G.R. No.

81958 June 30, 1988

PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC., petitioner,

vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and Employment, and TOMAS D.
ACHACOSO, as Administrator of the Philippine Overseas Employment
Administration, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

The petitioner, Philippine Association of Service Exporters, Inc. (PASEI, for short), a firm "engaged principally in the recruitment of Filipino
workers, male and female, for overseas placement," 1 challenges the Constitutional validity of Department Order No. 1, Series of 1988, of the
Department of Labor and Employment, in the character of "GUIDELINES GOVERNING THE TEMPORARY SUSPENSION OF
DEPLOYMENT OF FILIPINO DOMESTIC AND HOUSEHOLD WORKERS," in this petition for certiorari and prohibition. Specifically, the
measure is assailed for "discrimination against males or females;" 2 that it "does not apply to all Filipino workers but only to domestic helpers
and females with similar skills;" 3 and that it is violative of the right to travel. It is held likewise to be an invalid exercise of the lawmaking
power, police power being legislative, and not executive, in character.

In its supplement to the petition, PASEI invokes Section 3, of Article XIII, of the Constitution,
providing for worker participation "in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 4 Department Order No. 1, it is contended, was passed in the
absence of prior consultations. It is claimed, finally, to be in violation of the Charter's non-impairment
clause, in addition to the "great and irreparable injury" that PASEI members face should the Order
be further enforced.

On May 25, 1988, the Solicitor General, on behalf of the respondents Secretary of Labor and
Administrator of the Philippine Overseas Employment Administration, filed a Comment informing the
Court that on March 8, 1988, the respondent Labor Secretary lifted the deployment ban in the states
of Iraq, Jordan, Qatar, Canada, Hongkong, United States, Italy, Norway, Austria, and Switzerland. * In
submitting the validity of the challenged "guidelines," the Solicitor General invokes the police power of the Philippine State.

It is admitted that Department Order No. 1 is in the nature of a police power measure. The only
question is whether or not it is valid under the Constitution.

The concept of police power is well-established in this jurisdiction. It has been defined as the "state
authority to enact legislation that may interfere with personal liberty or property in order to promote
the general welfare." 5 As defined, it consists of (1) an imposition of restraint upon liberty or property,
(2) in order to foster the common good. It is not capable of an exact definition but has been,
purposely, veiled in general terms to underscore its all-comprehensive embrace.

"Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits." 6

It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the
Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood
and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most
vital functions of governance. Marshall, to whom the expression has been credited, 7 refers to it
succinctly as the plenary power of the State "to govern its citizens." 8
"The police power of the State ... is a power coextensive with self- protection, and it is not inaptly
termed the "law of overwhelming necessity." It may be said to be that inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society." 9

It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is "rooted in the
conception that men in organizing the state and imposing upon its government limitations to
safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of
citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure
communal peace, safety, good order, and welfare." 10 Significantly, the Bill of Rights itself does not
purport to be an absolute guaranty of individual rights and liberties "Even liberty itself, the greatest of
all rights, is not unrestricted license to act according to one's will." 11 It is subject to the far more
overriding demands and requirements of the greater number.

Notwithstanding its extensive sweep, police power is not without its own limitations. For all its
awesome consequences, it may not be exercised arbitrarily or unreasonably. Otherwise, and in that
event, it defeats the purpose for which it is exercised, that is, to advance the public good. Thus,
when the power is used to further private interests at the expense of the citizenry, there is a clear
misuse of the power. 12

In the light of the foregoing, the petition must be dismissed.

As a general rule, official acts enjoy a presumed vahdity. 13 In the absence of clear and convincing
evidence to the contrary, the presumption logically stands.

The petitioner has shown no satisfactory reason why the contested measure should be nullified.
There is no question that Department Order No. 1 applies only to "female contract workers," 14 but it
does not thereby make an undue discrimination between the sexes. It is well-settled that "equality
before the law" under the Constitution 15 does not import a perfect Identity of rights among all men
and women. It admits of classifications, provided that (1) such classifications rest on substantial
distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing
conditions; and (4) they apply equally to all members of the same class. 16

The Court is satisfied that the classification made-the preference for female workers — rests on
substantial distinctions.

As a matter of judicial notice, the Court is well aware of the unhappy plight that has befallen our
female labor force abroad, especially domestic servants, amid exploitative working conditions
marked by, in not a few cases, physical and personal abuse. The sordid tales of maltreatment
suffered by migrant Filipina workers, even rape and various forms of torture, confirmed by
testimonies of returning workers, are compelling motives for urgent Government action. As precisely
the caretaker of Constitutional rights, the Court is called upon to protect victims of exploitation. In
fulfilling that duty, the Court sustains the Government's efforts.

The same, however, cannot be said of our male workers. In the first place, there is no evidence that,
except perhaps for isolated instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the Government should act similarly with
respect to male workers. The Court, of course, is not impressing some male chauvinistic notion that
men are superior to women. What the Court is saying is that it was largely a matter of evidence (that
women domestic workers are being ill-treated abroad in massive instances) and not upon some
fanciful or arbitrary yardstick that the Government acted in this case. It is evidence capable indeed of
unquestionable demonstration and evidence this Court accepts. The Court cannot, however, say the
same thing as far as men are concerned. There is simply no evidence to justify such an inference.
Suffice it to state, then, that insofar as classifications are concerned, this Court is content that
distinctions are borne by the evidence. Discrimination in this case is justified.

As we have furthermore indicated, executive determinations are generally final on the Court. Under
a republican regime, it is the executive branch that enforces policy. For their part, the courts decide,
in the proper cases, whether that policy, or the manner by which it is implemented, agrees with the
Constitution or the laws, but it is not for them to question its wisdom. As a co-equal body, the
judiciary has great respect for determinations of the Chief Executive or his subalterns, especially
when the legislature itself has specifically given them enough room on how the law should be
effectively enforced. In the case at bar, there is no gainsaying the fact, and the Court will deal with
this at greater length shortly, that Department Order No. 1 implements the rule-making powers
granted by the Labor Code. But what should be noted is the fact that in spite of such a fiction of
finality, the Court is on its own persuaded that prevailing conditions indeed call for a deployment
ban.

There is likewise no doubt that such a classification is germane to the purpose behind the measure.
Unquestionably, it is the avowed objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers" 17 this Court has no quarrel that in the midst of the terrible
mistreatment Filipina workers have suffered abroad, a ban on deployment will be for their own good
and welfare.

The Order does not narrowly apply to existing conditions. Rather, it is intended to apply indefinitely
so long as those conditions exist. This is clear from the Order itself ("Pending review of the
administrative and legal measures, in the Philippines and in the host countries . . ."18), meaning to
say that should the authorities arrive at a means impressed with a greater degree of permanency,
the ban shall be lifted. As a stop-gap measure, it is possessed of a necessary malleability,
depending on the circumstances of each case. Accordingly, it provides:

9. LIFTING OF SUSPENSION. — The Secretary of Labor and Employment (DOLE)

may, upon recommendation of the Philippine Overseas Employment Administration
(POEA), lift the suspension in countries where there are:

1. Bilateral agreements or understanding with the Philippines, and/or,

2. Existing mechanisms providing for sufficient safeguards to ensure the welfare and
protection of Filipino workers. 19

The Court finds, finally, the impugned guidelines to be applicable to all female domestic overseas
workers. That it does not apply to "all Filipina workers" 20 is not an argument for unconstitutionality.
Had the ban been given universal applicability, then it would have been unreasonable and arbitrary.
For obvious reasons, not all of them are similarly circumstanced. What the Constitution prohibits is
the singling out of a select person or group of persons within an existing class, to the prejudice of
such a person or group or resulting in an unfair advantage to another person or group of persons. To
apply the ban, say exclusively to workers deployed by A, but not to those recruited by B, would
obviously clash with the equal protection clause of the Charter. It would be a classic case of what
Chase refers to as a law that "takes property from A and gives it to B." 21 It would be an unlawful
invasion of property rights and freedom of contract and needless to state, an invalid act. 22 (Fernando
says: "Where the classification is based on such distinctions that make a real difference as infancy,
sex, and stage of civilization of minority groups, the better rule, it would seem, is to recognize its
validity only if the young, the women, and the cultural minorities are singled out for favorable
treatment. There would be an element of unreasonableness if on the contrary their status that calls
for the law ministering to their needs is made the basis of discriminatory legislation against them. If
such be the case, it would be difficult to refute the assertion of denial of equal protection." 23 In the
case at bar, the assailed Order clearly accords protection to certain women workers, and not the
contrary.)

It is incorrect to say that Department Order No. 1 prescribes a total ban on overseas deployment.
From scattered provisions of the Order, it is evident that such a total ban has hot been
contemplated. We quote:

5. AUTHORIZED DEPLOYMENT-The deployment of domestic helpers and workers

of similar skills defined herein to the following [sic] are authorized under these
guidelines and are exempted from the suspension.

5.1 Hirings by immediate members of the family of Heads of State

and Government;

5.2 Hirings by Minister, Deputy Minister and the other senior

government officials; and

5.3 Hirings by senior officials of the diplomatic corps and duly

accredited international organizations.

5.4 Hirings by employers in countries with whom the Philippines have

[sic] bilateral labor agreements or understanding.

xxx xxx xxx

7. VACATIONING DOMESTIC HELPERS AND WORKERS OF SIMILAR SKILLS--

Vacationing domestic helpers and/or workers of similar skills shall be allowed to
process with the POEA and leave for worksite only if they are returning to the same
employer to finish an existing or partially served employment contract. Those
workers returning to worksite to serve a new employer shall be covered by the
suspension and the provision of these guidelines.

xxx xxx xxx

9. LIFTING OF SUSPENSION-The Secretary of Labor and Employment (DOLE)

may, upon recommendation of the Philippine Overseas Employment Administration
(POEA), lift the suspension in countries where there are:

1. Bilateral agreements or understanding with the Philippines, and/or,

2. Existing mechanisms providing for sufficient safeguards to ensure

the welfare and protection of Filipino workers. 24

xxx xxx xxx

The consequence the deployment ban has on the right to travel does not impair the right. The right
to travel is subject, among other things, to the requirements of "public safety," "as may be provided
by law." 25 Department Order No. 1 is a valid implementation of the Labor Code, in particular, its
basic policy to "afford protection to labor," 26 pursuant to the respondent Department of Labor's rule-
making authority vested in it by the Labor Code. 27 The petitioner assumes that it is unreasonable
simply because of its impact on the right to travel, but as we have stated, the right itself is not
absolute. The disputed Order is a valid qualification thereto.

Neither is there merit in the contention that Department Order No. 1 constitutes an invalid exercise of
legislative power. It is true that police power is the domain of the legislature, but it does not mean
that such an authority may not be lawfully delegated. As we have mentioned, the Labor Code itself
vests the Department of Labor and Employment with rulemaking powers in the enforcement
whereof. 28

The petitioners's reliance on the Constitutional guaranty of worker participation "in policy and
decision-making processes affecting their rights and benefits" 29 is not well-taken. The right granted
by this provision, again, must submit to the demands and necessities of the State's power of
regulation.

The Constitution declares that:

Sec. 3. The State shall afford full protection to labor, local and overseas, organized
and unorganized, and promote full employment and equality of employment
opportunities for all. 30

"Protection to labor" does not signify the promotion of employment alone. What concerns the
Constitution more paramountly is that such an employment be above all, decent, just, and humane.
It is bad enough that the country has to send its sons and daughters to strange lands because it
cannot satisfy their employment needs at home. Under these circumstances, the Government is
duty-bound to insure that our toiling expatriates have adequate protection, personally and
economically, while away from home. In this case, the Government has evidence, an evidence the
petitioner cannot seriously dispute, of the lack or inadequacy of such protection, and as part of its
duty, it has precisely ordered an indefinite ban on deployment.

The Court finds furthermore that the Government has not indiscriminately made use of its authority.
It is not contested that it has in fact removed the prohibition with respect to certain countries as
manifested by the Solicitor General.

The non-impairment clause of the Constitution, invoked by the petitioner, must yield to the loftier
purposes targetted by the Government. 31 Freedom of contract and enterprise, like all other
freedoms, is not free from restrictions, more so in this jurisdiction, where laissez faire has never
been fully accepted as a controlling economic way of life.

This Court understands the grave implications the questioned Order has on the business of
recruitment. The concern of the Government, however, is not necessarily to maintain profits of
business firms. In the ordinary sequence of events, it is profits that suffer as a result of Government
regulation. The interest of the State is to provide a decent living to its citizens. The Government has
convinced the Court in this case that this is its intent. We do not find the impugned Order to be
tainted with a grave abuse of discretion to warrant the extraordinary relief prayed for.

WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.
 [G. R. No. 199034 : December 13, 2011]

GLORIA MACAPAGAL-ARROYO V. HON. LEILA M. DE LIMA, IN HER CAPACITY

AS SECRETARY OF THE DEPARTMENT OF JUSTICE AND RICARDO A. DAVID, JR.,
IN HIS CAPACITY AS COMMISSIONER OF THE BUREAU OF IMMIGRATION [ G.R.
NO. 199046. DECEMBER 13, 2011 ] JOSE MIGUEL T. ARROYO V. HON. LEILA M.
DE LIMA, IN HER CAPACITY AS SECRETARY OF THE DEPARTMENT OF JUSTICE,
RICARDO V. PARAS, III, IN HIS CAPACITY AS CHIEF STATE COUNSEL, AND
RICARDO A. DAVID, JR., IN HIS CAPACITY AS COMMISSIONER OF THE BUREAU
OF IMMIGRATION DISSENTING OPINION

SERENO, J.:

Despite serious efforts from my end to advise an officer of the Supreme Court that no
action of the Court should be interpreted, such behavior has continued. This opinion is
thus rendered in part to remedy the present deficit in truth. cralaw

To recall, my Dissenting Opinion of 18 November 2011 consisted of two parts: (1) a

narration of the voting that took place in the morning; and (2) the reason why my Dissent
to the Decision of the majority to grant the temporary restraining order (TRO) in favor of
petitioners continues. My narration was a first-hand account rendered by a member of
the Court who took part in the deliberations; it was not a relayed message and neither
was it hearsay. To this day, none of my colleagues has called my attention to any
inaccuracy in my 18 November 2011 account, despite the En Banc having physically met
on the 22nd, 24th, and 29th of November; and despite all the available means of
electronic communication with which any of them could call me.

What Took Place on the 18th, 22nd,

23rd, 24th, and 29th of November 2011

What took place in the En Banc morning sessions of the 18th and 22nd of November
2011, and what steps were taken thereafter by Chief Justice Renato C. Corona, Senior
Associate Justice Antonio T. Carpio, and Justice Presbitero J. Velasco, Jr. have been put
on record by Justice Antonio T. Carpio in a letter to Chief Justice Renato C. Corona and
circulated to all the members of the Court on the morning of 24 November 2011.

The letter reads:

24 November 2011
The CHIEF JUSTICE
Supreme Court

May I suggest that the issuance of the attached Resolution dated 22 November 2011,
which is supposed to clarify the Resolution dated 18 November 2011, be held in
abeyance until the En Banc has a chance to go over the same. Instead of clarifying the
Resolution dated 18 November 2011, the attached Resolution compounds the error in the
Resolution dated 18 November 2011. (Underlining supplied)
You will recall that during the En Banc meeting last 18 November 2011,[1] the En
Banc, after a long discussion, voted on the following issues:

1. That petitioners did not comply with condition (ii) for the issuance of the
TRO (voting was 7-6 with Carpio, Abad, Villarama, Mendoza, Sereno, Reyes
and Bernabe as the majority);

2. That there is no need to state in the Resolution that the TRO is suspended
until petitioners comply with condition (ii), that is, petitioners will simply be
directed to comply with condition (ii) for the issuance of the TRO (voting
was 7-6, with Corona, Velasco, Brion, Peralta, Bersamin, Abad, and Perez
as the majority). This vote was taken after Justice Abad stated that since
condition (ii) for the issuance of the TRO was not complied with, there was
no need to state that the TRO is suspended since it is "common sense"' that
the TRO cannot take effect unless all the conditions are satisfied. I had
earlier proposed that the Court recall the TRO for non-compliance of
condition (ii) but Justice Abad's response was that it need not be recalled
because its effectivity is deemed suspended pending compliance with
condition (ii). After, all, Justice Abad said, it will take only 10 minutes for
the amended Special Power of Attorney to be submitted by Atty. Topacio.

However, the Resolution dated 18 November 2011 did not reflect at all item 1. The
Resolution merely stated that petitioners are directed to comply with condition (ii) for the
issuance of the TRO, which correctly reflects item 2. Thus, in the En Banc meeting last
22 November 2011, I suggested that the En Banc clarify the Resolution dated 15
November 2011 to reflect item 1 above. The En Banc agreed, and no one objected. Justice
Velasco was designated to draft the clarificatory Resolution.

Yesterday, 23 November 2011, Justice Velasco submitted his draft of the first three
sentences to the first paragraph of the attached Resolution, which sentences reflect
correctly item 1 above, but not item 2. Through my Chief of Staff, I called the attention
of the Clerk of Court and sent her a correction to Justice Velasco:s draft to reflect correctly
item 2. I also called up Justice Velasco to inform him of my correction. Justice Velasco
and I agreed that this draft correctly reflected item 1. On item 2, Justice Velasco
explained that he did not get the nuance that there was no need to state in the Resolution
that the TRO is suspended, as his draft in fact states the opposite - that the TRO is not
suspended pending compliance with condition (ii), a statement not found in the
Resolution dated 18 November 2011

However, the clarificatory Resolution that came out late yesterday afternoon, and which
the Clerk of Court was instructed to promulgate is the attached clarificatory Resolution,
dated 22 November 2011, which states:

a. There was substantial compliance with condition (ii) for the

issuance of the TRO;

b. The TRO was not suspended and continued to be in force pending

full compliance with the condition (ii).
The attached clarificatory Resolution compounds the error of the Resolution dated 18
November 2011. In fact, the attached clarificatory Resolution states the opposite
of what was approved by the En Banc in its meeting of 15 November 2011, and
what was agreed in the En Banc meeting of 22 November 2011.

I am informed by the Clerk of Court, through my Chief of Staff, that the attached
clarificatory Resolution is your version of the clarification. For ready reference, I am
attaching Justice Velasco's version of the clarification, as well as my own version.

In view of the foregoing, I suggest that the release of the attached Resolution 22
November 2011 be held in abeyance until the same is taken up by the En Banc today
before the 2 p. m. oral argument

� � � � � � � � � � � � � � � � � � � � �
� � � �
Very truly yours,

Antonio T. Carpio
(sgd.)

Copy Furnished:
All Associate Justices
Clerk of Court

The letter of Justice Carpio was taken up on the morning of 29 November 2011. While
one of the justices, as described in Justice Carpio's letter, had argued on 18 November
2011 that the suspensive effect of non-compliance with condition (ii) no longer needed
to be stated, as it was "common sense,� this time he voted unequivocably that despite
non-compliance with condition (ii), the TRO was nevertheless not suspended. The
Resolution that was issued pursuant to the 29 November 2011 voting reads in relevant
part as follows:

Please take notice that the Court en banc issued a Resolution dated NOVEMBER 22,
2011 which reads as follows:

G.R. No. 199034 (Gloria Macapagal-Arroyo v. Hon. Leila M. De Lima, in her capacity as
Secretary of the Department of Justice and Ricardo. A. David, Jr., in his capacity as
Commissioner of the Bureau of Immigration) and G.R. No. 199046 (Jose Miguel T.
Arroyo v. Hon. Leila M. de Lima, in her capacity as Secretary, Department of Justice,
Ricardo V. Paras III, in his capacity as Chief State Counsel, Department of Justice and
Ricardo A. David, Jr., in his capacity as Commissioner, Bureau of Immigration). - On
November 18, 2011, the Court, by a vote of 7-6, found that there was no sufficient
compliance with the second condition of the Temporary Restraining Order issued or
November 15, 2011. However, by a vote of 7-6, the Court ruled that the TRO was not
suspended pending compliance with the second condition. Thus, the Court resolved
to CLARIFY that the TRO was not suspended even with the finding that there was no full
compliance with the conditions of the TRO.
Contrary to statements made by the Acting Chief of the Public Information Office (PIO)
Atty. Jose Midas P. Marquez, there was no 9-4 voting that upheld the effectivity of the
TRO despite non-compliance with condition (ii). The above Resolution categorically
identified the voting ratio as 7-6 in favor of a declaration of non-compliance, and another
7-6 in favor of non-suspension of the TRO despite non-compliance with a condition.

The voting taken on 29 November 2011 was of the same composition as that of the 18
November 2011 voting. Justices Carpio, Roberto A. Abad, Martin S. Villarama, Jr., Jose
C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L. Reyes and Estela M. Perlas-
Bernabe as the first majority group maintained that there was no compliance with
condition (ii). Then the majority grouping shifted when Justice Abad - as he did on 18
November -joined Chief Justice Corona and Justices Velasco, Arturo D. Brion, Diosdado
M. Peralta, Lucas P. Bersamin, and Jose P. Perez to comprise the majority. This time,
however, the majority categorically voted to declare the non-suspension of the TRO
despite non-compliance with condition (ii). There was therefore, in every sense of the
word, a revision of the second majority group's vote, which now has the effect of
reversing their earlier ruling. This is not strange, as any clarification of an earlier vote
can result in a very substantive revision of that earlier vote. I requested two (2) days to
write my Dissent.

Justice Teresita J. Leonardo-De Castro who was on official business and Justice Mariano
C. del Castillo who was on leave on November 15 and 18 were both present on 29
November 2011. As expected, they did not participate in the voting and discussion on
the issues of compliance and the effect of non-compliance with the conditions of the
November 15 Resolution because they were not present in the said two previous
meetings.

It must be understood that while I was writing the 18 November 2011 Dissenting Opinion,
the unsigned Resolution of the same date was also being written by
the ponente designated by the Chief Justice. When the Resolution came out, it was not,
with all due respect, a fully accurate reflection of what took place. This incident
demonstrates an existing gap between the actual discussion and the voting results that
take place in an En Banc session and their reflection in written form via an unsigned
resolution. Unsigned resolutions, it must be emphasized, are usually not circulated to the
justices for their approval before they are promulgated, as happened with the 18
November 2011 Resolution.

It was from my actual participation in the 15 November 2011 Session that I was calling
the attention of the Acting Chief of the PIO in my 18 November 2011 Dissenting Opinion
to desist from interpreting our actions. That Dissent, the letter of Justice Carpio, and the
need for a re-voting by the En Banc on 29 November 2011 should have stopped the PIO
from further wrongly interpreting our actions. Atty. Marquez was propounding on the
legal status of the TRO without the benefit of any written document from this Court.

The Order Not To Immediately

Promulgate My 2 December 2011
Dissenting Opinion

After the voting on 29 November 2011, I informed my colleagues that I would write a
Dissenting Opinion on the clarificatory Resolution. They asked me when I could submit
my Dissent, and 1 requested two (2) days to finish it even though the Internal Rules of
the Supreme Court give me at least a week to write a Dissenting Opinion (Rule 13, Section
7, A.M. No. 10-4-20 SC). During the oral argument in the afternoon of the same day, the
Court decided to continue the proceedings in the afternoon of 01 December 2011, on
which date I fell ill. Thus, I was unable to attend the oral argument and to submit my
Opinion.

On the following day, 02 December 2011 at 3 p. m., my office called the Office of the
Clerk of Court to advise it that a Dissenting Opinion from me would shortly be submitted
for promulgation. Under the same Internal Rules, the Clerk of Court has the ministerial
duty to promulgate such opinion. At 4 p. m., a member of my staff personally delivered
to the Office of the Clerk of Court the hard copy of my signed Dissenting Opinion in official
Gilbert bond paper - the kind used in the Court for final signed copies of Decisions,
Opinions or Resolutions coming from the justices - together with two diskette copies
thereof. Atty. Enriqueta Vidal, the Clerk of Court, who was on the telephone at that time,
directed my staff to one of her subordinates. The said subordinate from the Office of the
Clerk of Court duly received my opinion and the two diskettes. Immediately thereafter,
that same person together with my staff went to the PIO to hand both diskettes containing
an electronic copy of my Opinion for uploading in the Supreme Court website. The person
in charge of uploading decisions and opinions received the diskettes and promised my
staff that it would be uploaded in ten minutes.

When I asked my staff to check if my Dissenting Opinion had indeed been uploaded, they
found to my dismay that it had not been uploaded despite the lapse of time. My staff
called the PIO to inquire about the status of the uploading. The person in charge,
however, had already left the office and none of the other employees were authorized to
upload the opinion. When that authorized personnel was reached through mobile phone,
he told my staff that he was not able to upload the Opinion in the website because the
soft copies had been earlier retrieved from him by the same person from the Office of
the Clerk of Court who received it.

Thereafter, my staff succeeded in contacting the Clerk of Court, who by then had left the
office as well. When asked for an explanation for the non-promulgation of the Opinion,
she reasoned that there was no process server who could have served the Opinion on the
parties anyway since it was already late Friday afternoon.

On the following Monday or on 5 December 2011, two members of my staff had a serious
talk with Atty. Vidal. She admitted that she could not tell my staff the real reason for the
non-promulgation of my opinion - that actually, Justice Velasco gave her the instruction,
as confirmed by the Chief Justice, that my opinion should not be promulgated, but rather,
that it should be taken up in the agenda of the 6 December 2011 En Banc session. She
also disclosed that she would be issuing a memorandum to this effect. When they asked
about the two diskettes of the Opinion, the Clerk of Court summoned another staff
member from her office, who explained that one of the diskettes was with their Office
and the other copy was given to the Court Administrator, Atty. Jose Midas P. Marquez.

True enough, Atty. Vidal circulated to the members of the Court a letter that reads:
Memorandum for:
The Hon. Chief Justice The
Hon. Associate Justices

Re: G.R. No. 199034 - GLORIA MACAPAGAL-ARROYO V. HON. LEILA M. DE LIMA, in her
capacity as SECRETARY OF THE DEPARTMENT OF JUSTICE and R1CARDO A. DAVID, JR.,
in his capacity as COMMISSIONER OF THE BUREAU OF IMMIGRATION

G.R. No. 199046 - JOSE MIGUEL T. ARROYO V. HON. LEILA M. DE LIMA, in her capacity
as SECRETARY OF THE DEPARTMENT OF JUSTICE, RICARDO V. PARAS, III in his capacity
as CHIEF STATE COUNSEL, and RICARDO A. DAVID, JR., in his capacity as
COMMISSIONER OF THE BUREAU OF IMMIGRATION

Per instruction of Associate Justice Presbitero J. Velasco, Jr., the dissenting opinion of
Associate Justice Maria Lourdes P.A. Sereno in the Resolution dated November 22, 2011
in the above-entitled cases shall be taken up in the session of the En Banc on Tuesday,
December 6, 2011.

December 5, 2011

Enriqueta E. Vidal (sgd.)

Clerk of Court

The following day, I formalized my request that I be apprised of the legal basis for the
decision of the Chief Justice to affirm the instruction of Justice Velasco to the Clerk of
Court to withhold the promulgation of my Dissenting Opinion. My letter, which I circulated
to the other justices and the Clerk of Court, reads as follows:

6 December 2011

HON. RENATO C. CORONA

The Chief Justice

Re: Dissenting Opinion of Justice Maria Lourdes P. A. Sereno to the Resolution dated 29
November 2011 in G.R. Nos. 199034 and 199046

Dear Mister Chief Justice:

My office was informed by Atty. Enriqueta E. Vidal, Clerk of Court, that you had confirmed
the instruction given to her by Justice Presbitero J. Velasco, Jr. that the Dissenting
Opinion as described above that I submitted last December 2, 2011, should not be
promulgated. I attach my signed Dissenting Opinion for your reference.

Inasmuch as your instruction constitutes a prevention of my exercise of my constitutional

duty as a member of the Court, please apprise me of the legal basis for such instruction.

Thank you very much.

 Sincerely,

MARIA LOURDES P. A.
SERENO (Sgd.)
� � � � � � � � � �
cc: Associate Justices
Clerk of Court

I know of no precedent in the entire history of the Supreme Court when the promulgation
of a Dissenting Opinion was withheld at the instruction of a fellow Associate Justice or
even of a Chief Justice. The language of the Constitution in Article VIII, Section 13, is
clear and I quote in relevant part: "Any Member [of the Supreme Court] who took no
part, or dissented, or abstained from a decision or resolution, must state the reason
therefor." It is a constitutional right of any Member of the Court to issue his or her
Dissenting Opinion; and in cases wherein the issue of compliance with a TRO and the
efficacy of that TRO, is being subjected to intense national scrutiny, as in this case, such
issuance is also a constitutional duty.

Further, I know of no precedent in the entire history of the Supreme Court where the
promulgation of a signed Dissenting Opinion has been withheld because it would be the
subject of discussion in a next Court session.

In the 06 December 2011 session, I was asked by a colleague why I have been writing
my Dissenting Opinions the way I do; and in the case of my unpromulgated but signed 2
December 2011 Dissenting Opinion, why I broadcast to the whole world the Court's
internal discussions. He shared his view that it created a "chilling effect" on the freedom
of his opinions. I said I was not introducing anything new, and that since 1958 to as late
as 2009, this Court has had Decisions and Opinions disclosing the process and the content
of its internal discussions. Those disclosures were so detailed as to state who opined
what, and who changed their vote at the last minute from one position to another. In all
those instances, the Court never took action against the disclosure itself by withholding
promulgation, or against its author by disciplining the same.

One justice undertook to counter my Dissenting Opinion. Justice Carpio indicated that he
would in turn answer that proposed "contra-Dissent." That contra-Dissent, was to be
premised on the theory that the conditions imposed on 15 November 2011 were all
resolutory and not suspensive.[2] The Court agreed to give all the Members until 13
December 2011 within which to write their Concurring or Dissenting Opinions. I continued
to insist on my constitutional right to have my Dissent immediately promulgated and that
any of them could just easily follow with his Opinion to counter mine anyway. I received
no positive response.

Justice Carpio submitted his own Dissenting Opinion six (6) days later, on 12 December
2011.

The Continuing Non-Promulgation

of My Dissenting Opinion
On 13 December 2011, my Dissenting Opinion was again subject to discussion in the En
Banc Session. The justice who undertook to write a counter-Dissent withdrew that
proposed initiative but Justice Carpio's Dissenting Opinion to answer that counter-Dissent
is not withdrawn. One of the justices who was not present in the 06 December 2011
Session raised my supposed violation of the confidentiality rule in Rule 10, Section 2 of
the Internal Rules of the Supreme Court, which reads:

Confidentiality of Court Session. - Court sessions are executive in character, with only
the Members of the Court present. Court deliberations are confidential and shall not be
disclosed to outside parties, except as may be provided herein or as authorized by the
Court.

The Chief Justice or the Division Chairperson shall record the action or actions taken in
each case for transmittal to the Clerk of Court or Division Clerk of Court after each
session. The notes of the Chief Justice and the Division Chairperson, which the Clerk of
Court and the Division Clerks of Court must treat with strict confidentiality, shall be the
bases of the minutes of the sessions.

This justice informed the Court that he would be writing an Opinion to counter my
Dissenting Opinion. Two other members also intimated that they would write contrary
Opinions to mine.

In all likelihood, I will not have a chance to see the drafts of the Opinions of my three
fellow justices who will be writing Opinions to counter this Dissent. So the following
paragraphs have been crafted anticipating the arguments they expounded on in our 13
December 2011 session. Other than one of them opining that I am breaching the rule on
confidentiality and another claiming that my Dissent has a chilling effect on the Court, I
have no idea what the new objections to my Dissent would be.

Rule 10, Section 2 cannot be interpreted to diminish the constitutional duties and rights
of the Members of the Supreme Court.

Rule 1, Section 2 of the same Rules emphasize the hierarchy of the sources of law to
which the Internal Rules of the Supreme Court themselves are subject to. It reads:

Interpretation - The Internal Rules of the Supreme Court shall be interpreted in

accordance with the mandates of the Supreme Court under the Constitution, applicable
laws, and the Rules of Court to ensure a just, fair and efficient administration of justice.
Nothing in these Rules shall be interpreted to preclude or limit the exercise of the power
and authority of the Court as provided in the Constitution, the applicable laws, and the
Rules of Court.

This Dissenting Opinion is written in the spirit of discharging the constitutional duty of a
dissenting Member of the Court to explain herself under Article VIII, Section 13 of the
Constitution.[3] It is only by our Decisions and Opinions that we, as Members of this Court,
are able to account for our actions. Any attempt to muzzle the opinion of a dissenting
Justice for the sole reason that the majority will find such writing inconvenient is
unconstitutional. This is especially true when the account of the voting and the reasons
for the votes are being contested, as the 18 November 2011 vote on the TRO was.
I do not believe that a disclosure of the internal deliberations of the Court is warranted
in each and every case. My 18 November 2011 Dissenting Opinion, as well as my
unpromulgated 2 December 2011 Dissenting Opinion which has now been superseded by
this Dissenting Opinion - finalized and signed this 19th of December 2011 - made the
disclosures only because (1) the promulgated Resolution of 18 November 2011 did not
reflect that day's voting and the reasons for that vote; and (2) the Acting Chief of the
PIO continues to misinform the public.

When the accuracy and the content of the deliberations of the Court's confidential session
are being disputed, it is the constitutional duty of the Members of the Court, especially
the minority, to speak up and put on record what actually took place. This duty becomes
especially necessary when an officer of the judiciary, who has been clothed with apparent
authority by the Chief Justice, continues to misinform the public, and such behavior is
not being corrected. As is highly obvious from the organizational constraints within the
Supreme Court, the minority Members of the Court have a limited opportunity to correct
the misinforming officer. The minority will also not have a fair chance to correct the
resolution, in this case drafted by a ponente designated by the Chief Justice, until after
its promulgation. To keep quiet in such times and not make use of opportunities available
to the minority to present the truth through Dissenting Opinions would be a disservice to
the country.

The majority decided that all the justices would be given until 5 p.m. of 19 December
2011 to submit their individual opinions. 1 continued to assert that my Dissent should
nevertheless be immediately promulgated, because Atty. Marquez has been continuing
his misstatements on the TRO unabated, effectively making it appear that some of my
statements in my 18 November 2011 Dissent were untrue. This latter assertion was
unheeded.

This Dissenting Opinion has created a very strange situation. A simple Dissent to a
Resolution is not being allowed immediate promulgation while the Resolution it is
dissenting from had been promulgated 20 days ago, specifically on 29 November 2011.
Instead, the Dissent has become the subject of a debate in two En Banc sessions. The
treatment of my Dissent raises fundamental questions on the right of the Members of
this Court, in a case of intense national interest, to explain their votes.

Continuing Misinformation on the

15, 18 and 29 November 2011 Voting
and Summative Timeline

The public continues to be fed information that distorts the facts and the legal import of
the voting that took place on the above dates.

First, the clear sense of the 15 November resolution was to impose as a condition
precedent the filing of the cash bond and the submission of a Special Power of Attorney
(SPA) to a common legal representative designated "to receive summons." There is no
other logical position.

Second, the Court did not rule in the 18 November 2011 Resolution that the TRO was "in
full force and effect," nor that it was not suspended. To the contrary, the voting, in which
a second majority group prevailed, resulted in a decision to remain silent on the matter,
as it was "common sense" anyway, and basic knowledge to all lawyers, that the
nonfulfillment of a condition means that the TRO cannot be made use of.

Third, on 29 November 2011, while the second majority revised its earlier vote for silence
to a vote for a categorical pronouncement of the non-suspension of the TRO, this later
pronouncement does not mean there was any inaccuracy in my 18 November 2011
Dissenting Opinion. As earlier stated, that Dissent has never been assailed by any
Member of the Court until now.

Fourth, there was no 9-4 voting, sustaining the non-suspension of the TRO, contrary to
what is being claimed by the Acting Chief of the PIO.

Fifth, while my Dissenting Opinion of 18 November 2011 gives the reason for my
continuing dissent from the majority's decision to grant the TRO, the Dissent was also a
participant's record of what transpired on 18 November 2011.

Below is a summative timeline of what has been taking place since 15 November 2011
with respect to the issue of petitioners' compliance with the TRO.

� � � � � � � � � � � � � � � � � � � � �
� � � � � � � � � � � � � � � � � � � � �
� � � � � � � � � � � � � �
DATE EVENT

15 November 2011 Voting on the grant of the TRO takes place in the morning; conditions are
imposed; all justices present, except JJ. Leonardo-De Castro and Del
Castillo.

The Resolution is issued in the afternoon together with the Dissent

of J. Carpio. Both documents are immediately uploaded on the Supreme
Court website.

The TRO was subject to three conditions, namely:

"(i) The petitioners shall post a cash bond of Two Million Pesos
(P2,000,000.00) payable to this Court within five (5) days from notice
hereof. Failure to post the bond within the aforesaid period will result in
the automatic lifting of the temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of

them who will receive subpoena, orders and other legal processes on their
behalf during their absence. The petitioners shall submit the name of the
legal representative, also within five (5) days from notice hereof; and
 (iii) If there is a Philippine embassy or consulate in the place where they
will be traveling, the petitioners shall inform said embassy or consulate by
personal appearance or by phone of their whereabouts at all times."

�
16 November 2011 J. Sereno submits her Dissenting Opinion the following day; it is
immediately uploaded on the website.

17 November 2011 J. Reyes submits his Dissenting Opinion the following day; it is
immediately uploaded on the website.

18 November 2011 Voting on the compliance with the conditions of the TRO takes place in
the morning; 7-6 in favor of non-compliance (the first majority grouping);
the earlier majority is defeated in the second 7-6 voting, which has swung
in favor of keeping silent on the legal effect of non-compliance (the
second majority grouping). Again, JJ. Leonardo-De Castro and Del
Castillo are absent.

While the Resolution has not yet even been written, Atty. Marquez tells
the public that the TRO is in full force and effect and, as far as the SC is
concerned, petitioners can travel out of the country immediately.

Promulgated late in the afternoon and released to the parties, the

Resolution together with the Dissenting Opinion of J. Sereno is
immediately uploaded on the website.

�
22 November 2011 J. Carpio proposes, and the Court agrees, to clarify the 18 November 2011
Resolution. It also agrees to have JJ. Velasco and Carpio confer with each
other on the language of the clarification.

23 November 2011 J. Velasco sends the Clerk of Court and J. Carpio his typewritten version
of the clarificatory Resolution.

J. Carpio sends J. Velasco and the Clerk of Court his modifications of J.

Velasco's version of the clarificatory Resolution by making, in his own
handwriting, correction marks on the draft Resolution. The two justices
agree that J. Velasco's clarification of the first item, i.e., the non-
compliance, is accurate. They disagree on the second item, however. J.
Velasco maintains that, from the 18 November 2011 Resolution, he did
not get the sense that the TRO is "suspended pending compliance,"
contrary to J. Carpio's clear understanding that it is so suspended pending
compliance, but that the Resolution need not spell out this legal effect,
 considering that it is "common sense" - in the words of a member of the
winning second majority grouping.

The Clerk of Court informs J. Carpio that CJ Corona sent in his own
handwritten corrections on the typewritten draft Resolution
from J. Velasco with the instruction that the Chief Justice's version is to
be immediately promulgated. CJ Corona's version is to the effect that
petitioners have complied with the conditions for the issuance of the TRO,
and that it is in full force and effect.

J. Carpio requests the Clerk of Court to hold the promulgation in abeyance

while he formally writes his request to that effect.

24 November 2011 J. Carpio requests, in a formal letter (see above) addressed to the Chief
Justice, that the promulgation of the version of the clarificatory Resolution
sent by the Chief Justice to the Clerk of Court, be held in abeyance until
the justices are able to meet on the matter. He states that the version sent
by the Chief Justice compounds the error of the 18 November 2011
Resolution.

29 November 2011 The Court votes again on the 18 November Resolution regarding
petitioners' non-compliance with a condition of the TRO.

While the voting on the non-compliance by petitioners with one of the

conditions for the issuance of the TRO is maintained, 7-6 (the first
majority grouping), the second majority grouping revises its winning vote
on the 18 November 2011 Resolution to categorically state that the TRO is
not suspended despite non-compliance with a condition.

Early that same afternoon, while the Resolution has not yet even been
written, the Acting Chief of the PIO restates his claim that the Court has
always considered the TRO to have not been suspended, and that this
ruling was clarified by a 9-4 vote.

The Resolution comes out late in the afternoon, reflecting the fact that the
voting to sustain the effectivity of the TRO was 7-6, not 9-4.

�
2 December 2011 J. Sereno submits her Dissenting Opinion at 4 p.m. It is not promulgated,
neither is it uploaded on the SC website. The persons authorized to
promulgate her opinion and upload it on the website is missing, and no
satisfactory explanation is given.

5 December 2011 Clerk of Court admits to the staff of J. Sereno the real reason for the non-
promulgation of the latter's Dissent - the instruction of J. Velasco as
 affirmed by the Chief Justice. An officer from the Clerk of Court likewise
admits that one of the diskettes was given to Atty. Jose Midas P. Marquez.

A memo addressed to all the justices is circulated by Atty. Vidal to the

effect that, upon the instruction of J. Velasco, the Dissenting Opinion
of J. Sereno would be taken up in the following day's En Banc session.
(See above.)

�
6 December 2011 The Dissenting Opinion of J. Sereno is discussed in the En Banc session.
She cites the existence of precedents as early as 1958 and as late as 2009
as justification for her disclosure of internal deliberations in her opinion
and points out that the Court never took any action to prevent such
disclosures.

Some Justices manifested that they will answer J. Sereno's Dissent in their
own opinions. One justice manifested he would write another Dissenting
Opinion.

In a letter, J. Sereno formally requests the Chief Justice to apprise her of

the legal basis of his instruction to not promulgate her Dissenting Opinion
on 2 December 2011, and says that she views this move as a prevention of
her constitutional duty to explain the reason for her Dissent. (See above.)

As of the rewriting of this Dissenting Opinion, no reply to the letter has

been received by J. Sereno from the Chief Justice.

�
12 December 2011 J. Carpio circulates his Dissenting Opinion.

13 December 2011 Other than the separate Dissenting Opinions of J. Carpio and J. Sereno,
and contrary to what was manifested in the En Banc session of 6
December 2011, no other opinion has been circulated. The justice who
undertook to submit a Counter-Dissent, did not, and manifested that no
such opinion would be forthcoming. Three other justices indicated that
they would submit their counter-Dissents, presumably in the form of
Concurring Opinions.

� � � �

Why I Dissent from the
Majority Vote to Declare
the Non-Suspension of the
TRO Despite Non-
Compliance with
Condition (ii)
In the 15 November 2011 En Banc session at which petitioners' prayer for a TRO was
granted by a vote of 8-5, a part of the highly animated discussion focused on what kind
of conditions should be imposed on petitioners to allay the concerns of those objecting.
Some Members of the Court, including from the eight (8) who voted to grant the TRO,
insisted that a common legal representative should be denominated to receive processes
on behalf of petitioners, so that the latter could continue to be bound by the outcome of
the preliminary investigation and other similar processes. The 15 November 2011
Resolution thus reads:

WHEREAS, the Supreme Court, on November 15, 2011, adopted a resolution in the
above-entitled case, to wit:

xxxxxxxxx

c) ISSUE a TEMPORARY RESTRAINING ORDER in the consolidated petitions,

enjoining the respondents from enforcing or implementing DOJ Department Circular No.
41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011, 2011-422 dated
September 6, 2011 and 2011-573 dated October 27, 2011, subject to the following
conditions:

(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00) payable
to this Court within five (5) days from notice hereof. Failure to post the bond within the
aforesaid period will result in the automatic lifting of the temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of them
who will receive subpoena, orders and other legal processes on their behalf
during their absence. The petitioners shall submit the name of the legal representative,
also within five (5) days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling,
the petitioners shall inform said embassy or consulate by personal appearance or by
phone of their whereabouts at all times; and x x x (Emphasis supplied.)

On the same day, petitioners executed a SPA dated 15 November 2011 in favor of Atty.
Ferdinand Topacio, appointing him "to produce summons or receive documentary
evidence."

On 18 November 2011, the Court En Banc convened in a special session to discuss, in

relation to this case, six issues that arose in the interim after the TRO was issued. The
second issue was whether the SPA submitted by petitioners in favor of Atty. Topacio
complied with the conditions imposed by the Court for the issuance of the TRO.

Justice Carpio explained that the TRO issued by the Clerk of Court pursuant to the 15
November 2011 Resolution should be recalled, since there was a failure to comply with
one of the Resolution's conditions. He compared the wording of the second condition
imposed by the said Resolution with the provisions of the SPA submitted by petitioners.
Obviously, the authority of an agent "to receive subpoena, orders and other legal
processes" as required by the Court's Resolution is the opposite of an agency "to produce
summons,' which was given by petitioners to Atty. Topacio.
One justice argued that there was "substantial compliance" with the conditions for the
issuance of the TRO notwithstanding the language of the Arroyos-to-Topacio SPA, but
strong objections to this proposition were immediately raised. A justice countered that
there could be no substantial compliance when no person has been designated by
petitioners to "receive" summons. He reasoned that the failure to comply with the second
condition was as defective as if no cash bond were filed.

Another argued that, anyway, the SPA had a provision that designated Atty. Topacio "to
do all things necessary."[4] This general clause would thus suffice for purposes of
complying with the second condition. In response, another justice countered that the
general clause could not be considered as sufficient if the Court itself specifically required
a Special, and not a General, Power of Attorney.

The justice who shifted his vote from the first majority to the second majority agreed
with the observations of Justice Carpio with respect to the defect of the SPA and noted
that it was a jurisdictional defect. The pivotal justice who shifted his vote, added that,
anyway, the defect could easily be remedied by petitioners who in 10 minutes could
simply amend the SPA to reflect condition (ii).

After the discussion, the Court, voting 7-6, ruled that petitioners had failed to comply
with the second condition imposed by the 15 November 2011 Resolution for the issuance
of a TRO.

The Court then proceeded to discuss the legal effects of this non-compliance. Justice
Carpio argued for the recall of the TRO, considering the defective SPA. However, several
justices objected to the recall of the TRO and said that it was unnecessary. It was
proposed instead that the TRO be deemed suspended pending compliance with the
second condition.

Justice Carpio agreed to the proposed amendment of his motion. He proceeded to

reformulate the issue to be voted upon: namely, whether the TRO was suspended
pending compliance with condition (ii).

Instead of accepting Justice Carpio's reformulated motion, the pivotal justice pointed out
that there was no need for the Court to expressly declare that the TRO was suspended
pending compliance. He thus effectively put forth a motion for the Resolution to just
remain silent on the matter. But Justice Carpio insisted on his motion that the Court
explicitly declare that the TRO was suspended. The justice concerned opposed the
proposal, saying that the Resolution need not expressly declare the TRO suspended
pending compliance, since the legal effect of non-compliance was common sense anyway.
He quipped that every lawyer knows that a TRO does not become effective until the
conditions for its issuance are complied with.

The Court voted in favor of the pivotal justice's proposal and ruled by a vote of 7-6 that
it was not necessary for the Resolution to express that the TRO was deemed suspended
pending compliance.

A Party�s Compliance
with the Conditions of the
Resolution Granting the
TRO Required Before a
TRO Becomes Effective

The Court in granting the TRO imposed conditions on petitioner for its availment. One of
the conditions was not met. Until that condition is met, the TRO is perforce suspended.

Our own Rules of Court clearly state that the grant of a TRO or preliminary injunction
hinges on the court's discretion, as evidenced by the use of the word "may.'� Hence,
availment of the provisional remedy is not a statutory right; it subjects the litigant to the
conditions thereof. In conformity with this reasoning, the Court has consistently held that
"the term 'may' is indicative of a mere possibility, an opportunity or an option. The
grantee of that opportunity is vested with a right or faculty which he has the option to
exercise. If he chooses to exercise the right, he must comply with the conditions attached
thereto."[6]

In Marquez v. Judge Sanchez,[7] the Court noted the extraordinary and preemptive
nature of a TRO and the need to grant it only upon the Court's full satisfaction that the
law permits it, and that an emergency demands it:

It is an extraordinary, preemptory remedy available only on the grounds expressly

provided by law, specifically Section 3, Rule 58 of the Rules of Court. Moreover, extreme
caution must be observed in the exercise of such discretion. It should be granted only
when the court is fully satisfied that the law permits it and the emergency demands it.
The very foundation of the jurisdiction to issue a writ of injunction rests in the existence
of a cause of action and in the probability of irreparable injury, inadequacy of pecuniary
compensation, and the prevention of multiplicity of suits. Where facts are not shown to
bring the case within these conditions, the relief of injunction should be refused.

In the instant case, the 7-6 re-voting that occurred during the 29 November 2011 session
overturned such elementary understanding of conditional TROs, which practitioners,
judges, and even law students may now find hard to comprehend.

In essence, the new ruling would have permitted petitioners to take advantage of the
TRO without even complying with a very substantive condition the Court itself had
imposed. If, as one Justice has posited, petitioners failed to deposit the cash bond or it
was insufficient, could the TRO have been validly issued by the Clerk of Court?

It takes no stretch of the imagination to think of the havoc that would be wreaked on the
judicial system by the unfortunate disposition that the Court has introduced today in favor
of petitioners. The whole country will be confused about the meaning of conditions
imposed by courts for the availment of judicial writs. This Court must reverse its course
expeditiously.cralaw
A.M. No. P-11-2927 December 13, 2011
[Formerly A.M. OCA IPI No. 10-3532-P]

LEAVE DIVISION, OFFICE OF ADMINISTRATIVE SERVICES-Office of the CourT Administrator

(OCA), Complainant,
vs.
WILMA SALVACION P. HEUSDENS, Clerk IV Municipal Trial Court in Cities, Tagum
City, Respondent.

DECISION

MENDOZA, J.:

This case stemmed from the leave application for foreign travel1 sent through mail by Wilma
Salvacion P. Heusdens (respondent), Staff Clerk IV of the Municipal Trial Court in Cities, Tagum
City, Davao del Norte.

Records disclose that on July 10, 2009, the Employees Leave Division, Office of Administrative
Services, Office of the Court Administrator (OCA), received respondent’s leave application for
foreign travel from September 11, 2009 to October 11, 2009. Respondent left for abroad without
waiting for the result of her application. It turned out that no travel authority was issued in her favor
because she was not cleared of all her accountabilities as evidenced by the Supreme Court
Certificate of Clearance. Respondent reported back to work on October 19, 2009.2

The OCA, in its Memorandum3 dated November 26, 2009, recommended the disapproval of
respondent’s leave application. It further advised that respondent be directed to make a written
explanation of her failure to secure authority to travel abroad in violation of OCA Circular No. 49-
2003. On December 7, 2009, then Chief Justice Reynato S. Puno approved the OCA
recommendation.

Accordingly, in a letter4 dated January 6, 2010, OCA Deputy Court Administrator Nimfa C. Vilches
informed respondent that her leave application was disapproved and her travel was considered
unauthorized. Respondent was likewise directed to explain within fifteen (15) days from notice her
failure to comply with the OCA circular.

In her Comment5 dated February 2, 2010, respondent admitted having travelled overseas without the
required travel authority. She explained that it was not her intention to violate the rules as she, in
fact, mailed her leave application which was approved by her superior, Judge Arlene Lirag-
Palabrica, as early as June 26, 2009. She honestly believed that her leave application would be
eventually approved by the Court.

The OCA, in its Report6 dated March 8, 2011, found respondent to have violated OCA Circular No.
49-2003 for failing to secure the approval of her application for travel authority.

Hence, the OCA recommended that the administrative complaint be re-docketed as a regular
administrative matter and that respondent be deemed guilty for violation of OCA Circular No. 49-
2003 and be reprimanded with a warning that a repetition of the same or similar offense in the future
would be dealt with more severely.

OCA Circular No. 49-2003 (B) specifically requires that:

B. Vacation Leave to be Spent Abroad.

Pursuant to the resolution in A.M. No. 99-12-08-SC dated 6 November 2000,7 all foreign travels of
judges and court personnel, regardless of the number of days, must be with prior permission from
the Supreme Court through the Chief Justice and the Chairmen of the Divisions.

1. Judges and court personnel who wish to travel abroad must secure a travel authority from the
Office of the Court Administrator. The judge or court personnel must submit the following:

(a) For Judges

xxx

(b) For Court Personnel:

• application or letter-request addressed to the Court Administrator stating the purpose of the
travel abroad;

• application for leave covering the period of the travel abroad, favorably recommended by
the Presiding Judge or Executive Judge;

• clearance as to money and property accountability;

• clearance as to pending criminal and administrative case filed against him/her, if any;

• for court stenographer, clearance as to pending stenographic notes for transcription from
his/her court and from the Court of Appeals; and

• Supreme Court clearance.

2. Complete requirements should be submitted to and received by the Office of the Court
Administrator at least two weeks before the intended period. No action shall be taken on requests for
travel authority with incomplete requirements. Likewise, applications for travel abroad received less
than two weeks of the intended travel shall not be favorably acted upon. [Underscoring supplied]

Paragraph 4 of the said circular also provides that "judges and personnel who shall leave the country
without travel authority issued by the Office of the Court Administrator shall be subject to disciplinary
action." In addition, Section 67 of the Civil Service Omnibus Rules on Leave8 expressly provides that
"any violation of the leave laws, rules or regulations, or any misrepresentation or deception in
connection with an application for leave, shall be a ground for disciplinary action." In fact, every
government employee who files an application for leave of absence for at least thirty (30) calendar
days is instructed to submit a clearance as to money and property accountabilities. 9

In this case, respondent knew that she had to secure the appropriate clearance as to money and
property accountability to support her application for travel authority. She cannot feign ignorance of
this requirement because she had her application for clearance circulated through the various
divisions. She, however, failed to secure clearance from the Supreme Court Savings and Loan
Association (SCSLA) where she had an outstanding loan.

There is no dispute, therefore, that although respondent submitted her leave application for foreign
travel, she failed to comply with the clearance and accountability requirements. As the OCA Circular
specifically cautions that "no action shall be taken on requests for travel authority with incomplete
requirements," it was expected that her leave application would, as a consequence, be disapproved
by the OCA.

Considering that respondent was aware that she was not able to complete the requirements, her
explanation that she honestly believed that her application would be approved is unacceptable.
Thus, her leaving the country, without first awaiting the approval or non-approval of her application to
travel abroad from the OCA, was violative of the rules.

On the Constitutional Right to Travel

It has been argued that OCA Circular No. 49-2003 (B) on vacation leave to be spent abroad unduly
restricts a citizen’s right to travel guaranteed by Section 6, Article III of the 1987
Constitution.10 Section 6 reads:

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

Let there be no doubt that the Court recognizes a citizen’s constitutional right to travel. It is, however,
not the issue in this case. The only issue in this case is the non-compliance with the Court’s rules
and regulations. It should be noted that respondent, in her Comment, did not raise any constitutional
concerns. In fact, she was apologetic and openly admitted that she went abroad without the required
travel authority. Hence, this is not the proper vehicle to thresh out issues on one’s constitutional right
to travel.

Nonetheless, granting that it is an issue, the exercise of one’s right to travel or the freedom to move
from one place to another,11 as assured by the Constitution, is not absolute. There are
constitutional, statutory and inherent limitations regulating the right to travel. Section 6 itself provides
that "neither shall the right to travel be impaired except in the interest of national security, public
safety or public health, as may be provided by law." Some of these statutory limitations are the
following:

1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the
right to travel of an individual charged with the crime of terrorism even though such person is
out on bail.

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary
of Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the
use of, or withdraw, a passport of a Filipino citizen.

3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in
persons, issued Memorandum Order Radjr No. 2011-011,12 allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose
of travel, including possible victims of human trafficking" from our ports.

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended
by R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment
Administration (POEA) may refuse to issue deployment permit to a specific country that
effectively prevents our migrant workers to enter such country.
 5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee’s right to travel "to protect the
Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in
connection with adoption which is harmful, detrimental, or prejudicial to the child."

Inherent limitations on the right to travel are those that naturally emanate from the source. These are
very basic and are built-in with the power. An example of such inherent limitation is the power of the
trial courts to prohibit persons charged with a crime to leave the country.13 In such a case,
permission of the court is necessary. Another is the inherent power of the legislative department to
conduct a congressional inquiry in aid of legislation. In the exercise of legislative inquiry, Congress
has the power to issue a subpoena and subpoena duces tecum to a witness in any part of the
country, signed by the chairperson or acting chairperson and the Speaker or acting Speaker of the
House;14 or in the case of the Senate, signed by its Chairman or in his absence by the Acting
Chairman, and approved by the Senate President.15

Supreme Court has administrative supervision over all courts and the personnel thereof

With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides
that the "Supreme Court shall have administrative supervision over all courts and the personnel
thereof." This provision empowers the Court to oversee all matters relating to the effective
supervision and management of all courts and personnel under it. Recognizing this mandate,
Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986, 16 considers the
Supreme Court exempt and with authority to promulgate its own rules and regulations on foreign
travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).

Where a person joins the Judiciary or the government in general, he or she swears to faithfully
adhere to, and abide with, the law and the corresponding office rules and regulations. These rules
and regulations, to which one submits himself or herself, have been issued to guide the government
officers and employees in the efficient performance of their obligations. When one becomes a public
servant, he or she assumes certain duties with their concomitant responsibilities and gives up some
rights like the absolute right to travel so that public service would not be prejudiced.

As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA
Circular No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is
necessary for the orderly administration of justice. If judges and court personnel can go on leave and
travel abroad at will and without restrictions or regulations, there could be a disruption in the
administration of justice. A situation where the employees go on mass leave and travel together,
despite the fact that their invaluable services are urgently needed, could possibly arise. For said
reason, members and employees of the Judiciary cannot just invoke and demand their right to travel.

To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the
society as well. In a situation where there is a delay in the dispensation of justice, litigants can get
disappointed and disheartened. If their expectations are frustrated, they may take the law into their
own hands which results in public disorder undermining public safety. In this limited sense, it can
even be considered that the restriction or regulation of a court personnel’s right to travel is a concern
for public safety, one of the exceptions to the non-impairment of one’s constitutional right to travel.

Given the exacting standard expected from each individual called upon to serve in the Judiciary, it is
imperative that every court employee comply with the travel notification and authority requirements
as mandated by OCA Circular No. 49-2003. A court employee who plans to travel abroad must file
his leave application prior to his intended date of travel with sufficient time allotted for his application
to be processed and approved first by the Court. He cannot leave the country without his application
being approved, much less assume that his leave application would be favorably acted upon. In the
case at bench, respondent should have exercised prudence and asked for the status of her leave
application before leaving for abroad.

Indeed, under the Omnibus Rules Implementing Book V of Executive Order (EO) No. 292, a leave
application should be acted upon within five (5) working days after its receipt, otherwise the leave
application shall be deemed approved. Section 49, Rule XVI of the Omnibus Rules on Leave reads:

SEC. 49. Period within which to act on leave applications. – Whenever the application for leave of
absence, including terminal leave, is not acted upon by the head of agency or his duly authorized
representative within five (5) working days after receipt thereof, the application for leave of absence
shall be deemed approved.

Applying this provision, the Court held in the case of Commission on Appointments v. Paler17 that an
employee could not be considered absent without leave since his application was deemed approved.
In said case, there was no action on his application within five (5) working days from receipt
thereof.18

The ruling in Paler, however, is not squarely applicable in this case. First, the employee in said case
was governed by CSC Rules only. In the case of respondent, like the others who are serving the
Judiciary, she is governed not only by CSC Rules but also by OCA Circular No. 49-2003 which
imposes guidelines on requests for travel abroad for judges and court personnel. Second, in Paler,
the employee submitted his leave application with complete requirements before his intended travel
date. No additional requirement was asked to be filed. In the case of respondent, she submitted her
leave application but did not fully comply with the clearance and accountability requirements
enumerated in OCA Circular No. 49-2003. Third, in Paler, there was no approval or disapproval of
his application within 5 working days from the submission of the requirements. In this case, there
was no submission of the clearance requirements and, hence, the leave application could not have
been favorably acted upon.

SCSLA membership is voluntary

Regarding the requirement of the OCA that an employee must also seek clearance from the SCSLA,
the Court finds nothing improper in it. OCA is not enforcing the collection of a loan extended to such
employee.19 Although SCSLA is a private entity, it cannot be denied that its functions and operations
are inextricably connected with the Court. First, SCSLA was primarily established as a savings
vehicle for Supreme Court and lower court employees. The membership, which is voluntary, is open
only to Supreme Court justices, officials, and employees with permanent, coterminous, or casual
appointment, as well as to first and second-level court judges and their personnel.20 An eligible
employee who applies for membership with SCSLA must submit, together with his application, his
latest appointment papers issued by the Supreme Court.21 Second, when an employee-member
applies for a SCSLA loan, he or she is asked to authorize the Supreme Court payroll office to deduct
the amount due and remit it to SCSLA. Third, the employee-borrower likewise undertakes to assign
in favor of SCSLA, in case of non-payment, his capital deposit, including earned dividends, all
monies and monetary benefits due or would be due from his office, Government Service Insurance
System or from any government office or other sources, to answer the remaining balance of his
loan.22 Fourth, every employee-borrower must procure SCSLA members to sign as co-makers for
the loan23 and in case of leave applications that would require the processing of a Supreme Court
clearance, another co-maker’s undertaking would be needed.
The Court stresses that it is not sanctioning respondent for going abroad with an unpaid debt but for
failing to comply with the requirements laid down by the office of which she is an employee. When
respondent joined the Judiciary and volunteered to join the SCSLA, she agreed to follow the
requirements and regulations set forth by both offices. When she applied for a loan, she was not
forced or coerced to accomplish the requirements. Everything was of her own volition.

In this regard, having elected to become a member of the SCSLA, respondent voluntarily and
knowingly committed herself to honor these undertakings. By accomplishing and submitting the said
undertakings, respondent has clearly agreed to the limitations that would probably affect her
constitutional right to travel. By her non-compliance with the requirement, it can be said that she has
waived, if not constricted, her right. An employee cannot be allowed to enjoy the benefits and
privileges of SCSLA membership and at the same time be exempted from her voluntary obligations
and undertakings.

A judiciary employee who leaves for abroad without authority must be prepared to face the
consequences

Lest it be misunderstood, a judge or a member of the Judiciary, who is not being restricted by a
criminal court or any other agency pursuant to any statutory limitation, can leave for abroad without
permission but he or she must be prepared to face the consequences for his or her violation of the
Court’s rules and regulations. Stated otherwise, he or she should expect to be subjected to a
disciplinary action. In the past, the Court was not hesitant to impose the appropriate sanctions and
penalties.

In Office of the Administrative Services (OAS)-Office of the Court Administrator (OCA) v. Calacal,24 a
utility worker of the Metropolitan Trial Court was found guilty of violating OCA Circular No. 49-2003
for going overseas without the required travel authority and was reprimanded and warned that a
repetition of the same or similar offense would be penalized more severely. In that case, the Court
stressed that unawareness of the circular was not an excuse from non-compliance therewith.25

In Reyes v. Bautista,26 a court stenographer was found guilty of violation of OCA Circular No. 49-
2003 for traveling abroad without securing the necessary permission for foreign travel. She was also
found guilty of dishonesty when she indicated in her application that her leave would be spent in the
Philippines, when in truth it was spent abroad. Because of the employee’s numerous infractions, she
was dismissed from the service with forfeiture of all benefits and privileges, except accrued leave
credits, with prejudice to re-employment in any branch or instrumentality of the government,
including government owned or controlled corporations.

In Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Paguio-Bacani,27 a

branch clerk of court of the Municipal Trial Court of Meycauayan, Bulacan, was found guilty of
dishonesty for falsifying her Daily Time Record and leaving the country without the requisite travel
authority. She was suspended from the service for one (1) year without pay, with a warning that a
repetition of the same or similar offense would be dealt with more severely. lavvphi1

Following the Uniform Rules on Administrative Cases in the Civil Service, the Court considers a
violation of reasonable office rules and regulations as a light offense and punishable with reprimand
on the first offense; suspension for one to thirty days on the second; and dismissal from the service
on the third infraction. Considering that this appears to be respondent’s first infraction, the OCA
recommended that she be penalized with a reprimand and warned that a repetition of the same or
similar offense would be dealt with more severely.
The Court, nonetheless, takes note of the belated action (4 months) of the Leave Division on her
application for leave which she submitted two months before her intended departure date. The
Leave Division should have acted on the application, favorably or unfavorably, before the intended
date with sufficient time to communicate it to the applicant. If an applicant has not complied with the
requirements, the Leave Division should deny the same and inform him or her of the adverse action.
As respondent was not informed of the denial of her application within a reasonable time,
respondent should only be admonished.

WHEREFORE, respondent Wilma Salvacion P. Heusdens, Clerk IV Municipal Trial Court in Cities,
Tagum City, is hereby ADMONISHED for traveling abroad without any travel authority in violation of
OCA Circular No. 49-2003, with a WARNING that a repetition of the same or similar offense would
be dealt with more severely.

The Leave Division, OAS-OCA, is hereby directed to act upon applications for travel abroad at least
five (5) working days before the intended date of departure.

SO ORDERED.
G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

DECISION

LEONEN, J.:

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

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

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

Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.

The facts are not disputed.

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

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
 Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid for
by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates for the
2013 elections, but not of politicians who helped in the passage of the RH Law but were not
candidates for that election.

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

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

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

Dear Bishop Navarra:

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

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

Description : FULL COLOR TARPAULIN

Image of : SEE ATTACHED PICTURES

Message : CONSCIENCE VOTE (ANTI RH) TEAM

BUHAY; (PRO RH) TEAM PATAY

Location : POSTED ON THE CHURCH VICINITY

OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.

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

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

Thank you and God Bless!

[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13

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

After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16

On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda subject
to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal for being oversized are valid and
constitutional.18

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

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

I.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
 A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;

B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE NOT

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

II.

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL

ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT
A POLITICAL CANDIDATE[;]

III.

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

ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]

A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF

EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]

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

IV.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER MAJARUCON

AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES THE
PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]

V.

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

I
PROCEDURAL ISSUES

I.A

This court’s jurisdiction over COMELEC cases

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

Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially to
raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction. 22 As a
special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.

Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31

These cases are not applicable.

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

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

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

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

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

1) It will prevent the miscarriage of justice;

2) The issue involves a principle of social justice;

3) The issue involves the protection of labor;

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

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

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

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

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

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

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

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

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

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

I.B

Rule 65, grave abuse of discretion,

and limitations on political speech

The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February 27, 2013
ordering the removal of the tarpaulin.53 It is their position that these infringe on their fundamental right
to freedom of expression and violate the principle of separation of church and state and, thus, are
unconstitutional.54

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

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

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

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

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether ornot there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.56 (Emphasis supplied)

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

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

....

(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.

Respondents’ reliance on this provision is misplaced.

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

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

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

Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of

discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.

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

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

I.C

Hierarchy of courts

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

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

On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature and
importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and compelling
reasons to justify a direct resort [with] this Court."62

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

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

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

The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or another are not controllable by
the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific action
for the writ’s procurement must be presented. This is and should continue to be the policy in this
regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that
every level of the judiciary performs its designated roles in an effective and efficient manner. Trial
courts do not only determine the facts from the evaluation of the evidence presented before them.
They are likewise competent to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the Constitution.67 To effectively
perform these functions, they are territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily, they mostly perform the all-
important task of inferring the facts from the evidence as these are physically presented before
them. In many instances, the facts occur within their territorial jurisdiction, which properly present the
‘actual case’ that makes ripe a determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are, however, some cases where resort
to courts at their level would not be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.

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

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

In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:

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

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

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

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

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

In the case before this court, there is a clear threat to the paramount right of freedom of speech and
freedom of expression which warrants invocation of relief from this court. The principles laid down in
this decision will likely influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in general, in the hope of influencing
their votes. It may be said that in an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental constitutional rights, therefore,
allows for the immediate resort to this court.

Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression, no
jurisprudence yet exists that will guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a matter of first impression that may
guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local jurisprudence to guide lower courts.77

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

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

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

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

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

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

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

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

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

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

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

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

I.D

The concept of a political question

Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate opinion
in Osmeña v. COMELEC86 to support their position:

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

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

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

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

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

What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should be.
In political forums, particularly the legislature, the creation of the textof the law is based on a general
discussion of factual circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular and specific facts that
affect the rights of certain individuals, per se.

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

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

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

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

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

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

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

How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of carefully
and narrowly tailored constitutional doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance of
political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality and
not the wisdom of a manner by which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94

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

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

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

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

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

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

To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the new
Constitution which expanded the definition of judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government." As well
observed by retired Justice Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language luminously suggests that this
duty (and power) is available even against the executive and legislative departments including the
President and the Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)

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

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

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

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

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

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

....

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

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

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

I.E

Exhaustion of administrative remedies

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

Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." 103 They add
that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is filed
against petitioners for posting the tarpaulin, they claim that petitioners should resort to the remedies
prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.

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

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

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

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

Even assuming that the principle of exhaustion of administrative remedies is applicable, the current
controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:

On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is a
department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)

The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH Law
as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies in this
case would be unreasonable.

Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112 Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the elections
by calling attention to issues they want debated by the publicin the manner they feel would be
effective is one of those cases.
 II
SUBSTANTIVE ISSUES

II.A

COMELEC had no legal basis to regulate expressions made by private citizens

Respondents cite the Constitution, laws, and jurisprudence to support their position that they had the
power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and political
parties. Petitioners are not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to freedom of expression
exercised by a non-candidate in this case.

II.A.1

First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:

Section 4. The Commission may,during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis supplied)

Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for the
creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional guarantees of the
freedom of expression and of the press. . . ."118 We held that the "evil sought to be prevented by this
provision is the possibility that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television time."119 This court found that "[m]edia
practitioners exercising their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to expression during this period may not be
regulated by COMELEC.121

Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2

Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122

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

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123

Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties" and
"candidates":

Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public places
such as plazas, markets, barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed twelve (12)
by sixteen (16) feet or its equivalent. Independent candidates with no political parties may likewise
be authorized to erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post any lawful
propaganda material in private places with the consent of the owner thereof, and in public places or
property which shall be allocated equitably and impartially among the candidates. (Emphasis
supplied)

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing the
Fair Election Act, provides as follows:

SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:

a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and

b. Private places provided it has the consent of the owner thereof.

The posting of campaign materials in public places outside of the designated common poster areas
and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons posting
the same shall be liable together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of campaign materials outside
the common poster areas if they do not remove the same within three (3) days from notice which
shall be issued by the Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.

Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)

Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.

Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and local
elective positions subject to the limitation on authorized expenses of candidates and political parties.
. . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These provisions
show that election propaganda refers to matter done by or on behalf of and in coordination with
candidates and political parties. Some level of coordination with the candidates and political parties
for whom the election propaganda are released would ensure that these candidates and political
parties maintain within the authorized expenses limitation.

The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power under
the Constitution, to some extent, set a limit on the right to free speech during election period. 127

National Press Club involved the prohibition on the sale and donation of space and time for political
advertisements, limiting political advertisements to COMELEC-designated space and time. This
case was brought by representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily infringes on the freedom of speech of
the candidates.128

This court upheld the constitutionality of the COMELEC prohibition in National Press Club. However,
this case does not apply as most of the petitioners were electoral candidates, unlike petitioners in
the instant case. Moreover, the subject matter of National Press Club, Section 11(b) of Republic Act
No. 6646,129 only refers to a particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did not infringe upon the right of
reporters or broadcasters to air their commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National Press Clubdoes not
involve the same infringement.

In the case at bar, petitioners lost their ability to give a commentary on the candidates for the 2013
national elections because of the COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply to this
case.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:

....

(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against

the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or oppose

the election of any candidate; or
 (5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public expressions
or opinions or discussions of probable issues in a forthcoming electionor on attributes of or criticisms
against probable candidates proposed to be nominated in a forthcoming political party convention
shall not be construed as part of any election campaign or partisan political activity contemplated
under this Article. (Emphasis supplied)

True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."

In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.

II.B

The violation of the constitutional right

to freedom of speech and expression

Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.

On the other hand, respondents contend that the tarpaulin is an election propaganda subject to their
regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized are valid and constitutional.131

II.B.1

Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:

Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances.132

No law. . .

While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.

In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays. 135 What was questioned
was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s public
meeting.136 Nevertheless, this court recognized the constitutional right to freedom of speech, to
peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138

In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly upheld in
this case and, consequently, the assailed resolution was nullified and set aside.140

. . . shall be passed abridging. . .

All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary and
incidental burden on speech must be weighed against a compelling state interest clearly allowed in
the Constitution. The test depends on the relevant theory of speech implicit in the kind of society
framed by our Constitution.

. . . of expression. . .

Our Constitution has also explicitly included the freedom of expression, separate and in addition to
the freedom of speech and of the press provided in the US Constitution. The word "expression" was
added in the 1987 Constitution by Commissioner Brocka for having a wider scope:

MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line 29,
it says: "No law shall be passed abridging the freedom of speech." I would like to recommend to the
Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and it
would refer to means of expression other than speech.

THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?

FR. BERNAS: "Expression" is more broad than speech. We accept it.

MR. BROCKA: Thank you.

THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?

FR. BERNAS: Yes.

THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears none;
the amendment is approved.

FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought." 142

II.B.2

Communication is an essential outcome of protected speech.143 Communication exists when "(1) a

speaker, seeking to signal others, uses conventional actions because he orshe reasonably believes
that such actions will be taken by the audience in the manner intended; and (2) the audience so
takes the actions."144 "[I]n communicative action[,] the hearer may respond to the claims by . . . either
accepting the speech act’s claims or opposing them with criticism or requests for justification." 145

Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech sometimes
referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements are
combined in the same course of conduct,’ the ‘communicative element’ of the conduct may be
‘sufficient to bring into play the [right to freedom of expression].’"147

The right to freedom of expression, thus, applies to the entire continuum of speech from utterances
made to conduct enacted, and even to inaction itself as a symbolic manner of communication.

In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members of
the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute the
flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion, Justice
Cruz discussed how the salute is a symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the right to be silent:

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the liberty
not to utter what is not in his mind. The salute is a symbolic manner of communication that conveys
its messageas clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious objections like those
raised in this petition. To impose it on the petitioners is to deny them the right not to speak when
their religion bids them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion of
unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners, no
less than the impatience of those who disagree with them, are protected by the Constitution. The
State cannot make the individual speak when the soul within rebels.151

Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal utterances.

In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification of the
motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification "is
without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for the
communication of ideas and the expression of the artistic impulse."154 It adds that "every writer,actor,
or producer, no matter what medium of expression he may use, should be freed from the
censor."155 This court found that "[the Board’s] perception of what constitutes obscenity appears to be
unduly restrictive."156 However, the petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the classification made by the Board. 157

II.B.3

Size does matter

The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.

First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content. Compared with the pedestrians, the
passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The larger the
fonts and images, the greater the probability that it will catch their attention and, thus, the greater the
possibility that they will understand its message.

Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the message.
The effectivity of communication sometimes relies on the emphasis put by the speakers and onthe
credibility of the speakers themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the effort to emphasize their
messages.

Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political candidates and an expression of
support, larger spaces can allow for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of ideas, catalyze reactions to
advocacies, and contribute more to a more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance and accountability in our
government.

These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and kept
hostage by brief and catchy but meaningless sound bites extolling the character of the candidate.
Worse, elections sideline political arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact encourage it. Between the
candidates and the electorate, the latter have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the former have better incentives to
avoid difficult political standpoints and instead focus on appearances and empty promises.

Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part of
expression protected under Article III, Section 4 of the Constitution.

II.B.4

There are several theories and schools of thought that strengthen the need to protect the basic right
to freedom of expression.

First, this relates to the right ofthe people to participate in public affairs, including the right to criticize
government actions.

Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s affairs,
sovereign powers were delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative democracy may evolve to
the right of the people to make government accountable. Necessarily, this includes the right of the
people to criticize acts made pursuant to governmental functions.

Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.

Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the principle
that "debate on public issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164

Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165

When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166

The way it works, the exposure to the ideas of others allows one to "consider, test, and develop their
own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom for the
thought that we hate, no less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."169 It is in this context that we should guard
against any curtailment of the people’s right to participate in the free trade of ideas.

Third, free speech involves self-expression that enhances human dignity. This right is "a means of
assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:

The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic establishment
of the government through their suffrage but also in the administration of public affairs as well as in
the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to
the appropriate governmental officers or agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers and employees.172 (Emphasis supplied)

Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group identity, and dissident ideas - and
a potential source of opposition to the state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join together and forward common goals.

Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of the
electorate [that] capture [the] government for their own selfish ends[.]"177 According to Madison, "[i]t is
of great importance in a republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178 We should strive to ensure
that free speech is protected especially in light of any potential oppression against those who find
themselves in the fringes on public issues.

Lastly, free speech must be protected under the safety valve theory.179 This provides that "nonviolent
manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to burst . . . resulting
in the ‘banking up of a menacing flood of sullen anger behind the walls of restriction’" 181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid this situation and
prevent people from resorting to violence, there is a need for peaceful methods in making
passionate dissent. This includes "free expression and political participation"183 in that they can "vote
for candidates who share their views, petition their legislatures to [make or] change laws, . . .
distribute literature alerting other citizens of their concerns[,]"184 and conduct peaceful rallies and
other similar acts.185 Free speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may spill over to violent means
just to drive a point.

II.B.5

Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions . .
.

....

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate their opinions, views
and beliefs about issues and candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189 It was "part of their advocacy campaign against the
RH Law,"190 which was not paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192

This court has held free speech and other intellectual freedoms as "highly ranked in our scheme of
constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming Mills,
this court discussed the preferred position occupied by freedom of expression:

Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to
limit the power of government and ceases to be an efficacious shield against the tyranny of officials,
of majorities, ofthe influential and powerful, and of oligarchs - political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions; and
such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)

This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage." 196 A similar
idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197

I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in it
can be governed only by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to suffrage or asa
means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and timeless. If
our democracy and republicanism are to be worthwhile, the conduct of public affairs by our officials
must be allowed to suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
at all times. Every holder of power in our government must be ready to undergo exposure any
moment of the day or night, from January to December every year, as it is only in this way that he
can rightfully gain the confidence of the people. I have no patience for those who would regard
public dissection of the establishment as an attribute to be indulged by the people only at certain
periods of time. I consider the freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or time.198 (Emphasis
supplied)

Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types of
speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its pervasive police
power, in order that it may not be injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the relevant interests of one type of
speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)

We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue," 200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202 The expression resulting
from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s dissenting
opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile
indeed the RH issue, by itself,is not an electoralmatter, the slant that the petitioners gave the issue
converted the non-election issue into a live election one hence, Team Buhay and Team Patay and
the plea to support one and oppose the other."204

While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party, or party-list group.

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts of
this case requires, states:

4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the said candidate or
candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis supplied)

It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:

SECTION 1. Definitions - As used in this Resolution:

1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include any
of the following:

....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be considered
acts of election campaigning or partisan politicalactivity unless expressed by government officials in
the Executive Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.

In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in Republic
Act No. 9006, the law it implements.

We should interpret in this manner because of the value of political speech.

As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion of
public affairs. We acknowledged that free speech includes the right to criticize the conduct of public
men:

The interest of society and the maintenance of good government demand a full discussion of public
affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free
speech. The sharp incision of its probe relieves the abscesses of official dom. Men in public life may
suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear
conscience. A public officer must not be too thin-skinned with reference to comment upon his official
acts. Only thus can the intelligence and dignity of the individual be exalted.206

Subsequent jurisprudence developed the right to petition the government for redress of grievances,
allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v. People,208 this
court noted every citizen’s privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous condemnation of the entire
government set-up."209

The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being penalized.212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the suppression of public
opinion."213

In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their views.
According to this court, "[i]ts value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215

Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed for
the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits mass
media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216 This court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential to the proper functioning of the
government established by our Constitution."217

As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known what
the people need to know,219 while the meaningful exercise of one’s right of suffrage includes the right
of every voter to know what they need to know in order to make their choice.

Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues, and
the freedom of expression especially in relation to information that ensures the meaningful exercise
of the right of suffrage:

We have adopted the principle that debate on public issues should be uninhibited, robust, and wide
open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to people the robust, uninhibited,
and wide open debate, the generating of interest essential if our elections will truly be free, clean and
honest.

We have also ruled that the preferred freedom of expression calls all the more for the utmost respect
when what may be curtailed is the dissemination of information to make more meaningful the equally
vital right of suffrage.221 (Emphasis supplied, citations omitted)

Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.

Justice Brion pointed out that freedomof expression "is not the god of rights to which all other rights
and even government protection of state interest must bow."222

The right to freedom of expression isindeed not absolute. Even some forms of protected speech are
still subjectto some restrictions. The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations can either be based on the viewpoint
of the speaker or the subject of the expression.

II.B.6

Content-based regulation

COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation. The
order was made simply because petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224

On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial speech. 225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus with a constitutionally
sanctioned objective."226

The regulation may reasonably be considered as either content-neutral or content-

based.227 Regardless, the disposition of this case will be the same. Generally, compared with other
forms of speech, the proposed speech is content-based.

As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates will
be adjudged as "election paraphernalia." There are no existing bright lines to categorize speech as
election-related and those that are not. This is especially true when citizens will want to use their
resources to be able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this case is fundamentally
unbridled.

Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.

Content-based regulation bears a heavy presumption of invalidity, and this court has used the clear
and present danger rule as measure.228 Thus, in Chavez v. Gonzales:

A content-based regulation, however, bears a heavy presumption of invalidity and is measured

against the clear and present danger rule. The latter will pass constitutional muster only if justified by
a compelling reason, and the restrictions imposedare neither overbroad nor vague.229 (Citations
omitted)

Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231

Even with the clear and present danger test, respondents failed to justify the regulation. There is no
compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.

Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233

This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion only to
determine the public places that may be used for the procession ormeeting, but not the power to
refuse the issuance of a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the
community or society."236

The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution that
prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the interest and convenience
of the public."239

As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark the
public assembly of the people to protest against grievances whether real or imaginary, because on
such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time, place, and manner of
the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit applicants
must follow which include informing the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be heard.243 This ruling was practically
codified in Batas Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner. 245 In 2010, this
court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue from
Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be heard. 247

We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not easily
divorced from the size of its medium.

II.B.7

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248

If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass the
three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate approach.251

This intermediate approach is based on the test that we have prescribed in several cases. 252 A
content-neutral government regulation is sufficiently justified:

[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of
free expression; and [4] if the incident restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253

On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates. On
the second requirement, not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.

Compelling governmental interest would include constitutionally declared principles. We have held,
for example, that "the welfare of children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255

Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to ensure
equality of public information campaigns among candidates, as allowing posters with different sizes
gives candidates and their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257

First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced with
both rights to freedom of speech and equality, a prudent course would be to "try to resolve the
tension in a way that protects the right of participation."259

Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property. 260 This is consistent
with the fundamental right against deprivation of property without due process of law. 261 The present
facts do not involve such posting of election propaganda absent consent from the property owner.
Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to recommend effective measures to
minimize election spending. Specifically, Article IX-C, Section 2(7) provides:

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

....

(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied) This
does not qualify as a compelling and substantial government interest to justify regulation of the
preferred right to freedom of expression.

The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three feet
(3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263

This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265

The third requisite is likewise lacking. We look not only at the legislative intent or motive in imposing
the restriction, but more so at the effects of such restriction, if implemented. The restriction must not
be narrowly tailored to achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.

In this case, the size regulation is not unrelated to the suppression of speech. Limiting the maximum
sizeof the tarpaulin would render ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised to
make more meaningful the equally important right to suffrage.

The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.

The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.

The form of expression is just as important as the message itself. In the words of Marshall McLuhan,
"the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often counted for more than the words
themselves."267

III
Freedom of expression and equality

III.A

The possibility of abuse

Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.

On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are really
paid for by the candidate or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.

However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on the
part of the COMELEC.

The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected. It is
true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s real levels
of expenditures. However, labelling all expressions of private parties that tend to have an effect on
the debate in the elections as election paraphernalia would be too broad a remedy that can stifle
genuine speech like in this case. Instead, to address this evil, better and more effective enforcement
will be the least restrictive means to the fundamental freedom.

On the other extreme, moved by the credentials and the message of a candidate, others will spend
their own resources in order to lend support for the campaigns. This may be without agreement
between the speaker and the candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the candidate or political party
would have doneso. This may effectively skirt the constitutional and statutory limits of campaign
spending.

Again, this is not the situation in this case.

The message of petitioners in thiscase will certainly not be what candidates and political parties will
carry in their election posters or media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates the
desire of Diocese that the positions of those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.

The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target any
individual or group in society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly democratic than to
have the high-and-mighty lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.

The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor could
the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed with the
list of "Team Buhay" that further emphasizes the theme of its author: Reproductive health is an
important marker for the church of petitioners to endorse.

The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and contain
no sophisticated literary allusion to any social objective. Thus, they usually simply exhort the public
to vote for a person with a brief description of the attributes of the candidate. For example "Vote for
[x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa Makati."

This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during elections.
A becoming humility on the part of any human institution no matter how endowed with the secular
ability to decide legal controversies with finality entails that we are not the keepers of all wisdom.

Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into creative solutions to
grave social problems. This is the utilitarian version. It could also be that it is just part of human
necessity to evolve through being able to express or communicate.

However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence and produce narrowly
tailored guidance fit to the facts as given so as not to unwittingly cause the undesired effect of
diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.

Speech and equality:

Some considerations We first establish that there are two paradigms of free speech that separate at
the point of giving priority to equality vis-à-vis liberty.272

In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but

regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world like
ours.

The question of libertarian tolerance

This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always been
a philosophical problematique.

In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control. 276

In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract compromises
liberties. In his words:

Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results

from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually is or happens to be; it
is rather the individual as a human being who is capable of being free with the others. And the
problem of making possible such a harmony between every individual liberty and the other is not that
of finding a compromise between competitors, or between freedom and law, between general and
individual interest, common and private welfare in an established society, but of creating the society
in which man is no longer enslaved by institutions which vitiate self-determination from the
beginning. In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)

Marcuse suggests that the democratic argument — with all opinions presented to and deliberated by
the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous thought." 278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete peacefully for adherence
and persuasion on rational grounds: the ‘marketplace of ideas’ is organized and delimited by those
who determine the national and the individual interest."279 A slant toward left manifests from his belief
that "there is a ‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280 Marcuse, thus, stands for an
equality that breaks away and transcends from established hierarchies, power structures, and
indoctrinations. The tolerance of libertarian society he refers to as "repressive tolerance."

Legal scholars

The 20th century also bears witness to strong support from legal scholars for "stringent protections
of expressive liberty,"281 especially by political egalitarians. Considerations such as "expressive,
deliberative, and informational interests,"282 costs or the price of expression, and background facts,
when taken together, produce bases for a system of stringent protections for expressive liberties. 283

Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis proposed
that "public discussion is a political duty."284 Cass Sustein placed political speech on the upper tier of
his twotier model for freedom of expression, thus, warranting stringent protection. 285 He defined
political speech as "both intended and received as a contribution to public deliberation about some
issue."286

But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince "favorable
conditions for realizing the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed citizens."288 Justice Brandeis’ solution is to
"remedy the harms of speech with more speech."289 This view moves away from playing down the
danger as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing] expression as
the preferred strategy for addressing them."290 However, in some cases, the idea of more speech
may not be enough. Professor Laurence Tribe observed the need for context and "the specification
of substantive values before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
that "equality continues to be viewed in a formal rather than a substantive sense."292 Thus, more
speech can only mean more speech from the few who are dominant rather than those who are not.

Our jurisprudence

This court has tackled these issues.

Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving free
of charge print space or air time for campaign or other political purposes, except to the Commission
on Elections."294 This court explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295 This court grounded this measure
on constitutional provisions mandating political equality:296 Article IX-C, Section 4

Section 4. The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the objective of
holding free, orderly, honest, peaceful, and credible elections. (Emphasis supplied)

Article XIII, Section 1

Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the
common good.

To this end, the State shall regulate the acquisition, ownership, use, and disposition of property and
its increments. (Emphasis supplied)

Article II, Section 26

Section 26. The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (Emphasis supplied)

Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.

The other view

However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional validity
or invalidity of speech.

The textual basis of this view is that the constitutional provision uses negative rather than affirmative
language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order to
their own devices in sorting out the relative influence of speech."300

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom of
speech includes "not only the right to express one’s views, but also other cognate rights relevant to
the free communication [of] ideas, not excluding the right to be informed on matters of public
concern."301 She adds:

And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private animosities,
the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation of opinion of
men and issues, through assembly, association and organizations, both by the candidate and the
voter, becomes a sine qua non for elections to truly reflect the will of the electorate.302 (Emphasis
supplied)

Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:

the concept that the government may restrict the speech of some elements in our society in order to
enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people."304

This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305

Parenthetically and just to provide the whole detail of the argument, the majority of the US Supreme
Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions (even if
content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use the
equality-based paradigm.

One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person can
speak, which takes out of his exclusive judgment the decision of when enough is enough, deprives
him of his free speech."307

Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308

In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result than
on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any campaign there are saturation levels
and a point where spending no longer pays off in votes per dollar."310

III. C.

When private speech amounts

to election paraphernalia

The scope of the guarantee of free expression takes into consideration the constitutional respect for
human potentiality and the effect of speech. It valorizes the ability of human beings to express and
their necessity to relate. On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of resources as well as the
cultural hegemony of the majority may have the effect of drowning out the speech and the messages
of those in the minority. In a sense, social inequality does have its effect on the exercise and effect
of the guarantee of free speech. Those who have more will have better access to media that
reaches a wider audience than those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of society.To be really heard and
understood, the marginalized view normally undergoes its own degree of struggle.

The traditional view has been to tolerate the viewpoint of the speaker and the content of his or her
expression. This view, thus, restricts laws or regulation that allows public officials to make judgments
of the value of such viewpoint or message content. This should still be the principal approach.

However, the requirements of the Constitution regarding equality in opportunity must provide limits to
some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or the
members of their political parties or their political parties may be regulated as to time, place, and
manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.

Regulation of speech in the context of electoral campaigns made by persons who are not candidates
or who do not speak as members of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during elections is unconstitutional. Such
regulation is inconsistent with the guarantee of according the fullest possible range of opinions
coming from the electorate including those that can catalyze candid, uninhibited, and robust debate
in the criteria for the choice of a candidate.

This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.

Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all candidates
to be heard and considering the primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation must only be with respect to the
time, place, and manner of the rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose, it will notmatter whether the
speech is made with or on private property.

This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read by the general public
and, hence, would render speech meaningless. It will amount to the abridgement of speech with
political consequences.

IV
Right to property

Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313

Respondents argue that it is the right of the state to prevent the circumvention of regulations relating
to election propaganda by applying such regulations to private individuals.314 Certainly, any provision
or regulation can be circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have also agreed, during
the oral arguments, that petitioners were neither commissioned nor paid by any candidate or political
party to post the material on their walls.

Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property of
petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315

Any regulation, therefore, which operates as an effective confiscation of private property or

constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)

This court in Adiong held that a restriction that regulates where decals and stickers should be posted
is "so broad that it encompasses even the citizen’s private property."317 Consequently, it violates
Article III, Section 1 of the Constitution which provides thatno person shall be deprived of his
property without due process of law. This court explained:

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

Property is more than the mere thing which a person owns. It is elementary that it includes the right
to acquire, use, and dispose of it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of
the free use, enjoyment, and disposal of a person’s acquisitions without control or diminution save
by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917]) 318

This court ruled that the regulation in Adiong violates private property rights:

The right to property may be subject to a greater degree of regulation but when this right is joined by
a "liberty" interest, the burden of justification on the part of the Government must be exceptionally
convincing and irrefutable. The burden is not met in this case.

Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display
of election propaganda in any place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared
personal poster on his own front dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous and partisan police officers, armed
with a copy of the statute or regulation, may do.319 Respondents ordered petitioners, who are private
citizens, to remove the tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELEC’s interpretation of its powers.

Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.

Respondents have not demonstrated thatthe present state interest they seek to promote justifies the
intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong, we
find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to property.
 V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned notice
and letter violated the right of petitioners to the free exercise of their religion.

At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.

There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is the
free exercise and enjoyment of religious profession and worship. 323

The second aspect is atissue in this case.

Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.

The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts to
religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325

The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious bearing.

Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.

Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools of
Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion shall be
the ones to determine whether a particular matter shall be considered ecclesiastical in nature. 327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay seem to others."328 This
court found a balance between the assertion of a religious practice and the compelling necessities of
a secular command. It was an early attempt at accommodation of religious beliefs.

In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the government’s favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account . . . to
exempt, when possible, from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."330

This court also discussed the Lemon test in that case, such that a regulation is constitutional when:
(1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3) it does not
foster an excessive entanglement with religion.331

As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide with
the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression within
the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on the RH Law.

The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting by
one of its members of a tarpaulin as religious speech solely on such basis. The enumeration of
candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with political
consequences and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations

Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached religious significance." 334

A FINAL NOTE

We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.

COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of the
electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and party-
list organizations.

They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected speech.

That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider being more broad-minded and
non-judgmental. Some may have expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental liberties.
It is not a detailed code that prescribes good conduct. It provides space for all to be guided by their
conscience, not only in the act that they do to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not only by those in the minority. This
can often be expressed by dominant institutions, even religious ones. That they made their point
dramatically and in a large way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of

expression protected by our fundamental law. It is an expression designed to invite attention, cause
debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms: expression by the electorate that
tends to rouse the public to debate contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is protected
as a fundamental and primordial right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.

WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously issued
is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared unconstitutional.

SO ORDERED.
G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS.
LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG;
JEMILOYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO;
JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO
DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS.
FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. &
MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents MR. & MRS.
MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO;
MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO
ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents
ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. &
MRS. GENEROSO ALFAR; MARTINO VILLAR, represented by his parents MR. & MRS.
GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents
MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his parents MR. & MRS.
LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE;
LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES;
MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO;
ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA &
FLORA TANGAHA, represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO
EBRALINAG, represented by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON,
GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON; EVIE
LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS. LUMAKANG;
EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their
parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented
by parent ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON, represented
by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO,
JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS.
ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH ALSADO, represented by
their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA CARMELOTES, represented by
her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN MACAPAS, represented by her
parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO, represented by her parents
MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR, represented by their
parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA, represented
by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE
MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX
MAHINAY; JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE
ANTIOLA and ANECITA ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her
parents WENIFREDO CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by
her parents MANUEL TURNO and VEVENCIA TURNO; SOLOMON PALATULON, SALMERO
PALATULON and ROSALINDA PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN,
respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were consolidated
because they raise essentially the same issue: whether school children who are members or
a religious sect known as Jehovah's Witnesses may be expelled from school (both public and
private), for refusing, on account of their religious beliefs, to take part in the flag ceremony
which includes playing (by a band) or singing the Philippine national anthem, saluting the
Philippine flag and reciting the patriotic pledge.

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and
Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and
elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and
Taburan Cebu province. All minors, they are assisted by their parents who belong to the
religious group known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and
Antonio A. Sangutan," the petitioners are 25 high school and grade school students enrolled
in public schools in Asturias, Cebu, whose parents are Jehovah's Witnesses. Both petitions
were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by Department
Order No. 8 dated July 21, 1955 of the Department of Education, Culture and Sports (DECS)
making the flag ceremony compulsory in all educational institutions. Republic Act No. 1265
provides:

Sec. 1. All educational institutions shall henceforth observe daily flag

ceremony, which shall be simple and dignified and shall include the playing or
singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue

or cause to be issued rules and regulations for the proper conduct of the flag
ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and
in accordance with rules and regulations issued by the Secretary of Education,
after proper notice and hearing, shall subject the educational institution
concerned and its head to public censure as an administrative punishment
which shall be published at least once in a newspaper of general circulation.
 In case of failure to observe for the second time the flag-ceremony provided by
this Act, the Secretary of Education, after proper notice and hearing, shall
cause the cancellation of the recognition or permit of the private educational
institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL

EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public

and private, every school day throughout the year. It shall be raised at sunrise
and lowered at sunset. The flag-staff must be straight, slightly and gently
tapering at the end, and of such height as would give the Flag a commanding
position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising

ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat shall
be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are

in school and its premises shall assemble in formation facing
the flag. At command, books shall be put away or held in the left
hand and everybody shall come to attention. Those with hats
shall uncover. No one shall enter or leave the school grounds
during the ceremony.

b. The assembly shall sing the Philippine National

Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played by
the school band alone. At the first note of the Anthem, the flag
shall be raised briskly. While the flag is being raised, all persons
present shall stand at attention and execute a salute. Boys and
men with hats shall salute by placing the hat over the heart.
Those without hat may stand with their arms and hands down
and straight at the sides. Those in military or Boy Scout uniform
shall give the salute prescribed by their regulations. The salute
shall be started as the Flag rises, and completed upon last note
of the anthem.

c. Immediately following the singing of the Anthem, the

assembly shall recite in unison the following patriotic
pledge (English or vernacular version), which may bring the
ceremony to a close. This is required of all public schools and of
private schools which are intended for Filipino students or
whose population is predominantly Filipino.

English Version
 I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or
"religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . . to anyone or
anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard
ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the
State (p. 10, Rollo). They think the action of the local authorities in compelling the flag salute
and pledge transcends constitutional limitations on the State's power and invades the sphere
of the intellect and spirit which the Constitution protect against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses
may be expelled from school for disobedience of R.A. No. 1265 and Department Order No. 8,
series of 1955, has been raised before this Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106
Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in
the Gerona case upheld the expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of freedom
and liberty which it and the Constitution guarantee and protect. Under a
system of complete separation of church and state in the government, the flag
is utterly devoid of any religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is no more a religious
ceremony than the taking of an oath of office by a public official or by a
candidate for admission to the bar.

In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a
non-discriminatory school regulation applicable to all alike whether Christian,
Moslem, Protestant or Jehovah's Witness. The State is merely carrying out the
duty imposed upon it by the Constitution which charges it with supervision
over and regulation of all educational institutions, to establish and maintain a
complete and adequate system of public education, and see to it that all
schools aim to develop, among other things, civic conscience and teach the
duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in

the flag ceremony. They have no valid right to such exemption. Moreover,
 exemption to the requirement will disrupt school discipline and demoralize the
rest of the school population which by far constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru

Republic Act 1265 to promulgate said Department Order, and its provisions
requiring the observance of the flag salute, not being a religious ceremony but
an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education, et
al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI,
Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took effect on
September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63, No. 38 of
September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the ruling
in Gerona, thus:

5. Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above
provision of the new Administrative Code of 1987. They have targeted only Republic Act No.
1265 and the implementing orders of the DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private schools,
who refused to sing the Philippine national anthem, salute the Philippine flag and recite the
patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu
Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent,
recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated
November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High
School Principals and Heads of Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers,
pupils, students, and school employees in public schools who refuse to salute
the Philippine flag or participate in the daily flag ceremony because of some
religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and Regulations)
but also strikes at the heart of the DECS sustained effort to inculcate
patriotism and nationalism.
 3. Let it be stressed that any belief that considers the flag as an image is not in
any manner whatever a justification for not saluting the Philippine flag or not
participating in flag ceremony. Thus, the Supreme Court of the Philippine says:

The flag is not an image but a symbol of the Republic of the

Philippines, an emblem of national sovereignty, of national unity
and cohesion and freedom and liberty which it and the
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may

advance, the Supreme Court asserts:

But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said
religious belief clashes with the established institutions of
society and with the law, then the former must yield and give
way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106
Phil. 11.)

5. Accordingly, teachers and school employees who choose not to participate

in the daily flag ceremony or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be considered removed from the
service after due process.

6. In strong language about pupils and students who do the same the Supreme
Court has this to say:

If they choose not to obey the flag salute regulation, they merely
lost the benefits of public education being maintained at the
expense of their fellow Citizens, nothing more. According to a
popular expression, they could take it or leave it! Having elected
not to comply with the regulation about the flag salute they
forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)

7. School administrators shall therefore submit to this Office a report on those

who choose not to participate in flag ceremony or salute the Philippine flag.
(pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children were
asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing the
national anthem, place their right hand on their breast until the end of the song and recite the
pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of
G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the
Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from
which reveal the following:
 After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to salute
the flag of the Republic of the Philippines during Flag Ceremony and other
occasions, as mandated by law specifically Republic Act No. 1265, this Office
hereby orders the dropping from the list in the School Register (BPS Form I) of
all teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective
today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated
November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated July 21,
1955 in accordance with Republic Act No. 1265 and Supreme Court Decision of
a case "Genaro Gerona, et al., Petitioners and Appellants vs. The Honorable
Secretary of Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the
"dropping from the rolls" of students who "opted to follow their religious belief which is
against the Flag Salute Law" on the theory that "they forfeited their right to attend public
schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo

Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief which
is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of
1955, having elected not to comply with the regulation about the flag salute
they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of
Education, et al., 106 Philippines 15). However, should they change their mind
to respect and follow the Flag Salute Law they may be re-accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan
National High School, Agujo Elementary School, Calape Barangay National High School,
Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary
School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School and
Northern Central Elementary School of San Fernando, Cebu, upon order of then Acting
Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to
appeal to the Secretary of Education Isidro Cariño but the latter did not answer their letter. (p.
21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because
Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent of Schools,
would not recall the expulsion orders of his predecessor. Instead, he verbally caused the
expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions
for Mandamus, Certiorari and Prohibition alleging that the public respondents acted without
or in excess of their jurisdiction and with grave abuse of discretion — (1) in ordering their
expulsion without prior notice and hearing, hence, in violation of their right to due process,
their right to free public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the

rolls of herein petitioners from their respective schools;

ii. prohibiting and enjoining respondent from further barring the

petitioners from their classes or otherwise implementing the
expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him to
admit and order the re-admission of petitioners to their
respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining
order be issued enjoining the respondents from enforcing the expulsion of the petitioners
and to re-admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately re-admit the
petitioners to their respective classes until further orders from this Court (p. 57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F.
Biongcog to be impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p.
98, Rollo) defending the expulsion orders issued by the public respondents on the grounds
that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious

and anti-social school children and consequently disloyal and mutant Filipino
citizens.

2. There are no new and valid grounds to sustain the charges of the Jehovah's
Witnesses that the DECS' rules and regulations on the flag salute ceremonies
are violative of their freedom of religion and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates

respect and love of country, for which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful

regulations in question do not warrant exemption of the school children of the
 Jehovah's Witnesses from the flag salute ceremonies on the basis of their own
self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and

jurisprudence.

6. State's power to regulate repressive and unlawful religious practices

justified, besides having scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court
in Gerona upholding the flag salute law and approving the expulsion of students who refuse
to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by
its in corporation in the Administrative Code of 1987, the present Court believes that the time
has come to re-examine it. The idea that one may be compelled to salute the flag, sing the
national anthem, and recite the patriotic pledge, during a flag ceremony on pain of being
dismissed from one's job or of being expelled from school, is alien to the conscience of the
present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees
their rights to free speech ** and the free exercise of religious profession and worship (Sec. 5,
Article III, 1987 Constitution; Article IV, Section 8, 1973 Constitution; Article III, Section 1[7],
1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his Creator
(Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan, 135 SCRA
514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute as
long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that affect
the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony,
they do not engage in "external acts" or behavior that would offend their countrymen who
believe in expressing their love of country through the observance of the flag ceremony.
They quietly stand at attention during the flag ceremony to show their respect for the right of
those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No.
95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive
behavior, there is no warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of

religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to
 prevent." Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.

The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens
untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism — a pathetic,
even tragic situation, and all because a small portion of the school population
imposed its will, demanded and was granted an exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses
from saluting the flag, singing the national anthem and reciting the patriotic pledge, this
religious group which admittedly comprises a "small portion of the school population" will
shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in
and unimbued with reverence for the flag, patriotism, love of country and admiration for
national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners
seek only is exemption from the flag ceremony, not exclusion from the public schools where
they may study the Constitution, the democratic way of life and form of government, and
learn not only the arts, sciences, Philippine history and culture but also receive training for a
vocation of profession and be taught the virtues of "patriotism, respect for human rights,
appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very situation that this Court had
feared in Gerona. Forcing a small religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious beliefs, will hardly be conducive to love
of country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are

voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. . . . When
they [diversity] are so harmless to others or to the State as those we deal with
here, the price is not too great. But freedom to differ is not limited to things
that do not matter much. That would be a mere shadow of freedom. The test of
its substance is the right to differ as to things that touch the heart of the
existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the country,
. . . — assuming that such unity and loyalty can be attained through coercion
— is not a goal that is constitutionally obtainable at the expense of religious
liberty. A desirable end cannot be promoted by prohibited means. (Meyer vs.
Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they
are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to
receive free education, for it is the duty of the State to "protect and promote the right of all
citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art.
XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption
of members of the Iglesia ni Cristo, from the coverage of a closed shop agreement between
their employer and a union because it would violate the teaching of their church not to join
any labor group:

. . . It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interests"
intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S. Ct.
1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to
the observance of the flag ceremony out of respect for their religious beliefs, however
"bizarre" those beliefs may seem to others. Nevertheless, their right not to participate in the
flag ceremony does not give them a right to disrupt such patriotic exercises. Paraphrasing
the warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest
regard must be afforded their right to the free exercise of their religion, "this should not be
taken to mean that school authorities are powerless to discipline them" if they should commit
breaches of the peace by actions that offend the sensibilities, both religious and patriotic, of
other persons. If they quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem and recite the patriotic
pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave
and present danger of a serious evil to public safety, public morals, public health or any other
legitimate public interest that the State has a right (and duty) to prevent (German vs.
Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our
country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the
invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if
petitioners had lived through that dark period of our history, they would not quibble now
about saluting the Philippine flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound
with pride and joy over the newly-regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to
refuse to salute the Philippine flag on account of their religious beliefs, we hope,
nevertheless, that another foreign invasion of our country will not be necessary in order for
our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders
issued by the public respondents against the petitioners are hereby ANNULLED AND SET
ASIDE. The temporary restraining order which was issued by this Court is hereby made
permanent.

SO ORDERED.

Narvasa, C.J., Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and
Campos, Jr., JJ., concur.

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave

A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)

ALEJANDRO ESTRADA, Complainant,

vs.
SOLEDAD S. ESCRITOR, Respondent.

RESOLUTION

PUNO, J.:

While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor once again
stands before the Court invoking her religious freedom and her Jehovah God in a bid to save her
family – united without the benefit of legal marriage - and livelihood. The State, on the other hand,
seeks to wield its power to regulate her behavior and protect its interest in marriage and family and
the integrity of the courts where respondent is an employee. How the Court will tilt the scales of
justice in the case at bar will decide not only the fate of respondent Escritor but of other believers
coming to Court bearing grievances on their free exercise of religion. This case comes to us from our
remand to the Office of the Court Administrator on August 4, 2003.1

I. THE PAST PROCEEDINGS

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

Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow,
her husband having died in 1998.4 She admitted that she started living with Luciano Quilapio, Jr.
without the benefit of marriage more than twenty years ago when her husband was still alive but
living with another woman. She also admitted that she and Quilapio have a son. 5 But as a member of
the religious sect known as the Jehovah’s Witnesses and the Watch Tower and Bible Tract Society,
respondent asserted that their conjugal arrangement is in conformity with their religious beliefs and
has the approval of her congregation.6 In fact, after ten years of living together, she executed on July
28, 1991, a "Declaration of Pledging Faithfulness."7

For Jehovah’s Witnesses, the Declaration allows members of the congregation who have been
abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting
union moral and binding within the congregation all over the world except in countries where divorce
is allowed. As laid out by the tenets of their faith, the Jehovah’s congregation requires that at the
time the declarations are executed, the couple cannot secure the civil authorities’ approval of the
marital relationship because of legal impediments. Only couples who have been baptized and in
good standing may execute the Declaration, which requires the approval of the elders of the
congregation. As a matter of practice, the marital status of the declarants and their respective
spouses’ commission of adultery are investigated before the declarations are executed. 8 Escritor and
Quilapio’s declarations were executed in the usual and approved form prescribed by the Jehovah’s
Witnesses,9 approved by elders of the congregation where the declarations were executed, 10 and
recorded in the Watch Tower Central Office.11
Moreover, the Jehovah’s congregation believes that once all legal impediments for the couple are
lifted, the validity of the declarations ceases, and the couple should legalize their union. In Escritor’s
case, although she was widowed in 1998, thereby lifting the legal impediment to marry on her part,
her mate was still not capacitated to remarry. Thus, their declarations remained valid. 12 In sum,
therefore, insofar as the congregation is concerned, there is nothing immoral about the conjugal
arrangement between Escritor and Quilapio and they remain members in good standing in the
congregation.

By invoking the religious beliefs, practices and moral standards of her congregation, in asserting that
her conjugal arrangement does not constitute disgraceful and immoral conduct for which she should
be held administratively liable,13 the Court had to determine the contours of religious freedom under
Article III, Section 5 of the Constitution, which provides, viz:

Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.

A. Ruling

In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins and
development of the religion clauses in the United States (U.S.) and the Philippines, we held that in
resolving claims involving religious freedom (1) benevolent neutrality or accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the religion clauses in our
Constitution; and (2) in deciding respondent’s plea of exemption based on the Free Exercise Clause
(from the law with which she is administratively charged), it is the compelling state interest test, the
strictest test, which must be applied.14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on the ultimate
issue of whether respondent was to be held administratively liable for there was need to give the
State the opportunity to adduce evidence that it has a more "compelling interest" to defeat the claim
of the respondent to religious freedom. Thus, in the decision dated August 4, 2003, we remanded
the complaint to the Office of the Court Administrator (OCA), and ordered the Office of the Solicitor
General (OSG) to intervene in the case so it can:

(a) examine the sincerity and centrality of respondent’s claimed religious belief and practice;

(b) present evidence on the state’s "compelling interest" to override respondent’s religious
belief and practice; and

(c) show that the means the state adopts in pursuing its interest is the least restrictive to
respondent’s religious freedom. 15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO WHAT
APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION CLAUSES, NOR TO
THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already been ruled upon prior to the remand, and
constitute "the law of the case" insofar as they resolved the issues of which framework and test are
to be applied in this case, and no motion for its reconsideration having been filed.16 The only task
that the Court is left to do is to determine whether the evidence adduced by the State proves its
more compelling interest. This issue involves a pure question of fact.
B. Law of the case

Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this case interpreting the
religious clauses of the Constitution, made more than two years ago, is misplaced to say the least.
Since neither the complainant, respondent nor the government has filed a motion for reconsideration
assailing this ruling, the same has attained finality and constitutes the law of the case. Any attempt
to reopen this final ruling constitutes a crass contravention of elementary rules of procedure. Worse,
insofar as it would overturn the parties’ right to rely upon our interpretation which has long attained
finality, it also runs counter to substantive due process.

Be that as it may, even assuming that there were no procedural and substantive infirmities in Mr.
Justice Carpio’s belated attempts to disturb settled issues, and that he had timely presented his
arguments, the results would still be the same.

We review the highlights of our decision dated August 4, 2003.

1. Old World Antecedents

In our August 4, 2003 decision, we made a painstaking review of Old World antecedents of the
religion clauses, because "one cannot understand, much less intelligently criticize the approaches of
the courts and the political branches to religious freedom in the recent past in the United States
without a deep appreciation of the roots of these controversies in the ancient and medieval world
and in the American experience."17 We delved into the conception of religion from primitive times,
when it started out as the state

itself, when the authority and power of the state were ascribed to God.18 Then, religion developed on
its own and became superior to the state,19 its subordinate,20 and even becoming an engine of state
policy.21

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

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

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

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

In sum, a review of the Old World antecedents of religion shows the movement of establishment of
religion as an engine to promote state interests, to the principle of non-establishment to allow the
free exercise of religion.

2. Religion Clauses in the U.S. Context

The Court then turned to the religion clauses’ interpretation and construction in the United States,
not because we are bound by their interpretation, but because the U.S. religion clauses are the
precursors to the Philippine religion clauses, although we have significantly departed from the U.S.
interpretation as will be discussed later on.

At the outset, it is worth noting that American jurisprudence in this area has been volatile and fraught
with inconsistencies whether within a Court decision or across decisions. For while there is
widespread agreement regarding the value of the First Amendment religion clauses, there is an
equally broad disagreement as to what these clauses specifically require, permit and forbid. No
agreement has been reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in the U.S. Congress renders it difficult to ascertain its
meaning.27

U.S. history has produced two identifiably different, even opposing, strains of jurisprudence on the
religion clauses. First is the standard of separation, which may take the form of either (a) strict
separation or (b) the tamer version of strict neutrality or separation, or what Mr. Justice Carpio refers
to as the second theory of governmental neutrality. Although the latter form is not as hostile to
religion as the former, both are anchored on the Jeffersonian premise that a "wall of separation"
must exist between the state and the Church to protect the state from the church. 28 Both protect the
principle of church-state separation with a rigid reading of the principle. On the other hand, the
second standard, the benevolent neutrality or accommodation, is buttressed by the view that the wall
of separation is meant to protect the church from the state. A brief review of each theory is in order.

a. Strict Separation and Strict Neutrality/Separation

The Strict Separationist believes that the Establishment Clause was meant to protect the state from
the church, and the state’s hostility towards religion allows no interaction between the two. According
to this Jeffersonian view, an absolute barrier to formal interdependence of religion and state needs
to be erected. Religious institutions could not receive aid, whether direct or indirect, from the state.
Nor could the state adjust its secular programs to alleviate burdens the programs placed on
believers.29 Only the complete separation of religion from politics would eliminate the formal
influence of religious institutions and provide for a free choice among political views, thus a strict
"wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in American history and
contemporary practice that enormous amounts of aid, both direct and indirect, flow to religion from
government in return for huge amounts of mostly indirect aid from religion.31 For example, less than
twenty-four hours after Congress adopted the First Amendment’s prohibition on laws respecting an
establishment of religion, Congress decided to express its thanks to God Almighty for the many
blessings enjoyed by the nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer.32 Thus, strict separationists are caught in an awkward
position of claiming a constitutional principle that has never existed and is never likely to. 33

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

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

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

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

b. Benevolent Neutrality/Accommodation

The theory of benevolent neutrality or accommodation is premised on a different view of the "wall of
separation," associated with Williams, founder of the Rhode Island colony. Unlike the Jeffersonian
wall that is meant to protect the state from the church, the wall is meant to protect the church from
the state.41 This doctrine was expressed in Zorach v. Clauson,42 which held, viz:

The First Amendment, however, does not say that in every and all respects there shall be a
separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which
there shall be no concert or union or dependency one or the other. That is the common sense of the
matter. Otherwise, the state and religion would be aliens to each other - hostile, suspicious, and
even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not
be permitted to render police or fire protection to religious groups. Policemen who helped
parishioners into their places of worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making
Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these and all other
references to the Almighty that run through our laws, our public rituals, our ceremonies would be
flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication
with which the Court opens each session: "God save the United States and this Honorable Court."

xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. . . When the state encourages religious instruction or
cooperates with religious authorities by adjusting the schedule of public events, it follows the best of
our traditions. For it then respects the religious nature of our people and accommodates the public
service to their spiritual needs. To hold that it may not would be to find in the Constitution a
requirement that the government show a callous indifference to religious groups. . . But we find no
constitutional requirement which makes it necessary for government to be hostile to religion and to
throw its weight against efforts to widen their effective scope of religious influence. 43

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

Examples of accommodations in American jurisprudence also abound, including, but not limited to
the U.S. Court declaring the following acts as constitutional: a state hiring a Presbyterian minister to
lead the legislature in daily prayers,45 or requiring employers to pay workers compensation when the
resulting inconsistency between work and Sabbath leads to discharge;46 for government to give
money to religiously-affiliated organizations to teach adolescents about proper sexual behavior; 47 or
to provide religious school pupils with books;48 or bus rides to religious schools;49 or with cash to pay
for state-mandated standardized tests.50

(1) Legislative Acts and the Free Exercise Clause

As with the other rights under the Constitution, the rights embodied in the Religion clauses are
invoked in relation to governmental action, almost invariably in the form of legislative acts.

Generally speaking, a legislative act that purposely aids or inhibits religion will be challenged as
unconstitutional, either because it violates the Free Exercise Clause or the Establishment Clause or
both. This is true whether one subscribes to the separationist approach or the benevolent neutrality
or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose and
general applicability, but may incidentally or inadvertently aid or burden religious exercise. Though
the government action is not religiously motivated, these laws have a "burdensome effect" on
religious exercise.

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government’s favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. The purpose
of accommodations is to remove a burden on, or facilitate the exercise of, a person’s or institution’s
religion. As Justice Brennan explained, the "government [may] take religion into account…to exempt,
when possible, from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state involvement an
atmosphere in which voluntary religious exercise may flourish."51 In the ideal world, the legislature
would recognize the religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so, religions that are
threatened and burdened may turn to the courts for protection.52

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

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith

The pinnacle of free exercise protection and the theory of accommodation in the U.S. blossomed in
the case of Sherbert v. Verner,55 which ruled that state regulation that indirectly restrains or punishes
religious belief or conduct must be subjected to strict scrutiny under the Free Exercise
Clause.56 According to Sherbert, when a law of general application infringes religious exercise, albeit
incidentally, the state interest sought to be promoted must be so paramount and compelling as to
override the free exercise claim. Otherwise, the Court itself will carve out the exemption.

In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation under the
law as her employment was terminated for refusal to work on Saturdays on religious grounds. Her
claim was denied. She sought recourse in the Supreme Court. In laying down the standard for
determining whether the denial of benefits could withstand constitutional scrutiny, the Court ruled,
viz:

Plainly enough, appellee’s conscientious objection to Saturday work constitutes no conduct

prompted by religious principles of a kind within the reach of state legislation. If, therefore, the
decision of the South Carolina Supreme Court is to withstand appellant’s constitutional challenge, it
must be either because her disqualification as a beneficiary represents no infringement by the State
of her constitutional right of free exercise, or because any incidental burden on the free exercise of
appellant’s religion may be justified by a "compelling state interest in the regulation of a subject
within the State’s constitutional power to regulate. . . ."57 (emphasis supplied)

The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to merely
show a rational relationship of the substantial infringement to the religious right and a colorable state
interest. "(I)n this highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.’" 58 The Court found that there was no
such compelling state interest to override Sherbert’s religious liberty. It added that even if the state
could show that Sherbert’s exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state to show that no
alternative means of regulations would address such detrimental effects without infringing religious
liberty. The state, however, did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her disqualification from claiming the
unemployment benefits. The Court reasoned that upholding the denial of Sherbert’s benefits would
force her to choose between receiving benefits and following her religion. This choice placed "the
same kind of burden upon the free exercise of religion as would a fine imposed against (her) for her
Saturday worship." This germinal case of Sherbert firmly established the exemption doctrine, 59 viz:

It is certain that not every conscience can be accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes.

Thus, Sherbert and subsequent cases held that when government action burdens, even
inadvertently, a sincerely held religious belief or practice, the state must justify the burden by
demonstrating that the law embodies a compelling interest, that no less restrictive alternative exists,
and that a religious exemption would impair the state’s ability to effectuate its compelling interest. As
in other instances of state action affecting fundamental rights, negative impacts on those rights
demand the highest level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test
resulted in court-mandated religious exemptions from facially-neutral laws of general application
whenever unjustified burdens were found. 60

Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled that religious exemption
was in order, notwithstanding that the law of general application had a criminal penalty. Using
heightened scrutiny, the Court overturned the conviction of Amish parents for violating Wisconsin
compulsory school-attendance laws. The Court, in effect, granted exemption from a neutral, criminal
statute that punished religiously motivated conduct. Chief Justice Burger, writing for the majority,
held, viz:

It follows that in order for Wisconsin to compel school attendance beyond the eighth grade against a
claim that such attendance interferes with the practice of a legitimate religious belief, it must appear
either that the State does not deny the free exercise of religious belief by its requirement, or that
there is a state interest of sufficient magnitude to override the interest claiming protection under the
Free Exercise Clause. Long before there was general acknowledgement of the need for universal
education, the Religion Clauses had specially and firmly fixed the right of free exercise of religious
beliefs, and buttressing this fundamental right was an equally firm, even if less explicit, prohibition
against the establishment of any religion. The values underlying these two provisions relating to
religion have been zealously protected, sometimes even at the expense of other interests of
admittedly high social importance. . .

The essence of all that has been said and written on the subject is that only those interests of the
highest order and those not otherwise served can overbalance legitimate claims to the free exercise
of religion. . .

. . . our decisions have rejected the idea that religiously grounded conduct is always outside the
protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously
based, are often subject to regulation by the States in the exercise of their undoubted power to
promote the health, safety, and general welfare, or the Federal government in the exercise of its
delegated powers . . . But to agree that religiously grounded conduct must often be subject to the
broad police power of the State is not to deny that there are areas of conduct protected by the Free
Exercise Clause of the First Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore, does not become easier because
respondents were convicted for their "actions" in refusing to send their children to the public high
school; in this context belief and action cannot be neatly confined in logic-tight compartments. . . 62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise clause claims
were subject to heightened scrutiny or compelling interest test if government substantially burdened
the exercise of religion; (b) heightened scrutiny or compelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil penalty, as well as cases
where the burden was indirect, i.e., the exercise of religion resulted in the forfeiture of a government
benefit;63 and (c) the Court could carve out accommodations or exemptions from a facially neutral
law of general application, whether general or criminal.

The Sherbert-Yoder doctrine had five main components. First, action was protected—conduct
beyond speech, press, or worship was included in the shelter of freedom of religion. Neither
Sherbert’s refusal to work on the Sabbath nor the Amish parents’ refusal to let their children attend
ninth and tenth grades can be classified as conduct protected by the other clauses of the First
Amendment. Second, indirect impositions on religious conduct, such as the denial of twenty-six
weeks of unemployment insurance benefits to Adel Sherbert, as well as direct restraints, such as the
criminal prohibition at issue in Yoder, were prohibited. Third, as the language in the two cases
indicate, the protection granted was extensive. Only extremely strong governmental interests
justified impingement on religious conduct, as the absolute language of the test of the Free Exercise
Clause suggests. 64

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

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

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

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

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

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

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

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

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

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

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

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

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as exhibiting a
shallow understanding of free exercise jurisprudence.86 First, the First amendment was intended to
protect minority religions from the tyranny of the religious and political majority. 87 Critics of Smith
have worried about religious minorities, who can suffer disproportionately from laws that enact
majoritarian mores.88 Smith, in effect would allow discriminating in favor of mainstream religious
groups against smaller, more peripheral groups who lack legislative clout,89 contrary to the original
theory of the First Amendment.90 Undeniably, claims for judicial exemption emanate almost
invariably from relatively politically powerless minority religions and Smith virtually wiped out their
judicial recourse for exemption.91 Second, Smith leaves too much leeway for pervasive welfare-state
regulation to burden religion while satisfying neutrality. After all, laws not aimed at religion can hinder
observance just as effectively as those that target religion.92 Government impairment of religious
liberty would most often be of the inadvertent kind as in Smith considering the political culture where
direct and deliberate regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free
Exercise Clause could not afford protection to inadvertent interference, it would be left almost
meaningless.93 Third, the Reynolds-Gobitis-Smith94 doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental religious convictions of an
individual in order to pursue some trivial state economic or bureaucratic objective. This is especially
true when there are alternative approaches for the state to effectively pursue its objective without
serious inadvertent impact on religion.95

At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1) the difficulty in defining
and limiting the term "religion" in today’s pluralistic society, and (2) the belief that courts have no
business determining the significance of an individual’s religious beliefs. For the Smith Court, these
two concerns appear to lead to the conclusion that the Free Exercise Clause must protect everything
or it must protect virtually nothing. As a result, the Court perceives its only viable options are to leave
free exercise protection to the political process or to allow a "system in which each conscience is a
law unto itself." 96 The Court’s characterization of its choices have been soundly rejected as false,
viz:

If one accepts the Court’s assumption that these are the only two viable options, then admittedly, the
Court has a stronger argument. But the Free Exercise Clause cannot be summarily dismissed as too
difficult to apply and this should not be applied at all. The Constitution does not give the judiciary the
option of simply refusing to interpret its provisions. The First Amendment dictates that free exercise
of "religion" must be protected. Accordingly, the Constitution compels the Court to struggle with the
contours of what constitutes "religion." There is no constitutional opt-out provision for constitutional
words that are difficult to apply.

Nor does the Constitution give the Court the option of simply ignoring constitutional mandates. A
large area of middle ground exists between the Court’s two opposing alternatives for free exercise
jurisprudence. Unfortunately, this middle ground requires the Court to tackle difficult issues such as
defining religion and possibly evaluating the significance of a religious belief against the importance
of a specific law. The Court describes the results of this middle ground where "federal judges will
regularly balance against the importance of general laws the significance of religious practice," and
then dismisses it as a "parade of horribles" that is too "horrible to contemplate."

It is not clear whom the Court feels would be most hurt by this "parade of horribles." Surely not
religious individuals; they would undoubtedly prefer their religious beliefs to be probed for sincerity
and significance rather than acquiesce to the Court’s approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the Court is concerned about requiring lawmakers
at times constitutionally to exempt religious individuals from statutory provisions, its concern is
misplaced. It is the lawmakers who have sought to prevent the Court from dismantling the Free
Exercise Clause through such legislation as the [Religious Freedom Restoration Act of 1993], and in
any case, the Court should not be overly concerned about hurting legislature’s feelings by requiring
their laws to conform to constitutional dictates. Perhaps the Court is concerned about putting such
burden on judges. If so, it would truly be odd to say that

requiring the judiciary to perform its appointed role as constitutional interpreters is a burden no judge
should be expected to fulfill.97

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

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

Thus, the Smith decision elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing the Free Exercise Clause to
disappear.101 So much was the uproar that a majority in Congress was convinced to enact the
Religious Freedom Restoration Act (RFRA) of 1993.102 The RFRA was adopted to negate the Smith
test and require strict scrutiny for free exercise claims. Indeed, the findings section of the Act notes
that Smith "virtually eliminated the requirement that the government justify burdens on religious
exercise imposed by laws neutral toward religion."103 The Act declares that its purpose is to restore
the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to
guarantee its application in all cases where free exercise of religion is substantially burdened; and to
provide a claim of defense to a person whose religious exercise is substantially burdened by
government.104 The RFRA thus sought to overrule Smith and make strict scrutiny the test for all free
exercise clause claims. 105

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

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of lack of judicial
respect for the constitutional decision-making by a coordinate branch of government. In Smith,
Justice Scalia wrote:

"Values that are protected against governmental interference through enshrinement in the Bill of
Rights are not thereby banished from the political process. Just as society believes in the negative
protection accorded to the press by the First Amendment is likely to enact laws that affirmatively
foster the dissemination of the printed word, so also a society that believes in the negative protection
accorded to religious belief can be expected to be solicitous of that value in its legislation as well."

By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a nearly unanimous
Congress. Contrary to the Court’s characterization of the RFRA as a kind of usurpation of the judicial
power to say what the Constitution means, the law offered no definition of Free Exercise, and on its
face appeared to be a procedural measure establishing a standard of proof and allocating the duty of
meeting it. In effect, the Court ruled that Congress had no power in the area of religion. And yet,
Free Exercise exists in the First Amendment as a negative on Congress. The power of Congress to
act towards the states in matters of religion arises from the Fourteenth Amendment. 108

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

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

(3) Accommodation under the Religion Clauses

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

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

In permissive accommodation, the Court finds that the State may, but is not required to,
accommodate religious interests. The U.S. Walz case illustrates this situation where the U.S.
Supreme Court upheld the constitutionality of tax exemption given by New York to church properties,
but did not rule that the state was required to provide tax exemptions. The Court declared that "(t)he
limits of permissible state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause."113 Other examples are Zorach v.
Clauson,114 allowing released time in public schools and Marsh v. Chambers,115 allowing payment of
legislative chaplains from public funds. Parenthetically, the Court in Smith has ruled that this is the
only accommodation allowed by the Religion Clauses.

Finally, when the Court finds no basis for a mandatory accommodation, or it determines that the
legislative accommodation runs afoul of the establishment or the free exercise clause, it results to a
prohibited accommodation. In this case, the Court finds that establishment concerns prevail over
potential accommodation interests. To say that there are valid exemptions buttressed by the Free
Exercise Clause does not mean that all claims for free exercise exemptions are valid. 116 An example
where accommodation was prohibited is McCollum v. Board of Education, 117 where the Court ruled
against optional religious instruction in the public school premises.118

Given that a free exercise claim could lead to three different results, the question now remains as to
how the Court should determine which action to take. In this regard, it is the strict scrutiny-
compelling state interest test which is most in line with the benevolent neutrality-accommodation
approach.

Under the benevolent-neutrality theory, the principle underlying the First Amendment is that freedom
to carry out one’s duties to a Supreme Being is an inalienable right, not one dependent on the grace
of legislature. Religious freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.

Considering that laws nowadays are rarely enacted specifically to disable religious belief or practice,
free exercise disputes arise commonly when a law that is religiously neutral and generally applicable
on its face is argued to prevent or burden what someone’s religious faith requires, or alternatively,
requires someone to undertake an act that faith would preclude. In essence, then, free exercise
arguments contemplate religious exemptions from otherwise general laws.119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling interest test
reflects the First Amendment’s mandate of preserving religious liberty to the fullest extent possible in
a pluralistic society.120 Underlying the compelling state interest test is the notion that free exercise is
a fundamental right and that laws burdening it should be subject to strict scrutiny.121

In its application, the compelling state interest test follows a three-step process, summarized as
follows:

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

In sum, the U.S. Court has invariably decided claims based on the religion clauses using either the
separationist approach, or the benevolent neutrality approach. The benevolent neutrality approach
has also further been split by the view that the First Amendment requires accommodation, or that it
only allows permissible legislative accommodations. The current prevailing view as pronounced in
Smith, however, is that that there are no required accommodation under the First Amendment,
although it permits of legislative accommodations.

3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice

a. US Constitution and jurisprudence vis-à-vis Philippine Constitution

By juxtaposing the American Constitution and jurisprudence against that of the Philippines, it is
immediately clear that one cannot simply conclude that we have adopted—lock, stock and barrel—
the religion clauses as embodied in the First Amendment, and therefore, the U.S. Court’s
interpretation of the same. Unlike in the U.S. where legislative exemptions of religion had to be
upheld by the U.S. Supreme Court as constituting permissive accommodations, similar exemptions
for religion are mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and
1987 Constitutions contain provisions on tax exemption of church property,123 salary of religious
officers in government institutions,124 and optional religious instruction.125 Our own preamble also
invokes the aid of a divine being.126 These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all reveal without doubt that the Filipino
people, in adopting these constitutions, manifested their adherence to the benevolent neutrality
approach that requires accommodations in interpreting the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous insofar as it
asserted that the 1935 Constitution incorporates the Walz ruling as this case was decided
subsequent to the 1935 Constitution is a misreading of the ponencia. What the ponencia pointed out
was that even as early as 1935, or more than three decades before the U.S. Court could validate the
exemption in Walz as a form or permissible accommodation, we have already incorporated the same
in our Constitution, as a mandatory accommodation.

There is no ambiguity with regard to the Philippine Constitution’s departure from the U.S.
Constitution, insofar as religious accommodations are concerned. It is indubitable that benevolent
neutrality-accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution.128 As stated in our Decision, dated August 4, 2003:

The history of the religion clauses in the 1987 Constitution shows that these clauses were largely
adopted from the First Amendment of the U.S. Constitution xxxx Philippine jurisprudence and
commentaries on the religious clauses also continued to borrow authorities from U.S. jurisprudence
without articulating the stark distinction between the two streams of U.S. jurisprudence [i.e.,
separation and benevolent neutrality]. One might simply conclude that the Philippine Constitutions
and jurisprudence also inherited the disarray of U.S. religion clause jurisprudence and the two
identifiable streams; thus, when a religion clause case comes before the Court, a separationist
approach or a benevolent neutrality approach might be adopted and each will have U.S. authorities
to support it. Or, one might conclude that as the history of the First Amendment as narrated by the
Court in Everson supports the separationist approach, Philippine jurisprudence should also follow
this approach in light of the Philippine religion clauses’ history. As a result, in a case where the party
claims religious liberty in the face of a general law that inadvertently burdens his religious exercise,
he faces an almost insurmountable wall in convincing the Court that the wall of separation would not
be breached if the Court grants him an exemption. These conclusions, however, are not and were
never warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on religion
in all three constitutions. It is a cardinal rule in constitutional construction that the constitution must
be interpreted as a whole and apparently conflicting provisions should be reconciled and harmonized
in a manner that will give to all of them full force and effect. From this construction, it will be
ascertained that the intent of the framers was to adopt a benevolent neutrality approach in
interpreting the religious clauses in the Philippine constitutions, and the enforcement of this intent is
the goal of construing the constitution.129 [citations omitted]

We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s interpretation of the
religion clauses to effectively deny accommodations on the sole basis that the law in question is
neutral and of general application. For even if it were true that "an unbroken line of U.S. Supreme
Court decisions" has never held that "an individual’s religious beliefs [do not] excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," our own
Constitutions have made significant changes to accommodate and exempt religion. Philippine
jurisprudence shows that the Court has allowed exemptions from a law of general application, in
effect, interpreting our religion clauses to cover both mandatory and permissive accommodations.130

To illustrate, in American Bible Society v. City of Manila,131 the Court granted to plaintiff exemption
from a law of general application based on the Free Exercise Clause. In this case, plaintiff was
required by an ordinance to secure a mayor’s permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the city’s ordinances. Plaintiff argued
that this amounted to "religious censorship and restrained the free exercise and enjoyment of
religious profession, to wit: the distribution and sale of bibles and other religious literature to the
people of the Philippines." Although the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or occupation of selling said
"merchandise" for profit, it also ruled that applying the ordinance to plaintiff and requiring it to secure
a license and pay a license fee or tax would impair its free exercise of religious profession and
worship and its right of dissemination of religious beliefs "as the power to tax the exercise of a
privilege is the power to control or suppress its enjoyment." The decision states in part, viz:

The constitutional guaranty of the free exercise and enjoyment of religious profession and worship
carries with it the right to disseminate religious information. Any restraint of such right can only be
justified like other restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to prevent. (citations omitted,
emphasis supplied)

Another case involving mandatory accommodation is Ebralinag v. The Division Superintendent of

Schools.132 The case involved several Jehovah’s Witnesses who were expelled from school for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the religious freedom issue, a unanimous Court overturned
an earlier ruling denying such exemption,133 using the "grave and imminent danger" test, viz:

The sole justification for a prior restraint or limitation on the exercise of religious freedom (according
to the late Chief Justice Claudio Teehankee in his dissenting opinion in German v. Barangan, 135
SCRA 514, 517) is the existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any other legitimate public
interest, that the State has a right (and duty) to prevent. Absent such a threat to public safety, the
expulsion of the petitioners from the schools is not justified.134 (emphases supplied)

In these two cases, the Court itself carved out an exemption from a law of general application, on the
strength directly of the Free Exercise Clause.

We also have jurisprudence that supports permissive accommodation. The case of Victoriano v.
Elizalde Rope Workers Union135 is an example of the application of Mr. Justice Carpio’s theory of
permissive accommodation, where religious exemption is granted by a legislative act. In Victoriano,
the constitutionality of Republic Act No. 3350 was questioned. The said R.A. exempt employees
from the application and coverage of a closed shop agreement—mandated in another law—based
on religious objections. A unanimous Court upheld the constitutionality of the law, holding that
"government is not precluded from pursuing valid objectives secular in character even if the
incidental result would be favorable to a religion or sect." Interestingly, the secular purpose of the
challenged law which the Court upheld was the advancement of "the constitutional right to the free
exercise of religion."136

Having established that benevolent neutrality-accommodation is the framework by which free

exercise cases must be decided, the next question then turned to the test that should be used in
ascertaining the limits of the exercise of religious freedom. In our Decision dated August 4, 2003, we
reviewed our jurisprudence, and ruled that in cases involving purely conduct based on religious
belief, as in the case at bar, the compelling state interest test, is proper, viz:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the "clear and present danger" test in the maiden case
of American Bible Society. Not surprisingly, all the cases which employed the "clear and present
danger" or "grave and immediate danger" test involved, in one form or another, religious speech as
this test is often used in cases on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not prevail over established institutions of
society and law. Gerona, however, which was the authority cited by German has been overruled by
Ebralinag which employed the "grave and immediate danger" test. Victoriano was the only case that
employed the "compelling state interest" test, but as explained previously, the use of the test was
inappropriate to the facts of the case.

The case at bar does not involve speech as in American Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state’s
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state’s interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. 137 (citations omitted)

At this point, we take note of Mr. Justice Carpio’s dissent, which, while loosely disputing the
applicability of the benevolent neutrality framework and compelling state interest test, states that "[i]t
is true that a test needs to be applied by the Court in determining the validity of a free exercise claim
of exemption as made here by Escritor." This assertion is inconsistent with the position negating the
benevolent neutrality or accommodation approach. If it were true, indeed, that the religion clauses do
not require accommodations based on the free exercise of religion, then there would be no need for
a test to determine the validity of a free exercise claim, as any and all claims for religious exemptions
from a law of general application would fail.

Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise exemption claims
because it forces the Court to confront how far it can validly set the limits of religious liberty under
the Free Exercise Clause, rather than presenting the separation theory and accommodation theory
as opposite concepts, and then rejecting relevant and instructive American jurisprudence (such as
the Smith case) just because it does not espouse the theory selected." He then asserts that the
Smith doctrine cannot be dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.

Mr. Justice Carpio’s assertion misses the point. Precisely because the doctrine in Smith is that only
legislative accommodations are allowed under the Free Exercise Clause, it cannot be used in
determining a claim of religion exemption directly anchored on the Free Exercise Clause. Thus, even
assuming that the Smith doctrine actually espouses the theory of accommodation or benevolent
neutrality, the accommodation is limited to the permissive, or legislative exemptions. It, therefore,
cannot be used as a test in determining the claims of religious exemptions directly under the Free
Exercise Clause because Smith does not recognize such exemption. Moreover, Mr. Justice Carpio’s
advocacy of the Smith doctrine would effectively render the Free Exercise protection—a
fundamental right under our Constitution—nugatory because he would deny its status as an
independent source of right.

b. The Compelling State Interest Test

As previously stated, the compelling state interest test involves a three-step process. We explained
this process in detail, by showing the questions which must be answered in each step, viz:

…First, "[H]as the statute or government action created a burden on the free exercise of religion?"
The courts often look into the sincerity of the religious belief, but without inquiring into the truth of the
belief because the Free Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the mere claim of religious
beliefs to escape a mandatory regulation. xxx

xxx xxx xxx

Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this infringement of
religious liberty?" In this step, the government has to establish that its purposes are legitimate for the
state and that they are compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be
undermined if exemptions are granted. xxx

xxx xxx xxx

Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least intrusive
means possible so that the free exercise is not infringed any more than necessary to achieve the
legitimate goal of the state?" The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has chosen a way to
achieve its legitimate state end that imposes as little as possible on religious liberties
xxx.138 [citations omitted]

Again, the application of the compelling state interest test could result to three situations of
accommodation: First, mandatory accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second, if the Court finds that the State
may, but is not required to, accommodate religious interests, permissive accommodation results.
Finally, if the Court finds that that establishment concerns prevail over potential accommodation
interests, then it must rule that the accommodation is prohibited.

One of the central arguments in Mr. Justice Carpio’s dissent is that only permissive accommodation
can carve out an exemption from a law of general application. He posits the view that the law should
prevail in the absence of a legislative exemption, and the Court cannot make the accommodation or
exemption.

Mr. Justice Carpio’s position is clearly not supported by Philippine jurisprudence. The cases of
American Bible Society, Ebralinag, and Victoriano demonstrate that our application of the doctrine of
benevolent neutrality-accommodation covers not only the grant of permissive, or legislative
accommodations, but also mandatory accommodations. Thus, an exemption from a law of general
application is possible, even if anchored directly on an invocation of the Free Exercise Clause alone,
rather than a legislative exemption.

Moreover, it should be noted that while there is no Philippine case as yet wherein the Court granted
an accommodation/exemption to a religious act from the application of general penal laws,
permissive accommodation based on religious freedom has been granted with respect to one of the
crimes penalized under the Revised Penal Code, that of bigamy.

In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly denied to Mormons an
exemption from a general federal law criminalizing polygamy, even if it was proven that the practice
constituted a religious duty under their faith.140 In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of marrying more than
one still constitutes bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise
known as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws relative
to the crime of bigamy "shall not apply to a person married…under Muslim law." Thus, by legislative
action, accommodation is granted of a Muslim practice which would otherwise violate a valid and
general criminal law. Mr. Justice Carpio recognized this accommodation when, in his dissent in our
Decision dated August 4, 2003 and citing Sulu Islamic Association of Masjid Lambayong v.
Malik,141 he stated that a Muslim Judge "is not criminally liable for bigamy because Shari’a law allows
a Muslim to have more than one wife."

From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-accommodation only"
advocacy in this jurisdiction becomes manifest. Having anchored his argument on the Smith doctrine
that "the guaranty of religious liberty as embodied in the Free Exercise Clause does not require the
grant of exemptions from generally applicable laws to individuals whose religious practice conflict
with those laws," his theory is infirmed by the showing that the benevolent neutrality approach which
allows for both mandatory and permissive accommodations was unequivocally adopted by our
framers in the Philippine Constitution, our legislature, and our jurisprudence.

Parenthetically, it should be pointed out that a "permissive accommodation-only" stance is the

antithesis to the notion that religion clauses, like the other fundamental liberties found in the Bill or
Rights, is a preferred right and an independent source of right.

What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in Sherbert is not
applicable when the law in question is a generally applicable criminal law. Stated differently, even if
Mr. Justice Carpio conceded that there is no question that in the Philippine context, accommodations
are made, the question remains as to how far the exemptions will be made and who would make
these exemptions.

On this point, two things must be clarified: first, in relation to criminal statutes, only the question of
mandatory accommodation is uncertain, for Philippine law and jurisprudence have, in fact, allowed
legislative accommodation. Second, the power of the Courts to grant exemptions in general (i.e.,
finding that the Free Exercise Clause required the accommodation, or mandatory accommodations)
has already been decided, not just once, but twice by the Court. Thus, the crux of the matter is
whether this Court can make exemptions as in Ebralinag and the American Bible Society, in cases
involving criminal laws of general application.

We hold that the Constitution itself mandates the Court to do so for the following reasons.

First, as previously discussed, while the U.S. religion clauses are the precursors to the Philippine
religion clauses, the benevolent neutrality-accommodation approach in Philippine jurisdiction is more
pronounced and given leeway than in the U.S.

Second, the whole purpose of the accommodation theory, including the notion of mandatory
accommodations, was to address the "inadvertent burdensome effect" that an otherwise facially
neutral law would have on religious exercise. Just because the law is criminal in nature, therefore,
should not bring it out of the ambit of the Free Exercise Clause. As stated by Justice O’Connor in her
concurring opinion in Smith, "[t]here is nothing talismanic about neutral laws of general applicability
or general criminal prohibitions, for laws neutral towards religion can coerce a person to violate his
religious conscience or intrude upon his religious duties just as effectively as laws aimed at
religion."142

Third, there is wisdom in accommodation made by the Court as this is the recourse of minority
religions who are likewise protected by the Free Exercise Clause. Mandatory accommodations are
particularly necessary to protect adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility to the minority. As
stated in our Decision, dated August 4, 2003:

....In a democratic republic, laws are inevitably based on the presuppositions of the majority, thus not
infrequently, they come into conflict with the religious scruples of those holding different world views,
even in the absence of a deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to the common good that
exceptions are intolerable. But in other instances, the injury to religious conscience is so great and
the advancement of public purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators and executive officials
are frequently willing to make such exemptions when the need is brought to their attention, but this
may not always be the case when the religious practice is either unknown at the time of enactment
or is for some reason unpopular. In these cases, a constitutional interpretation that allows
accommodations prevents needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation that requires accommodations
extends this treatment to religious faiths that are less able to protect themselves in the political
arena.

Fourth, exemption from penal laws on account of religion is not entirely an alien concept, nor will it
be applied for the first time, as an exemption of such nature, albeit by legislative act, has already
been granted to Moslem polygamy and the criminal law of bigamy.

Finally, we must consider the language of the Religion Clauses vis-à-vis the other fundamental rights
in the Bill of Rights. It has been noted that unlike other fundamental rights like the right to life, liberty
or property, the Religion Clauses are stated in absolute terms, unqualified by the requirement of
"due process," "unreasonableness," or "lawful order." Only the right to free speech is comparable in
its absolute grant. Given the unequivocal and unqualified grant couched in the language, the Court
cannot simply dismiss a claim of exemption based on the Free Exercise Clause, solely on the
premise that the law in question is a general criminal law. 143 If the burden is great and the sincerity
of the religious belief is not in question, adherence to the benevolent neutrality-accommodation
approach require that the Court make an individual determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-accommodation
approach does not mean that the Court ought to grant exemptions every time a free exercise claim
comes before it. This is an erroneous reading of the framework which the dissent of Mr. Justice
Carpio seems to entertain. Although benevolent neutrality is the lens with which the Court ought to
view religion clause cases, the interest of the state should also be afforded utmost protection. This is
precisely the purpose of the test—to draw the line between mandatory, permissible and forbidden
religious exercise. Thus, under the framework, the Court cannot simply dismiss a claim under the
Free Exercise Clause because the conduct in question offends a law or the orthodox view, as
proposed by Mr. Justice Carpio, for this precisely is the protection afforded by the religion clauses of
the Constitution.144 As stated in the Decision:

xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult questions of
judgment in determining the degree of burden on religious practice or importance of the state
interest or the sufficiency of the means adopted by the state to pursue its interest, the Court can set
a doctrine on the ideal towards which religious clause jurisprudence should be directed. We here lay
down the doctrine that in Philippine jurisdiction, we adopt the benevolent neutrality approach not only
because of its merits as discussed above, but more importantly, because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching pad from which the
Court should take off in interpreting religion clause cases. The ideal towards which this approach is
directed is the protection of religious liberty "not only for a minority, however small- not only for a
majority, however large but for each of us" to the greatest extent possible within flexible
constitutional limits.145

II. THE CURRENT PROCEEDINGS

We now resume from where we ended in our August 4, 2003 Decision. As mentioned, what
remained to be resolved, upon which remand was necessary, pertained to the final task of subjecting
this case to the careful application of the compelling state interest test, i.e., determining whether
respondent is entitled to exemption, an issue which is essentially factual or evidentiary in nature.

After the termination of further proceedings with the OCA, and with the transmittal of the Hearing
Officer’s report,146 along with the evidence submitted by the OSG, this case is once again with us, to
resolve the penultimate question of whether respondent should be found guilty of the administrative
charge of "disgraceful and immoral conduct." It is at this point then that we examine the report and
documents submitted by the hearing officer of this case, and apply the three-step process of the
compelling state interest test based on the evidence presented by the parties, especially the
government.

On the sincerity of religious belief, the Solicitor General categorically concedes that the sincerity and
centrality of respondent’s claimed religious belief and practice are beyond serious doubt. 147 Thus,
having previously established the preliminary conditions required by the compelling state interest
test, i.e., that a law or government practice inhibits the free exercise of respondent’s religious beliefs,
and there being no doubt as to the sincerity and centrality of her faith to claim the exemption based
on the free exercise clause, the burden shifted to the government to demonstrate that the law or
practice justifies a compelling secular objective and that it is the least restrictive means of achieving
that objective.

A look at the evidence that the OSG has presented fails to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override respondent’s fundamental right to
religious freedom. Neither did the government exert any effort to show that the means it seeks to
achieve its legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:

1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the OSG of Bro. Raymond
B. Leach, Legal Representative of the Watch Tower Bible and Tract Society of the Philippines, Inc.

Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondent’s claimed religious belief and practice.

2. Exhibit "B-OSG" and submarking — The duly notarized certification dated September 30, 2003
issued and signed by Bro. Leach.

PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s claimed religious belief
and practice; and (2) to prove that the Declaration of Pledging Faithfulness, being a purely internal
arrangement within the congregation of the Jehovah’s Witnesses, cannot be a source of any legal
protection for respondent.

In its Memorandum-In-Intervention, the OSG contends that the State has a compelling interest to
override respondent’s claimed religious belief and practice, in order to protect marriage and the
family as basic social institutions. The Solicitor General, quoting the Constitution148 and the Family
Code,149 argues that marriage and the family are so crucial to the stability and peace of the nation
that the conjugal arrangement embraced in the Declaration of Pledging Faithfulness should not be
recognized or given effect, as "it is utterly destructive of the avowed institutions of marriage and the
family for it reduces to a mockery these legally exalted and socially significant institutions which in
their purity demand respect and dignity."150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General in so far as
he asserts that the State has a compelling interest in the preservation of marriage and the family as
basic social institutions, which is ultimately the public policy underlying the criminal sanctions against
concubinage and bigamy. He also argues that in dismissing the administrative complaint against
respondent, "the majority opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation..." and "facilitates the circumvention of the Revised Penal Code."
According to Mr. Justice Carpio, by choosing to turn a blind eye to respondent’s criminal conduct,
the majority is in fact recognizing a practice, custom or agreement that subverts marriage. He argues
in a similar fashion as regards the state’s interest in the sound administration of justice.

There has never been any question that the state has an interest in protecting the institutions of
marriage and the family, or even in the sound administration of justice. Indeed, the provisions by
which respondent’s relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code, Articles 334 and 349 of the Revised Penal Code, and
even the provisions on marriage and family in the Civil Code and Family Code, all clearly
demonstrate the State’s need to protect these secular interests.

Be that as it may, the free exercise of religion is specifically articulated as one of the fundamental
rights in our Constitution. It is a fundamental right that enjoys a preferred position in the hierarchy of
rights — "the most inalienable and sacred of human rights," in the words of Jefferson. Hence, it is
not enough to contend that the state’s interest is important, because our Constitution itself holds the
right to religious freedom sacred. The State must articulate in specific terms the state interest
involved in preventing the exemption, which must be compelling, for only the gravest abuses,
endangering paramount interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a source of right by itself.
Thus, it is not the State’s broad interest in "protecting the institutions of marriage and the family," or
even "in the sound administration of justice" that must be weighed against respondent’s claim, but
the State’s narrow interest in refusing to make an exception for the cohabitation which respondent’s
faith finds moral. In other words, the government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those objectives will be
undermined if exemptions are granted.151 This, the Solicitor General failed to do.

To paraphrase Justice Blackmun’s application of the compelling interest test, the State’s interest in
enforcing its prohibition, in order to be sufficiently compelling to outweigh a free exercise claim,
cannot be merely abstract or symbolic. The State cannot plausibly assert that unbending application
of a criminal prohibition is essential to fulfill any compelling interest, if it does not, in fact, attempt to
enforce that prohibition. In the case at bar, the State has not evinced any concrete interest in
enforcing the concubinage or bigamy charges against respondent or her partner. The State has
never sought to prosecute respondent nor her partner. The State’s asserted interest thus amounts
only to the symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the words
of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision, dated August 4, 2003,
to deny the exemption would effectively break up "an otherwise ideal union of two individuals who
have managed to stay together as husband and wife [approximately twenty-five years]" and have the
effect of defeating the very substance of marriage and the family.

The Solicitor General also argued against respondent’s religious freedom on the basis of morality,
i.e., that "the conjugal arrangement of respondent and her live-in partner should not be condoned
because adulterous relationships are constantly frowned upon by society";152 and "that State laws on
marriage, which are moral in nature, take clear precedence over the religious beliefs and practices of
any church, religious sect or denomination on marriage. Verily, religious beliefs and practices should
not be permitted to override laws relating to public policy such as those of marriage."153

The above arguments are mere reiterations of the arguments raised by Mme. Justice Ynares-
Santiago in her dissenting opinion to our Decision dated August 4, 2003, which she offers again in
toto. These arguments have already been addressed in our decision dated August 4, 2003.154 In said
Decision, we noted that Mme. Justice Ynares-Santiago’s dissenting opinion dwelt more on the
standards of morality, without categorically holding that religious freedom is not in issue. 155 We,
therefore, went into a discussion on morality, in order to show that:

(a) The public morality expressed in the law is necessarily secular for in our constitutional
order, the religion clauses prohibit the state from establishing a religion, including the
morality it sanctions.156 Thus, when the law speaks of "immorality" in the Civil Service Law or
"immoral" in the Code of Professional Responsibility for lawyers,157 or "public morals" in the
Revised Penal Code,158 or "morals" in the New Civil Code,159 or "moral character" in the
Constitution,160 the distinction between public and secular morality on the one hand, and
religious morality, on the other, should be kept in mind;161

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

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

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

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

that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable by law. 167

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

Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-sequitur. If the Court grants
respondent exemption from the laws which respondent Escritor has been charged to have violated,
the exemption would not apply to Catholics who have secured church annulment of their marriage
even without a final annulment from a civil court. First, unlike Jehovah’s Witnesses, the Catholic faith
considers cohabitation without marriage as immoral. Second, but more important, the Jehovah’s
Witnesses have standards and procedures which must be followed before cohabitation without
marriage is given the blessing of the congregation. This includes an investigative process whereby
the elders of the congregation verify the circumstances of the declarants. Also, the Declaration is not
a blanket authority to cohabit without marriage because once all legal impediments for the couple
are lifted, the validity of the Declaration ceases, and the congregation requires that the couple
legalize their union.

At bottom, the slippery slope argument of Mr. Justice Carpio is speculative. Nevertheless, insofar as
he raises the issue of equality among religions, we look to the words of the Religion Clauses, which
clearly single out religion for both a benefit and a burden: "No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof…" On its face, the language grants
a unique advantage to religious conduct, protecting it from governmental imposition; and imposes a
unique disadvantage, preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action seems to be a curious
reading. There are no "free exercise" of "establishment" provisions for science, sports, philosophy, or
family relations. The language itself thus seems to answer whether we have a paradigm of equality
or liberty; the language of the Clause is clearly in the form of a grant of liberty. 169

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

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

Finally, even assuming that the OSG has proved a compelling state interest, it has to further
demonstrate that the state has used the least intrusive means possible so that the free exercise is
not infringed any more than necessary to achieve the legitimate goal of the state, i.e., it has chosen
a way to achieve its legitimate state end that imposes as little as possible on religious
liberties.174 Again, the Solicitor General utterly failed to prove this element of the test. Other than the
two documents offered as cited above which established the sincerity of respondent’s religious belief
and the fact that the agreement was an internal arrangement within respondent’s congregation, no
iota of evidence was offered. In fact, the records are bereft of even a feeble attempt to procure any
such evidence to show that the means the state adopted in pursuing this compelling interest is the
least restrictive to respondent’s religious freedom.

Thus, we find that in this particular case and under these distinct circumstances, respondent
Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption
from the law based on her fundamental right to freedom of religion. The Court recognizes that state
interests must be upheld in order that freedoms - including religious freedom - may be enjoyed. In
the area of religious exercise as a preferred freedom, however, man stands accountable to an
authority higher than the state, and so the state interest sought to be upheld must be so compelling
that its violation will erode the very fabric of the state that will also protect the freedom. In the
absence of a showing that such state interest exists, man must be allowed to subscribe to the
Infinite.

IN VIEW WHEREOF, the instant administrative complaint is dismissed.

SO ORDERED.
G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow
of freedom. The test of its substance is the right to differ as to things that touch the heart of the
existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

One unavoidable consequence of everyone having the freedom to choose is that others may make
different choices – choices we would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are not to be legally prohibited
merely because they are different, and the right to disagree and debate about important questions of
public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on
genuine recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and
demands of morality. In many cases, where moral convictions are concerned, harmony among those
theoretically opposed is an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time powerless to create
agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will
allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 2 (the First
Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228
(PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians,
gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first
applied for registration with the COMELEC in 2006. The application for accreditation was denied on
the ground that the organization had no substantial membership base. On August 17, 2009, Ang
Ladlad again filed a Petition5 for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-
represented sector that is particularly disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang
Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW
Labor Party v. Commission on Elections.6 Ang Ladlad laid out its national membership base
consisting of individual members and organizational supporters, and outlined its platform of
governance.7

On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division)
dismissed the Petition on moral grounds, stating that:

x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay,
Bisexual and Transgender (LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their

sexual orientation and gender identity.

and proceeded to define sexual orientation as that which:

x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and
intimate and sexual relations with, individuals of a different gender, of the same gender, or more
than one gender."

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which
offends religious beliefs. In Romans 1:26, 27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural
use into that which is against nature: And likewise also the men, leaving the natural use of the
woman, burned in their lust one toward another; men with men working that which is unseemly, and
receiving in themselves that recompense of their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women "ye are indeed a people transgressing
beyond bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was
the end of those who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against
people who do mischief" (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F:
‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further
indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation.
Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act,
omission, establishment, business, condition of property, or anything else which x x x (3) shocks,
defies; or disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code
provides that ‘Contracts whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The
penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling the
same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene
literature or indecent or immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which: (1) glorify criminals
or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in
and use of prohibited drugs; and (5) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature
which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
likewise for not being truthful when it said that it "or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to
the youth." As an agency of the government, ours too is the State’s avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and spiritual degradation. 8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners
Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking
the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution,
stating that:
I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it
has properly proven its under-representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of
electing congressional representatives is to enable Filipino citizens belonging to marginalized and
under-represented sectors, organizations and parties, and who lack well-defined political
constituencies but who could contribute to the formulation and enactment of appropriate legislation
that will benefit the nation as a whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list
race. But that is not the intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the
party-list system is a tool for the realization of aspirations of marginalized individuals whose interests
are also the nation’s – only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is able to justify that having
mixed sexual orientations and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.

II. No substantial differentiation

In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do
not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals.
x x x Significantly, it has also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a comparable intent to protect
or promote the social or legal equality of homosexual relations," as in the case of race or religion or
belief.

xxxx

Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can
be no denying that Ladlad constituencies are still males and females, and they will remain either
male or female protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices.
Neither is there any attempt to any particular religious group’s moral rules on Ladlad. Rather, what
are being adopted as moral parameters and precepts are generally accepted public morals. They
are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years
of Muslim and Christian upbringing, such that some moral precepts espoused by said religions have
sipped [sic] into society and these are not publicly accepted moral norms.

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

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed
Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang
Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing the final ballots for the May
2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on
behalf of COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment,
however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s
application.13 Thus, in order to give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment.14 The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15

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

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to
Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the
denial of Ang Ladlad’s petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on
Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was
granted on February 2, 2010.19

The Parties’ Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using
religious dogma, violated the constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy,
freedom of speech and assembly, and equal protection of laws, as well as constituted violations of
the Philippines’ international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlad’s petition and argued that the COMELEC erred in denying
petitioner’s application for registration since there was no basis for COMELEC’s allegations of
immorality. It also opined that LGBTs have their own special interests and concerns which should
have been recognized by the COMELEC as a separate classification. However, insofar as the
purported violations of petitioner’s freedom of speech, expression, and assembly were concerned,
the OSG maintained that there had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine
national political agenda to benefit the nation and that the petition was validly dismissed on moral
grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated
by the Constitution and RA 7941, and that petitioner made untruthful statements in its petition when
it alleged its national existence contrary to actual verification reports by COMELEC’s field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector
is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of
the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that
only those sectors specifically enumerated in the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,20 "the
enumeration of marginalized and under-represented sectors is not exclusive". The crucial element is
not whether a sector is specifically enumerated, but whether a particular organization complies with
the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged
that it had nationwide existence through its members and affiliate organizations. The COMELEC
claims that upon verification by its field personnel, it was shown that "save for a few isolated places
in the country, petitioner does not exist in almost all provinces in the country."21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful
when it said that it or any of its nominees/party-list representatives have not violated or failed to
comply with laws, rules, or regulations relating to the elections." Nowhere was this ground for denial
of petitioner’s accreditation mentioned or even alluded to in the Assailed Resolutions. This, in itself,
is quite curious, considering that the reports of petitioner’s alleged non-existence were already
available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is
irregular procedure; at worst, a belated afterthought, a change in respondent’s theory, and a serious
violation of petitioner’s right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at
least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
members in its electronic discussion group.22 Ang Ladlad also represented itself to be "a national
LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks:"

§ Abra Gay Association

§ Aklan Butterfly Brigade (ABB) – Aklan

§ Albay Gay Association

§ Arts Center of Cabanatuan City – Nueva Ecija

§ Boys Legion – Metro Manila

§ Cagayan de Oro People Like Us (CDO PLUS)

§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila

§ Cebu Pride – Cebu City

§ Circle of Friends

§ Dipolog Gay Association – Zamboanga del Norte

§ Gay, Bisexual, & Transgender Youth Association (GABAY)

§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila

§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte

§ Iloilo City Gay Association – Iloilo City

§ Kabulig Writer’s Group – Camarines Sur

§ Lesbian Advocates Philippines, Inc. (LEAP)

§ LUMINA – Baguio City

§ Marikina Gay Association – Metro Manila

§ Metropolitan Community Church (MCC) – Metro Manila

§ Naga City Gay Association – Naga City

§ ONE BACARDI

§ Order of St. Aelred (OSAe) – Metro Manila

§ PUP LAKAN

§ RADAR PRIDEWEAR

§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila

§ San Jose del Monte Gay Association – Bulacan

 § Sining Kayumanggi Royal Family – Rizal

§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila

§ Soul Jive – Antipolo, Rizal

§ The Link – Davao City

§ Tayabas Gay Association – Quezon

§ Women’s Bisexual Network – Metro Manila

§ Zamboanga Gay Association – Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed, petitioner does not even exist in Quezon City, which is
registered as Ang Ladlad’s principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the
belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled
that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies
in Ang Ladlad’s morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly,
"governmental reliance on religious justification is inconsistent with this policy of neutrality."25 We
thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend,
instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent
of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are
second-class citizens. 1avvphi1

In other words, government action, including its proscription of immorality as expressed in criminal
law like concubinage, must have a secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on religion might have a compelling
influence on those engaged in public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human mind endeavors
to regulate the temporal and spiritual institutions of society in a uniform manner, harmonizing earth
with heaven. Succinctly put, a law could be religious or Kantian or Aquinian or utilitarian in its
deepest roots, but it must have an articulable and discernible secular purpose and justification to
pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and the
elevating influence of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strive to uphold religious liberty to
the greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state interests. 27

Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual
conduct may be religion-based, it has long been transplanted into generally accepted public morals.
The COMELEC argues:

Petitioner’s accreditation was denied not necessarily because their group consists of LGBTs but
because of the danger it poses to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the standard of morals we
cherish in our civilized society. Any society without a set of moral precepts is in danger of losing its
own existence.28

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

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
Ladlad. Even the OSG agrees that "there should have been a finding by the COMELEC that the
group’s members have committed or are committing immoral acts."30 The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or
more than one gender, but mere attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both the "straights" and the
gays." Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be prevented, or why special
protection is required for the youth. Neither has the COMELEC condescended to justify its position
that petitioner’s admission into the party-list system would be so harmful as to irreparably damage
the moral fabric of society. We, of course, do not suggest that the state is wholly without authority to
regulate matters concerning morality, sexuality, and sexual relations, and we recognize that the
government will and should continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions,
situate morality on one end of an argument or another, without bothering to go through the rigors of
legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the
bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELEC’s reference to purported violations of our penal and civil laws flimsy, at
best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as "any act, omission,
establishment, condition of property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings.32 A violation of Article 201 of the
Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a
criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to
justify exclusion of homosexuals from participation in the party-list system. The denial of Ang
Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and
disapproval of homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any particular morally reprehensible act. It is
this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor shall any
person be denied equal protection of the laws," courts have never interpreted the provision as an
absolute prohibition on classification. "Equality," said Aristotle, "consists in the same treatment of
similar persons."33 The equal protection clause guarantees that no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances.34

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

The COMELEC posits that the majority of the Philippine population considers homosexual conduct
as immoral and unacceptable, and this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law
exists to criminalize homosexual behavior or expressions or parties about homosexual behavior.
Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the asserted
state interest here – that is, moral disapproval of an unpopular minority – is not a legitimate state
interest that is sufficient to satisfy rational basis review under the equal protection clause. The
COMELEC’s differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the
same interest in participating in the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general
application should apply with equal force to LGBTs, and they deserve to participate in the party-list
system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from heterosexuals
insofar as the party-list system is concerned does not imply that any other law distinguishing
between heterosexuals and homosexuals under different circumstances would similarly fail. We
disagree with the OSG’s position that homosexuals are a class in themselves for the purposes of the
equal protection clause.38 We are not prepared to single out homosexuals as a separate class
meriting special or differentiated treatment. We have not received sufficient evidence to this effect,
and it is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that
it be recognized under the same basis as all other groups similarly situated, and that the COMELEC
made "an unwarranted and impermissible classification not justified by the circumstances of the
case."

Freedom of Expression and Association

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

In a democracy, this common agreement on political and moral ideas is distilled in the public square.
Where citizens are free, every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative democracy, the state is
prohibited from determining which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority
rule is a necessary principle in this democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs and preferences of
the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of adopting and
accepting a constitution and the limits it specifies – including protection of religious freedom "not only
for a minority, however small – not only for a majority, however large – but for each of us" – the
majority imposes upon itself a self-denying ordinance. It promises not to do what it otherwise could
do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society, and this
freedom applies not only to those that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued.
Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on
the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no
better reason than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is not illegal in this
country. It follows that both expressions concerning one’s homosexuality and the activity of forming a
political association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing same-sex
conduct.41 European and United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal protection provisions in
foreign and international texts.42 To the extent that there is much to learn from other jurisdictions that
have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign
authorities, while not formally binding on Philippine courts, may nevertheless have persuasive
influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions must show that their actions were
caused by "something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint."43

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

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful,
offensive, or even defiant. They are entitled to hold and express that view. On the other hand,
LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between
individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court is concerned, our democracy
precludes using the religious or moral views of one part of the community to exclude from
consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well
may be that this Decision will only serve to highlight the discrepancy between the rigid constitutional
analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that
public opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights
claims and we neither attempt nor expect to affect individual perceptions of homosexuality through
this Decision.

The OSG argues that since there has been neither prior restraint nor subsequent punishment
imposed on Ang Ladlad, and its members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of expression or association. The
OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC]
simply exercised its authority to review and verify the qualifications of petitioner as a sectoral party
applying to participate in the party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely
take part in the conduct of elections. Their right to vote will not be hampered by said denial. In fact,
the right to vote is a constitutionally-guaranteed right which cannot be limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang
Ladlad’s petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity
of its members to fully and equally participate in public life through engagement in the party list
elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to
limitations imposed by law. x x x47

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the
party-list system, and – as advanced by the OSG itself – the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been
precluded, because of COMELEC’s action, from publicly expressing its views as a political party and
participating on an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international
human rights law, in particular, has grown dynamically in its attempt to bring about a more just and
humane world order. For individuals and groups struggling with inadequate structural and
governmental support, international human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms may become actual, rather than
ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human
rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right
to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on any ground such as race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.

In this context, the principle of non-discrimination requires that laws of general application relating to
elections be applied equally to all persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the
ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26
should be construed to include "sexual orientation."48 Additionally, a variety of United Nations bodies
have declared discrimination on the basis of sexual orientation to be prohibited under various
international agreements.49

The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely
chosen representatives.

Likewise, the ICCPR states:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in
article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and
equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will
of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation
is elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in
Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to public
service. Whatever form of constitution or government is in force, the Covenant requires States to
adopt such legislative and other measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic
government based on the consent of the people and in conformity with the principles of the
Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures
that persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand
for election, such as minimum age, must be justifiable on objective and reasonable criteria. Persons
who are otherwise eligible to stand for election should not be excluded by unreasonable or
discriminatory requirements such as education, residence or descent, or by reason of political
affiliation. No person should suffer discrimination or disadvantage of any kind because of that
person's candidacy. States parties should indicate and explain the legislative provisions which
exclude any group or category of persons from elective office. 50
We stress, however, that although this Court stands willing to assume the responsibility of giving
effect to the Philippines’ international law obligations, the blanket invocation of international law is
not the panacea for all social ills. We refer now to the petitioner’s invocation of the Yogyakarta
Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and
Gender Identity),51 which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are
obligatory on the Philippines. There are declarations and obligations outlined in said Principles which
are not reflective of the current state of international law, and do not find basis in any of the sources
of international law enumerated under Article 38(1) of the Statute of the International Court of
Justice.52 Petitioner has not undertaken any objective and rigorous analysis of these alleged
principles of international law to ascertain their true status.

We also hasten to add that not everything that society – or a certain segment of society – wants or
demands is automatically a human right. This is not an arbitrary human intervention that may be
added to or subtracted from at will. It is unfortunate that much of what passes for human rights today
is a much broader context of needs that identifies many social desires as rights in order to further
claims that international law obliges states to sanction these innovations. This has the effect of
diluting real human rights, and is a result of the notion that if "wants" are couched in "rights"
language, then they are no longer controversial. 1avvphi1

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration
formulated by various international law professors, are – at best – de lege ferenda – and do not
constitute binding obligations on the Philippines. Indeed, so much of contemporary international law
is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which amount to no more
than well-meaning desires, without the support of either State practice or opinio juris.53

As a final note, we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are
divided in opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is
to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in
the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections
dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET
ASIDE. The Commission on Elections is directed to GRANT petitioner’s application for party-list
accreditation.

SO ORDERED.