Canon 1 of the Code of Professional Responsibility, he also
disbarment of the respondent for maintaining
extra-marital relations with a married woman, and violated the Lawyers Oath reading:
having a child with her. In the instant case, not only
did the respondent commit bigamy for contracting
I _________, having been permitted to
marriages with Shirley Yunzal in 1990 and Leny Azur
continue in the practice of law in the Philippines, do
in 1996, but the respondent also made his secretary
solemnly swear that I recognize the supreme
(complainant) his mistress and subsequently,
authority of the Republic of the Philippines; I
tortured her to the point of death. All these
will support its Constitution and obey the laws as well
circumstances showed the moral fiber respondent is
as the legal orders of the duly constituted authorities
made of, which [leave] the undersigned with no
therein; I will do no falsehood, nor consent to the
choice but to recommend the disbarment of Atty.
doing of any in court; I will not wittingly or willingly
Danilo S. Velasquez.[13] (emphasis and underscoring
promote or sue any groundless, false or unlawful suit,
supplied)
nor give aid nor consent to the same; I will delay no
man for money or malice, and will conduct myself as
a lawyer according to the best of my knowledge and
 63

discretion with all good fidelity as well as to the

courts as to my clients; and I impose upon myself this That, as reflected in the immediately-quoted Resolution in the
voluntary obligation without any mental reservation criminal complaint against respondent, his therein
or purpose of evasion. So help me God, (underscoring
supplied), co-respondent corroborated the testimonies of complainants witnesses,

and that the allegations against him remain unrebutted, sufficiently prove

the charges against him by clearly preponderant evidence, the quantum of

and Rule 7.03, Canon 7 of the same Code reading:
evidence needed in an administrative case against a lawyer.[20]

Rule 7.03 A lawyer shall not engage in

conduct that adversely reflects on his fitness to
practice law, nor shall he, whether in public or private
life, behave in a scandalous manner to the discredit
of the legal profession.

In fine, by engaging himself in acts which are grossly immoral

and acts which constitute gross misconduct, respondent has ceased to

possess the qualifications of a lawyer.[21]

The April 30, 2008 Resolution[18] of the Provincial Prosecutor on

WHEREFORE, respondent, Atty. Danilo S. Velasquez,
complainants charge against respondent and Bernardita Tadeo for Serious
is DISBARRED, and his name ORDERED STRICKEN from the Roll of
Illegal Detention bears special noting, viz:
Attorneys. This Decision is immediately executory and ordered to be part

of the records of respondent in the Office of the Bar Confidant, Supreme

[T]he counter-affidavit of x x x Bernardita C.
Tadeo (co-accused in the complaint) has the effect of Court of the Philippines.
strengthening the allegations against Atty. Danilo
Velasquez. Indeed, it is clear now that there was
really physical restraint employed by Atty. Velasquez
Let copies of the Decision be furnished the Integrated Bar of
upon the person of Rosario Mecaral. Even as he
claimed that on the day private complainant was the Philippines and circulated to all courts.
fetched by the two women and police officers,
complainant was already freely roaming around the
place and thus, could not have been physically
detained. However, it is not really necessary SO ORDERED.
that Rosario be physically kept within an enclosure to
restrict her freedom of locomotion. In fact, she was ART. 2 ESSENTIAL REQUISITES OF A VALID MARRIAGE
always accompanied wherever she would wander,
that it could be impossible for her to escape
A.M. No. MTJ-92-710 June 19, 2003
especially considering the remoteness and the
distance between Upper San Agustin, Caibiran, Biliran
to Naval, Biliran where she is a resident. The people PEDRITA M. HARAYO, Complainant,
from the Faith Healers Association had the express vs.
and implied orders coming from respondent Atty. JUDGE MAMERTO Y. COLIFLORES, Respondent.
Danilo Velasquez to keep guarding Rosario Mecaral
and not to let her go freely. That can be gleaned from DECISION
the affidavit of co-respondent Bernardita Tadeo. The
latter being reprimanded whenever Atty. Velasquez BELLOSILLO, J.:
would learn that complainant had untangled the
cloth tied on her wrists and feet.[19] (emphasis and
Complainant Pedrita M. Harayo, former clerk-stenographer, Municipal
underscoring supplied)
Trial Court, Minglanilla, Cebu, in a sworn complaint dated 15 September
1992, charged respondent Judge Mamerto Y. Coliflores, Presiding Judge of
the same court, with grave misconduct for (a) dismissing for monetary
consideration Crim. Case No. 2307 for violation of PD No. 18661 and Crim.
Case No. 2308 for violation of RA No. 6425;2 (b) assigning Court Aide Jose
 64
M. Agosto as domestic helper and driver of respondent’s passenger
jeepney; (c) solemnizing illegal marriages and collecting fees therefor; (d)
allowing her name (complainant’s) to be placed as witness in a marriage
contract by forging her signature; (e) falsifying the date when he signed
the verification portion of the complaint and the joint affidavit of the
arresting officers in Crim. Case No. 2388; and, (f) changing for monetary
consideration the joint affidavit of arresting officers Jerome Abatayo,
Erasmo Gako and Eugene Hernani relative to Crim. Cases Nos. 2307 and
2308.
In a related letter-complaint dated 7 September 1992 complainant Pedrita
Harayo charged respondents Josefina R. Hermosa and Jose M. Agosto,
Clerk of Court and Court Aide respectively, of MTC, Minglanilla, Cebu, with
falsification of entries in their daily time record and daily attendance book.
By way of comment, respondent Judge denied the allegations in the
complaint and countered that complainant might have been prompted to
file the instant complaint after he indorsed Josefina Hermosa over
complainant for the position of Clerk of Court II. He added that
complainant likewise vented her ire on Hermosa and Agosto when
Hermosa did not accede to her request not to pursue her application for
Clerk of Court, and the latter, when he chided her about her belligerent
attitude towards Hermosa and his remark that after all she (complainant)
was not qualified for the position she was seeking and even as court
stenographer since she had no knowledge of steno-typing.
On the matter of the illegal marriage, charged in the complaint,
respondent claimed that he desisted from officiating the marriages upon
discovery that the documents were not complete despite assurances by
complainant to the contrary.
This Court in a resolution dated 23 February 1993 referred the instant case
to the Office of the Court Administrator (OCA) for evaluation, report and
recommendation. Thereafter, the OCA submitted its memorandum dated
29 March 1993 prepared by Deputy Court Administrator Eutropio Migriño
recommending the dismissal of the complaints for lack of merit.
On 11 May 1993 the Court again passed a resolution referring the instant
case to Executive Judge Generoso Juaban of the Regional Trial Court, Cebu,
for investigation, report and recommendation. In his report, Judge Juaban
recommended that respondent be exonerated on the first and third
charges, i.e., that he dismissed cases for monetary consideration, and that
he utilized Court Aide Jose Agosto as his domestic helper and personal
driver. However, on the charge that he performed illegal marriages, Judge
Juaban recommended that respondent be admonished and his salary
equivalent to one (1) or two (2) months be suspended for having signed
three (3) marriage contracts before the corresponding marriage licenses
were obtained by the parties. Judge Juaban reported that –
While there is no hard proof that respondent Judge demanded money in
the solemnization of these marriages, suspicion is strong that there could
be some monetary consideration. The investigator now seems to doubt
the verity of respondent’s denial. If the marriage contracts were signed by
him and no solemnization ever had, as he alleges, because he desisted
from doing so in the first instance, why did he repeat the same procedure
in the second and the third time? Signing the marriage contracts before
the marriage licenses were so obtained on these three (3) marriages is
indicative of respondent’s imprudence in this respect that calls for
appropriate measures of admonition.3
On 9 August 1994 this Court referred the report of Judge Juaban to the
OCA for further evaluation, report and recommendation. Accordingly, on
15 September 1994 the OCA submitted a memorandum essentially
adopting the recommendations of Investigating Judge Juaban but with the
proposal that with regard to the second charge, respondent be fined in
the amount equivalent to his one (1) month salary.
In an En Banc resolution dated 30 May 1995, the Supreme Court noted
that the report of Judge Juaban failed to address certain key issues which
were likewise raised in the complaint, namely: (a) that respondent
allowed complainant’s name to be placed as witness in the marriage
contract signed by Emmanuel Plantar and Elizabeth Nacor on 10 May 1989
by forging her signature; (b) that he falsified the date when he signed the
verification portion of the complaint and the joint affidavit of the arresting
officers in Crim. Case No. 2388 by making it appear that he was in the
office and signed the documents on 15 August 1992 when in fact it was
only on 20 August 1992 that he went to the court and signed the same;
and, (c) that for monetary consideration, he changed the joint affidavit of
the arresting officers in order to lay the groundwork for the dismissal of
Crim. Cases Nos. 2307 and 2308.
In justifying the inclusion of the above-mentioned charges, the Court
opined that these accusations should have been included in the
investigation as they were embodied in the reply of complainant to the
comment of respondent Judge. Consequently, the Court directed the
National Bureau of Investigation (NBI), Cebu City, to conduct an
investigation and submit its report and recommendation on the (a) alleged
forgery of complainant’s signature on the marriage contract signed by
Emmanuel Plantar and Elizabeth Nacor on 10 May 1989; and (b) purported
falsification of the joint affidavit of the arresting officers in Crim. Cases
Nos. 2307 and 2308, and of the date affixed in the verification of the
complaint in Crim. Case No. 2388.
In partial compliance with the Court’s directive, the NBI through Regional
Director Florencio Villarin submitted a report on 2 November 1995 which
contained its findings and conclusions on the examination of the marriage
contract containing complainant’s alleged forged signature. It concluded
that "(t)he questioned signatures ‘Pedrita Harayo’ and the
standard/sample signatures and handwritings of one ‘Pedrita Harayo’
were not written by one and the same person."4
With respect to the alleged falsification of the joint affidavit of the
arresting officers, and of the date affixed in the verification of the
complaint in Crim. Case No. 2388, the NBI reports disclosed the following:
" (a) as regards the joint affidavit executed on 23 August 1991, ". . .
indicative that they were not typed from one and the same source/
typewriter;5 (b) as regards the joint affidavit executed on 15 August 1992
". . . indicative that they were not typed from one and the same
source/typewriter;"6 and (c) "the questioned and the standard
sample/signatures (of) Jesus P. Carel were written by one and the same
person. The questioned typewritten entries/figures reading ‘15’ is NOT
altered."7
Upon receipt of the last report of the NBI, the Second Division of this
Court again referred the matter to the OCA which in turn recommended
that the matter be "REFERRED BACK" to the executive judge of RTC, Cebu,
for a more exhaustive investigation, report and recommendation,
particularly on those matters raised by the complainant but were not
touched in the investigation conducted by former Executive Judge
Generoso Juaban.
 65
On 8 January 2003, Investigating Judge Galicano Arriesgado, who replaced
Judge Generoso Juaban as Executive Judge, RTC-Cebu, together with
Judges Isaias Dicdican and Pampio Abarintos, First Vice–Executive Judge
and Second Vice-Executive Judge, respectively, submitted their report
with the recommendation that all the charges against respondent Judge
be dismissed for lack of merit.8 In arriving at their findings and conclusions,
the Investigating Judges said -9
On the charge that respondent judge allowed the forging of complainant’s
signature in the marriage contract x x x x no sufficient proof was adduced
that respondent judge had personal knowledge, much less, allowed the
commission of the forgery. While it is true that the NBI result impliedly
reported a forgery, however, the same cannot be directly pointed to
respondent x x x x
On the second charge of falsifying the date in the verification portion of
the joint affidavit of the police officers in Criminal Case 2388, the
investigation revealed a total lack of evidence to support the same x x x x
In the absence of proof to the contrary, the best evidence is the document,
which has been, for all intents, proven not only to be regular, but also to
be without any alterations. Hence, in the normal course of things, it is
logical to presume that the document was signed by respondent on the
15th and have been filed with and received by the court on the 18th as
appearing on the official stamp x x x x
On the charge that respondent judge changed the joint affidavits of the
arresting officers in order to facilitate the dismissal of Criminal Cases Nos.
2307 and 2308, the same June 1, 2000 report of the NBI did not yield
conclusive results that the questioned affidavits were typed at the MTC
Minglanilla x x x x
On the first charge, there is absolutely no proof, other than the
unsubstantiated allegation of the complainant, that respondent Judge had
received pecuniary consideration from a brother of the accused in
exchange for the dismissal of Crim. Cases Nos. 2307 and 2308. If we were
to believe complainant’s account of the incident, the payoff was supposed
to have been made outside the chambers of respondent Judge and in the
presence of lawyers and court employees; in other words, in open public
view – a venue which no sensible perpetrator of a crime would choose as
it would unnecessarily expose him to the dangers of eventual prosecution.
Moreover, her allusion that respondent offered her ₱100.00, apparently
as goodwill money, becomes even more preposterous considering that a
considerable amount, ₱15,000.00 or ₱20,000.00, was supposed to have
changed hands. As pointed out by respondent, ₱100.00 is an amount too
miniscule to buy the silence of a potential witness to a crime.
On the second charge, we also find unpersuasive complainant’s allegation
that respondent improperly utilized the services of Court Aide Jose Agosto
as domestic helper and driver of his passenger jeepney. This bare
accusation, devoid of corroboration, cannot nudge this Court into
precipitate belief.
On the charge that respondent Judge solemnized civil marriages for
exorbitant fees without the requisite marriage license, the records would
reveal that on three (3) different occasions he had indeed signed marriage
contracts, which were undated as to the time the marriages were
solemnized and with the space provided for the license number left blank.
In his comment, respondent Judge denied having solemnized marriages
without a license.1âwphi1 He explained that in the first instance involving
the marriage between Didier and Basan, he signed the marriage contract
only after assurances were made by complainant that the papers were in
order but collected said documents back and kept them inside his drawer
soon after learning that the marriage license was indeed missing. In the
other two (2) instances, he also denied having officiated at the marriage
between Bin Osman and Librea and that of Cabreros and Batto when
informed that the contracting parties could not produce their respective
marriage licenses.
Indeed, there is nothing in the records that would indicate that
respondent had in fact solemnized the marriages without the mandated
license. After all, who could best prove the existence of this fact other
than the contracting parties themselves? Nonetheless, there is an
inescapable showing that in at least three (3) different occasions
respondent Judge actually signed the marriage contracts, admittedly prior
to the issuance of the licenses.
Be that as it may, we cannot reject outright, in the absence of a more
convincing evidence en contra by the complainant, the verity of
respondent’s assertion that he desisted from performing marriages upon
learning of the contracting parties’ failure to produce the requisite
marriage licenses, which was corroborated by other defense witnesses.
But we cannot also help but register our strong suspicion that there are
more serious irregularities than meet the eye behind respondent’s
actuations. Committing the same act of imprudence three (3) times is one
too many for comfort, casting respondent’s motives in serious question. In
the absence however of clear and convincing proof that he actually
solemnized the three (3) marriages without the marriage licenses, no
culpability of such nature can be ascribed to him.
Nonetheless, respondent’s admission of signing the marriage contracts
before the issuance of the requisite marriage licenses, although not
necessarily fraudulent, amounts to gross negligence, if not gross
irresponsibility, in performing his official functions.
On the charge of forgery by respondent of complainant’s signature as
witness in a marriage contract, there appears to be sufficient basis for the
conclusion of the NBI of an implied forgery on the documents in question
although there is no direct evidence on who actually committed the
forgery. But the fact is that it happened with respondent’s apparent
tolerance, if not acquiescence, for which he should be held accountable.
As regards the allegation of complainant that respondent falsified the date
when he signed the verification portion of the complaint and the joint
affidavit of the arresting officers in Crim. Case No. 2388, and that he
changed for monetary consideration the joint affidavit of the arresting
officers in connection with Crim. Cases Nos. 2307 and 2308, we can only
rely, in the absence of proof to the contrary, on the findings of the NBI
that no alterations were made on the subject documents.
In sum, respondent, for gratuitously signing marriage contracts in utter
disregard of its legal effects, had been remiss in his duty of exercising due
care and circumspection in the performance of his official duties. In doing
so, he exhibited a cavalier proclivity of ignoring the norms of diligence,
efficiency, competence and dedication expected of a man donning a
judicial robe. Thus, he deserves a more severe disciplinary sanction than
that recommended.
Although the accusations against respondent Judge do not appear to have
been fully substantiated, the Court cannot let him go unpunished. In
 66
Negre v. Rivera,10 we admonished a municipal judge for signing a marriage
contract where no marriage license had been issued. Considering that in
the instant case, respondent repeatedly committed these procedural
gaffes, a penalty more severe must be meted against him.
His serious negligence and irresponsibility in signing three (3) marriage
contracts, allegedly in blank, and without the requisite marriage licenses
are simply too palpable for this Court to assume an air of nonchalance and
suspend in midair the fall of the gavel when it should.
WHEREFORE, the recommendations of Investigating Judges Generoso
Juaban and Galicano Arriesgado are APPROVED, particularly exonerating
respondent Judge Mamerto Y. Coliflores of the charges against him, with
the exception of his act of signing the three (3) marriage contracts without
the required marriage licenses for which the Court finds him
administratively liable and is ORDERED suspended immediately for one (1)
month and to pay a fine equivalent to two (2) months salary which shall
be withheld from his retirement benefits when he retires.
SO ORDERED.
Quisumbing, and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on leave.
G.R. No. 174689 October 22, 2007
ROMMEL JACINTO DANTES SILVERIO, petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the reed once, then twice.
All of a sudden, the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female. Amihan named the
man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs
and counseling with regard to a person’s sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in
the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."
He further alleged that he is a male transsexual, that is, "anatomically
male but feels, thinks and acts as a female" and that he had always
identified himself with girls since childhood.1 Feeling trapped in a man’s
body, he consulted several doctors in the United States. He underwent
psychological examination, hormone treatment and breast augmentation.
His attempts to transform himself to a "woman" culminated on January 27,
2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand.
He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic
and reconstruction surgeon in the Philippines, who issued a medical
certificate attesting that he (petitioner) had in fact undergone the
procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the People’s
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were sent to the Office of
the Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fiancé, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision4 in favor of petitioner.
Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and acted
like a woman, now possesses the physique of a female. Petitioner’s
misfortune to be trapped in a man’s body is not his own doing and should
not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness
on the part of the petitioner and her [fiancé] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.
 67
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in
the Certificate of Birth of [p]etitioner, specifically for petitioner’s first
name from "Rommel Jacinto" to MELY and petitioner’s gender from
"Male" to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.
On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor
of the Republic. It ruled that the trial court’s decision lacked legal basis.
There is no law allowing the change of either name or sex in the certificate
of birth on the ground of sex reassignment through surgery. Thus, the
Court of Appeals granted the Republic’s petition, set aside the decision of
the trial court and ordered the dismissal of SP Case No. 02-105207.
Petitioner moved for reconsideration but it was denied. 9 Hence, this
petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code,
Rules 103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Person’s First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present sex.
(emphasis supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and entities
for purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes. 13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change
of First Name or Nickname. – No entry in a civil register shall be changed
or corrected without a judicial order, except for clerical or typographical
errors and change of first name or nickname which can be corrected or
changed by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its implementing
rules and regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The
intent and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.
RA 9048 likewise provides the grounds for which change of first name may
be allowed:
SECTION 4. Grounds for Change of First Name or Nickname. – The petition
for change of first name or nickname may be allowed in any of the
following cases:
(1) The petitioner finds the first name or nickname to be ridiculous,
tainted with dishonor or extremely difficult to write or pronounce;
(2) The new first name or nickname has been habitually and continuously
used by the petitioner and he has been publicly known by that first name
or nickname in the community; or
(3) The change will avoid confusion.
Petitioner’s basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex
he thought he transformed himself into through surgery. However, a
change of name does not alter one’s legal capacity or civil status.18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioner’s first
name for his declared purpose may only create grave complications in the
civil registry and the public interest.
Before a person can legally change his given name, he must present
proper or reasonable cause or any compelling reason justifying such
change.19 In addition, he must show that he will be prejudiced by the use
of his true and official name.20 In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and
official name.
In sum, the petition in the trial court in so far as it prayed for the change
of petitioner’s first name was not within that court’s primary jurisdiction
as the petition should have been filed with the local civil registrar
concerned, assuming it could be legally done. It was an improper remedy
because the proper remedy was administrative, that is, that provided
under RA 9048. It was also filed in the wrong venue as the proper venue
was in the Office of the Civil Registrar of Manila where his birth certificate
is kept. More importantly, it had no merit since the use of his true and
official name does not prejudice him at all. For all these reasons, the Court
of Appeals correctly dismissed petitioner’s petition in so far as the change
of his first name was concerned.
No Law Allows The Change of Entry In The Birth Certificate As To Sex On
the Ground of Sex Reassignment
 68
The determination of a person’s sex appearing in his birth certificate is a
legal issue and the court must look to the statutes.21 In this connection,
Article 412 of the Civil Code provides:
ART. 412. No entry in the civil register shall be changed or corrected
without a judicial order.
Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.23
Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:
SECTION 2. Definition of Terms. – As used in this Act, the following terms
shall mean:
xxx xxx xxx
(3) "Clerical or typographical error" refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or
changed only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality, age,
status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex
is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable
under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.25 However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.
To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with something
else of the same kind or with something that serves as a substitute."26 The
birth certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were all correct.
No correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,
naturalization and deaths) and judicial decrees (such as legal separations,
annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is,
the sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership.27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily terminable at
his own will, such as his being legitimate or illegitimate, or his being
married or not. The comprehensive term status… include such matters as
the beginning and end of legal personality, capacity to have rights in
general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes
even succession.28 (emphasis supplied)
A person’s sex is an essential factor in marriage and family relations. It is a
part of a person’s legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioner’s cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births. – The declaration of the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for
the registration of a birth in the civil register. Such declaration shall be
exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or
midwife in attendance at the birth or by either parent of the newborn
child.
In such declaration, the person above mentioned shall certify to the
following facts: (a) date and hour of birth; (b) sex and nationality of infant;
(c) names, citizenship and religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be required in the
regulations to be issued.
xxx xxx xxx (emphasis supplied)
 69

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.29Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
person’s sex made at the time of his or her birth, if not attended by
error,30 is immutable.31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary legislative
intent. The words "sex," "male" and "female" as used in the Civil Register
Law and laws concerning the civil registry (and even all other laws) should
therefore be understood in their common and ordinary usage, there being
no legislative intent to the contrary. In this connection, sex is defined as
"the sum of peculiarities of structure and function that distinguish a male
from a female"32 or "the distinction between male and female."33Female is
"the sex that produces ova or bears young"34 and male is "the sex that has
organs to produce spermatozoa for fertilizing ova." 35 Thus, the words
"male" and "female" in everyday understanding do not include persons
who have undergone sex reassignment. Furthermore, "words that are
employed in a statute which had at the time a well-known meaning are
presumed to have been used in that sense unless the context compels to
the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued
that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be
included in the category "female."
For these reasons, while petitioner may have succeeded in altering his
body and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of
the entries in his birth certificate.
Neither May Entries in the Birth Certificate As to First Name or Sex Be
Changed on the Ground of Equity
insufficiency of the law." However, it is not a license for courts to engage
in judicial legislation. The duty of the courts is to apply or interpret the law,
not to make or amend it.
In our system of government, it is for the legislature, should it choose to
do so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are
statute-based.
To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature
intends to confer on a person who has undergone sex reassignment the
privilege to change his name and sex to conform with his reassigned sex, it
has to enact legislation laying down the guidelines in turn governing the
conferment of that privilege.
It might be theoretically possible for this Court to write a protocol on
when a person may be recognized as having successfully changed his sex.
However, this Court has no authority to fashion a law on that matter, or
on anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of
government, Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them, life
is indeed an ordeal. However, the remedies petitioner seeks involve
questions of public policy to be addressed solely by the legislature, not by
the courts.
WHEREFORE, the petition is hereby DENIED.

The trial court opined that its grant of the petition was in consonance with
Costs against petitioner.
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
SO ORDERED.
The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.
the petition was but petitioner’s first step towards his eventual marriage
to his male fiancé. However, marriage, one of the most sacred social ART. 3 FORMAL REQUISITES OF A VALID MARRIAGE
institutions, is a special contract of permanent union between a man and
a woman.37 One of its essential requisites is the legal capacity of the ERMELINDA ESCLEO, complainant, vs. MARITESS DORADO, Court
contracting parties who must be a male and a female.38 To grant the Stenographer II, Metropolitan Trial Court, Branch 66, Makati
changes sought by petitioner will substantially reconfigure and greatly City, respondent.
alter the laws on marriage and family relations. It will allow the union of a
man with another man who has undergone sex reassignment (a
DECISION
male-to-female post-operative transsexual). Second, there are various
laws which apply particularly to women such as the provisions of the KAPUNAN, J.:
Labor Code on employment of women,39 certain felonies under the
Revised Penal Code40 and the presumption of survivorship in case of
Before this Court is an administrative complaint instituted by Ms
calamities under Rule 131 of the Rules of Court, 41 among others. These
Ermelinda Escleo against Ms Maritess Dorado, Court Stenographer II,
laws underscore the public policy in relation to women which could be
Branch 22, Metropolitan Trial Court (MeTC), Makati City. Respondent is
substantially affected if petitioner’s petition were to be granted.
alleged to have solicited from complainants sister the amount of
P2,000.00 as down payment of an unauthorized facilitation fee to
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court expedite the latters marriage. Complainant narrates that on January 8,
shall decline to render judgment by reason of the silence, obscurity or
 70
1998, her sister, Ma. Phoebe Q. Carbon went to the City Hall of Makati to
secure a marriage license.
Ms Carbon was then engaged to a Korean citizen. She approached
respondent who asked her to fill up some forms and to pay the amount of
P5,000.00. After some bargaining, the amount was reduced to P4,000.00.
Ms Carbon made a down payment of P2,000.00, and was informed that
the marriage ceremony was scheduled for January 12, 1998 at 1:30 p.m.
Upon returning home, Ms Carbon informed complainant of the
arrangements. Finding the amount paid by her sister exorbitant,
complainant went to respondents office the following day. She demanded
that respondent return the down payment of P2,000.00 and the
document evidencing the legal capacity of her sisters fianc to marry, which
had been given to respondent for processing. Respondent, however,
refused to return the money and the document allegedly because she had
given them to a certain Caloy of Imus, Cavite.
A shouting match ensued between the parties. The Commotion
caught the attention of respondents superior, MeTC Judge Estella Bernabe,
who inquired as to the cause of the argument. Complainant explained to
the Judge the events that had just transpired. Judge Bernabe informed
complainant that no fees are supposed to be charged for the
solemnization of marriage and instructed her to put her complaint in
writing. Judge Bernabe referred complainant to MeTC Executive Judge
Leticia Ulibarri.
When complainant returned the next day, January 11, 1998,
respondent still failed to return the money as well as the document.
Respondent even told complainant that they should consider themselves
fortunate that they were charged only P4,000.00, considering that the
so-called japayukis were ordinarily charged P15,000.00. Complainant said
she did not care and demanded the document evidencing the Koreans
legal capacity to marry. Respondent told her to withdraw her complaint
first. Complainant refused, however.[1]
Ms. Escleo registered her complaint before Executive Judge Ulibarri.
On January 13 and 14, 1998, Judge Ulibarri conducted an investigation of
the charges against respondent. Both complainant and respondent were
in attendance on both dates. Phoebe Carbon was also present in the
investigation held on January 14, 1998. The proceedings before Judge
Ulibarri were transcribed and the case was subsequently referred to the
Office of the Court Administrator (OCA).
Directed to file an answer, respondent submitted an affidavit
vehemently denying the charges. She related that on January 8, 1998,
while she was busy transcribing her stenographic notes, a certain Ma.
Phoebe Q. Carbon, together with her foreigner-fianc, approached her. Ms
Carbon sought her assistance on how they could be married at the
soonest possible time without having to await the lapse of the 10-day
period of publication of their application for a marriage license. Ms Carbon
explained that the urgency of the wedding was due to the fact that they
were already deemed overstaying in the country. Since respondent was
allegedly busy at work, she directed Ms Carbon to proceed to the Office of
the Local Civil Registrar to secure a marriage license and to return to her
only after she already had in her possession the necessary document.
Since Ms Carbon, then almost in tears, was quite insistent in her request
for assistance, respondent decided to seek the help of a friend from Cavite
in securing a marriage license for Ms Carbon and her fianc.
The next day, a very angry complainant came to respondents office.
Respondent explained to her that, hindi ako ang naglalakad ng kasal at
wala na sa akin ang legal capacity dahilan sa ipina-process na
ni Phoebe ng madalian, at babalik na lamang si Phoebe para magbayad at
magpakasal sa January 12 or 13. Complainant proceeded to report the
matter to MeTC Executive Judge Ulibarri, who then ordered respondent to
return the documents of complainants sister.
Respondent denied having done anything wrong or having received
money from either complainant or Ms Carbon. On the contrary, she
asserted that she was actually trying to be helpful in expediting the
couples application for a marriage license.[2]
Appended to respondents affidavit were the affidavits [3] of Ma. Elvie
N. Cruz and Luzviminda C. Sional, who both claimed to be present when
the January 9, 1998 encounter between complainant and respondent took
place. Affiants stated that complainant shouted at respondent, spewing
unpleasant words. Respondent calmly tried to explain to complainant but
the latter continued yelling at her.
In a Resolution dated June 9, 1999, the Court resolved to refer the
case to Sandiganbayan Justice Romulo Quimbo (Ret.), consultant of the
OCA, for investigation, report and recommendation.
Justice Quimbo related in his Report the proceedings that transpired
in his investigation:
We set the first hearing on September 13, 1999. Subpoenas were sent to
both complainant and respondent. Only the respondent appeared. It does
not appear on record whether the complainant received the subpoena
mailed to her.
The respondent sought the postponement of the hearing as she wanted to
retain the services of a lawyer. For this reason, we reset the hearing to
October 6, 1999 but because respondent suffered a miscarriage and could
not be present, we cancelled said hearing. On October 20, 1999,
respondent appeared with Atty. Editha Mia of the Public Attorneys Office.
Complainant was again absent.
The undersigned asked respondent whether she made answers to
questions propounded by Hon. Leticia Querubin-Ulibarri, Executive Judge
of the Makati MeTC and contained in two transcripts of stenographic
notes taken at an investigation of the complaint of the present
complainant which the said Judge Ulibarri conducted on January 13 and
14, 1998. These two transcripts now form part of the record of this case
having been transmitted by Judge Ulibarri. Respondents counsel
manifested that the said answers were given under duress. We, therefore,
called Judge Ulibarri to appear and testify in the investigation. On
December 1, 1999, Judge Ulibarri, under oath, assured the undersigned
that the answers which respondent gave and which appear in the two
transcripts were voluntarily made and that no compulsion was exerted to
extract the same.
After the declaration of Judge Ulibarri, the respondent opted not to testify
in her own behalf nor to present evidence. Instead she prayed for time to
file a position paper which the undersigned received on December 21,
1999.[4]
In her Position Paper dated December 15, 1999, respondent prayed
that the complaint be dismissed for lack of evidence. She argued that the
failure of the complainant to attend the investigation violated her right to
cross-examine her accuser. She added that the complaint is based merely
on hearsay, complainant not having personal knowledge of the
transaction between respondent and complainants sister.
Respondent likewise contended that she was deprived of her right
to due process. In the investigation by Judge Ulibarri, which was
conducted a day after the complaint was filed, respondent was not given
 71

the opportunity to answer the complaint in writing. Neither was she given
the usual three days to prepare for trial. Moreover, the Judge did not
inform her of her right against self- incrimination.
The acts complained of, respondent also pointed out, are not within
her duties and, hence, could not be punished therefor. Finally, it was
complainants sister who solicited respondents help and respondent
should not be penalized for merely helping one in need.
Respondent attached, as Annex 1 to her Position Paper, an Affidavit
executed by one Felicitas Sanje, who claimed to be a Minister/Reverend of
the Spiritual Filipino Catholic Church and, as such, was authorized to
conduct marriages within Metro Manila. The authority was evidenced by a
Certificate of Registration and Authority to Solemnize Marriage [5] signed
by the Civil Registry Coordinator (for the Civil Registrar General).
Sanje alleged that he frequents the City Hall of Makati. He is
regularly approached by those who wish to get married but whose papers
are not in order and, hence, cannot be married by a judge. He stated that
he usually charges P2,000.00 for Filipinos and P5,000.00 for foreigners.
The fee covers the processing of the marriage license, counseling, and
other requirements, including a certified photocopy of the marriage
certificate.
On January 8, 1998, at around 2:30 to 3:00 p.m., Sanje saw
respondent talking to two persons. One of them, the woman, was on the
verge of tears as she talked to respondent who was then busy with her
typewriter. Sanje claimed that he overheard the woman pleading for
respondent to help them. The woman said that they needed to get
married (right away), otherwise, they would be deemed overstaying in the
country. Sanje heard respondent say, [A]ng alam ko P5,000.00 ang bayad
kapag foreigner ang ikinakasal, kasama na ang lahat ng papeles, pero
hindi ako masyadong sigurado, kaya bahala ng kayong mag-usap. The
couple then handed respondent the document evidencing the Koreans
legal capacity to marry and their application for a marriage license. They
asked respondent to wait for them while they had their money converted
to local currency. Respondent and Sanje waited for the two until 5:00 p.m.
but the couple did not return. As Sanje had overheard their conversation,
respondent gave him the documents. Sanje had the papers processed
since he would be conducting the marriage ceremony.
When Sanje returned to City Hall the next day, he learned that the
couple had not returned. Instead, one Esmerlinda (sic) Escleo demanded
from respondent the document evidencing the foreigners legal capacity to
marry. Respondent informed her that the document had already been
filed in Imus, Cavite, where the marriage license was to be obtained. Sanje
subsequently discovered that Escleo had filed a complaint against
respondent for charging exorbitant fees, although no money had been
even actually paid. Despite such failure to pay, Sanje gave the couple their
marriage license. He did not solemnize their marriage, however, because
they were magulong kausap.
immaterial. Respondents purpose in raising these issues is obviously to
exclude the evidence presented by complainant. But assuming these
arguments are meritorious, there is still ample evidence to establish
respondents guilt -evidence provided by respondent herself.
In the investigation conducted by Judge Ulibarri, respondent bared
that she had the papers processed, handing the document and the
amount of P2,000.00 to a certain Raquel from the property. She also
revealed that, by merely antedating the marriage license, the 10-day
posting requirement could be skirted. The agent or go-between justified
the large fee.
Maritess Dorado
- Kasi Maam, magpapakasal daw sila. Tapos, sabi ko, dito
pwede ten days, sabi ko sa kanila, tapos sabi ko...
Court
- Tapos sabi niya, magkano ang sisingilin mo?
Maritess Dorado
- Sabi ko, pwede na ang P1,500.00 kasi foreigner. Tapos sabi
niya, eh kasi uuwi na sila sa Iloilo. Tapos sabi ko, kasi
pwede nating iano yan, kaya lang mahal, maybayad kasi
hindi tayo makakakuha tsaka hindi ka makaka-aalis,
sabi kong ganon sa kanya, pumayag naman sila,
Huwebes yon Maam, nagmamadali sila, eh di pinalakad
ko na po, Maam nung Huwebes.
Court
- Kanino mo pinalakad?
Maritess Dorado
- Duon po sa naglalakad ng license, kay Raquel.
Court
- Sino yung Raquel, sann [sic] nagtatrabajo?
Maritess Dorado
- Sa Property ata yon.
Court
- Property ng?
Maritess Dorado
- Ng Makati.
Court

In his Report, dated January 7, 2000, Justice Quimbo found - Property o licensing?
respondent guilty of misconduct, although it may not be characterized as Maritess Dorado
gross misconduct. He recommended that respondent be suspended for a
period of three (3) months, without pay, and that she be warned that the - Property.
commission of the same or similar act would merit a more severe
Court
punishment.[6]
- Ano ang full name niya?
The Court concurs with the Hearing Officers findings and
recommendation, save for the penalty. Maritess Dorado
Whether or not the complaint is hearsay, and whether or not - Basta Raquel ang alani ko.
respondent was deprived of her right to cross-examine complainant, who
failed to attend the hearing called by Justice Quimbo, are largely Court
 72

- Eh Eapos binigay mo yung pera, yung P2,000.00?
Maritess Dorado
- Maam, kailangan ng license, dahil kasi i-a-anti-date yung ano
ng kapatid niya, dahil yuon ng ang request nila para
rnakasal sila dahil aalis sila daw.
Court
Respondent also claims that she had a right to be informed of her
right against self-incrimination, pursuant to Section 12 (1), Article III of the
Constitution:
Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice.

- I-a-anti-date, aIin ang i-a-antidate? This provision is not applicable because respondent was not under
investigation for the commission of an offense; hence, the rights granted
Maritess Dorado by said provision did not attach. Judge Ulibarri was under no
- yung pong license. constitutional obligation to inform respondent of such right.

Court Lastly, respondent insists that the acts complained of have no

connection with her duties as court stenographer and that she was merely
- Bakit, na-a-antidate ba yon? helping complainants sister, for which punishment is undeserved.

Maritess Dorado The law prescribes certain requirements for a valid marriage license
to issue.[10] By agreeing to make it appear that complainants sister and her
- Hindi ko po alam, kasi hindi po ako ang naglalakad, basta fianc complied with these requirements, specifically by the antedating of
yon lang ang inaano niya. the marriage license, respondent abetted the circumvention of the law.
Court Worse, she did this for a fee. If respondent believes such to be an act of
kindness, she certainly has a skewed notion of charity.
- So yung P2,000.00 ibinigay mo kay Raquel?
Clearly, respondent may be held for her acts although they do not
Maritess Dorado involve her functions as stenographer. The Code of Conduct and Ethical
Standards for Public Officials and Employees[11] mandates all public
- Yes, Maam.
officials and employees to refrain from doing acts contrary to law, good
Court morals, good Customs, public policy, public order, public safety and public
interest.[12] The conduct especially of Court personnel must always be
- Ngayon, ang sabi eh di P2,000.00, pero may balance pang beyond reproach and circumscribed with the heavy burden of
P2,000.00 dahil P4,000.00 ang usapan ninyo, bakit responsibility as to let them be free of any suspicion that may taint the
nag-sisingil ka ng ganoong kalaki, eh wala namang judiciary.[13]
bayad ang... eh ang alam ko singkwenta pesos lang,
bakit nagsisingil ka ng ganoong kalaki? For abetting the circumvention of the legal requirements in the
issuance of a marriage license, respondent is guilty of Simple Misconduct
Maritess Dorado punishable by suspension for one (1) month and one (1) day to six (6)
months. This appearing to be her first offense, a one month and one day
- Siya lang naman po ang nag-ano, sinabi ko naman sa kanila
suspension is deemed sufficient as her penalty.[14]
na pwede mura dahil dito.
WHEREFORE, respondent Maritess M. Dorado is found guilty of
Court
Simple Misconduct and is SUSPENDED for a period of ONE (1) MONTH
- Mura ang singil mo, P1,500.00, ang sinabi mo P1,500.00? AND ONE (1) DAY, without pay. She is WARNED that a repetition of the
same or similar offense will be dealt with more severely.
Maritess Dorado
SO ORDERED.
- Hindi ho syempre Maarn, may-agent naman yan tsaka
tatawad pa naman. Davide, Jr., C.J., (Chairman), Vitug,
Ynares-Santiago, and Austria-Martinez, JJ., concur.
Court

- Bakit kailangan may-agent pa ang kasal? ENGRACE NIAL for Herself and as Guardian ad Litem of the minors
BABYLINE NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL,
Maritess Dorado JR., petitioners, vs. NORMA BAYADOG, respondent. Ncmmis
- Hindi ko naman ho kilala, kung baga ini-refer lang sila sa
akin.[7] DECISION

Respondent was not deprived of due process in the investigation

conducted by Judge Ulibarri. What is repugnant to due process is the
denial of the opportunity to be heard.[8] In administrative proceedings,
moreover, technical rules of procedure are not strictly
applied.[9] Respondent cannot deny that she was accorded, and indeed
availed herself of, the opportunity to be heard in the proceedings before
Judge Ulibarri.
YNARES_SANTIAGO, J.:
May the heirs of a deceased person file a petition for the declaration of
nullity of his marriage after his death?
Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out
of their marriage were born herein petitioners. Teodulfa was shot by
 73
Pepito resulting in her death on April 24, 1985. One year and 8 months
thereafter or on December 11, 1986, Pepito and respondent Norma
Badayog got married without any marriage license. In lieu thereof, Pepito
and Norma executed an affidavit dated December 11, 1986 stating that
they had lived together as husband and wife for at least five years and
were thus exempt from securing a marriage license. On February 19, 1997,
Pepito died in a car accident. After their fathers death, petitioners filed a
petition for declaration of nullity of the marriage of Pepito to Norma
alleging that the said marriage was void for lack of a marriage license. The
case was filed under the assumption that the validity or invalidity of the
second marriage would affect petitioners successional rights. Norma filed
a motion to dismiss on the ground that petitioners have no cause of action
since they are not among the persons who could file an action for
"annulment of marriage" under Article 47 of the Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu,
Branch 59, dismissed the petition after finding that the Family Code is
"rather silent, obscure, insufficient" to resolve the following issues:
(1) Whether or not plaintiffs have a cause of action
against defendant in asking for the declaration of the
nullity of marriage of their deceased father, Pepito G.
Nial, with her specially so when at the time of the
filing of this instant suit, their father Pepito G. Nial is
already dead;
(2) Whether or not the second marriage of plaintiffs
deceased father with defendant is null and void ab
initio;
(3) Whether or not plaintiffs are estopped from
assailing the validity of the second marriage after it
was dissolved due to their fathers death.[1]
Thus, the lower court ruled that petitioners should have filed the action to
declare null and void their fathers marriage to respondent before his
death, applying by analogy Article 47 of the Family Code which
enumerates the time and the persons who could initiate an action for
annulment of marriage.[2] Hence, this petition for review with this Court
grounded on a pure question of law. Scnc m
This petition was originally dismissed for non-compliance with Section 11,
Rule 13 of the 1997 Rules of Civil Procedure, and because "the verification
failed to state the basis of petitioners averment that the allegations in the
petition are true and correct." It was thus treated as an unsigned pleading
which produces no legal effect under Section 3, Rule 7, of the 1997
Rules.[3]However, upon motion of petitioners, this Court reconsidered the
dismissal and reinstated the petition for review.[4]
The two marriages involved herein having been solemnized prior to the
effectivity of the Family Code (FC), the applicable law to determine their
validity is the Civil Code which was the law in effect at the time of their
celebration.[5] A valid marriage license is a requisite of marriage under
Article 53 of the Civil Code,[6] the absence of which renders the
marriage void ab initiopursuant to Article 80(3)[7] in relation to Article
58.[8] The requirement and issuance of marriage license is the States
demonstration of its involvement and participation in every marriage, in
the maintenance of which the general public is interested.[9] This interest
proceeds from the constitutional mandate that the State recognizes the
sanctity of family life and of affording protection to the family as a basic
"autonomous social institution."[10] Specifically, the Constitution considers
marriage as an "inviolable social institution," and is the foundation of
family life which shall be protected by the State.[11] This is why the Family
Code considers marriage as "a special contract of permanent
union"[12] and case law considers it "not just an adventure but a lifetime
commitment."[13]
However, there are several instances recognized by the Civil Code wherein
a marriage license is dispensed with, one of which is that provided in
Article 76,[14] referring to the marriage of a man and a woman who have
lived together and exclusively with each other as husband and wife for a
continuous and unbroken period of at least five years before the marriage.
The rationale why no license is required in such case is to avoid exposing
the parties to humiliation, shame and embarrassment concomitant with
the scandalous cohabitation of persons outside a valid marriage due to the
publication of every applicants name for a marriage license. The publicity
attending the marriage license may discourage such persons from
legitimizing their status.[15] To preserve peace in the family, avoid the
peeping and suspicious eye of public exposure and contain the source of
gossip arising from the publication of their names, the law deemed it wise
to preserve their privacy and exempt them from that requirement. Sdaa
miso
There is no dispute that the marriage of petitioners father to respondent
Norma was celebrated without any marriage license. In lieu thereof, they
executed an affidavit stating that "they have attained the age of majority,
and, being unmarried, have lived together as husband and wife for at least
five years, and that we now desire to marry each other."[16] The only issue
that needs to be resolved pertains to what nature of cohabitation is
contemplated under Article 76 of the Civil Code to warrant the counting of
the five year period in order to exempt the future spouses from securing a
marriage license. Should it be a cohabitation wherein both parties are
capacitated to marry each other during the entire five-year continuous
period or should it be a cohabitation wherein both parties have lived
together and exclusively with each other as husband and wife during the
entire five-year continuous period regardless of whether there is a legal
impediment to their being lawfully married, which impediment may have
either disappeared or intervened sometime during the cohabitation
period?
Working on the assumption that Pepito and Norma have lived together as
husband and wife for five years without the benefit of marriage, that
five-year period should be computed on the basis of a cohabitation as
"husband and wife" where the only missing factor is the special contract
of marriage to validate the union. In other words, the five-year
common-law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been
for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of
cohabitation characterized by exclusivity meaning no third party was
involved at any time within the 5 years and continuity that is unbroken.
Otherwise, if that continuous 5-year cohabitation is computed without
any distinction as to whether the parties were capacitated to marry each
other during the entire five years, then the law would be sanctioning
immorality and encouraging parties to have common law relationships
and placing them on the same footing with those who lived faithfully with
their spouse. Marriage being a special relationship must be respected as
such and its requirements must be strictly observed. The presumption
that a man and a woman deporting themselves as husband and wife is
based on the approximation of the requirements of the law. The parties
should not be afforded any excuse to not comply with every single
 74
requirement and later use the same missing element as a pre-conceived
escape ground to nullify their marriage. There should be no exemption
from securing a marriage license unless the circumstances clearly fall
within the ambit of the exception. It should be noted that a license is
required in order to notify the public that two persons are about to be
united in matrimony and that anyone who is aware or has knowledge of
any impediment to the union of the two shall make it known to the local
civil registrar.[17] The Civil Code provides:
Article 63: "x x x. This notice shall request all persons
having knowledge of any impediment to the marriage
to advice the local civil registrar thereof. x x x."
Article 64: "Upon being advised of any alleged
impediment to the marriage, the local civil registrar
shall forthwith make an investigation, examining
persons under oath. x x x"Sdaad
This is reiterated in the Family Code thus:
Article 17 provides in part: "x x x. This notice shall
request all persons having knowledge of any
impediment to the marriage to advise the local civil
registrar thereof. x x x."
Article 18 reads in part: "x x x. In case of any
impediment known to the local civil registrar or
brought to his attention, he shall note down the
particulars thereof and his findings thereon in the
application for a marriage license. x x x."
This is the same reason why our civil laws, past or present, absolutely
prohibited the concurrence of multiple marriages by the same person
during the same period. Thus, any marriage subsequently contracted
during the lifetime of the first spouse shall be illegal and void,[18] subject
only to the exception in cases of absence or where the prior marriage was
dissolved or annulled. The Revised Penal Code complements the civil law
in that the contracting of two or more marriages and the having of
extramarital affairs are considered felonies, i.e., bigamy and concubinage
and adultery.[19] The law sanctions monogamy.
In this case, at the time of Pepito and respondents marriage, it cannot be
said that they have lived with each other as husband and wife for at least
five years prior to their wedding day. From the time Pepitos first marriage
was dissolved to the time of his marriage with respondent, only about
twenty months had elapsed. Even assuming that Pepito and his first wife
had separated in fact, and thereafter both Pepito and respondent had
started living with each other that has already lasted for five years, the
fact remains that their five-year period cohabitation was not the
cohabitation contemplated by law. It should be in the nature of a perfect
union that is valid under the law but rendered imperfect only by the
absence of the marriage contract. Pepito had a subsisting marriage at the
time when he started cohabiting with respondent. It is immaterial that
when they lived with each other, Pepito had already been separated in
fact from his lawful spouse. The subsistence of the marriage even where
there was actual severance of the filial companionship between the
spouses cannot make any cohabitation by either spouse with any third
party as being one as "husband and wife". Scs daad
Having determined that the second marriage involved in this case is not
covered by the exception to the requirement of a marriage license, it is
void ab initio because of the absence of such element.
The next issue to be resolved is: do petitioners have the personality to file
a petition to declare their fathers marriage void after his death?
Contrary to respondent judges ruling, Article 47 of the Family
Code[20] cannot be applied even by analogy to petitions for declaration of
nullity of marriage. The second ground for annulment of marriage relied
upon by the trial court, which allows "the sane spouse" to file an
annulment suit "at any time before the death of either party" is
inapplicable. Article 47 pertains to the grounds, periods and persons who
can file an annulment suit, not a suit for declaration of nullity of marriage.
The Code is silent as to who can file a petition to declare the nullity of a
marriage. Voidable and void marriages are not identical. A marriage that is
annulable is valid until otherwise declared by the court; whereas a
marriage that is void ab initio is considered as having never to have taken
place[21] and cannot be the source of rights. The first can be generally
ratified or confirmed by free cohabitation or prescription while the other
can never be ratified. A voidable marriage cannot be assailed collaterally
except in a direct proceeding while a void marriage can be attacked
collaterally. Consequently, void marriages can be questioned even after
the death of either party but voidable marriages can be assailed only
during the lifetime of the parties and not after death of either, in which
case the parties and their offspring will be left as if the marriage had been
perfectly valid.[22] That is why the action or defense for nullity is
imprescriptible, unlike voidable marriages where the action prescribes.
Only the parties to a voidable marriage can assail it but any proper
interested party may attack a void marriage. Void marriages have no legal
effects except those declared by law concerning the properties of the
alleged spouses, regarding co-ownership or ownership through actual
joint contribution,[23] and its effect on the children born to such void
marriages as provided in Article 50 in relation to Article 43 and 44 as well
as Article 51, 53 and 54 of the Family Code. On the contrary, the property
regime governing voidable marriages is generally conjugal partnership and
the children conceived before its annulment are legitimate. Sup rema
Contrary to the trial courts ruling, the death of petitioners father
extinguished the alleged marital bond between him and respondent. The
conclusion is erroneous and proceeds from a wrong premise that there
was a marriage bond that was dissolved between the two. It should be
noted that their marriage was void hence it is deemed as if it never existed
at all and the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial decree is
necessary in order to establish the nullity of a marriage.[24] "A void
marriage does not require a judicial decree to restore the parties to their
original rights or to make the marriage void but though no sentence of
avoidance be absolutely necessary, yet as well for the sake of good order
of society as for the peace of mind of all concerned, it is expedient that
the nullity of the marriage should be ascertained and declared by the
decree of a court of competent jurisdiction."[25] "Under ordinary
circumstances, the effect of a void marriage, so far as concerns the
conferring of legal rights upon the parties, is as though no marriage had
ever taken place. And therefore, being good for no legal purpose, its
invalidity can be maintained in any proceeding in which the fact of
marriage may be material, either direct or collateral, in any civil court
between any parties at any time, whether before or after the death of
either or both the husband and the wife, and upon mere proof of the facts
rendering such marriage void, it will be disregarded or treated as
 75
non-existent by the courts." It is not like a voidable marriage which cannot
be collaterally attacked except in direct proceeding instituted during the
lifetime of the parties so that on the death of either, the marriage cannot
be impeached, and is made good ab initio.[26] But Article 40 of the Family
Code expressly provides that there must be a judicial declaration of the
nullity of a previous marriage, though void, before a party can enter into a
second marriage[27] and such absolute nullity can be based only on a final
judgment to that effect.[28] For the same reason, the law makes either the
action or defense for the declaration of absolute nullity of marriage
imprescriptible.[29] Corollarily, if the death of either party would extinguish
the cause of action or the ground for defense, then the same cannot be
considered imprescriptible. Juris
However, other than for purposes of remarriage, no judicial action is
necessary to declare a marriage an absolute nullity. For other purposes,
such as but not limited to determination of heirship, legitimacy or
illegitimacy of a child, settlement of estate, dissolution of property regime,
or a criminal case for that matter, the court may pass upon the validity of
marriage even in a suit not directly instituted to question the same so long
as it is essential to the determination of the case. This is without prejudice
to any issue that may arise in the case. When such need arises, a final
judgment of declaration of nullity is necessary even if the purpose is other
than to remarry. The clause "on the basis of a final judgment declaring
such previous marriage void" in Article 40 of the Family Code connotes
that such final judgment need not be obtained only for purpose of
remarriage.
WHEREFORE, the petition is GRANTED. The assailed Order of the Regional
Trial Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639,
is REVERSED and SET ASIDE. The said case is ordered REINSTATED.
SO ORDERED.
Davide, Jr., (Chairman), Puno, and Kapunan, JJ., concur. Sc juris
Pardo, J., on official business abroad.
G.R. No. 103047 September 2, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.
PUNO, J.:
The case at bench originated from a petition filed by private respondent
Angelina M. Castro in the Regional Trial Court of Quezon City seeking a
judicial declaration of nullity of her marriage to Edwin F. Cardenas. 1 As
ground therefor, Castro claims that no marriage license was ever issued to
them prior to the solemnization of their marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer.
Consequently, he was declared in default. Trial proceeded in his absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married
in a civil ceremony performed by Judge Pablo M. Malvar, City Court Judge
of Pasay City. The marriage was celebrated without the knowledge of
Castro's parents. Defendant Cardenas personally attended to the
processing of the documents required for the celebration of the marriage,
including the procurement of the marriage, license. In fact, the marriage
contract itself states that marriage license no. 3196182 was issued in the
name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.
The couple did not immediately live together as husband and wife since
the marriage was unknown to Castro's parents. Thus, it was only in March
1971, when Castro discovered she was pregnant, that the couple decided
to live together. However, their cohabitation lasted only for four (4)
months. Thereafter, the couple parted ways. On October 19, 1971, Castro
gave birth. The baby was adopted by Castro's brother, with the consent of
Cardenas.
The baby is now in the United States. Desiring to follow her daughter,
Castro wanted to put in order her marital status before leaving for the
States. She thus consulted a lawyer, Atty. Frumencio E. Pulgar, regarding
the possible annulment of her marriage. Through her lawyer's efforts,
they discovered that there was no marriage license issued to Cardenas
prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil
Register of Pasig, Metro Manila. It reads:
February 20, 1987
TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS and ANGELINA M.
CASTRO who were allegedly married in the Pasay City Court on June 21,
1970 under an alleged (s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot
be located as said license no. 3196182 does not appear from our records.
Issued upon request of Mr. Ed Atanacio.
(Sgd) CENONA D. QUINTOS
Senior Civil Registry Officer
Castro testified that she did not go to the civil registrar of Pasig on or
before June 24, 1970 in order to apply for a license. Neither did she sign
any application therefor. She affixed her signature only on the marriage
contract on June 24, 1970 in Pasay City.
The trial court denied the petition. 2 It held that the above certification
was inadequate to establish the alleged non-issuance of a marriage license
prior to the celebration of the marriage between the parties. It ruled that
the "inability of the certifying official to locate the marriage license is not
conclusive to show that there was no marriage license issued."
Unsatisfied with the decision, Castro appealed to respondent appellate
court. She insisted that the certification from the local civil registrar
sufficiently established the absence of a marriage license.
As stated earlier, respondent appellate court reversed the Decision of the
trial court. 3 It declared the marriage between the contracting parties null
 76
and void and directed the Civil Registrar of Pasig to cancel the subject
marriage contract.
Hence this petition for review on certiorari.
Petitioner Republic of the Philippines urges that respondent appellate
court erred when it ruled that the certification issued by the civil registrar
that marriage license no. 3196182 was not in their record adequately
proved that no such license was ever issued. Petitioner also faults the
respondent court for relying on the self-serving and uncorroborated
testimony of private respondent Castro that she had no part in the
procurement of the subject marriage license. Petitioner thus insists that
the certification and the uncorroborated testimony of private respondent
are insufficient to overthrow the legal presumption regarding the validity
of a marriage.
Petitioner also points that in declaring the marriage between the parties
as null and void, respondent appellate court disregarded the presumption
that the solemnizing officer, Judge Pablo M. Malvar, regularly performed
his duties when he attested in the marriage contract that marriage license
no. 3196182 was duly presented to him before the solemnization of the
subject marriage.
The issues, being interrelated, shall be discussed jointly.
The core issue presented by the case at bench is whether or not the
documentary and testimonial evidence presented by private respondent
are sufficient to establish that no marriage license was issued by the Civil
Registrar of Pasig prior to the celebration of the marriage of private
respondent to Edwin F. Cardenas.
We affirm the impugned Decision.
At the time the subject marriage was solemnized on June 24, 1970, the
law governing marital relations was the New Civil Code. The law 4 provides
that no marriage shall be solemnized without a marriage license first
issued by a local civil registrar. Being one of the essential requisites of a
valid marriage, absence of a license would render the marriage void ab
initio. 5
Petitioner posits that the certification of the local civil registrar of due
search and inability to find a record or entry to the effect that marriage
license no. 3196182 was issued to the parties is not adequate to prove its
non-issuance.
We hold otherwise. The presentation of such certification in court is
sanctioned by Section 29, Rule 132 of the Rules of Court, viz.:
Sec. 29. Proof of lack of record. — A written statement signed by an officer
having custody of an official record or by his deputy, that after diligent
search, no record or entry of a specified tenor is found to exist in the
records of his office, accompanied by a certificate as above provided, is
admissible as evidence that the records of his office contain no such
record or entry.
The above Rule authorized the custodian of documents to certify that
despite diligent search, a particular document does not exist in his office
or that a particular entry of a specified tenor was not to be found in a
register. As custodians of public documents, civil registrars are public
officers charged with the duty, inter alia, of maintaining a register book
where they are required to enter all applications for marriage licenses,
including the names of the applicants, the date the marriage license was
issued and such other relevant data. 6
The certification of "due search and inability to find" issued by the civil
registrar of Pasig enjoys probative value, he being the officer charged
under the law to keep a record of all data relative to the issuance of a
marriage license. Unaccompanied by any circumstance of suspicion and
pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of "due
search and inability to find" sufficiently proved that his office did not issue
marriage license no. 3196182 to the contracting parties.
The fact that private respondent Castro offered only her testimony in
support of her petition is, in itself, not a ground to deny her petition. The
failure to offer any other witness to corroborate her testimony is mainly
due to the peculiar circumstances of the case. It will be remembered that
the subject marriage was a civil ceremony performed by a judge of a city
court. The subject marriage is one of those commonly known as a "secret
marriage" — a legally non-existent phrase but ordinarily used to refer to a
civil marriage celebrated without the knowledge of the relatives and/or
friends of either or both of the contracting parties. The records show that
the marriage between Castro and Cardenas was initially unknown to the
parents of the former.
Surely, the fact that only private respondent Castro testified during the
trial cannot be held against her. Her husband, Edwin F. Cardenas, was duly
served with notice of the proceedings and a copy of the petition. Despite
receipt thereof, he chose to ignore the same. For failure to answer, he was
properly declared in default. Private respondent cannot be faulted for her
husband's lack of interest to participate in the proceedings. There was
absolutely no evidence on record to show that there was collusion
between private respondent and her husband Cardenas.
It is noteworthy to mention that the finding of the appellate court that the
marriage between the contracting parties is null and void for lack of a
marriage license does not discount the fact that indeed, a spurious
marriage license, purporting to be issued by the civil registrar of Pasig,
may have been presented by Cardenas to the solemnizing officer.
In fine, we hold that, under the circumstances of the case, the
documentary and testimonial evidence presented by private respondent
Castro sufficiently established the absence of the subject marriage license.
IN VIEW WHEREOF, the petition is DENIED there being no showing of any
reversible error committed by respondent appellate court.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
 77

REPUBLIC OF THE PHILIPPINES, G.R. No. 175581

Petitioner,
On 7 July 1993, Jose filed a Complaint[4] for Annulment and/or
- versus -
Declaration of Nullity of Marriage with the Regional Trial Court (RTC), Bian,
JOSE A. DAYOT,
Laguna, Branch 25. He contended that his marriage with Felisa was a sham,
Respondent.
x------------------x as no marriage ceremony was celebrated between the parties; that he did
FELISA TECSON-DAYOT,
G.R. No. 179474 not execute the sworn affidavit stating that he and Felisa had lived as
Petitioner,
Present: husband and wife for at least five years; and that his consent to the

AUSTRIA-MARTINEZ, J., marriage was secured through fraud.

Acting Chairperson,
TINGA,*
- versus - CHICO-NAZARIO, In his Complaint, Jose gave his version of the events which led
VELASCO,** and
REYES, JJ. to his filing of the same. According to Jose, he was introduced to Felisa in

1986. Immediately thereafter, he came to live as a boarder in Felisas

Promulgated: house, the latter being his landlady. Some three weeks later, Felisa
JOSE A. DAYOT,
Respondent. requested him to accompany her to the Pasay City Hall, ostensibly so she
March 28, 2008
could claim a package sent to her by her brother from Saudi Arabia. At

the Pasay City Hall, upon a pre-arranged signal from Felisa, a man bearing

three folded pieces of paper approached them. They were told that Jose

needed to sign the papers so that the package could be released to

Felisa. He initially refused to do so. However, Felisa cajoled him, and told

him that his refusal could get both of them killed by her brother who had

learned about their relationship. Reluctantly, he signed the pieces of

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x paper, and gave them to the man who immediately left. It was in February

1987 when he discovered that he had contracted marriage with Felisa. He

DECISION alleged that he saw a piece of paper lying on top of the table at the sala of

Felisas house. When he perused the same, he discovered that it was a

CHICO-NAZARIO, J.: copy of his marriage contract with Felisa. When he confronted Felisa, the

latter feigned ignorance.

Before us are two consolidated petitions. G.R. No. 175581 and

G.R. No. 179474 are Petitions for Review under Rule 45 of the Rules of
In opposing the Complaint, Felisa denied Joses allegations and
Court filed by the Republic of the Philippines and Felisa Tecson-Dayot
defended the validity of their marriage. She declared that they had
(Felisa), respectively, both challenging the Amended Decision[1] of the
maintained their relationship as man and wife absent the legality of
Court of Appeals, dated 7 November 2006, in CA-G.R. CV No. 68759, which
marriage in the early part of 1980, but that she had deferred contracting
declared the marriage between Jose Dayot (Jose) and Felisa void ab initio.
marriage with him on account of their age difference. [5] In her pre-trial
The records disclose that on 24 November 1986, Jose and Felisa
brief, Felisa expounded that while her marriage to Jose was subsisting, the
were married at the Pasay City Hall. The marriage was solemnized by Rev.
latter contracted marriage with a certain Rufina Pascual (Rufina) on 31
Tomas V. Atienza.[2] In lieu of a marriage license, Jose and Felisa executed
August 1990. On 3 June 1993, Felisa filed an action for bigamy against
a sworn affidavit,[3] also dated 24 November 1986, attesting that both of
Jose. Subsequently, she filed an administrative complaint against Jose with
them had attained the age of maturity, and that being unmarried, they
the Office of the Ombudsman, since Jose and Rufina were both employees
had lived together as husband and wife for at least five years.
 78
of the National Statistics and Coordinating Board.[6] The Ombudsman
found Jose administratively liable for disgraceful and immoral conduct,
and meted out to him the penalty of suspension from service for one year
without emolument.[7]
On 26 July 2000, the RTC rendered a Decision[8] dismissing the
Complaint. It disposed:
WHEREFORE, after a careful evaluation and
analysis of the evidence presented by both parties,
this Court finds and so holds that the [C]omplaint
does not deserve a favorable
consideration. Accordingly, the above-entitled case is
hereby ordered DISMISSED with costs against
[Jose].[9]
The RTC ruled that from the testimonies and evidence
presented, the marriage celebrated between Jose and Felisa on 24
November 1986 was valid. It dismissed Joses version of the story as
implausible, and rationalized that:
Any person in his right frame of mind
would easily suspect any attempt to make him or her
sign a blank sheet of paper. [Jose] could have already
detected that something was amiss, unusual, as they
were at Pasay City Hall to get a package for [Felisa]
but it [was] he who was made to sign the pieces of
paper for the release of the said package. Another
indirect suggestion that could have put him on guard
was the fact that, by his own admission, [Felisa] told
him that her brother would kill them if he will not
sign the papers. And yet it took him, more or less,
three months to discover that the pieces of paper
that he signed was [sic] purportedly the marriage
contract. [Jose] does not seem to be that ignorant, as
perceived by this Court, to be taken in for a ride by
[Felisa.]
[Joses] claim that he did not consent to the
marriage was belied by the fact that he
acknowledged Felisa Tecson as his wife when he
wrote [Felisas] name in the duly notarized statement
of assets and liabilities he filled up on May 12, 1988,
one year after he discovered the marriage contract
he is now claiming to be sham and false. [Jose], again,
in his company I.D., wrote the name of [Felisa] as the
person to be contacted in case of emergency. This
Court does not believe that the only reason why her
name was written in his company I.D. was because he
was residing there then. This is just but a lame excuse
because if he really considers her not his lawfully
wedded wife, he would have written instead the
name of his sister.
When [Joses] sister was put into the
witness stand, under oath, she testified that she
signed her name voluntarily as a witness to the
marriage in the marriage certificate (T.S.N., page 25,
November 29, 1996) and she further testified that
the signature appearing over the name of Jose Dayot
was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26
of T.S.N. taken on November 29, 1996), and when
she was asked by the Honorable Court if indeed she
believed that Felisa Tecson was really chosen by her
brother she answered yes.The testimony of his sister
all the more belied his claim that his consent was
procured through fraud.[10]
Moreover, on the matter of fraud, the RTC ruled that Joses
action had prescribed. It cited Article 87[11] of the New Civil Code which
requires that the action for annulment of marriage must be commenced
by the injured party within four years after the discovery of the
fraud. Thus:
That granting even for the sake of
argument that his consent was obtained by [Felisa]
through fraud, trickery and machinations, he could
have filed an annulment or declaration of nullity of
marriage at the earliest possible opportunity, the
time when he discovered the alleged sham and false
marriage contract. [Jose] did not take any action to
void the marriage at the earliest instance. x x x.[12]
Undeterred, Jose filed an appeal from the foregoing RTC
Decision to the Court of Appeals. In a Decision dated 11 August 2005, the
Court of Appeals found the appeal to be without merit. The dispositive
portion of the appellate courts Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.[13]
The Court of Appeals applied the Civil Code to the marriage
between Jose and Felisa as it was solemnized prior to the effectivity of the
Family Code. The appellate court observed that the circumstances
constituting fraud as a ground for annulment of marriage under Article
86[14] of the Civil Code did not exist in the marriage between the
parties.Further, it ruled that the action for annulment of marriage on the
ground of fraud was filed beyond the prescriptive period provided by
law. The Court of Appeals struck down Joses appeal in the following
manner:
 79
Nonetheless, even if we consider that fraud or
intimidation was employed on Jose in giving his
consent to the marriage, the action for the
annulment thereof had already prescribed. Article 87
(4) and (5) of the Civil Code provides that the action
for annulment of marriage on the ground that the
consent of a party was obtained by fraud, force or
intimidation must be commenced by said party
within four (4) years after the discovery of the fraud
and within four (4) years from the time the force or
intimidation ceased. Inasmuch as the fraud was
allegedly discovered by Jose in February, 1987 then
he had only until February, 1991 within which to file
an action for annulment of marriage. However, it was
only on July 7, 1993 that Jose filed the complaint for
annulment of his marriage to Felisa.[15]
Likewise, the Court of Appeals did not accept Joses assertion
that his marriage to Felisa was void ab initio for lack of a marriage
license. It ruled that the marriage was solemnized under Article 76[16] of
the Civil Code as one of exceptional character, with the parties executing
an affidavit of marriage between man and woman who have lived
together as husband and wife for at least five years. The Court of Appeals
concluded that the falsity in the affidavit to the effect that Jose and Felisa
had lived together as husband and wife for the period required by Article
76 did not affect the validity of the marriage, seeing that the solemnizing
officer was misled by the statements contained therein. In this manner,
the Court of Appeals gave credence to the good-faith reliance of the
solemnizing officer over the falsity of the affidavit. The appellate court
further noted that on the dorsal side of said affidavit of marriage, Rev.
Tomas V. Atienza, the solemnizing officer, stated that he took steps to
ascertain the ages and other qualifications of the contracting parties and
found no legal impediment to their marriage. Finally, the Court of Appeals
dismissed Joses argument that neither he nor Felisa was a member of the
sect to which Rev. Tomas V. Atienza belonged. According to the Court of
Appeals, Article 56[17] of the Civil Code did not require that either one of
the contracting parties to the marriage must belong to the solemnizing
officers church or religious sect. The prescription was established only in
Article 7[18] of the Family Code which does not govern the parties
marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion for
Reconsideration thereof. His central opposition was that the requisites for
the proper application of the exemption from a marriage license under
Article 76 of the Civil Code were not fully attendant in the case at bar. In
particular, Jose cited the legal condition that the man and the woman
must have been living together as husband and wife for at least five years
before the marriage. Essentially, he maintained that the affidavit of
marital cohabitation executed by him and Felisa was false.
The Court of Appeals granted Joses Motion for Reconsideration and
reversed itself. Accordingly, it rendered an Amended Decision, dated 7
November 2006, the fallo of which reads:
WHEREFORE, the Decision dated August 11,
2005 is RECALLED and SET ASIDE and another one
entered declaring the marriage between Jose A.
Dayot and Felisa C. Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil
Registrar of Pasay City.[19]
In its Amended Decision, the Court of Appeals relied on the
ruling of this Court in Nial v. Bayadog,[20] and reasoned that:
In Nial v. Bayadog, where the contracting
parties to a marriage solemnized without a marriage
license on the basis of their affidavit that they had
attained the age of majority, that being unmarried,
they had lived together for at least five (5) years and
that they desired to marry each other, the Supreme
Court ruled as follows:
x x x In other words, the five-year
common-law cohabitation period, which is counted
back from the date of celebration of marriage, should
be a period of legal union had it not been for the
absence of the marriage. This 5-year period should be
the years immediately before the day of the marriage
and it should be a period of cohabitation
characterized by exclusivity meaning no third party
was involved at any time within the 5 years and
continuity that is unbroken. Otherwise, if that
continuous 5-year cohabitation is computed without
any distinction as to whether the parties were
capacitated to marry each other during the entire five
years, then the law would be sanctioning immorality
and encouraging parties to have common law
relationships and placing them on the same footing
with those who lived faithfully with their
spouse. Marriage being a special relationship must be
respected as such and its requirements must be
strictly observed. The presumption that a man and a
woman deporting themselves as husband and wife is
based on the approximation of the requirements of
the law. The parties should not be afforded any
excuse to not comply with every single requirement
 80

and later use the same missing element as a

pre-conceived escape ground to nullify their
marriage. There should be no exemption from
securing a marriage license unless the circumstances
clearly fall within the ambit of the exception. It
should be noted that a license is required in order to
notify the public that two persons are about to be
united in matrimony and that anyone who is aware
or has knowledge of any impediment to the union of
the two shall make it known to the local civil
registrar.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE
LEGALITY OF HIS MARRIAGE FOR LACK OF MARRIAGE
LICEN[S]E.[24]
Correlative to the above, Felisa submits that the Court of
Appeals misapplied Nial.[25] She differentiates the case at bar from Nial by

Article 80(3) of the Civil Code provides that
a marriage solemnized without a marriage license,
save marriages of exceptional character, shall be void
from the beginning. Inasmuch as the marriage
between Jose and Felisa is not covered by the
exception to the requirement of a marriage license, it
is, therefore, void ab initio because of the absence of
a marriage license.[21]
reasoning that one of the parties therein had an existing prior marriage, a
circumstance which does not obtain in her cohabitation with Jose. Finally,
Felisa adduces that Jose only sought the annulment of their marriage after
a criminal case for bigamy and an administrative case had been filed
against him in order to avoid liability. Felisa surmises that the declaration
of nullity of their marriage would exonerate Jose from any liability.

Felisa sought reconsideration of the Amended Decision, but to

For our resolution is the validity of the marriage between Jose
no avail. The appellate court rendered a Resolution[22] dated 10 May 2007,
and Felisa. To reach a considered ruling on the issue, we shall jointly tackle
denying Felisas motion.
the related arguments vented by petitioners Republic of

the Philippines and Felisa.

Meanwhile, the Republic of the Philippines, through the Office

of the Solicitor General (OSG), filed a Petition for Review before this Court
The Republic of the Philippines asserts that several
in G.R. No. 175581, praying that the Court of Appeals Amended Decision
circumstances give rise to the presumption that a valid marriage exists
dated 7 November 2006 be reversed and set aside for lack of merit, and
between Jose and Felisa. For her part, Felisa echoes the claim that any
that the marriage between Jose and Felisa be declared valid and
doubt should be resolved in favor of the validity of the marriage by citing
subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No.
this Courts ruling in Hernandez v. Court of Appeals.[26] To buttress its
179474, similarly assailing the appellate courts Amended Decision. On 1
assertion, the Republic points to the affidavit executed by Jose and Felisa,
August 2007, this Court resolved to consolidate the two Petitions in the
dated 24 November 1986, attesting that they have lived together as
interest of uniformity of the Court rulings in similar cases brought before it
husband and wife for at least five years, which they used in lieu of a
for resolution.[23]
marriage license. It is the Republics position that the falsity of the

statements in the affidavit does not affect the validity of the marriage, as
The Republic of the Philippines propounds the following
the essential and formal requisites were complied with; and the
arguments for the allowance of its Petition, to wit:
solemnizing officer was not required to investigate as to whether the said

affidavit was legally obtained. The Republic opines that as a marriage

I
under a license is not invalidated by the fact that the license was
RESPONDENT FAILED TO OVERTHROW THE
PRESUMPTION OF THE VALIDITY OF HIS MARRIAGE wrongfully obtained, so must a marriage not be invalidated by the fact
TO FELISA. that the parties incorporated a fabricated statement in their affidavit that

II they cohabited as husband and wife for at least five years. In addition, the

Republic posits that the parties marriage contract states that their
RESPONDENT DID NOT COME TO THE COURT WITH
CLEAN HANDS AND SHOULD NOT BE ALLOWED TO marriage was solemnized under Article 76 of the Civil Code. It also bears
PROFIT FROM HIS OWN FRAUDULENT CONDUCT.
 81

the signature of the parties and their witnesses, and must be considered a rationale for the compulsory character of a marriage license under the

primary evidence of marriage. To further fortify its Petition, the Republic Civil Code is that it is the authority granted by the State to the contracting

adduces the following documents: (1) Joses notarized Statement of Assets parties, after the proper government official has inquired into their

and Liabilities, dated 12 May 1988 wherein he wrote Felisas name as his capacity to contract marriage.[32]

wife; (2) Certification dated 25 July 1993 issued by the Barangay Chairman

192, Zone ZZ, District 24 of Pasay City, attesting that Jose and Felisa had Under the Civil Code, marriages of exceptional character are

lived together as husband and wife in said barangay; and (3) Joses covered by Chapter 2, Title III, comprising Articles 72 to 79. To wit, these

company ID card, dated 2 May 1988, indicating Felisas name as his wife. marriages are: (1) marriages inarticulo mortis or at the point of death

during peace or war, (2) marriages in remote places, (2) consular

The first assignment of error compels this Court to rule on the marriages,[33] (3) ratification of marital cohabitation, (4) religious

issue of the effect of a false affidavit under Article 76 of the Civil Code. A ratification of a civil marriage, (5) Mohammedan or pagan marriages, and

survey of the prevailing rules is in order. (6) mixed marriages.[34]

It is beyond dispute that the marriage of Jose and Felisa was The instant case pertains to a ratification of marital

celebrated on 24 November 1986, prior to the effectivity of the Family cohabitation under Article 76 of the Civil Code, which provides:

Code. Accordingly, the Civil Code governs their union. Article 53 of the
ART. 76. No marriage license shall be necessary when
Civil Code spells out the essential requisites of marriage as a contract: a man and a woman who have attained the age of
majority and who, being unmarried, have lived
ART. 53. No marriage shall be solemnized unless all together as husband and wife for at least five years,
these requisites are complied with: desire to marry each other. The contracting parties
shall state the foregoing facts in an affidavit before
any person authorized by law to administer
(1) Legal capacity of the contracting oaths. The official, priest or minister who solemnized
parties; the marriage shall also state in an affidavit that he
took steps to ascertain the ages and other
(2) Their consent, freely given; qualifications of the contracting parties and that he
found no legal impediment to the marriage.
(3) Authority of the person performing the
marriage; and

(4) A marriage license, except in a The reason for the law,[35] as espoused by the Code Commission,
marriage of exceptional
is that the publicity attending a marriage license may discourage such
character. (Emphasis ours.)
persons who have lived in a state of cohabitation from legalizing their

status.[36]
Article 58[27] makes explicit that no marriage shall be

solemnized without a license first being issued by the local civil registrar of
It is not contested herein that the marriage of Jose and Felisa
the municipality where either contracting party habitually resides, save
was performed without a marriage license. In lieu thereof, they executed
marriages of an exceptional character authorized by the Civil Code, but
an affidavit declaring that they have attained the age of maturity; that
not those under Article 75.[28] Article 80(3)[29] of the Civil Code makes it
being unmarried, they have lived together as husband and wife for at least
clear that a marriage performed without the corresponding marriage
five years; and that because of this union, they desire to marry each
license is void, this being nothing more than the legitimate consequence
other.[37] One of the central issues in the Petition at bar is thus: whether
flowing from the fact that the license is the essence of the marriage
the falsity of an affidavit of marital cohabitation, where the parties have in
contract.[30] This is in stark contrast to the old Marriage Law, [31] whereby
truth fallen short of the minimum five-year requirement, effectively
the absence of a marriage license did not make the marriage void. The
renders the marriage void ab initio for lack of a marriage license.
 82
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the
exceptions to the rule on the indispensability of the formal requisite of a
marriage license. Under the rules of statutory construction, exceptions, as
a general rule, should be strictly[38] but reasonably construed.[39] They
extend only so far as their language fairly warrants, and all doubts should
be resolved in favor of the general provisions rather than the
exception.[40] Where a general rule is established by statute with
exceptions, the court will not curtail the former or add to the latter by
implication.[41] For the exception in Article 76 to apply, it is a sine qua
non thereto that the man and the woman must have attained the age of
majority, and that, being unmarried, they have lived together as husband
and wife for at least five years.
A strict but reasonable construction of Article 76 leaves us with
no other expediency but to read the law as it is plainly written. The
exception of a marriage license under Article 76 applies only to those who
have lived together as husband and wife for at least five years and desire
to marry each other. The Civil Code, in no ambiguous terms, places a
minimum period requirement of five years of cohabitation. No other
reading of the law can be had, since the language of Article 76 is
precise. The minimum requisite of five years of cohabitation is an
indispensability carved in the language of the law. For a marriage
celebrated under Article 76 to be valid, this material fact cannot be
dispensed with. It is embodied in the law not as a directory requirement,
but as one that partakes of a mandatory character. It is worthy to mention
that Article 76 also prescribes that the contracting parties shall state the
requisite facts[42] in an affidavit before any person authorized by law to
administer oaths; and that the official, priest or minister who solemnized
the marriage shall also state in an affidavit that he took steps to ascertain
the ages and other qualifications of the contracting parties and that he
found no legal impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived
together for five years at the time they executed their sworn affidavit and
contracted marriage. The Republic admitted that Jose and Felisa started
living together only in June 1986, or barely five months before the
celebration of their marriage.[43] The Court of Appeals also noted Felisas
testimony that Jose was introduced to her by her neighbor, Teresita
Perwel, sometime in February or March 1986 after the EDSA
Revolution.[44] The appellate court also cited Felisas own testimony that it
was only in June 1986 when Jose commenced to live in her house.[45]
Moreover, it is noteworthy that the question as to whether they
satisfied the minimum five-year requisite is factual in nature. A question of
fact arises when there is a need to decide on the truth or falsehood of the
alleged facts.[46] Under Rule 45, factual findings are ordinarily not subject
to this Courts review.[47] It is already well-settled that:
The general rule is that the findings of facts of the
Court of Appeals are binding on this Court. A
recognized exception to this rule is when the Court of
Appeals and the trial court, or in this case the
administrative body, make contradictory findings.
However, the exception does not apply in every
instance that the Court of Appeals and the trial court
or administrative body disagree. The factual findings
of the Court of Appeals remain conclusive on this
Court if such findings are supported by the record or
based on substantial evidence.[48]
Therefore, the falsity of the affidavit dated 24 November 1986,
executed by Jose and Felisa to exempt them from the requirement of a
marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity
of the statements in the parties affidavit will not affect the validity of
marriage, since all the essential and formal requisites were complied
with. The argument deserves scant merit. Patently, it cannot be denied
that the marriage between Jose and Felisa was celebrated without the
formal requisite of a marriage license. Neither did Jose and Felisa meet
the explicit legal requirement in Article 76, that they should have lived
together as husband and wife for at least five years, so as to be excepted
from the requirement of a marriage license.
Anent petitioners reliance on the presumption of marriage, this
Court holds that the same finds no applicability to the case at
bar. Essentially, when we speak of a presumption of marriage, it is with
 83

reference to the prima facie presumption that a man and a woman and Felisas cohabitation, which would have qualified their marriage as an

deporting themselves as husband and wife have entered into a lawful exception to the requirement for a marriage license, cannot be a mere

contract of marriage.[49] Restated more explicitly, persons dwelling irregularity, for it refers to a quintessential fact that the law precisely

together in apparent matrimony are presumed, in the absence of any required to be deposed and attested to by the parties under oath. If the

counter-presumption or evidence special to the case, to be in fact essential matter in the sworn affidavit is a lie, then it is but a mere scrap of

married.[50] The present case does not involve an apparent marriage to paper, without force and effect. Hence, it is as if there was no affidavit at

which the presumption still needs to be applied. There is no question that all.

Jose and Felisa actually entered into a contract of marriage on 24

November 1986, hence, compelling Jose to institute a Complaint for In its second assignment of error, the Republic puts forth the

Annulment and/or Declaration of Nullity of Marriage, which spawned the argument that based on equity, Jose should be denied relief because he

instant consolidated Petitions. perpetrated the fabrication, and cannot thereby profit from his

wrongdoing. This is a misplaced invocation. It must be stated that equity

In the same vein, the declaration of the Civil Code[51] that every finds no room for application where there is a law.[54] There is a law on the

intendment of law or fact leans towards the validity of marriage will not ratification of marital cohabitation, which is set in precise terms under

salvage the parties marriage, and extricate them from the effect of a Article 76 of the Civil Code. Nonetheless, the authorities are consistent

violation of the law. The marriage of Jose and Felisa was entered into that the declaration of nullity of the parties marriage is without prejudice

without the requisite marriage license or compliance with the stringent to their criminal liability.[55]

requirements of a marriage under exceptional circumstance. The

solemnization of a marriage without prior license is a clear violation of the The Republic further avers in its third assignment of error that

law and would lead or could be used, at least, for the perpetration of Jose is deemed estopped from assailing the legality of his marriage for lack

fraud against innocent and unwary parties, which was one of the evils that of a marriage license. It is claimed that Jose and Felisa had lived together

the law sought to prevent by making a prior license a prerequisite for a from 1986 to 1990, notwithstanding Joses subsequent marriage to Rufina

valid marriage.[52] The protection of marriage as a sacred institution Pascual on 31 August 1990, and that it took Jose seven years before he

requires not just the defense of a true and genuine union but the sought the declaration of nullity; hence, estoppel had set in.

exposure of an invalid one as well.[53] To permit a false affidavit to take the

place of a marriage license is to allow an abject circumvention of the This is erroneous. An action for nullity of marriage is

law. If this Court is to protect the fabric of the institution of marriage, we imprescriptible.[56] Jose and Felisas marriage was celebrated sans a

must be wary of deceptive schemes that violate the legal measures set marriage license. No other conclusion can be reached except that it is

forth in our laws. void ab initio. In this case, the right to impugn a void marriage does not

prescribe, and may be raised any time.

Similarly, we are not impressed by the ratiocination of the

Republic that as a marriage under a license is not invalidated by the fact Lastly, to settle all doubts, jurisprudence has laid down the rule

that the license was wrongfully obtained, so must a marriage not be that the five-year common-law cohabitation period under Article 76

invalidated by a fabricated statement that the parties have cohabited for means a five-year period computed back from the date of celebration of

at least five years as required by law. The contrast is flagrant. The former marriage, and refers to a period of legal union had it not been for the

is with reference to an irregularity of the marriage license, and not to the absence of a marriage.[57] It covers the years immediately preceding the

absence of one. Here, there is no marriage license at all. Furthermore, the day of the marriage, characterized by exclusivity - meaning no third party

falsity of the allegation in the sworn affidavit relating to the period of Jose
 84
was involved at any time within the five years - and continuity that is
unbroken.[58]
WHEREFORE, the Petitions are DENIED. The Amended Decision
of the Court of Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759,
declaring the marriage of Jose Dayot to Felisa Tecson-Dayot void ab initio,
is AFFIRMED, without prejudice to their criminal liability, if any. No costs.
SO ORDERED.
A.M. No. MTJ-92-721 September 30, 1994
JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and APOLLO
A. VILLAMORA, complainants,
vs.
HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B.
ESMERALDA-BAROY, Clerk of Court II, both of the Municipal Trial Court
of Tinambac, Camarines Sur, respondents.
Esteban R. Abonal for complainants.
Haide B. Vista-Gumba for respondents.
PER CURIAM, J.:
Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo, and
Apollo Villamora, are Stenographer I, Interpreter I, Clerk II, and Process
Server, respectively, of the Municipal Trial Court of Tinambac, Camarines
Sur. Respondents Judge Lucio P. Palaypayon, Jr. and Nelia B.
Esmeralda-Baroy are respectively the Presiding Judge and Clerk of Court II
of the same court.
In an administrative complaint filed with the Office of the Court
Administrator on October 5, 1992, herein respondents were charged with
the following offenses, to wit: (1) illegal solemnization of marriage; (2)
falsification of the monthly reports of cases; (3) bribery in consideration of
an appointment in the court; (4) non-issuance of receipt for cash bond
received; (5) infidelity in the custody of detained prisoners; and (6)
requiring payment of filing fees from exempted entities. 1
Pursuant to a resolution issued by this Court respondents filed their
respective Comments. 2 A Reply to Answers of Respondents was filed by
complainants. 3 The case was thereafter referred to Executive Judge David
C. Naval of the Regional Trial Court, Naga City, for investigation report and
recommendation. The case was however transferred to First Assistant
Executive Judge Antonio N. Gerona when Judge Naval inhibited himself for
the reason that his wife is a cousin of respondent Judge Palaypayon, Jr. 4
The contending versions of the parties regarding the factual antecedents
of this administrative matter, as culled from the records thereof, are set
out under each particular charge against respondents.
1. Illegal solemnization of marriage
Complainants allege that respondent judge solemnized marriages even
without the requisite marriage license. Thus, the following couples were
able to get married by the simple expedient of paying the marriage fees to
respondent Baroy, despite the absence of a marriage license, viz.: Alano P.
Abellano and Nelly Edralin, Francisco Selpo and Julieta Carrido, Eddie
Terrobias and Maria Gacer, Renato Gamay and Maricris Belga, Arsenio
Sabater and Margarita Nacario, and Sammy Bocaya and Gina Bismonte. As
a consequence, their marriage contracts (Exhibits B, C, D, F, G, and A,
respectively) did not reflect any marriage license number. In addition,
respondent judge did not sign their marriage contracts and did not
indicate the date of solemnization, the reason being that he allegedly had
to wait for the marriage license to be submitted by the parties which was
usually several days after the ceremony. Indubitably, the marriage
contracts were not filed with the local civil registrar. Complainant Ramon
Sambo, who prepares the marriage contracts, called the attention of
respondents to the lack of marriage licenses and its effect on the
marriages involved, but the latter opted to proceed with the celebration
of said marriages.
Respondent Nelia Baroy claims that when she was appointed Clerk of
Court II, the employees of the court were already hostile to her, especially
complainant Ramon Sambo who told her that he was filing a protest
against her appointment. She avers that it was only lately when she
discovered that the court had a marriage Register which is in the custody
of Sambo; that it was Sambo who failed to furnish the parties copies of the
marriage contract and to register these with the local civil registrar; and
that apparently Sambo kept these marriage contracts in preparation for
this administrative case. Complainant Sambo, however, claims that all file
copies of the marriage contracts were kept by respondent Baroy, but the
latter insists that she had instructed Sambo to follow up the submission by
the contracting parties of their marriage licenses as part of his duties but
he failed to do so.
Respondent Judge Palaypayon, Jr. contends that the marriage between
Alano P. Abellano and Nelly Edralin falls under Article 34 of the Civil Code,
hence it is exempt from the marriage license requirement; that he gave
strict instructions to complainant Sambo to furnish the couple a copy of
the marriage contract and to file the same with the civil registrar, but the
latter failed to do so; that in order to solve the problem, the spouses
subsequently formalized their marriage by securing a marriage license and
executing their marriage contract, a copy of which was filed with the civil
registrar; that the other five marriages alluded to in the administrative
complaint were not illegally solemnized because the marriage contracts
were not signed by him and they did not contain the date and place of
marriage; that copies of these marriage contracts are in the custody of
complainant Sambo; that the alleged marriage of Francisco Selpo and
Julieta Carrido, Eddie Terrobias and Maria Emma Gaor, Renato Gamay and
Maricris Belga, and of Arsenio Sabater and Margarita Nacario were not
celebrated by him since he refused to solemnize them in the absence of a
marriage license; that the marriage of Samy Bocaya and Gina Bismonte
was celebrated even without the requisite license due to the insistence of
the parties in order to avoid embarrassment to their guests but that, at
any rate, he did not sign their marriage contract which remains unsigned
up to the present.
2. Falsification of monthly report for July, 1991 regarding the number of
marriages solemnized and the number of documents notarized.
 85
It is alleged that respondent judge made it appear that he solemnized
seven (7) marriages in the month of July, 1992, when in truth he did not
do so or at most those marriages were null and void; that respondents
likewise made it appear that they have notarized only six (6) documents
for July, 1992, but the Notarial Register will show that there were one
hundred thirteen (113) documents which were notarized during that
month; and that respondents reported a notarial fee of only P18.50 for
each document, although in fact they collected P20.00 therefor and failed
to account for the difference.
Respondent Baroy contends, however, that the marriage registry where
all marriages celebrated by respondent judge are entered is under the
exclusive control and custody of complainant Ramon Sambo, hence he is
the only one who should be held responsible for the entries made therein;
that the reported marriages are merely based on the payments made as
solemnization fees which are in the custody of respondent Baroy. She
further avers that it is Sambo who is likewise the custodian of the Notarial
Register; that she cannot be held accountable for whatever alleged
difference there is in the notarial fees because she is liable only for those
payments tendered to her by Sambo himself; that the notarial fees she
collects are duly covered by receipts; that of the P20.00 charged, P18.50 is
remitted directly to the Supreme Court as part of the Judiciary
Development Fund and P150 goes to the general fund of the Supreme
Court which is paid to the Municipal Treasurer of Tinambac, Camarines Sur.
Respondent theorizes that the discrepancies in the monthly report were
manipulated by complainant Sambo considering that he is the one in
charge of the preparation of the monthly report.
Respondent Judge Palaypayon avers that the erroneous number of
marriages celebrated was intentionally placed by complainant Sambo;
that the number of marriages solemnized should not be based on
solemnization fees paid for that month since not all the marriages paid for
are solemnized in the same month. He claims that there were actually
only six (6) documents notarized in the month of July, 1992 which tallied
with the official receipts issued by the clerk of court; that it is Sambo who
should be held accountable for any unreceipted payment for notarial fees
because he is the one in charge of the Notarial Register; and that this case
filed by complainant Sambo is merely in retaliation for his failure to be
appointed as the clerk of court. Furthermore, respondent judge contends
that he is not the one supervising or preparing the monthly report, and
that he merely has the ministerial duty to sign the same.
3. Bribery in consideration of an appointment in the court
Complainants allege that because of the retirement of the clerk of court,
respondent judge forwarded to the Supreme Court the applications of
Rodel Abogado, Ramon Sambo, and Jessell Abiog. However, they were
surprised when respondent Baroy reported for duty as clerk of court on
October 21, 1991. They later found out that respondent Baroy was the
one appointed because she gave a brand-new air-conditioning unit to
respondent judge.
Respondent Baroy claims that when she was still in Naga City she
purchased an air-conditioning unit but when she was appointed clerk of
court she had to transfer to Tinambac and, since she no longer needed the
air conditioner, she decided to sell the same to respondent judge. The
installation and use thereof by the latter in his office was with the consent
of the Mayor of Tinambac.
Respondent judge contends that he endorsed all the applications for the
position of clerk of court to the Supreme Court which has the sole
authority over such appointments and that he had no hand in the
appointment of respondent Baroy. He contends that the air-conditioning
unit was bought from his
co-respondent on installment basis on May 29, 1992, eight (8) months
after Baroy had been appointed clerk of court. He claims that he would
not be that naive to exhibit to the public as item which could not be
defended as a matter of honor and prestige.
4. Cash bond issued without a receipt
It is alleged that in Criminal Case No. 5438, entitled "People vs. Mendeza,
et al., "bondswoman Januaria Dacara was allowed by respondent judge to
change her property bond to cash bond; that she paid the amount of
P1,000.00 but was never issued a receipt therefor nor was it made to
appear in the records that the bond has been paid; that despite the lapse
of two years, the money was never returned to the bondswoman; and
that it has not been shown that the money was turned over to the
Municipal Treasurer of Tinambac.
Respondent Baroy counters that the cash bond was deposited with the
former clerk of court, then turned over to the acting clerk of court and,
later, given to her under a corresponding receipt; that the cash bond is
deposited with the bank; and that should the bondswoman desire to
withdraw the same, she should follow the proper procedure therefor.
Respondent judge contends that Criminal Case No. 5438 was archieved for
failure of the bondsman to deliver the body of the accused in court
despite notice; and that he has nothing to do with the payment of the
cash bond as this is the duty of the clerk of court.
5. Infidelity in the custody of prisoners
Complainants contend that respondent judge usually got detention
prisoners to work in his house, one of whom was Alex Alano, who is
accused in Criminal Case No. 5647 for violation of the Dangerous Drugs
Act; that while Alano was in the custody of respondent judge, the former
escaped and was never recaptured; that in order to conceal this fact, the
case was archived pursuant to an order issued by respondent judge dated
April 6, 1992.
Respondent judge denied the accusation and claims that he never
employed detention prisoners and that he has adequate household help;
and that he had to order the case archived because it had been pending
for more than six (6) months and the accused therein remained at large.
6. Unlawful collection of docket fees
Finally, respondents are charged with collecting docket fees from the
Rural Bank of Tinambac, Camarines Sur, Inc. although such entity is
exempt by law from the payment of said fees, and that while the
corresponding receipt was issued, respondent Baroy failed to remit the
amount to the Supreme Court and, instead, she deposited the same in her
personal account.
Respondents Baroy contends that it was Judge-Designate Felimon
Montenegro (because respondent judge was on sick leave) who instructed
her to demand payment of docket fees from said rural bank; that the bank
issued a check for P800.00; that she was not allowed by the Philippine
National Bank to encash the check and, instead, was instructed to deposit
the same in any bank account for clearing; that respondent deposited the
 86
same in her account; and that after the check was cleared, she remitted
P400.00 to the Supreme Court and the other P400.00 was paid to the
Municipal Treasurer of Tinambac.
On the basis of the foregoing contentions, First Vice-Executive Judge
Antonio N. Gerona prepared and submitted to us his Report and
Recommendations dated May 20, 1994, together with the administrative
matter. We have perspicaciously reviewed the same and we are favorably
impressed by the thorough and exhaustive presentation and analysis of
the facts and evidence in said report. We commend the investigating
judge for his industry and perspicacity reflected by his findings in said
report which, being amply substantiated by the evidence and supported
by logical illations, we hereby approve and hereunder reproduce at length
the material portions thereof.
xxx xxx xxx
The first charge against the respondents is illegal solemnization of
marriage. Judge Palaypayon is charged with having solemnized without a
marriage license the marriage of Sammy Bocaya and Gina Besmonte (Exh.
A). Alano Abellano and Nelly Edralin (Exh. B), Francisco Selpo and Julieta
Carrido (Exh. C), Eddie Terrobias and Maria Emma Gaor (Exh. D), Renato
Gamay and Maricris Belga (Exh. F) and Arsenio Sabater and Margarita
Nacario (Exh. G).
In all these aforementioned marriages, the blank space in the marriage
contracts to show the number of the marriage was solemnized as required
by Article 22 of the Family Code were not filled up. While the contracting
parties and their witnesses signed their marriage contracts, Judge
Palaypayon did not affix his signature in the marriage contracts, except
that of Abellano and Edralin when Judge Palaypayon signed their marriage
certificate as he claims that he solemnized this marriage under Article 34
of the Family Code of the Philippines. In said marriages the contracting
parties were not furnished a copy of their marriage contract and the Local
Civil Registrar was not sent either a copy of the marriage certificate as
required by Article 23 of the Family Code.
The marriage of Bocaya and Besmonte is shown to have been solemnized
by Judge Palaypayon without a marriage license. The testimonies of Bocay
himself and Pompeo Ariola, one of the witnesses of the marriage of
Bocaya and Besmonte, and the photographs taken when Judge
Palaypayon solemnized their marriage (Exhs. K-3 to K-9) sufficiently show
that Judge Palaypayon really solemnized their marriage. Bocaya declared
that they were advised by Judge Palaypayon to return after ten (10) days
after their marriage was solemnized and bring with them their marriage
license. In the meantime, they already started living together as husband
and wife believing that the formal requisites of marriage were complied
with.
Judge Palaypayon denied that he solemnized the marriage of Bocaya and
Besmonte because the parties allegedly did not have a marriage license.
He declared that in fact he did not sign the marriage certificate, there was
no date stated on it and both the parties and the Local Civil Registrar did
not have a copy of the marriage certificate.
With respect to the photographs which show that he solemnized the
marriage of Bocaya and Besmonte, Judge Palaypayon explains that they
merely show as if he was solemnizing the marriage. It was actually a
simulated solemnization of marriage and not a real one. This happened
because of the pleading of the mother of one of the contracting parties
that he consent to be photographed to show that as if he was solemnizing
the marriage as he was told that the food for the wedding reception was
already prepared, visitors were already invited and the place of the parties
where the reception would be held was more than twenty (20) kilometers
away from the poblacion of Tinambac.
The denial made by Judge Palaypayon is difficult to believe. The fact alone
that he did not sign the marriage certificate or contract, the same did not
bear a date and the parties and the Local Civil Registrar were not
furnished a copy of the marriage certificate, do not by themselves show
that he did not solemnize the marriage. His uncorroborated testimony
cannot prevail over the testimony of Bocaya and Ariola who also declared,
among others, that Bocaya and his bride were advised by Judge
Palaypayon to return after ten (10) days with their marriage license and
whose credibility had not been impeached.
The pictures taken also from the start of the wedding ceremony up to the
signing of the marriage certificate in front of Judge Palaypayon and on his
table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K-4, K-4-a, K-4-b, K-4-c,
K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and K-9), cannot possibly be
just to show a simulated solemnization of marriage. One or two pictures
may convince a person of the explanation of Judge Palaypayon, but not all
those pictures.
Besides, as a judge it is very difficult to believe that Judge Palaypayon
would allows himself to be photographed as if he was solemnizing a
marriage on a mere pleading of a person whom he did not even know for
the alleged reasons given. It would be highly improper and unbecoming of
him to allow himself to be used as an instrument of deceit by making it
appear that Bocaya and Besmonte were married by him when in truth and
in fact he did not solemnize their marriage.
With respect to the marriage of Abellano and Edralin (Exh. B), Judge
Palaypayon admitted that he solemnized their marriage, but he claims
that it was under Article 34 of the Family Code, so a marriage license was
not required. The contracting parties here executed a joint affidavit that
they have been living together as husband and wife for almost six (6) years
already (Exh. 12; Exh. AA).
In their marriage contract which did not bear any date either when it was
solemnized, it was stated that Abellano was only eighteen (18) years, two
(2) months and seven (7) days old. If he and Edralin had been living
together as husband and wife for almost six (6) years already before they
got married as they stated in their joint affidavit, Abellano must ha(ve)
been less than thirteen (13) years old when he started living with Edralin
as his wife and this is hard to believe. Judge Palaypayon should ha(ve)
been aware of this when he solemnized their marriage as it was his duty
to ascertain the qualification of the contracting parties who might ha(ve)
executed a false joint affidavit in order to have an instant marriage by
avoiding the marriage license requirement.
On May 23, 1992, however, after this case was already filed, Judge
Palaypayon married again Abellano and Edralin, this time with a marriage
license (Exh. BB). The explanation given by Judge Palaypayon why he
solemnized the marriage of the same couple for the second time is that he
did not consider the first marriage he solemnized under Article 34 of the
Family Code as (a) marriage at all because complainant Ramon Sambo did
not follow his instruction that the date should be placed in the marriage
certificate to show when he solemnized the marriage and that the
contracting parties were not furnished a copy of their marriage certificate.
 87
This act of Judge Palaypayon of solemnizing the marriage of Abellano and
Edralin for the second time with a marriage license already only gave rise
to the suspicion that the first time he solemnized the marriage it was only
made to appear that it was solemnized under exceptional character as
there was not marriage license and Judge Palaypayon had already signed
the marriage certificate. If it was true that he solemnized the first
marriage under exceptional character where a marriage license was not
required, why did he already require the parties to have a marriage license
when he solemnized their marriage for the second time?
The explanation of Judge Palaypayon that the first marriage of Abellano
and Edralin was not a marriage at all as the marriage certificate did not
state the date when the marriage was solemnized and that the
contracting parties were not furnished a copy of their marriage certificate,
is not well taken as they are not any of those grounds under Article(s) 35,
36, 37 and 38 of the Family Code which declare a marriage void from the
beginning. Even if no one, however, received a copy of the marriage
certificate, the marriage is still valid (Jones vs. H(o)rtiguela, 64 Phil. 179).
Judge Palaypayon cannot just absolve himself from responsibility by
blaming his personnel. They are not the guardian(s) of his official function
and under Article 23 of the Family Code it is his duty to furnish the
contracting parties (a) copy of their marriage contract.
With respect to the marriage of Francisco Selpo and Julieta Carrido (Exh.
C), and Arsenio Sabater and Margarita Nacario (Exh. G), Selpo and Carrido
and Sabater and Nacarcio executed joint affidavits that Judge Palaypayon
did not solemnize their marriage (Exh. 13-A and Exh. 1). Both Carrido and
Nacario testified for the respondents that actually Judge Palaypayon did
not solemnize their marriage as they did not have a marriage license. On
cross-examination, however, both admitted that they did not know who
prepared their affidavits. They were just told, Carrido by a certain Charito
Palaypayon, and Nacario by a certain Kagawad Encinas, to just go to the
Municipal building and sign their joint affidavits there which were already
prepared before the Municipal Mayor of Tinambac, Camarines Sur.
With respect to the marriage of Renato Gamay and Maricris Belga (Exh. f),
their marriage contract was signed by them and by their two (2) witnesses,
Atty. Elmer Brioso and respondent Baroy (Exhs. F-1 and F-2). Like the
other aforementioned marriages, the solemnization fee was also paid as
shown by a receipt dated June 7, 1992 and signed by respondent Baroy
(Exh. F-4).
Judge Palaypayon also denied having solemnized the marriage of Gamay
and Belga allegedly because there was no marriage license. On her part,
respondent Baroy at first denied that the marriage was solemnized. When
she was asked, however, why did she sign the marriage contract as a
witness she answered that she thought the marriage was already
solemnized (TSN, p. 14; 10-28-93).
Respondent Baroy was, and is, the clerk of court of Judge Palaypayon. She
signed the marriage contract of Gamay and Belga as one of the two
principal sponsors. Yet, she wanted to give the impression that she did not
even know that the marriage was solemnized by Judge Palaypayon. This is
found very difficult to believe.
Judge Palaypayon made the same denial of having solemnized also the
marriage of Terrobias and Gaor (Exh. D). The contracting parties and their
witnesses also signed the marriage contract and paid the solemnization
fee, but Judge Palaypayon allegedly did not solemnize their marriage due
to lack of marriage license. Judge Palaypayon submitted the affidavit of
William Medina, Vice-Mayor of Tinambac, to corroborate his testimony
(Exh. 14). Medina, however, did not testify in this case and so his affidavit
has no probative value.
Judge Palaypayon testified that his procedure and practice have been that
before the contracting parties and their witnesses enter his chamber in
order to get married, he already required complainant Ramon Sambo to
whom he assigned the task of preparing the marriage contract, to already
let the parties and their witnesses sign their marriage contracts, as what
happened to Gamay and Belga, and Terrobias and Gaor, among others. His
purpose was to save his precious time as he has been solemnizing
marriages at the rate of three (3) to four (4) times everyday (TSN, p. 12;
2-1-94).
This alleged practice and procedure, if true, is highly improper and
irregular, if not illegal, because the contracting parties are supposed to be
first asked by the solemnizing officer and declare that they take each
other as husband and wife before the solemnizing officer in the presence
of at least two (2) witnesses before they are supposed to sign their
marriage contracts (Art. 6, Family Code).
The uncorroborated testimony, however, of Judge Palaypayon as to his
alleged practice and procedure before solemnizing a marriage, is not true
as shown by the picture taken during the wedding of Bocaya and
Besmonte (Exhs. K-3 to K-9) and by the testimony of respondent Baroy
herself who declared that the practice of Judge Palaypayon ha(s) been to
let the contracting parties and their witnesses sign the marriage contract
only after Judge Palaypayon has solemnized their marriage (TSN, p. 53;
10-28-93).
Judge Palaypayon did not present any evidence to show also that he was
really solemnizing three (3) to four (4) marriages everyday. On the
contrary his monthly report of cases for July, 1992 shows that his court
had only twenty-seven (27) pending cases and he solemnized only seven
(7) marriages for the whole month (Exh. E). His monthly report of cases for
September, 1992 shows also that he solemnized only four (4) marriages
during the whole month (Exh. 7).
In this first charge of having illegally solemnized marriages, respondent
Judge Palaypayon has presented and marked in evidence several marriage
contracts of other persons, affidavits of persons and certification issued by
the Local Civil Registrar (Exhs. 12-B to 12-H). These persons who executed
affidavits, however, did not testify in this case. Besides, the marriage
contracts and certification mentioned are immaterial as Judge Palaypayon
is not charged of having solemnized these marriages illegally also. He is
not charged that the marriages he solemnized were all illegal.
The second charge against herein respondents, that of having falsified the
monthly report of cases submitted to the Supreme Court and not stating
in the monthly report the actual number of documents notarized and
issuing the corresponding receipts of the notarial fees, have been
sufficiently proven by the complainants insofar as the monthly report of
cases for July and September, 1992 are concerned.
The monthly report of cases of the MTC of Tinambac, Camarines Sur for
July, 1992 both signed by the respondents, show that for said month there
were six (6) documents notarized by Judge Palaypayon in his capacity as
Ex-Officio Notary Public (Exhs. H to H-1-b). The notarial register of the
MTC of Tinambac, Camarines Sur, however, shows that there were
actually one hundred thirteen (113) documents notarized by Judge
Palaypayon for the said month (Exhs. Q to Q-45).
 88
Judge Palaypayon claims that there was no falsification of the monthly
report of cases for July, 1992 because there were only six (6) notarized
documents that were paid (for) as shown by official receipts. He did not,
however, present evidence of the alleged official receipts showing that the
notarial fee for the six (6) documetns were paid. Besides, the monthly
report of cases with respect to the number of documents notarized should
not be based on how many notarized documents were paid of the notarial
fees, but the number of documents placed or recorded in the notarial
register.
Judge Palaypayon admitted that he was not personally verifying and
checking anymore the correctness of the monthly reports because he
relies on his co-respondent who is the Clerk of Court and whom he has
assumed to have checked and verified the records. He merely signs the
monthly report when it is already signed by respondent Baroy.
The explanation of Judge Palaypayon is not well taken because he is
required to have close supervision in the preparation of the monthly
report of cases of which he certifies as to their correctness. As a judge he
is personally responsible for the proper discharge of his functions (The Phil.
Trial Lawyer's Asso. Inc. vs. Agana, Sr., 102 SCRA 517). In Nidera vs. Lazaro,
174 SCRA 581, it was held that "A judge cannot take refuge behind the
inefficiency or mismanagement of his court personnel."
On the part of respondent Baroy, she puts the blame of the falsification of
the monthly report of cases on complainant Sambo whom she allegedly
assigned to prepare not only the monthly report of cases, but the
preparation and custody of marriage contracts, notarized documents and
the notarial register. By her own admission she has assigned to
complainant Sambo duties she was supposed to perform, yet according to
her she never bother(ed) to check the notarial register of the court to find
out the number of documents notarized in a month (TSN, p. 30; 11-23-93).
Assuming that respondent Baroy assigned the preparation of the monthly
report of cases to Sambo, which was denied by the latter as he claims that
he only typed the monthly report based on the data given to him by her,
still it is her duty to verify and check whether the report is correct.
The explanation of respondent Baroy that Sambo was the one in custody
of marriage contracts, notarized documents and notarial register, among
other things, is not acceptable not only because as clerk of court she was
supposed to be in custody, control and supervision of all court records
including documents and other properties of the court (p. 32, Manual for
Clerks of Court), but she herself admitted that from January, 1992 she was
already in full control of all the records of the court including receipts (TSN,
p. 11; 11-23-93).
The evidence adduced in this cases in connection with the charge of
falsification, however, also shows that respondent Baroy did not account
for what happened to the notarial fees received for those documents
notarized during the month of July and September, 1992. The evidence
adduced in this case also sufficiently show that she received cash bond
deposits and she did not deposit them to a bank or to the Municipal
Treasurer; and that she only issued temporary receipts for said cash bond
deposits.
For July, 1992 there were only six (6) documents reported to have been
notarized by Judge Palaypayon although the documents notarized for said
month were actually one hundred thirteen (113) as recorded in the
notarial register. For September, 1992, there were only five (5) documents
reported as notarized for that month, though the notarial register show(s)
that there were fifty-six (56) documents actually notarized. The fee for
each document notarized as appearing in the notarial register was P18.50.
Respondent Baroy and Sambo declared that what was actually being
charged was P20.00. Respondent Baroy declared that P18.50 went to the
Supreme Court and P1.50 was being turned over to the Municipal
Treasurer.
Baroy, however, did not present any evidence to show that she really sent
to the Supreme Court the notarial fees of P18.50 for each document
notarized and to the Municipal Treasurer the additional notarial fee of
P1.50. This should be fully accounted for considering that Baroy herself
declared that some notarial fees were allowed by her at her own
discretion to be paid later. Similarly, the solemnization fees have not been
accounted for by Baroy considering that she admitted that even (i)n those
instances where the marriages were not solemnized due to lack of
marriage license the solemnization fees were not returned anymore,
unless the contracting parties made a demand for their return. Judge
Palaypayon declared that he did not know of any instance when
solemnization fee was returned when the marriage was not solemnized
due to lack of marriage license.
Respondent Baroy also claims that Ramon Sambo did not turn over to her
some of the notarial fees. This is difficult to believe. It was not only
because Sambo vehemently denied it, but the minutes of the conference
of the personnel of the MTC of Tinambac dated January 20, 1992 shows
that on that date Baroy informed the personnel of the court that she was
taking over the functions she assigned to Sambo, particularly the
collection of legal fees (Exh. 7). The notarial fees she claims that Sambo
did not turn over to her were for those documents notarized (i)n July and
September, 1992 already. Besides there never was any demand she made
for Sambo to turn over some notarial fees supposedly in his possession.
Neither was there any memorandum she issued on this matter, in spite of
the fact that she has been holding meetings and issuing memoranda to
the personnel of the court (Exhs. V, W, FF, FF-1, FF-2, FF-3; Exhs. 4-A
(supplement(s), 5-8, 6-S, 7-S and 8-S).
It is admitted by respondent Baroy that on October 29, 1991 a cash bond
deposit of a certain Dacara in the amount of One Thousand (P1,000.00)
Pesos was turned over to her after she assumed office and for this cash
bond she issued only a temporary receipt (Exh. Y). She did not deposit this
cash bond in any bank or to the Municipal Treasurer. She just kept it in her
own cash box on the alleged ground that the parties in that case where
the cash bond was deposited informed her that they would settle the case
amicably.
Respondent Baroy declared that she finally deposited the aforementioned
cash bond of One Thousand (P1,000.00) Pesos with the Land Bank of the
Philippines (LBP) in February, 1993, after this administrative case was
already filed (TSN, pp. 27-28; 12-22-93). The Pass Book, however, shows
that actually Baroy opened an account with the LBP, Naga Branch, only on
March 26, 1993 when she deposited an amount of Two Thousand
(P2,000.00) Pesos (Exhs. 8 to 8-1-a). She claims that One Thousand
(P1,000.000) Pesos of the initial deposit was the cash bond of Dacara. If it
were true, it was only after keeping to herself the cash bond of One
Thousand (P1,000.00) Pesos for around one year and five months when
she finally deposited it because of the filing of this case.
On April 29, 1993, or only one month and two days after she finally
deposited the One Thousand (P1,000.00) Pesos cash bond of Dacara, she
withdrew it from the bank without any authority or order from the court.
 89
It was only on July 23, 1993, or after almost three (3) months after she
withdrew it, when she redeposited said cash bond (TSN, p. 6; 1-4-94).
The evidence presented in this case also show that on February 28, 1993
respondent Baroy received also a cash bond of Three Thousand (P3,000.00)
Pesos from a certain Alfredo Seprones in Crim. Case No. 5180. For this
cash bond deposit, respondent Baroy issued only an annumbered
temporary receipt (Exh. X and X-1). Again Baroy just kept this Three
Thousand (P3,000.00) Pesos cash bond to herself. She did not deposit it
either (in) a bank or (with) the Municipal Treasurer. Her explanation was
that the parties in Crim. Case No. 5180 informed her that they would
settle the case amicably. It was on April 26, 1993, or almost two months
later when Judge Palaypayon issued an order for the release of said cash
bond (Exh. 7).
Respondent Baroy also admitted that since she assumed office on October
21, 1991 she used to issue temporary receipt only for cash bond deposits
and other payments and collections she received. She further admitted
that some of these temporary receipts she issued she failed to place the
number of the receipts such as that receipt marked Exhibit X (TSN, p. 35;
11-23-93). Baroy claims that she did not know that she had to use the
official receipts of the Supreme Court. It was only from February, 1993,
after this case was already filed, when she only started issuing official
receipts.
The next charge against the respondents is that in order to be appointed
Clerk of Court, Baroy gave Judge Palaypayon an air conditioner as a gift.
The evidence adduced with respect to this charge, show that on August 24,
1991 Baroy bought an air conditioner for the sum of Seventeen Thousand
Six Hundred (P17,600.00) Pesos (Exhs. I and I-1). The same was paid partly
in cash and in check (Exhs. I-2 and I-3). When the air conditioner was
brought to court in order to be installed in the chamber of Judge
Palaypayon, it was still placed in the same box when it was bought and
was not used yet.
The respondents claim that Baroy sold it to Judge Palaypayon for Twenty
Thousand (P20,00.00) Pesos on installment basis with a down payment of
Five Thousand (P5,000.00) Pesos and as proof thereof the respondents
presented a typewritten receipt dated May 29, 1993 (Exh. 22). The receipt
was signed by both respondents and by the Municipal Mayor of Tinambac,
Camarines Sur and another person as witness.
The alleged sale between respondents is not beyond suspicion. It was
bought by Baroy at a time when she was applying for the vacant position
of Clerk of Court (to) which she was eventually appointed in October, 1991.
From the time she bought the air conditioner on August 24, 1991 until it
was installed in the office of Judge Palaypayon it was not used yet. The
sale to Judge Palaypayon was only evidenced by a mere typewritten
receipt dated May 29, 1992 when this case was already filed. The receipt
could have been easily prepared. The Municipal Mayor of Tinambac who
signed in the receipt as a witness did not testify in this case. The sale is
between the Clerk of Court and the Judge of the same court. All these
circumstances give rise to suspicion of at least impropriety. Judges should
avoid such action as would subject (them) to suspicion and (their) conduct
should be free from the appearance of impropriety (Jaagueta vs. Boncasos,
60 SCRA 27).
With respect to the charge that Judge Palaypayon received a cash bond
deposit of One Thousand (P1,000.00) Pesos from Januaria Dacara without
issuing a receipt, Dacara executed an affidavit regarding this charge that
Judge Palaypayon did not give her a receipt for the P1,000.00 cash bond
she deposited (Exh. N). Her affidavit, however, has no probative value as
she did not show that this cash bond of P1,000.00 found its way into the
hands of respondent Baroy who issued only a temporary receipt for it and
this has been discussed earlier.
Another charge against Judge Palaypayon is the getting of detention
prisoners to work in his house and one of them escaped while in his
custody and was never found again. To hide this fact, the case against said
accused was ordered archived by Judge Palaypayon. The evidence
adduced with respect to this particular charge, show that in Crim. Case No.
5647 entitled People vs. Stephen Kalaw, Alex Alano and Allan Adupe,
accused Alex Alano and Allan Adupe were arrested on April 12, 1991 and
placed in the municipal jail of Tinambac, Camarines Sur (Exhs. 0, 0-1, 0-2
and 0-3; Exh. 25). The evidence presented that Alex Alano was taken by
Judge Palaypayon from the municipal jail where said accused was confined
and that he escaped while in custody of Judge Palaypayon is solely
testimonial, particularly that of David Ortiz, a former utility worker of the
MTC of Tinambac.
Herein investigator finds said evidence not sufficient. The complainants
should have presented records from the police of Tinambac to show that
Judge Palaypayon took out from the municipal jail Alex Alano where he
was under detention and said accused escaped while in the custody of
Judge Palaypayon.
The order, however, of Judge Palaypayon dated April 6, 1992 in Crim. Case
No. 5047 archiving said case appears to be without basis. The order states:
"this case was filed on April 12, 1991 and the records show that the
warrant of arrest (was) issued against the accused, but up to this moment
there is no return of service for the warrant of arrest issued against said
accused" (Exh. 0-4). The records of said case, however, show that in fact
there was a return of the service of the warrant of arrest dated April 12,
1991 showing that Alano and Adupe were arrested (Exh. 0-3).
Judge Palaypayon explained that his order dated April 6, 1992 archiving
Crim. Case No. 5047 referred only to one of the accused who remained at
large. The explanation cannot be accepted because the two other accused,
Alano and Adupe, were arrested. Judge Palaypayon should have issued an
order for the arrest of Adupe who allegedly jumped bail, but Alano was
supposed to be confined in the municipal jail if his claim is true that he did
not take custody of Alano.
The explanation also of Judge Palaypayon why he ordered the case
archived was because he heard from the police that Alano escaped. This
explanation is not acceptable either. He should ha(ve) set the case and if
the police failed to bring to court Alano, the former should have been
required to explain in writing why Alano was not brought to court. If the
explanation was that Alano escaped from jail, he should have issued an
order for his arrest. It is only later on when he could not be arrested when
the case should have been ordered archived. The order archiving this case
for the reason that he only heard that Alano escaped is another
circumstance which gave rise to a suspicion that Alano might have really
escaped while in his custody only that the complainants could not present
records or other documentary evidence to prove the same.
The last charge against the respondents is that they collected filing fees on
collection cases filed by the Rural Bank of Tinambac, Camarines Sur which
was supposed to be exempted in paying filing fees under existing laws and
that the filing fees received was deposited by respondent Baroy in her
personal account in the bank. The evidence presented show that on
February 4, 1992 the Rural Bank of Tinambac filed ten (10) civil cases for
 90
collection against farmers and it paid the total amount of Four Hundred
(P400.00) Pesos representing filing fees. The complainants cited Section
14 of Republic Act 720, as amended, which exempts Rural Banks (from)
the payment of filing fees on collection of sums of money cases filed
against farmers on loans they obtained.
Judge Palaypayon, however, had nothing to do with the payment of the
filing fees of the Rural Bank of Tinambac as it was respondent Baroy who
received them and besides, on February 4, 1992, he was on sick leave. On
her part Baroy claims that the bank paid voluntarily the filing fees. The
records, however, shows that respondent Baroy sent a letter to the
manager of the bank dated January 28, 1992 to the effect that if the bank
would not pay she would submit all Rural Bank cases for dismissal (Annex
6, comment by respondent Baroy).
Respondent Baroy should have checked whether the Rural Bank of
Tinambac was really exempt from the payment of filing fees pursuant to
Republic Act 720, as amended, instead of threatening the bank to have its
cases be submitted to the court in order to have them dismissed. Here the
payment of the filing fees was made on February 4, 1992, but the Four
Hundred (P400.00) Pesos was only turned over to the Municipal Treasurer
on March 12, 1992. Here, there is an undue delay again in complying with
her obligation as accountable officer.
In view of the foregoing findings that the evidence presented by the
complainants sufficiently show that respondent Judge Lucio P. Palaypayon,
Jr. had solemnized marriages, particularly that of Sammy Bocaya and Gina
Besmonte, without a marriage license, and that it having been shown that
he did not comply with his duty in closely supervising his clerk of court in
the preparation of the monthly report of cases being submitted to the
Supreme Court, particularly for the months of July and September, 1992
where it has been proven that the reports for said two (2) months were
falsified with respect to the number of documents notarized, it is
respectfully recommended that he be imposed a fine of TEN THOUSAND
(P10,000.00) PESOS with a warning that the same or similar offenses will
be more severely dealt with.
The fact that Judge Palaypayon did not sign the marriage contracts or
certificates of those marriages he solemnized without a marriage license,
there were no dates placed in the marriage contracts to show when they
were solemnized, the contracting parties were not furnished their
marriage contracts and the Local Civil Registrar was not being sent any
copy of the marriage contract, will not absolve him from liability. By
solemnizing alone a marriage without a marriage license he as the
solemnizing officer is the one responsible for the irregularity in not
complying (with) the formal requ(i)sites of marriage and under Article 4(3)
of the Family Code of the Philippines, he shall be civilly, criminally and
administratively liable.
Judge Palaypayon is likewise liable for his negligence or failure to comply
with his duty of closely supervising his clerk of court in the performance of
the latter's duties and functions, particularly the preparation of the
monthly report of cases (Bendesula vs. Laya, 58 SCRA 16). His explanation
that he only signed the monthly report of cases only when his clerk of
court already signed the same, cannot be accepted. It is his duty to closely
supervise her, to check and verify the records if the monthly reports
prepared by his clerk of court do not contain false statements. It was held
that "A judge cannot take refuge behind the inefficiency or incompetence
of court personnel (Nidua vs. Lazaro, 174 SCRA 158).
In view also of the foregoing finding that respondent Nelia
Esmeralda-Baroy, the clerk of court of the Municipal Trial Court of
Tinambac, Camarines Sur, has been found to have falsified the monthly
report of cases for the months of July and September, 1992 with respect
to the number of documents notarized, for having failed to account (for)
the notarial fees she received for said two (2) months period; for having
failed to account (for) the solemnization fees of those marriages allegedly
not solemnized, but the solemnization fees were not returned; for
unauthorized issuance of temporary receipts, some of which were issued
unnumbered; for receiving the cash bond of Dacara on October 29, 1991
in the amount of One Thousand (P1,000.00) Pesos for which she issued
only a temporary receipt (Exh. Y) and for depositing it with the Land Bank
of the Philippines only on March 26, 1993, or after one year and five
months in her possession and after this case was already filed; for
withdrawing said cash bond of One Thousand (P1,000.00) Pesos on April
29, 1993 without any court order or authority and redepositing it only on
July 23, 1993; for receiving a cash bond of Three Thousand (P3,000.00)
Pesos from Alfredo Seprones in Crim. Case No. 5180, MTC, Tinambac,
Camarines Sur, for which she issued only an unnumbered temporary
receipt (Exhs. X and X-1) and for not depositing it with a bank or with the
Municipal Treasurer until it was ordered released; and for requiring the
Rural Bank of Tinambac, Camarines Sur to pay filing fees on February 4,
1992 for collection cases filed against farmers in the amount of Four
Hundred (P400.00) Pesos, but turning over said amount to the Municipal
Treasurer only on March 12, 1992, it is respectfully recommended that
said respondent clerk of court Nelia Esmeralda-Baroy be dismissed from
the service.
It is provided that "Withdrawal of court deposits shall be by the clerk of
court who shall issue official receipt to the provincial, city or municipal
treasurer for the amount withdrawn. Court deposits cannot be withdrawn
except by order of the court, . . . ." (Revised Manual of Instructions for
Treasurers, Sec. 183, 184 and 626; p. 127, Manual for Clerks of Court). A
circular also provides that the Clerks of Court shall immediately issue an
official receipt upon receipt of deposits from party litigants and thereafter
deposit intact the collection with the municipal, city or provincial treasurer
and their deposits, can only be withdrawn upon proper receipt and order
of the Court (DOJ Circular No. 52, 26 April 1968; p. 136, Manual for Clerks
of Court). Supreme Court Memorandum Circular No. 5, 25 November 1982,
also provides that "all collections of funds of fiduciary character including
rental deposits, shall be deposited immediately by the clerk of court
concerned upon receipt thereof with City, Municipal or Provincial
Treasurer where his court is located" and that "no withdrawal of any of
such deposits shall be made except upon lawful order of the court
exercising jurisdiction over the subject matter.
Respondent Baroy had either failed to comply with the foregoing circulars,
or deliberately disregarded, or even intentionally violated them. By her
conduct, she demonstrated her callous unconcern for the obligations and
responsibility of her duties and functions as a clerk of court and
accountable officer. The gross neglect of her duties shown by her
constitute(s) a serious misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma Hiam, Clerk of Court,
MTCC, Branch I, Batangas City; A.M. No. P-90-414; August 9, 1993, it was
held that "The clerk of court is not authorized to keep funds in his/her
custody; monies received by him/her shall be deposited immediately upon
receipt thereof with the City, Municipal or Provincial Treasurer. Supreme
Court Circular Nos. 5 dated November 25, 1982 and 5-A dated December 3,
1982. Respondent Hiam's failure to remit the cash bail bonds and fine she
collected constitutes serious misconduct and her misappropriation of said
funds constitutes dishonesty. "Respondent Norma Hiam was found guilty
of dishonesty and serious misconduct prejudicial to the best interest of
 91

the service and (the Court) ordered her immediate dismissal (from) the Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
service. Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

xxx xxx xxx Cruz, J., took no part.

We here emphasize once again our adjuration that the conduct and Bidin, J., is on leave.
behavior of everyone connected with an office charged with the
dispensation of justice, from the presiding judge to the lowliest clerk,
should be circumscribed with the heavy burden of responsibility. His
conduct, at all times, must not only be characterized by propriety and
decorum but, above all else, must be beyond suspicion. Every employee
should be an example of integrity, uprightness and honesty. 5 Integrity in a
judicial office is more than a virtue, it is a necessity. 6 It applies, without
qualification as to rank or position, from the judge to the least of its
personnel, they being standard-bearers of the exacting norms of ethics
and morality imposed upon a Court of justice.

On the charge regarding illegal marriages the Family Code pertinently

provides that the formal requisites of marriage are, inter alia, a valid
marriage license except in the cases provided for
therein. 7 Complementarily, it declares that the absence of any of the
essential or formal requisites shall generally render the marriage void ab
initio and that, while an irregularity in the formal requisites shall not affect
the validity of the marriage, the party or parties responsible for the
irregularity shall be civilly, criminally and administratively liable. 8

The civil aspect is addressed to the contracting parties and those affected
by the illegal marriages, and what we are providing for herein pertains to
the administrative liability of respondents, all without prejudice to their
criminal responsibility. The Revised Penal Code provides that "(p)riests or
ministers of any religious denomination or sect, or civil authorities who
shall perform or authorize any illegal marriage ceremony shall be
punished in accordance with the provisions of the Marriage Law."9 This is
of course, within the province of the prosecutorial agencies of the
Government.

The recommendation with respect to the administrative sanction to be

imposed on respondent judge should, therefore, be modified. For one,
with respect to the charge of illegal solemnization of marriages, it does
appear that he had not taken to heart, but actually trifled with, the law's
concern for the institution of marriage and the legal effects flowing from
civil status. This, and his undeniable participation in the other offenses
charged as hereinbefore narrated in detail, approximate such serious
degree of misconduct and of gross negligence in the performance of
judicial duties as to ineludibly require a higher penalty.

WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on

respondent Judge Lucio P. Palaypayon. Jr., with a stern warning that any
repetition of the same or similar offenses in the future will definitely be
severely dealt with. Respondent Nelia Esmeralda-Baroy is hereby
DISMISSED from the service, with forfeiture of all retirement benefits and
with prejudice to employment in any branch, agency or instrumentality of
the Government, including government-owned or controlled corporations.

Let copies of this decision be spread on their records and furnished to the
Office of the Ombudsman for appropriate action.

SO ORDERED.