Republic of the PhilipppinesSUPREME COURTManila

SECOND DIVISION

[G.R. No. 138881. December 18, 2000]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs.LEILA JOHNSON Y REYES, accused-appellant.

D E C I S I O N

MENDOZA, J.: chanrobles virtual law library

This is an appeal from the decision,[1] dated May 14, 1999, of the Regional Trial Court, Branch 110, Pasay City, finding accused-appellant Leila Johnson y Reyes guilty of violation of 16 of R.A. No. 6425 (Dangerous Drugs Act), as amended by R.A. No. 7659, and sentencing her to suffer the penalty of reclusion perpetua and to pay a fine ofP500,000.00 and the costs of the suit. chanrobles virtual law library

The information against accused-appellant alleged: chanrobles virtual law library

That on June 26, 1998 inside the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable Court, the above-named Accused did then and there willfully, unlawfully and feloniously possess three plastic bags of methamphetamine hydrochloride, a regulated drug, each bag weighing: chanrobles virtual law library

#1 ONE HUNDRED EIGHTY SEVEN POINT FIVE (187.5) grams; chanrobles virtual law library

#2 ONE HUNDRED NINETY EIGHT POINT ZERO (198.0) grams; and chanrobles virtual law library

#3 ONE HUNDRED NINETY FOUR POINT SEVEN (194.7) grams, respectively, chanrobles virtual law library

or a total of FIVE HUNDRED EIGHTY POINT TWO (580.2) grams of methamphetamine hydrochloride. chanrobles virtual law library

That the above-named accused does not have the corresponding chanrobles virtual law library

license or prescription to possess or use said regulated drug. chanrobles virtual law library

CONTRARY TO LAW.[2] chanrobles virtual law library

Upon being arraigned, accused-appellant pleaded not guilty,[3] whereupon trial was held. chanrobles virtual law library

The prosecution presented four witnesses, namely, NBI Forensic Chemist George de Lara, SPO4 Reynaldo Embile, duty frisker Olivia Ramirez, and SPO1 Rizalina Bernal. The defense presented accused-appellant who testified in her own behalf. chanrobles virtual law library

The facts are as follows: chanrobles virtual law library

Accused-appellant Leila Reyes Johnson was, at the time of the incident, 58 years old, a widow, and a resident of Ocean Side, California, U.S.A. She is a former Filipino citizen who was naturalized as an American on June 16, 1968 and had since been working as a registered nurse, taking care of geriatric patients and those with Alzheimers disease, in convalescent homes in the United States.[4] chanrobles virtual law library

On June 16, 1998, she arrived in the Philippines to visit her sons family in Calamba, Laguna. She was due to fly back to the United States on July 26. On July 25, she checked in at the Philippine Village Hotel to avoid the traffic on the way to the Ninoy Aquino International Airport (NAIA) and checked out at 5:30 p.m. the next day, June 26, 1998.[5] chanrobles virtual law library

At around 7:30 p.m. of that day, Olivia Ramirez was on duty as a lady frisker at Gate 16 of the NAIA departure area. Her duty was to frisk departing passengers, employees, and crew and check for weapons, bombs, prohibited drugs, contraband goods, and explosives.[6] chanrobles virtual law library

When she frisked accused-appellant Leila Johnson, a departing passenger bound for the United States via Continental Airlines CS-912, she felt something hard on the latters abdominal area. Upon inquiry, Mrs. Johnson explained she needed to wear two panty girdles as she had just undergone an operation as a result of an ectopic pregnancy.[7] chanrobles virtual law library

Not satisfied with the explanation, Ramirez reported the matter to her superior, SPO4 Reynaldo Embile, saying Sir, hindi po ako naniniwalang panty lang po iyon. (Sir, I do not believe that it is just a panty.) She was directed to take accused-appellant to the nearest womens room for inspection. Ramirez took accused-appellant to

the rest room, accompanied by SPO1 Rizalina Bernal. Embile stayed outside.[8] chanrobles virtual law library

Inside the womens room, accused-appellant was asked again by Ramirez what the hard object on her stomach was and accused-appellant gave the same answer she had previously given. Ramirez then asked her to bring out the thing under her girdle. Accused-appellant brought out three plastic packs, which Ramirez then turned over to Embile, outside the womens room.[9] chanrobles virtual law library

The confiscated packs, marked as Exhibits C-1, C-2 and C-3, contained a total of 580.2 grams of a substance which was found by NBI Chemist George de Lara to be methamphetamine hydrochloride or shabu.[10] chanrobles virtual law library

Embile took accused-appellant and the plastic packs to the 1st Regional Aviation and Security Office (1st RASO) at the arrival area of the NAIA, where accused-appellants passport and ticket were taken and her luggage opened. Pictures were taken and her personal belongings were itemized.[11] chanrobles virtual law library

In her defense, accused-appellant alleged that she was standing in line at the last boarding gate when she was approached by Embile and two female officers. She claimed she was handcuffed and taken to the womens room. There, she was asked to undress and was then subjected to a body search. She insisted that nothing was found on her person. She was later taken to a room filled with boxes, garbage, and a chair. Her passport and her purse containing $850.00 and some change were taken from her, for which no receipt was issued to her. After two hours, she said, she was transferred to the office of a certain Col. Castillo.[12] chanrobles virtual law library

After another two hours, Col. Castillo and about eight security guards came in and threw two white packages on the table. They told her to admit that the packages were hers. But she denied knowledge and ownership of the packages. She was detained at the 1st RASO office until noon of June 28, 1999 when she was taken before a fiscal for inquest.[13] She claimed that throughout the period of her detention, from the night of June 26 until June 28, she was never allowed to talk to counsel nor was she allowed to call the U.S. Embassy or any of her relatives in the Philippines.[14] chanrobles virtual law library

On May 14, 1999, the trial court rendered a decision, the dispositive portion of which reads:[15] chanrobles virtual law library

WHEREFORE, judgment is hereby rendered finding the accused LEILA JOHNSON Y REYES, GUILTY beyond reasonable doubt of the offense of Violation of Section 16 of Republic Act 6425 as amended and hereby imposes on her the penalty of RECLUSION PERPETUA and condemns said accused to pay a fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00) without subsidiary imprisonment in case of insolvency and to pay the costs of suit. chanrobles virtual law library

The Methamphetamine Hydrochloride (shabu) having a total net weight of 580.2 grams (Exhibits G, C-2 and C-3) are hereby confiscated in favor of the government and the Branch Clerk of Court is hereby ordered to cause the transportation thereof to the Dangerous Drugs Board for disposition in accordance with law. chanrobles virtual law library

The accused shall be credited in full for the period of her detention at the City Jail of Pasay City during the pendency of this case provided that she agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Accused-appellant contends that the trial court convicted her: (1) despite failure of the prosecution in proving the negative allegation in the information; (2) despite failure of the prosecution in proving the quantity of methamphetamine hydrochloride; (3) despite violation of her constitutional rights; and (4) when guilt was not proven beyond reasonable doubt.[16] chanrobles virtual law library

First. Accused-appellant claims that she was arrested and detained in gross violation of her constitutional rights. She argues that the shabu confiscated from her is inadmissible against her because she was forced to affix her signature on the plastic bags while she was detained at the 1st RASO office, without the assistance of counsel and without having been informed of her constitutional rights. Hence, she argues, the methamphetamine hydrochloride, or shabu, should have been excluded from the evidence.[17] chanrobles virtual law library

The contention has no merit. No statement, if any, was taken from accused-appellant during her detention and used in evidence against her. There is, therefore, no basis for accused-appellants invocation of Art. III, 12(1) and (3). On the other hand, what is involved in this case is an arrest in flagrante delicto pursuant to a valid search made on her person. chanrobles virtual law library

The trial court held: chanrobles virtual law library

The constitutional right of the accused was not violated as she was never placed under custodial investigation but was validly arrested without warrant pursuant to the provisions of Section 5, Rule 113 of the 1985 Rules of Criminal Procedure which provides: chanrobles virtual law library

Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: chanrobles virtual law library

(a) when in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;chanrobles virtual law library

(b) when an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and chanrobles virtual law library

(Underscoring supplied)

x x x x chanrobles virtual law library

A custodial investigation has been defined in People. v. Ayson 175 SCRA 230 as the questioning initiated by law enforcement officers after a person has been taken [in] custody or otherwise deprived of his freedom in any significant way. This presupposes that he is suspected of having committed an offense and that the investigator is trying to elicit information or [a] confession from him." chanrobles virtual law library

The circumstances surrounding the arrest of the accused above falls in either paragraph (a) or (b) of the Rule above cited, hence the allegation that she has been subjected to custodial investigation is far from being accurate.[18] chanrobles virtual law library

The methamphetamine hydrochloride seized from her during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures. chanrobles virtual law library

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable.[19] Such recognition is implicit in airport security procedures. With increased concern over airplane hijacking and terrorism has come increased security at the nations airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the

presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel.[20] Indeed, travelers are often notified through airport public address systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless searches and seizures do not apply to routine airport procedures. chanrobles virtual law library

The packs of methamphetamine hydrochloride having thus been obtained through a valid warrantless search, they are admissible in evidence against the accused-appellant herein. Corollarily, her subsequent arrest, although likewise without warrant, was justified since it was effected upon the discovery and recovery of shabu in her personin flagrante delicto.chanrobles virtual law library

Anent her allegation that her signature on the said packs (Exhibits C-1, C-2 and C-3 herein) had been obtained while she was in the custody of the airport authorities without the assistance of counsel, the Solicitor General correctly points out that nowhere in the records is it indicated that accused-appellant was required to affix her signature to the packs. In fact, only the signatures of Embile and Ramirez thereon, along with their testimony to that effect, were presented by the prosecution in proving its case. chanrobles virtual law library

There is, however, no justification for the confiscation of accused-appellants passport, airline ticket, luggage, and other personal effects. The pictures taken during that time are also inadmissible, as are the girdle taken from her, and her signature thereon. Rule 126, 2 of the Revised Rules of Criminal Procedure authorizes the search and seizure only of the following: chanrobles virtual law library

Personal property to be seized . A search warrant may be issued for the search and seizure of personal property: chanrobles virtual law library

(a) Subject of the offense; chanrobles virtual law library

(b) Stolen or embezzled and other proceeds or fruits of the offense; and chanrobles virtual law library

(c) Used or intended to be used as the means of committing an offense. chanrobles virtual law library

Accordingly, the above items seized from accused-appellant should be returned to her. chanrobles virtual law library

Second. Accused-appellant argues that the prosecution failed to fully ascertain the quantity of methamphetamine hydrochloride to justify the imposition of the penalty of reclusion perpetua. chanrobles virtual law library

Section 20 of R.A. No. 6425, as amended by R.A. No. 7659, states: chanrobles virtual law library

Section 20 - Application Of Penalties, Confiscation And Forfeiture Of The Proceeds or Instrument Of The Crime The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III of this Act, shall be applied if the dangerous drugs involved is in any of the following quantities: chanrobles virtual law library

1. 40 grams or more of opium; chanrobles virtual law library

2. 40 grams or more of morphine; chanrobles virtual law library

3. 200 grams or more of shabu, or methylamphetamine hydrochloride; chanrobles virtual law library

4. 40 grams or more of heroin; chanrobles virtual law library

5. 750 grams or more of indian hemp of marijuana; chanrobles virtual law library

6. 50 grams of marijuana resin or marijuana resin oil; chanrobles virtual law library

7. 40 grams or more of cocaine or cocaine hydrochloride; or chanrobles virtual law library

8. In case of other dangerous drugs, the quantity of which is far beyond therapeutic requirements as determined and promulgated by the Dangerous Drugs Board, after public consultation/hearings conducted for the purpose. chanrobles virtual law library

Otherwise, if the quantity involved is less than the foregoing quantities, the penalty shall range from prision correccional to reclusion perpetua depending upon the quantity. chanrobles virtual law library

Under this provision, accused-appellant therefore stands to suffer the penalty of reclusion perpetua to death for her possession of 580.2 grams of shabu. chanrobles virtual law library

Accused-appellant attempts to distinguish between a quantitative and a qualitative examination of the substance contained in Exhibits C-1, C-2 and C-3. She argues that the examination conducted by the NBI forensic chemist was a qualitative one which merely yielded positive findings for shabu, but failed to establish its purity; hence, its exact quantity remains indeterminate and unproved. chanrobles virtual law library

This contention is likewise without merit. chanrobles virtual law library

The expert witness, George De Lara, stated that the tests conducted would have indicated the presence of impurities if there were any. He testified: chanrobles virtual law library

PROS. VELASCO By mixing it twice, Mr. Witness, if there are any adulterants or impurities, it will be discovered by just mixing it? chanrobles virtual law library

WITNESS If some drugs or additives were present, it will appear in a thin layer chromatographic examination. chanrobles virtual law library

PROS. VELASCO Did other drugs or other additives appear Mr. Witness? chanrobles virtual law library

WITNESS In my thin layer chromatographic plate, it only appears one spot which resembles or the same as the Methamphetamine Hydrochloride sample chanrobles virtual law library

. . . . chanrobles virtual law library

PROS. VELASCO So, Mr. Witness, if there are any adulterants present in the chemicals you have examined, in chemical examination, what color it will register, if any? chanrobles virtual law library

WITNESS In sample, it contained a potassium aluminum sulfate, it will not react with the reagent, therefore it will not dissolve. In my examination, all the specimens reacted on the re-agents, sir. chanrobles virtual law library

PROS. VELASCO And what is potassium aluminum sulfate in laymans term? chanrobles virtual law library

WITNESS It is only a tawas. chanrobles virtual law library

. . . . chanrobles virtual law library

COURT In this particular case, did you find any aluminum sulfate or tawas in the specimen? chanrobles virtual law library

WITNESS None, your Honor. chanrobles virtual law library

. . . . chanrobles virtual law library

ATTY. AGOOT I will cite an example, supposing ten grams of Methamphetamine Hydrochloride is mixed with 200 grams of tawas, you will submit that to qualitative examination, what will be your findings, negative or positive, Mr. Witness? chanrobles virtual law library

WITNESS It will give a positive result for Methamphetamine Hydrochloride. chanrobles virtual law library

ATTY. AGOOT That is qualitative examination. chanrobles virtual law library

WITNESS And also positive for aluminum sulfate.[21] chanrobles virtual law library

A qualitative determination relates to the identity of the material, whereas a quantitative analysis requires the determination of the percentage combination of the components of a mixture. Hence, a qualitative identification of a powder may reveal the presence of heroin and quinine, for instance, whereas a quantitative analysis may conclude the presence of 10 percent heroin and 90 percent quinine.[22] chanrobles virtual law library

De Lara testified that he used a chromatography test to determine the contents of Exhibits C-1, C-2 and C-3. Chromatography is a means of separating and tentatively identifying the components of a mixture. It is particularly useful for analyzing the multicomponent specimens that are frequently received in a crime lab. For example, illicit drugs sold on the street may be diluted with practically any material that is at the disposal of the drug dealer to increase the quantity of the product that is made available to prospective customers. Hence, the task of identifying an illicit drug preparation would be an arduous one without the aid of chromatographic methods to first separate the mixture into its components.[23] chanrobles virtual law library

The testimony of De Lara established not only that the tests were thorough, but also that the scientifically correct method of

obtaining an accurate representative sample had been obtained.[24] At any rate, as the Solicitor-General has pointed out, if accused-appellant was not satisfied with the results, it would have been a simple matter for her to ask for an independent examination of the substance by another chemist. This she did not do. chanrobles virtual law library

Third. Accused-appellant argues that the prosecution failed to prove the negative allegation in the information that she did not have a license to possess or use methamphetamine hydrochloride or shabu. chanrobles virtual law library

Art. III of Republic Act No. 6425, as amended by Republic Act No. 7659 provides: chanrobles virtual law library

SEC. 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess or use any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20 hereof. chanrobles virtual law library

Accused-appellant claims that possession or use of methamphetamine hydrochloride or shabu,a regulated drug, is not unlawful unless the possessor or user does not have the required license or prescription. She points out that since the prosecution failed to present any certification that she is not authorized to possess or use regulated drugs, it therefore falls short of the quantum of proof needed to sustain a conviction. chanrobles virtual law library

The contention has no merit. chanrobles virtual law library

The question raised in this case is similar to that raised in United States v. Chan Toco.[25] The accused in that case was charged with smoking opium without being duly registered. He demurred to the information on the ground that it failed to allege that the use of opium had not been prescribed as a medicine by a duly licensed and practicing physician. chanrobles virtual law library

This Court denied the motion and said: chanrobles virtual law library

The evident interest and purpose of the statute is to prohibit and to penalize generally the smoking of opium in these Islands. But the legislator desired to withdraw from the operation of the statute a limited class of smokers who smoked under the advice and by prescription of a licensed and practicing physician . . . . Hence where one is charged with a violation of the general provisions of the Opium Law, it is more logical as well as more practical and

convenient, if he did in fact smoke opium under the advice of a physician, that he should set up this fact by way of defense, than that the prosecution should be called upon to prove that every smoker, charged with a violation of the law, does so without such advice or prescription. Indeed, when it is considered that under the law any person may, in case of need and at any time, procure the advice of a physician to use opium or some of its derivatives, and that in the nature of things no public record of prescriptions of this kind is or can be required to be kept, it is manifest that it would be wholly impracticable and absurd to impose on the prosecution the burden of alleging and proving the fact that one using opium does so without the advice of a physician. To prove beyond a reasonable doubt, in a particular case, that one using opium does so without the advice or prescription of a physician would be in most cases a practical impossibility without the aid of the defendant himself, while a defendant charged with the illegal use of opium should find little difficulty in establishing the fact that he used it under the advice and on the prescription of a physician, if in fact he did so.[26] chanrobles virtual law library

An accused person sometimes owes a duty to himself if not to the State. If he does not perform that duty he may not always expect the State to perform it for him. If he fails to meet the obligation which he owes to himself, when to meet it is an easy thing for him to do, he has no one but himself to blame. chanrobles virtual law library

Moreover, as correctly pointed out by the Solicitor General, there is nothing in R.A. No. 6425 or the Dangerous Drugs Act, as amended, which requires the prosecution to present a certification that accused-appellant has no license or permit to possess shabu. Mere possession of the prohibited substance is a crime per se and the burden of proof is upon accused-appellant to show that she has a license or permit under the law to possess the prohibited drug. chanrobles virtual law library

Fourth. Lastly, accused-appellant contends that the evidence presented by the prosecution is not sufficient to support a finding that she is guilty of the crime charged. chanrobles virtual law library

This contention must likewise be rejected. chanrobles virtual law library

Credence was properly accorded to the testimonies of the prosecution witnesses, who are law enforcers. When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting accused-appellant. This Court accords great respect to the findings of the trial court on the matter of

credibility of the witnesses in the absence of any palpable error or arbitrariness in its findings.[27] chanrobles virtual law library

It is noteworthy that, aside from the denial of accused-appellant, no other witness was presented in her behalf. Her denial cannot prevail over the positive testimonies of the prosecution witnesses.[28] As has been held, denial as a rule is a weak form of defense, particularly when it is not substantiated by clear and convincing evidence. The defense of denial or frame-up, like alibi, has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most prosecutions for violation of the Dangerous Drugs Act.[29] chanrobles virtual law library

The Court is convinced that the requirements of the law in order that a person may be validly charged with and convicted of illegal possession of a dangerous drug in violation of R.A. No. 6425, as amended, have been complied with by the prosecution in this case. The decision of the trial court must accordingly be upheld. chanrobles virtual law library

As regards the fine imposed by the trial court, it has been held that courts may fix any amount within the limits established by law.[30] Considering that five hundred eighty point two (580.2) grams of shabu were confiscated from accused-appellant, the fine imposed by the trial court may properly be reduced to P50,000.00. chanrobles virtual law library

WHEREFORE, the decision of the Regional Trial Court of Pasay City, Branch 110, finding accused-appellant guilty of violation of 16 of R.A. No. 6425, as amended, and imposing upon her the penalty of reclusion perpetua is hereby AFFIRMED with the MODIFICATION that the fine imposed on accused-appellant is reduced to P50,000.00. Costs against appellant. chanrobles virtual law library

The passport, airline ticket, luggage, girdle and other personal effects not yet returned to the accused-appellant are hereby ordered returned to her. chanrobles virtual law library

SO ORDERED. chanrobles virtual law library

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 124540 November 14, 1997

MERLINDA JACINTO, ADELINA AGUSTIN, SUSAN AGUSTIN, EVELYN ATIENZA, NIDA BALANE, ANICIA CARLOS, CELEDONIA CARLOS, LIWANAG CASTILLO, JOSEFINA DE GUZMAN, MINERVA GARCIA, MARIA GATDULA, ALICIA GUNDA, AURORA LOPEZ, CARMENCITA MANANSALA, ERLINDA MARTINEZ, LOLITA NAVARRETE, GUADALUPE PANERGO, MARIA PULGA, PAZ SERRA and VIRGINIA ZAMORA, petitioners, vs.HON. COURT OF APPEALS; THE CIVIL SERVICE COMMISSION; and THE SECRETARY OF EDUCATION, CULTURE AND SPORTS, respondents.

PANGANIBAN, J.:

While we recognize and appreciate the toil and hardship of our public schoolteachers in fulfilling the state's responsibility of educating our children, and realize their inadequately addressed plight as compared to other professionals, we have the equal task of promoting the larger public interest which withholds from them and other similarly situated government workers the right to engage in mass actions resulting in work stoppages for any purpose. Although the Constitution vests in them the right to organize, to assemble peaceably and to petition the government for a redress of grievances, there is no like express provision granting them the right to strike. Rather, the constitutional grant of the right to strike is restrained by the proviso that its exercise shall be done in accordance with law.

The Case

Before us is a petition for review under Rule 45 of the Rules of Court seeking to set aside the November 27, 1995 Decision 1 of the Court of Appeals 2 in CA-G.R. SP No. 37596, which found no grave abuse of discretion on the part of the Civil Service Commission (CSC) in issuing its resolutions 3 disposing of the separate appeals and motions for reconsideration of herein petitioners. The dispositive portions of most of the CSC resolutions, with the exception of the name of the appellant concerned, uniformly read:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to find Susan

Agustin guilty of Conduct Prejudicial to the Best Interest of the Service. She is meted out the penalty of six (6) months suspension without pay. Agustin is now automatically reinstated in the service without payment of back salaries. 4

As regards Petitioner Merlinda Jacinto, the decretal portion of the resolution pertaining to her case reads:

WHEREFORE, foregoing premises considered, the Commission hereby resolves to find Merlinda Jacinto guilty of Violation of Reasonable Office Rules and Regulations. She is hereby meted out the penalty of reprimand. She is automatically reinstated in the service without payment of back salaries. 5

In a Resolution 6 dated March 29, 1996, Respondent Court of Appeals denied the petitioners' motion for reconsideration.

The Facts

The following are the antecedents of the case as narrated by the Court of Appeals, which we find substantiated by the records:

Petitioners are public school teachers from various schools in Metropolitan Manila. Between the period September 17 to 21, 1990, they incurred unauthorized absences in connection with the mass actions then staged; and on September 17, 1990, DECS Secretary Isidro Cariño immediately issued a return-to-work order worded as follows:

TO: ALL PUBLIC SCHOOL TEACHERS AND

OTHER DECS PERSONNEL

SUBJECT: RETURN TO WORK ORDER

Under Civil service law and rules, strikes, unauthorized mass leaves and other forms of mass actions by civil servants which disrupt public services are strictly prohibited.

Those of you who are engaged in the above-mentioned prohibited acts are therefore ordered, in the interest of public service, to return to work within 24 hours from your walkout otherwise dismissal proceedings shall be instituted against you. (Emphasis supplied).

The directive was ignored by petitioners. Consequently, on separate dates, Secretary Cariño issued formal charges and preventive suspension orders against them. They were administratively charged with gross misconduct; gross neglect of duty, etc. for joining unauthorized mass actions; ignoring report-to-work directives; unjustified abandonment of teaching posts; non-observance of Civil Service law, rules and regulations; non-compliance with reasonable office rules and regulations; and incurring unauthorized absences without leave, etc. An investigation committee was then created by Sec. Cariño to look into the matter. However, during the investigation, petitioners did not file their answers or controvert the charges against them. As a consequence, Sec. Cariño, in his decisions found them guilty as charged and imposed the penalty of dismissal, except with respect to petitioners Merlinda Jacinto and Adelina Agustin who were meted only six (6) months suspension.

The decisions were appealed to the Merit Systems Protection Board (MSPB) which dismissed the appeals for lack of merit and then to the Civil Service Commission which set aside the Orders of the MSPB in the contested resolutions. The Civil Service Commission, in separate resolutions, found the petitioners (except Merlinda Jacinto) guilty of Conduct Prejudicial to the Best Interest of the Service; imposed upon them the penalty of six (6) months suspension without pay; and automatically reinstated them to the service without payment of back salaries . . . In the case of Petitioner Merlinda Jacinto, the CSC found her guilty of Violation of Reasonable Office Rules and Regulations; imposed upon her the

penalty of reprimand; and automatically reinstated her in the service without payment of back salaries . . .

Acting on the motions for reconsideration, the CSC rendered the assailed resolutions denying the motions for lack of merit. 7

Petitioners initially questioned the CSC resolutions directly before this Court in petitions docketed as G.R. Nos. 118252 to 118271. In accordance with Revised Administrative Circular 1-95, we referred them to the Court of Appeals.

Respondent Court found that the "petitioners absented themselves from their classes in furtherance of or in connection with the 'mass action' for the purpose of pressuring the government to grant their demands." Citing the resolution of this Court in MPSTA vs. Laguio 8 that the mass actions staged by the public school teachers from September 17 to September 19, 1990, were "to all intents and purposes a strike," it denied the petition, since the right to strike did not extend to civil service employees. In the case of Merlinda Jacinto, Respondent Court found no error on the part of the CSC in finding her guilty of violation of reasonable office rules and regulations. Neither did it find the petitioners entitled to backwages for the period of their preventive suspension, as they were "not exonerated of the charges against them."

Hence, this petition. 9

Issues

Petitioners raise the following grounds for their appeal:

I. The Respondent Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the Civil Service Commission that penalized all the petitioners whose only "offense" (except Jacinto) was to exercise their constitutional right peaceably to assemble and petition the government for redress of grievances.

II. The Respondent Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the Civil Service Commission that penalized Petitioner Jacinto for an alleged offense which has no basis whatsoever thereby violating her right to security of tenure.

III. The Respondent Court of Appeals committed grave abuse of discretion when it upheld the resolutions of the Civil Service Commission that denied petitioners their right to backwages covering the period when they were illegally not allowed to teach. 10

Preliminarily, we note that the remedy resorted to by petitioners is a petition for review under Rule 45 of the Rules of Court which, however, allows "only questions of law." 11 Jurisprudence has extended this remedy to questions of fact in exceptional cases. 12 Where the issues raised involve lack of jurisdiction or grave abuse of discretion as in this case, the Rules provide for a different remedy — Rule 65. In the interest of substantial justice, however, we hereby decide to deal with this petition as one filed under Rule 45, as denominated in its prefatory paragraph, and treat the "grave abuse of discretion" on the part of Respondent Court of Appeals as allegations of "reversible errors."

The Court's Ruling

The petition, which fails to convince us, merits only dismissal.

First Issue: Improper Exercise of the Right to

Peaceful Assembly and to Petition for a Redress of Grievances

There is no question as to the petitioners' rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 13 and 8 14 of the Bill of Rights, Section 2(5) 15 of Article IX, and Section 3 16 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the people's exercise of these rights. As early as the onset of this century, this Court, in U.S. vs. Apurado, 17 already upheld the right to assembly and petition and even went as far as to acknowledge:

It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if

the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. 18

Primicias vs. Fugoso 19 further sustained the supremacy of the freedoms of speech and of assembly over comfort and convenience in the use of streets or parks. Although the Court opined that the exercise of the rights of free speech and of peaceful assembly to petition the government for redress of grievances "is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society," regulation was limited to the mayor's reasonable discretion in issuing a permit to determine or specify only the streets or public places to be used for the purpose and to provide adequate and proper policing to minimize the risk of disorder. Quoting Justice Brandeis in his concurring opinion inWhitney vs. California, the Court said: 20

Fear of serious injury cannot alone justify suppression of free speech and assembly. . . . To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one . . .

xxx xxx xxx

. . . The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. There

must be the probability of serious injury to the state. . . .

This limitation was strictly applied in Reyes vs. Bagatsing, 21 in which "the Court [was] called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit." In that case, retired Justice J.B.L. Reyes, on behalf of the Anti-Bases Coalition, sought a permit from the mayor of Manila to hold a march and a rally starting from Luneta, proceeding through Roxas Boulevard to the gates of the U.S. Embassy, to be attended by local and foreign participants to the International Conference for General Disarmament, World Peace and the Removal of All Foreign Military Bases. The Manila mayor denied them the permit "due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." In reversing the mayor, this Court stated that to justify limitations on freedom of assembly, there must be proof of sufficient weight to satisfy the "clear and present danger" 22 test. Thereafter, the Court proceeded to summarize the rules on assembly and petition, 23 making the clear-and-present danger rule the standard for refusing or modifying the grant of a permit. But it stressed that "the presumption must be to incline the weight of the scales of justice on the side of such rights [of free speech and peaceable assembly], enjoying as they do precedence and primacy."

Philippine Blooming Mills Employees Organization vs. Philippine Blooming Mills Co., Inc., 24 which was promulgated after the proclamation of martial law, further underscored the supremacy of these basic constitutional rights, this time over property rights. Speaking through Mr. Justice Makasiar, the Court explained:

. . . the primacy of human rights — freedom of expression, of peaceful assembly and of petition for redress of grievances — over property rights has been sustained. Emphatic reiteration of this basic tenet as a coveted boon — at once the shield and armor of the dignity and worth of the human personality, the all-consuming ideal of our enlightened civilization — becomes [o]ur duty, if freedom and social justice have any meaning at all for him who toils so that capital can produce economic goods that can generate happiness for all. To regard the demonstration against police officers, not against the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective bargaining agreement and a cause for the dismissal from employment of the demonstrating employees, stretches unduly the compass of the collective bargaining

agreement, is "a potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free expression, of peaceful assembly and of petition. 25

Specifically, the right of civil servants to organize themselves was positively recognized in Association of Court of Appeals Employees (ACAE) vs. Ferrer-Calleja. 26 But, as in the exercise of the rights of free expression and of assembly, there are standards for allowable limitations such as the legitimacy of the purposes of the association,27 the overriding considerations of national security and the preservation of democratic institutions. 28

As regards the right to strike, the Constitution itself qualifies its exercise with the proviso "in accordance with law." This is a clear manifestation that the state may, by law, regulate the use of this right, or even deny certain sectors such right. Executive Order 180 29 which provides guidelines for the exercise of the right of government workers to organize, for instance, implicitly endorsed an earlier CSC circular which "enjoins under pain of administrative sanctions, all government officers and employees from staging strikes, demonstrations, mass leaves, walkouts and other forms of mass action which will result in temporary stoppage or disruption of public service," 30 by stating that the Civil Service law and rules governing concerted activities and strikes in the government service shall be observed. 31

It is also settled in jurisprudence that, in general, workers in the public sector do not enjoy the right to strike.Alliance of Government Workers vs. Minister of Labor and Employment 32 rationalized the proscription thus:

The general rule in the past and up to the present is that the "terms and conditions of employment in the Government, including any political subdivision or instrumentality thereof are governed by law." . . . Since the terms and conditions of government employment are fixed by law, government workers cannot use the same weapons employed by the workers in the private sector to secure concessions from their employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured through compulsion by law. Relations between private employers and their employees rest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the terms and conditions of employment in the unionized private sector are

settled through the process of collective bargaining. In government employment, however, it is the legislature and, where properly given delegated power, the administrative heads of government which fix the terms and conditions of employment. And this is effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. 33

After delving into the intent of the framers of the Constitution, the Court affirmed the above rule in Social Security System Employees Association (SSSEA) vs. Court of Appeals 34 and explained:

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sector Labor-Management Council for appropriate action. But employees in the civil service may not resort to strikes, walkouts and other temporary work stoppages, like workers in the private sector, to pressure the Government to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government Employees to Self-Organization, which took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any political subdivision or instrumentality thereof and government-owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the purpose of securing changes [thereto]. 35

We now come to the case before us. Petitioners, who are public schoolteachers and thus government employees, do not seek to establish that they have a right to strike. Rather, they tenaciously insist that their absences during certain dates in September 1990 were a valid exercise of their constitutional right to engage in peaceful assembly to petition the government for a redress of grievances. They claim that their gathering was not a strike; therefore, their participation therein did not constitute any offense. MPSTA vs. Laguio 36 and ACT vs. Cariño, 37 in which this

Court declared that "these 'mass actions' were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons," should not principally resolve the present case, as the underlying facts are allegedly not identical.

Strike, as defined by law, means any temporary stoppage of work by the concerted action of employees as a result of an industrial or labor dispute. 38 A labor dispute includes any controversy or matter concerning terms and conditions of employment; or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employers and employees. 39 With these premises, we now evaluate the circumstances of the instant petition.

It cannot be denied that the mass action or assembly staged by the petitioners resulted in the non-holding of classes in several public schools during the corresponding period. Petitioners do not dispute that the grievances for which they sought redress concerned the alleged failure of public authorities — essentially, their "employers" — to fully and justly implement certain laws and measures intended to benefit them materially, such as:

1. Immediate release of P680 million Secondary Education Fund (SEF) fringe benefits of teachers under Section 17 of Republic Act 6758.

2. Clothing allowance at

P500 to P1,000 per teachers [sic] under the General Appropriations Act of 1990

3. DMB Circular 904

4. Increase in minimum wage to P5,000 for teachers. 40

And probably to clothe their action with permissible character, 41 they also raised national issues such as the removal of the U.S. bases and the repudiation of foreign debt. In Balingasan vs. Court of Appeals, 42however, this Court said that the fact that the conventional term "strike" was not used by the participants to describe their common course of action was insignificant, since the substance of the situation, and not its appearance, was deemed controlling. 43

Moreover, the petitioners here, except Merlinda Jacinto, were not penalized for the exercise of their right to assemble peacefully and to petition the government for a redress of grievances. Rather, the Civil Service Commission found them guilty of conduct prejudicial to the best interest of the service for having absented themselves without proper authority, from their schools during regular school days, in order to participate in the mass protest, their absence ineluctably resulting in the non-holding of classes and in the deprivation of students of education, for which they were responsible. Had petitioners availed themselves of their free time — recess, after classes, weekends or holidays — to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one — not the DECS, the CSC or even this Court

— could have held them liable for the valid exercise of their constitutionally guaranteed rights. As it was, the temporary stoppage of classes resulting from their activity necessarily disrupted public services, the very evil sought to be forestalled by the prohibition against strikes by government workers. Their act by its nature was enjoined by the Civil Service law, rules and regulations, for which they must, therefore, be made answerable.

Second Issue: Violation by Petitioner Jacinto

of Reasonable Office Rules and Regulations

Petitioner Jacinto, for her part, pleads for exoneration. She asks the Court to reexamine and give due weight to the certification 44 issued by her school principal that she met her class on September 20, 1990 but failed to sign in the attendance logbook. Stated elsewise, Jacinto wants us to scrutinize firsthand a document already ruled upon by the Civil Service Commission and the Court of Appeals to be of doubtful credibility. Time and again, we have held that findings of administrative agencies, which have acquired expertise because their jurisdiction is confined to specific matters, are accorded not only respect but even finality 45 particularly when affirmed by the appellate tribunal. It is not a function of this Court to examine and evaluate the probative value of the evidence proffered in the concerned forum, which formed the basis of the latter's impugned decision, resolution or order, 46 absent a dear showing of arbitrariness and want of any rational basis therefor. 47 In the instant case, we find no sufficient reason to reverse the findings of the CSC.

In any event, as observed by the Commission, said certification, dated December 19, 1990, was belatedly submitted by Petitioner Jacinto only with her motion for reconsideration of the CSC resolution promulgated September 21, 1993; thus, it was correctly rejected as a newly discovered evidence. Additionally, the Commission explained:

. . . such certification contradicts the allegation that she filed an application for leave. If she was really present on September 20, 1990, there would have been no need for her to file an application for leave. Apparently, this is a vain effort to present documents of doubtful credibility just to have Jacinto exonerated of the charges against her. 48

The futility of the tactics of Petitioner Jacinto to evade culpability is further exemplified by her contradictory assertions. In a sworn explanation submitted to Secretary Cariño, she claimed that she left the school premises on the day in question, because she "was

emotionally and mentally depressed," and went to see a physician. 49 In her motion for reconsideration before the CSC, she submitted the above certification to the effect that she was not absent. Now, in assailing the Commission's decision to reprimand her for violation of reasonable office rules and regulations in not filing an application for leave of absence, she invokes Sec. 15, Rule XVI of the Civil Service rules, which provides:

Sec. 15. Applications for vacation leave of absence for one full day or more shall be submitted on the prescribed form for action by the proper chief of agency in advance, whenever possible, of the effective date of such leave.

She contends that the filing of an application for vacation leave need not always be in advance of the effective date thereof. 50 Clearly, her present stance is diametric to her "illness" justification before the DECS. In the latter case, it is Section 16 of said rules that is pertinent:

Sec. 16. All applications for sick leaves of absence for one full day or more shall be on the prescribed form and shall be filed immediately upon the employee's return from such leave. Notice of absence, however, should be sent to the immediate supervisor and/or to the office head. . . .

The regulation requires (1) the filing of the application for sick leave on the prescribed form immediately upon the employee's return from sick leave and (2) a notice of absence to be sent to the immediate supervisor and/or office head. But the Commission found that "the records are bereft of any showing that Jacinto asked permission from school authorities to go out of school premises and seek medical attention outside nor did she file an application for sick leave . . ." 51 Hence, its conclusion that petitioner violated reasonable office rules and regulations.

The totality of the evidence on record sustains the findings and conclusions of the Commission, as affirmed by the Court of Appeals. We have no reason to reverse them. The Civil Service rules clearly provide that violation of reasonable office rules and regulations, on first offense, carries the penalty of reprimand. 52

Third Issue: No Right to Backwages

Petitioners anchor their claim for backwages on the supposed illegality of (1) their preventive suspension upon the filing of the

charges against them and (2) the immediate execution of the DECS Secretary's decisions ordering their dismissal.

The charges against petitioners consisted of the following: (1) grave misconduct; (2) gross neglect of duty; (3) gross violation of Civil Service law, rules and regulations and reasonable office regulations; (4) refusal to perform official duty; (5) gross insubordination; (6) conduct prejudicial to the best interest of the service; and (7) absence without approved leave. These were based on their alleged unauthorized participation in the mass actions in September 1990, disregard of report-to-work directives, unjustified abandonment of teaching posts, unauthorized absences without leave, and other similar violations reported to the DECS Secretary by their respective school supervisors. 53

We find that the charges filed against petitioners warranted their preventive suspension from the service, as provided under Section 51, Chapter 7 (on Discipline) of the Administrative Code, which reads:

Sec. 51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.

The petitioners' alleged lapses, initially found substantiated by the DECS, qualify as grave misconduct or neglect in the performance of duty under the above rule. Thus, former Education Secretary Cariño had the legal authority to suspend them pending further investigation.

The Secretary's immediate execution of his decisions imposing the penalty of dismissal finds legal basis in Sec. 47 (2) of the Civil Service law 54 which provides:

Sec. 47. Disciplinary Jurisdiction. — . . .

(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decisions shall be final in case the penalty

imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.

As can be gleaned from the above, the department secretary's decision confirming the removal of an officer or employee under his jurisdiction is executory in character, i.e. such decision may be immediately executed even pending further remedy, such as an appeal, 55 by the dismissed officer or employee. In the case at bar, it was already the final judgments of Secretary Cariño which were forthwith carried out. The aforequoted statutory provision rules out the alleged illegality of the actions of the DECS Secretary.

In any event, the rule is settled that backwages may be granted only to those who have been illegally dismissed and thenceforth ordered reinstated, or to those acquitted of the charge against them. 56 Even a pardoned convicted employee is not automatically entitled to backpay. Monsanto vs. Factoran Jr. 57 established the general rule that — while pardon has been commonly regarded as eliminating the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense — such exoneration does not operate for all purposes. It does not erase the fact of the commission of the offense and the conviction therefor. It frees the convict from all penalties and legal disabilities and restores to him all his civil rights; but unless expressly grounded on the person's innocence, it does not ipso facto restore him to public office necessarily relinquished or forfeited by reason of the conviction. Pardon does not generally result in automatic reinstatement because the offender has to apply for reappointment; neither is he entitled to backpay. 58

Thus, in Sabello vs. DECS, 59 although we reinstated the petitioner-pardonee to his previous position in the interest of "justice and equity," we did not grant him backwages since he "was lawfully separated from the government service upon his conviction for an offense." We reiterated that the right to backwages was afforded only to those who were illegally dismissed but thereafter ordered reinstated, or to those otherwise acquitted of the charge against them.

Again, in City Mayor of Zamboanga vs. Court of Appeals, 60 we said that "back salaries may be ordered paid to an officer or employee only if he is exonerated of the charge against him and his

suspension or dismissal is found and declared to be illegal." Hence, in Garcia vs. Chairman, Commission on Audit, 61 we said that "if the pardon is based on the innocence of the individual, it affirms this innocence and makes him a new man and as innocent as if he had not been found guilty of the offense charged." 62 In that case, Garcia was found administratively liable for dishonesty. He was, however, acquitted by the trial court of the complaint for qualified theft based on the very same acts. The acquittal was founded not on lack of proof beyond reasonable doubt but on the fact that he did not commit the offense imputed to him. This Court said that after having been declared innocent of the criminal complaint, which had the same basis as the administrative charge, for all legal purposes the petitioner should not be considered to have left his office, so that he was entitled to all the rights and privileges that accrued to him by virtue of the office held, including backwages. He was restored to his office ipso facto upon the issuance of the clemency. The grant of backwages was justified "to afford relief to [the] petitioner who [was] innocent from the start and to make reparation for what he [had] suffered as a result of his unjust dismissal from the service." 63

However, in Balingasan, finding that petitioners therein indeed participated in the unlawful mass actions for which they were similarly meted suspension, the Court opined that they were not completely exonerated of the charges against them. They were denied back salaries because they had given ground for their suspension. This means that being found liable for a lesser offense is not equivalent to exoneration from the original complaint against the concerned public officer or employee. Balingasan referred to the earlier case of Yacia vs. City of Baguio, 64 in which this Court denied the claim of an employee for backwages for the period during which he was not allowed to work because of the execution of the CSC decision dismissing him for dishonesty, even though, on appeal, his penalty was reduced to a fine equivalent to six months' pay.

Based on the above premises, petitioners' demand for backwages cannot be granted, for they had given cause for their suspension — their unjustified abandonment of classes to the prejudice of their students. Although they were eventually found guilty only of conduct prejudicial to the best interest of the service, and not grave misconduct or other offense warranting their dismissal from the service, they were not fully innocent of the charges against them.

We find the case of Petitioner Jacinto different, however. The Civil Service Commission found her culpable only of violation of reasonable office rules and regulations, for not having asked permission from school authorities to leave the school premises and seek medical attention and for not filing an application for sick leave for approval by the school authorities. There was no proof that she joined the mass actions which caused prejudice to the

school system. In Balingasan, this Court, after finding that Rodolfo Mariano was not involved in the mass actions but was absent because he attended the wake and burial of his grandmother in Ilocos Sur without however the benefit of an approved leave of absence, held that "[t]o deny petitioner Mariano his back wages during his suspension would be tantamount to punishing him after his exoneration from the charges which caused his dismissal from the service," i.e. participation in the unlawful mass actions. Therefore, in line with Balingasan, we likewise grant back salaries to Petitioner Jacinto who did not join the illegal activity.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED and the assailed Decision of the Court of Appeals is hereby AFFIRMED with the modification that Petitioner Merlinda Jacinto is granted backwages, without deduction or qualification, from the time she was suspended until her actual reinstatement, the total of which, consistent with prevailing jurisprudence, 65 should not exceed five years.

Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Narvasa, C.J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents MR. & MRS. MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR; MARTINO VILLAR,

represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA, represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA, represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO, represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON, represented by their parent EMERLITO TABLASON, petitioners, vs.THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

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

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

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

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All minors,

they are assisted by their parents who belong to the religious group known as Jehovah's Witnesses which claims some 100,000 "baptized publishers" in the Philippines.

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

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

Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall be simple and dignified and shall include the playing or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued rules and regulations for the proper conduct of the flag ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance with rules and regulations issued by the Secretary of Education, after proper notice and hearing, shall subject the educational institution concerned and its head to public censure as an administrative punishment which shall be published at least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag-ceremony provided by this Act, the Secretary of Education, after proper notice and hearing, shall cause the cancellation of the recognition or permit of the private educational institution responsible for such failure.

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

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL EDUCATIONAL INSTITUTIONS.

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

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

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

b. The assembly shall sing the Philippine National Anthem accompanied by the school band or without the accompaniment if it has none; or the anthem may be played by the school band alone. At the first note of the Anthem, the flag shall be raised briskly. While the flag is being

raised, all persons present shall stand at attention and execute a salute. Boys and men with hats shall salute by placing the hat over the heart. Those without hat may stand with their arms and hands down and straight at the sides. Those in military or Boy Scout uniform shall give the salute prescribed by their regulations. The salute shall be started as the Flag rises, and completed upon last note of the anthem.

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

English Version

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

I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's command to "guard ourselves fromidols — 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 anon-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 IndorsementDAANBANTAYAN 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. BIONGCOGDistrict 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 inNon 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.

Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent affirmation of a vital postulate of freedom. I would only add my brief observations concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that promulgated it was apparently laboring under the conviction that the State had the right to determine what was religious and what was not and to dictate to the individual what he could and could not worship. In pronouncing that the flag was not a religious image but a symbol of the nation, itwas implying that no one had the right to worship it or — as the petitioners insisted — not to worship it. This was no different from saying that the cult that reveres Rizal as a divinity should not and cannot do so because he is only a civic figure deserving honor but not veneration.

It seems to me that every individual is entitled to choose for himself whom or what to worship or whether to worship at all. This is a personal decision he alone can make. The individual may worship a spirit or a person or a beast or a tree (or a flag), and the State cannot prevent him from doing so. For that matter, neither can it compel him to do so. As long as his beliefs are not externalized in acts that offend the public interest, he cannot be prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex cathedra that they are not violating the Bible by saluting the flag. This is to me an unwarranted intrusion into their religious beliefs, which tell them the opposite. The State cannot interpret the Bible for them; only they can read it as they see fit. Right or wrong, the meaning they derive from it cannot be revised or reversed except perhaps by their own acknowledged superiors. But certainly not the State. It has no competence in this matter. Religion is forbidden territory that the State, for all its power and authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with their own understanding of their religious obligations. Significantly, as the ponencia notes, their intransigence does not disturb the peaceful atmosphere of the school or otherwise prejudice the public order. Their refusal to salute the flag and recite the patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it. The petitioners simply stand at attention and keep quiet "to show their respect for the right of those who choose to participate in the solemn proceedings." It is for this innocuous conduct that, pursuant to the

challenged law and regulations, the teachers have been dismissed and the students excelled.

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 message as 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 in this 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.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that school teachers and students who cannot salute the flag, sing the national anthem and recite the pledge of loyalty to the country, on grounds of religious belief or conviction, may not on this ground alone be dismissed from the service or expelled from the school.

At the same time, I am really concerned with what could be thefar-reaching consequences of our ruling in that, we may in effect be sanctioning a privileged or eliteclass of teachers and students who will hereafter be exempt from participating, even when they are in the school premises, in the flag ceremony in deference to their religious scruples. What happens, for instance, if some citizens, based also on their religious beliefs, were to refuse to pay taxes and license fees to the government? Perhaps problems of this nature should not be anticipated. They will be resolved when and if they ever arise. But with today's decision, we may have created more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among its citizens, especially the youth, love and country, respect for the flag and reverence for its national heroes. It cannot also be disputed that the State has the right to adopt

reasonable means by which these laudable objectives can be effectively pursued and achieved. The flag ceremony is one such device intended to inspire patriotism and evoke the finest sentiments of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For a select fewto be exempt from the flag ceremony and all that it represent seven if the exemption is predicated on respect for religious scruples, could be divisive in its impact on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious scruples or beliefs cannot actively participate in the flag ceremony conducted in the school premises should be excluded beforehand from such ceremony. Instead of allowing the religious objector to attend the flag ceremony and display therein his inability to salute the flag, sing the national anthem and recite the pledge of loyalty to the Republic, he or she should remain in the classroom while honors to the flag are conducted and manifested in the "quadrangle" or equivalent place within school premises; or if the flag ceremony must be held in a hall, the religious objector must take his or her place at the rear of (or outside) the hall while those who actively participate in the ceremony must take the front places. This arrangement can, in my view, achieve an accommodation and, to a certain extent, harmonization of a citizen's constitutional right to freedom of religion and a valid exercise of the State's fundamental and legitimate authority to require homage and honor to the flag as the symbol of the Nation.

# Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent affirmation of a vital postulate of freedom. I would only add my brief observations concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that promulgated it was apparently laboring under the conviction that the State had the right to determine what was religious and what was not and to dictate to the individual what he could and could not worship. In pronouncing that the flag was not a religious image but a symbol of the nation, itwas implying that no one had the right to worship it or — as the petitioners insisted — not to worship it. This was no different

from saying that the cult that reveres Rizal as a divinity should not and cannot do so because he is only a civic figure deserving honor but not veneration.

It seems to me that every individual is entitled to choose for himself whom or what to worship or whether to worship at all. This is a personal decision he alone can make. The individual may worship a spirit or a person or a beast or a tree (or a flag), and the State cannot prevent him from doing so. For that matter, neither can it compel him to do so. As long as his beliefs are not externalized in acts that offend the public interest, he cannot be prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex cathedra that they are not violating the Bible by saluting the flag. This is to me an unwarranted intrusion into their religious beliefs, which tell them the opposite. The State cannot interpret the Bible for them; only they can read it as they see fit. Right or wrong, the meaning they derive from it cannot be revised or reversed except perhaps by their own acknowledged superiors. But certainly not the State. It has no competence in this matter. Religion is forbidden territory that the State, for all its power and authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of religious freedom terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with their own understanding of their religious obligations. Significantly, as the ponencia notes, their intransigence does not disturb the peaceful atmosphere of the school or otherwise prejudice the public order. Their refusal to salute the flag and recite the patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it. The petitioners simply stand at attention and keep quiet "to show their respect for the right of those who choose to participate in the solemn proceedings." It is for this innocuous conduct that, pursuant to the challenged law and regulations, the teachers have been dismissed and the students excelled.

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 message as 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 in this 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.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that school teachers and students who cannot salute the flag, sing the national anthem and recite the pledge of loyalty to the country, on grounds of religious belief or conviction, may not on this ground alone be dismissed from the service or expelled from the school.

At the same time, I am really concerned with what could be thefar-reaching consequences of our ruling in that, we may in effect be sanctioning a privileged or eliteclass of teachers and students who will hereafter be exempt from participating, even when they are in the school premises, in the flag ceremony in deference to their religious scruples. What happens, for instance, if some citizens, based also on their religious beliefs, were to refuse to pay taxes and license fees to the government? Perhaps problems of this nature should not be anticipated. They will be resolved when and if they ever arise. But with today's decision, we may have created more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among its citizens, especially the youth, love and country, respect for the flag and reverence for its national heroes. It cannot also be disputed that the State has the right to adopt reasonable means by which these laudable objectives can be effectively pursued and achieved. The flag ceremony is one such device intended to inspire patriotism and evoke the finest sentiments of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For a select fewto be exempt from the flag ceremony and all that it represent seven if the exemption is predicated on respect for religious scruples, could be divisive in its impact on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious scruples or beliefs cannot actively participate in the flag ceremony conducted in the school premises should be excluded beforehand from such ceremony. Instead of allowing the religious objector to attend the flag ceremony and display therein his inability to salute the flag, sing the national anthem and recite the pledge of loyalty to the Republic, he or she should remain in the classroom while honors to the flag are conducted and manifested in the "quadrangle" or equivalent place within school premises; or if the flag ceremony must be held in a hall, the religious objector must take his or her place at the rear of (or outside) the hall while those who actively participate in the ceremony must take the front places. This arrangement can, in my view, achieve an accommodation and, to a certain extent, harmonization of a citizen's constitutional right to freedom of religion and a valid exercise of the State's fundamental and legitimate authority to require homage and honor to the flag as the symbol of the Nation.

# Footnotes

** The flag salute, singing the national anthem and reciting the patriotic pledge are all forms of utterances.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

September 7, 1912

G.R. No. 7081THE UNITED STATES, plaintiff-appellee,vs.TAN TENG, defendant-appellant.

Chas A. McDonough, for appellant.Office of the Solicitor General Harvey, for appellee.

Johnson, J.:

This defendant was charged with the crime of rape. The complaint alleged:

That on or about September 15, 1910, and before the filing of this complaint, in the city of Manila, Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and employing force, lie and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age.

After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty of the offense of abusos deshonestos, as defined and punished under article 439 of the Penal Code, and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision correccional, and to pay the costs.

From that sentence the defendant appealed and made the following assignments of error in this court:

I. The lower court erred in admitting the testimony of the physicians about having taken a certain substance from the body of the accused while he was confined in jail and regarding the chemical analysis made of the substance to demonstrate the physical condition of the accused with reference to a venereal disease.

II. The lower court erred in holding that the complainant was suffering from a venereal disease produced by contact with a sick man.

III. The court erred in holding that the accused was suffering from a venereal disease.

IV. The court erred in finding the accused guilty from the evidence.

From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on the day in question, after having taken a bath, returned to her room; that the defendant followed her into her room and asked her for some face powder, which she gave him; that after using some of the face powder upon his private parts he threw the said Oliva

upon the floor, placing his private parts upon hers, and remained in that position for some little time. Several days later, perhaps a week or two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what happened upon the morning of the 15th of September. The sister at once put on foot an investigation to find the Chinaman. A number of Chinamen were collected together. Oliva was called upon to identify the one who had abused her. The defendant was not present at first. later he arrived and Oliva identified him at once as the one who had attempted to violate her OxHad.

Upon this information the defendant was arrested and taken to the police station and stripped of his clothing and examined. The policeman who examined the defendant swore from the venereal disease known as gonorrhea. The policeman took a portion of the substance emitting from the body of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific analysis made of the same. The result of the examination showed that the defendant was suffering from gonorrhea.

During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the ground that because of her tender years her testimony should not be given credit. The lower court, after carefully examining her with reference to her ability to understand the nature of an oath, held that she had sufficient intelligence and discernment to justify the court in accepting her testimony with full faith and credit. With the conclusion of the lower court, after reading her declaration, we fully concur. The defense in the lower court attempted to show that the venereal disease of gonorrhea might be communicated in ways other than by contact such as is described in the present case, and called medical witnesses for the purpose of supporting the contention. Judge Lobingier, in discussing that question said:

We shall not pursue the refinement of speculation as to whether or not this disease might, in exceptional cases, arise from other carnal contact. The medical experts, as well as the books, agree that in ordinary cases it arises from that cause, and if this was an exceptional one, we think it was incumbent upon the defense to bring it within the exception.

The offended party testified that the defendant had rested his private parts upon hers for some moments. The defendant was found to be suffering from gonorrhea. The medical experts who

testified agreed that this disease could have been communicated from him to her by the contact described. Believing as we do the story told by Oliva, we are forced to the conclusion that the disease with which Oliva was suffering was the result of the illegal and brutal conduct of the defendant. Proof, however, that Oliva constructed said obnoxious disease from the defendant is not necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's declaration.

The defendant attempted to prove in the lower court that the prosecution was brought for the purpose of compelling him to pay to the sister of Oliva a certain sum of money.

The defendant testifed and brought other Chinamen to support his declaration, that the sister of Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible to believe that the sister, after having become convinced that Oliva had been outraged in the manner described above, would consider for a moment a settlement for the paltry sum of P60. Honest women do not consent to the violation of their bodies nor those of their near relatives, for the filthy consideration of mere money.

In the court below the defendant contended that the result of the scientific examination made by the Bureau of Science of the substance taken from his body, at or about the time he was arrested, was not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to admit such evidence was to compel the defendant to testify against himself. Judge Lobingier, in discussing that question in his sentence, said:

The accused was not compelled to make any admissions or answer any questions, and the mere fact that an object found on his person was examined: seems no more to infringe the rule invoked, than would the introduction in evidence of stolen property taken from the person of a thief.

The substance was taken from the body of the defendant without his objection, the examination was made by competent medical authority and the result showed that the defendant was suffering from said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen property upon his person, there certainly could have been no question had the stolen property been taken for the purpose of using the same as evidence against him. So also if the clothing which he wore, by reason of blood stains or

otherwise, had furnished evidence of the commission of a crime, there certainly could have been no objection to taking such for the purpose of using the same as proof. No one would think of even suggesting that stolen property and the clothing in the case indicated, taken from the defendant, could not be used against him as evidence, without violating the rule that a person shall not be required to give testimony against himself.

The question presented by the defendant below and repeated in his first assignment of error is not a new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice Holmes, speaking for the court upon this question, said:

But the prohibition of compelling a man in a criminal court to be a witness against himself, is a prohibition of the use of physical or moral compulsion, to extort communications from him, not an exclusion of his body as evidence, when it may be material. The objection, in principle, would forbid a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we are not considering how far a court would go in compelling a man to exhibit himself, for when he is exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is competent.

The question which we are discussing was also discussed by the supreme court of the State of New Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said, speaking through its chancellor:

It was not erroneous to permit the physician of the jail in which the accused was confined, to testify to wounds observed by him on the back of the hands of the accused, although he also testified that he had the accused removed to a room in another part of the jail and divested of his clothing. The observation made by the witness of the wounds on the hands and testified to by him, was in no sense a compelling of the accused to be a witness against himself. If the removal of the clothes had been forcible and the wounds had been thus exposed, it seems that the evidence of their character and appearance would not have been objectionable.

In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of the house where the crime was committed, for the purpose of ascertaining whether or not his hand would have produced the bloody print. The court said, in discussing that question:

It was not erroneous to permit evidence of the coincidence between the hand of the accused and the bloody prints of a hand upon the wall of the house where the crime was committed, the hand of the accused having been placed thereon at the request of persons who were with him in the house.

It may be added that a section of the wall containing the blood prints was produced before the jury and the testimony of such comparison was like that held to be proper in another case decided by the supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law Reports, 271). The defendant caused the prints of the shoes to be made in the sand before the jury, and the witnesses who had observed shoe prints in the sand at the place of the commission of the crime were permitted to compare them with what the had observed at that place.

In that case also the clothing of the defendant was used as evidence against him.

To admit the doctrine contended for by the appellant might exclude the testimony of a physician or a medical expert who had been appointed to make observations of a person who plead insanity as a defense, where such medical testimony was against necessarily use the person of the defendant for the purpose of making such examination. (People vs. Agustin, 199 N.Y., 446.) The doctrine contended for by the appellants would also prevent the courts from making an examination of the body of the defendant where serious personal injuries were alleged to have been received by him. The right of the courts in such cases to require an exhibit of the injured parts of the body has been established by a long line of decisions R6FBLX.

The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be a witness against himself, is simply a prohibition against legal process to extract from the defendant's own lips, against his will, an admission of his guilt.

Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:

If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever form exercised, then it would be possible for a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the authority of the law

to employ in evidence anything that might be obtained by forcibly overthrowing his possession and compelling the surrender of the evidential articles — a clear reductio ad absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . . but testimonial compulsion. (4 Wigmore, sec. 2263.)

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of prisoners before trial. or upon trial, for the purpose of extorting unwilling confessions or declarations implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

The doctrine contended for by appellant would prohibit courts from looking at the fact of a defendant even, for the purpose of disclosing his identity. Such an application of the prohibition under discussion certainly could not be permitted. Such an inspection of the bodily features by the court or by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call upon the accused as a witness — it does not call upon the defendant for his testimonial responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not testimony but his body his body itself qgQIbN.

As was said by Judge Lobingier:

The accused was not compelled to make any admission or answer any questions, and the mere fact that an object found upon his body was examined seems no more to infringe the rule invoked than would the introduction of stolen property taken from the person of a thief.

The doctrine contended for by the appellant would also prohibit the sanitary department of the Government from examining the body of persons who are supposed to have some contagious disease.

We believe that the evidence clearly shows that the defendant was suffering from the venereal disease, as above stated, and that through his brutal conduct said disease was communicated to Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof. Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the courts of law require corroborative proof, for the reason that such crimes are generally committed in secret. In the present case, taking into account the number and credibility of the witnesses, their interest and attitude on the witness stand, their manner of testifying and

the general circumstances surrounding the witnesses, including the fact that both parties were found to be suffering from a common disease, we are of the opinion that the defendant did, on or about the 15th of September, 1910, have such relations as above described with the said Oliva Pacomio, which under the provisions of article 439 of the Penal Code makes him guilty of the crime of "abusos deshonestos," and taking into consideration the fact that the crime which the defendant committed was done in the house where Oliva Pacomio was living, we are of the opinion that the maximum penalty of the law should be imposed. The maximum penalty provided for by law is six years of prision correccional. Therefore let a judgment be entered modifying the sentence of the lower court and sentencing the defendant to be imprisoned for a period of six years of prision correccional, and to pay the costs. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Trent, JJ., concur. .

ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs.JUSTO LUKBAN, ET AL., respondents.

March 25, 1919

Facts

Justo Lukban, who was then the Mayor of the City of Manila, ordered the deportation of 170 prostitutes to Davao. His reason for doing so was to preserve the morals of the people of Manila. He claimed that the prostitutes were sent to Davao, purportedly, to work for an haciendero Feliciano Ynigo. The prostitutes were confined in houses from October 16 to 18 of that year before being boarded, at the dead of night, in two boats bound for Davao. The women were under the assumption that they were being transported to another police station while Ynigo, the haciendero from Davao, had no idea that the women being sent to work for him were actually prostitutes.

The families of the prostitutes came forward to file charges against Lukban, Anton Hohmann, the Chief of Police, and Francisco Sales, the Governor of Davao. They prayed for a writ of habeas corpus to be issued against the respondents to compel them

to bring back the 170 women who were deported to Mindanao against their will.

During the trial, it came out that, indeed, the women were deported without their consent. In effect, Lukban forcibly assigned them a new domicile. Most of all, there was no law or order authorizing Lukban's deportation of the 170 prostitutes.

Issue

Whether we are a government of laws or a government of men.

Held

We are clearly a government of laws. Lukban committed a grave abuse of discretion by deporting the prostitutes to a new domicile against their will. There is no law expressly authorizing his action. On the contrary, there is a law punishing public officials, not expressly authorized by law or regulation, who compels any person to change his residence.

Furthermore, the prostitutes are still, as citizens of the Philippines, entitled to the same rights, as stipulated in the Bill of Rights, as every other citizen. Their choice of profession should not be a cause for discrimination. It may make some, like Lukban, quite uncomfortable but it does not authorize anyone to compel said prostitutes to isolate themselves from the rest of the human race. These women have been deprived of their liberty by being exiled to Davao without even being given the opportunity to collect their belongings or, worse, without even consenting to being transported to Mindanao. For this, Lukban et al must be severely punished.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners, vs.JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this application forhabeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government, and if we give expression to the paramount purpose for which the courts, as an independent power of such a government, were constituted. The primary question is — Shall the judiciary permit a government of the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable reading for other departments of the government, the facts are these: The Mayor of the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept confined to their houses in the district by the police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police, Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival. The women were given no opportunity to collect their belongings, and apparently were under the impression that they were being taken to a police station for an investigation. They had no knowledge that they were destined for a life in Mindanao. They had not been asked if they wished to depart from that region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification that the women were prostitutes who had been expelled from the city of Manila. The further happenings to these women and the serious charges growing out of alleged ill-treatment are of public interest, but are not essential to the disposition of this case. Suffice it to say, generally, that some of the women married, others assumed more or less clandestine relations with men, others went to work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao, the attorney for the relatives and friends of a considerable number of the deportees presented an application forhabeas corpus to a member of the Supreme Court. Subsequently, the application, through stipulation of the parties, was made to include all of the women who were sent away from Manila to Davao and, as the same questions concerned them all, the application will be considered as including them. The application set forth the salient facts, which need not be repeated, and alleged that the women were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to sequestration and deportation, and prayed that the writ should not be granted because the petitioners were not proper parties, because the action should have been begun in the Court of First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the women under their custody or control, and because their jurisdiction did not extend beyond the boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer to question of a member of the court, that these women had been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to bring before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion of counsel for petitioners,

their testimony was taken before the clerk of the Supreme Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose behalf the writ was issued were produced in court by the respondents. It has been shown that three of those who had been able to come back to Manila through their own efforts, were notified by the police and the secret service to appear before the court. The fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him when pleading to the original petition copied a telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill the order of the Supreme Court because the women had never been under his control, because they were at liberty in the Province of Davao, and because they had married or signed contracts as laborers. Respondent Yñigo answered alleging that he did not have any of the women under his control and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December 10, 1918, promulgated a second order, which related that the respondents had not complied with the original order to the satisfaction of the court nor explained their failure to do so, and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the respondents should demonstrate some other legal motives that made compliance impossible. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity. On January 13, 1919, the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated that the respondents, through their representatives and agents, had succeeded in bringing from Davao with their consent eight women; that eighty-one women were found in Davao who, on notice that if they desired they could return to Manila, transportation fee, renounced the right through sworn statements; that fifty-nine had already returned to Manila by other means, and

that despite all efforts to find them twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated from society, and then at night, without their consent and without any opportunity to consult with friends or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of the police and the constabulary was deemed necessary and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to refute and practically admitted by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did the Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy, to the homeland. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the Philippine Islands — and these women despite

their being in a sense lepers of society are nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are other citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically punishes any public officer who, not being expressly authorized by law or regulation, compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President of the United States, who has often been said to exercise more power than any king or potentate, has no such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines have the same privilege. If these officials can take to themselves such power, then any other official can do the same. And if any official can exercise the power, then all persons would have just as much right to do so. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country, then officialdom can hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is above the law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case, "that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as

being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning that the primary question was whether the courts should permit a government of men or a government of laws to be established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money damages. It may still rest with the parties in interest to pursue such an action, but it was never intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force in the Philippines who shall banish any person to a place more than two hundred kilometers distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any public officer has violated this provision of law, these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to — "It would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter

of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and

decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ ofhabeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . .

The second proposition — that the statutory provisions are confined to the case of imprisonment within the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the

statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction

of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons, with the cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes as slaves in the city of Washington; that, as he believed, they were removed beyond the District of Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and out of his custody. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and refusing to produce them, ordered that he be committed to the custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ was granted; they did not show impossibility of performance; and they did not present writings that waived the right to be present by those interested. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he must take the consequences; and we said that he was bound to use every effort to get the child back; that he must do much more than write letters for the purpose; that he must advertise in America, and even if necessary himself go after the child, and do everything that mortal man could do in the matter; and that the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the return

did not show that every possible effort to produce the women was made by the respondents. That the court forebore at this time to take drastic action was because it did not wish to see presented to the public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and counter-charges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular individual is still restrained of her liberty, it can be made the object of separatehabeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor, Feliciano Yñigo, an hacenderoof Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that respect without which the administration of justice must falter or fail. Nevertheless when one is commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this undesirable position, must be granted. When all is said and done, as far as this record discloses, the official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who made arrangements for the steamers and the constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His regard for the writ ofhabeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court, he has purged his contempt of the first order. Some members of the court are inclined to this merciful view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at once command such respect without being unduly oppressive —such an amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The motion

of the fiscal of the city of Manila to strike from the record theReplica al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas corpusproceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street, district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred and fifty women were assembled and placed aboard a steamer and transported to Davao, considering that the existence of the said houses of prostitution has been tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in the manner shown, acted without authority of any legal provision which constitutes an exception to the laws guaranteeing the liberty and the individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of the mayor of the city; neither do we believe in the necessity of taking them to the distant district of Davao. The said governmental authority, in carrying out his intention to suppress the segregated district or the community formed by those women in Gardenia Street, could have obliged the said women to return to their former residences in this city or in the provinces, without the necessity of transporting them to Mindanao; hence the said official is obliged to bring back the women who are still in Davao so that they may return to the places

in which they lived prior to their becoming inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates, if we take into account the difficulties encountered in bringing the said women who were free at Davao and presenting them before this court within the time fixed, inasmuch as it does not appear that the said women were living together in a given place. It was not because they were really detained, but because on the first days there were no houses in which they could live with a relative independent from one another, and as a proof that they were free a number of them returned to Manila and the others succeeded in living separate from their companions who continued living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their domicile, it is necessary to consider not only the rights and interests of the said women and especially of the patrons who have been directing and conducting such a reproachable enterprise and shameful business in one of the suburbs of this city, but also the rights and interests of the very numerous people of Manila where relatively a few transients accidentally and for some days reside, the inhabitants thereof being more than three hundred thousand (300,000) who can not, with indifference and without repugnance, live in the same place with so many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to be taken into account, it is not possible to sustain that it is legal and permissible to establish a house of pandering or prostitution in the midst of an enlightened population, for, although there were no positive laws prohibiting the existence of such houses within a district of Manila, the dictates of common sense and dictates of conscience of its inhabitants are sufficient to warrant the public administration, acting correctly, in exercising the inevitable duty of ordering the closing and abandonment of a house of prostitution ostensibly open to the public, and of obliging the inmates thereof to leave it, although such a house is inhabited by its true owner who invokes in his behalf the protection of the constitutional law guaranteeing his liberty, his individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in his favor the constitutional law which guarantees his liberty and individual rights, should the administrative authority order his hospitalization, reclusion, or concentration in a certain island or distant point in order to free

from contagious the great majority of the inhabitants of the country who fortunately do not have such diseases. The same reasons exist or stand good with respect to the unfortunate women dedicated to prostitution, and such reasons become stronger because the first persons named have contracted their diseases without their knowledge and even against their will, whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all its consequences, knowing positively that their constant intercourse with men of all classes, notwithstanding the cleanliness and precaution which they are wont to adopt, gives way to the spread or multiplication of the disease known as syphilis, a venereal disease, which, although it constitutes a secret disease among men and women, is still prejudicial to the human species in the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce great mortality and very serious prejudice to poor humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her sufficient remuneration for her subsistence, prefers to put herself under the will of another woman who is usually older than she is and who is the manager or owner of a house of prostitution, or spontaneously dedicates herself to this shameful profession, it is undeniable that she voluntarily and with her own knowledge renounces her liberty and individual rights guaranteed by the Constitution, because it is evident that she can not join the society of decent women nor can she expect to get the same respect that is due to the latter, nor is it possible for her to live within the community or society with the same liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and life, she should therefore be comprised within that class which is always subject to the police and sanitary regulations conducive to the maintenance of public decency and morality and to the conservation of public health, and for this reason it should not permitted that the unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who have been worrying so much about the prejudice resulting from a governmental measure, which being a very drastic remedy may be considered arbitrary, have failed to consider with due reflection the interests of the inhabitants of this city in general and particularly the duties and responsibilities weighing upon the authorities which administer and govern it; they have forgotten that many of those who criticize and censure the mayor are fathers of families and are in duty bound to take care of their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal life they assumed, were

obliged to change their residence not by a private citizen but by the mayor of the city who is directly responsible for the conservation of public health and social morality, the latter could take the step he had taken, availing himself of the services of the police in good faith and only with the purpose of protecting the immense majority of the population from the social evils and diseases which the houses of prostitution situated in Gardenia Street have been producing, which houses have been constituting for years a true center for the propagation of general diseases and other evils derived therefrom. Hence, in ordering the dissolution and abandonment of the said houses of prostitution and the change of the domicile of the inmates thereof, the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and the individual rights of every Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily renounced in exchange for the free practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative authorities similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the people, although it is true that in the execution of such measures more humane and less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always had in view the ultimate object of the Government for the sake of the community, that is, putting an end to the living together in a certain place of women dedicated to prostitution and changing their domicile, with the problematical hope that they adopt another manner of living which is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged to take back and restore the said women who are at present found in Davao, and who desire to return to their former respective residences, not in Gardenia Street, Sampaloc District, with the exception of the prostitutes who should expressly make known to the clerk of court their preference to reside in Davao, which manifestation must be made under oath. This resolution must be transmitted to the mayor within the shortest time possible for its due compliance. The costs shall be charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings, with respect to the finding as to the importance of the contempt committed, according to the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. According to the response of the Attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who desired to return to Manila, but who should not be permitted to do so because of having contracted debts. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents, for the purpose of complying with the order of the court, could have, (1) produced the bodies of the persons according to the command of the writ; (2) shown by affidavits that on account of sickness or infirmity the said women could not safely be brought before this court; and (3) presented affidavits to show that the parties in question or their lawyers waived their right to be present. According to the same decision, the said respondents ". . . did not produce the bodies of the persons in whose behalf the writ was granted; did not show impossibility of performance; and did not present writings, that waived the right to be present by those interested. Instead, a few stereotyped affidavits purporting to show that the women were contented with their life in Davao, some of which have since been repudiated by the signers, were appended to the return. That through ordinary diligence a considerable number of the women, at least sixty, could have been brought back to Manila is demonstrated by the fact that during this time they were easily to be found in the municipality of Davao, and that about this number either returned at their own expense or were produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was made, would have been warranted summarily in finding the respondent guilty of contempt of court, and in sending them to jail until they obeyed the order. Their excuses for the non production of the persons were far from sufficient." To corroborate this, the majority decision cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my opinion was that Mayor Lukban

should have been immediately punished for contempt. Nevertheless, a second order referred to in the decision was issued on December 10, 1918, requiring the respondents to produce before the court, on January 13, 1919, the women who were not in Manila, unless they could show that it was impossible to comply with the said order on the two grounds previously mentioned. With respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become more zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the constabulary and the municipal police joined in rounding up the women, and a steamer with free transportation to Manila was provided. While charges and countercharges in such a bitterly contested case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance of the first order on November 4th till the 21st of the same month before taking the first step for compliance with the mandate of the said order; he waited till the 21st of November, as the decision says, before he sent a telegram to the provincial governor o f Davao and naturally this half-hearted effort, as is so qualified in the decision, resulted in that none of the women appeared before this court on December 2nd. Thus, the said order was not complied with, and in addition to this noncompliance there was the circumstances that seven of the said women having returned to Manila at their own expense before the said second day of December and being in the antechamber of the court room, which fact was known to Chief of Police Hohmann, who was then present at the trial and to the attorney for the respondents, were not produced before the court by the respondents nor did the latter show any effort to present them, in spite of the fact that their attention was called to this particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on January 13th, the day fixed for the protection of the women before this court, presented technically the seven (7) women above-mentioned who had returned to the city at their own expense and the other eight (8) women whom the respondents themselves brought to Manila, alleging moreover that their agents and subordinates succeeded in bringing them from Davao with their consent; that in Davao they found eighty-one (81) women who, when asked if they desired to

return to Manila with free transportation, renounced such a right, as is shown in the affidavits presented by the respondents to this effect; that, through other means, fifty-nine (59) women have already returned to Manila, but notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one (181) women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to Manila and presented before this court by the respondents in compliance with the said two orders. Fifty-nine (59) of them have returned to Manila through other means not furnished by the respondents, twenty-six of whom were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney paid out of his own pocket the transportation of the said twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their inability to present any of the said women that the latter were content with their life in Mindanao and did not desire to return to Manila; and, on the other hand, that the respondents, especially the first named, that is Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the orders issued by this court, could bring before December 2nd, the date of the first hearing of the case, as well as before January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74) women already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the majority decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces and the municipal police, and had transportation facilities for the purpose. But the said respondent mayor brought only eight (8) of the women before this court on January 13th. This fact can not, in my judgment, with due respect to the majority opinion, justify the conclusion that the said respondent has substantially complied with the second order of this court, but on the other hand demonstrates that he had not complied with the mandate of this court in its first and second orders; that neither of the said orders has been complied with by the respondent Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision, principally responsible for the contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second order confirms the contempt committed by non-compliance with the first order and constitutes a new contempt because of non-compliance with the second, because of the production of only eight (8) of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and transported to Davao against their will, committing the twenty-six (26) women who could not be found in Davao, demonstrates in my opinion that, notwithstanding the nature of the

case which deals with the remedy of habeas corpus, presented by the petitioners and involving the question whether they should or not be granted their liberty, the respondent has not given due attention to the same nor has he made any effort to comply with the second order. In other words, he has disobeyed the said two orders; has despised the authority of this court; has failed to give the respect due to justice; and lastly, he has created and placed obstacles to the administration of justice in the said habeas corpus proceeding, thus preventing, because of his notorious disobedience, the resolution of the said proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving the officer or circumventing him by any means, the result is the same as though he had obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the law and for the means it has provided in civilized communities for establishing justice, since true respect never comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts and obedience to their orders and just measures is so essentially a part of the life of the courts that it would be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may be said generally that where due respect for the courts as ministers of the law is wanting, a necessity arises for the use of compulsion, not, however, so much to excite individual respect as to compel obedience or to remove an unlawful or unwarranted interference with the administration of justice. (Ruling Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from the earliest times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his ministers, the law-

making power, or the courts. In the American states the power to punish for contempt, so far as the executive department and the ministers of state are concerned, and in some degree so far as the legislative department is concerned, is obsolete, but it has been almost universally preserved so far as regards the judicial department. The power which the courts have of vindicating their own authority is a necessary incident to every court of justice, whether of record or not; and the authority for issuing attachments in a proper case for contempts out of court, it has been declared, stands upon the same immemorial usage as supports the whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige of the authority of the court which issued the said orders, which loss might have been caused by noncompliance with the same orders on the part of the respondent Justo Lukban; the damages which might have been suffered by some of the women illegally detained, in view of the fact that they were not brought to Manila by the respondents to be presented before the court and of the further fact that some of them were obliged to come to this city at their own expense while still others were brought to Manila by the attorney for the petitioners, who paid out of his own pocket the transportation of the said women; and the delay which was necessarily incurred in the resolution of the petition interposed by the said petitioners and which was due to the fact that the said orders were not opportunately and duly obeyed and complied with, are circumstances which should be taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which, according to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or imprisonment not exceeding months, or both such fine and imprisonment. In the imposition of the penalty, there should also be taken into consideration the special circumstance that the contempt was committed by a public authority, the mayor of the city of Manila, the first executive authority of the city, and consequently, the person obliged to be the first in giving an example of obedience and respect for the laws and the valid and just orders of the duly constituted authorities as well as for the orders emanating from the courts of justice, and in giving help and aid to the said courts in order that justice may be administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against him. Lastly, I believe it to be my duty to state here that the records of this proceeding should be transmitted to the Attorney-General in order that, after a study of the same and

deduction from the testimony which he may deem necessary, and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of Davao, both the latter shall present the corresponding informations for the prosecution and punishment of the crimes which have been committed on the occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann, and also of those crimes committed by reason of the same detention and while the women were in Davao. This will be one of the means whereby the just hope expressed in the majority decision will be realized, that is, that in the Philippine Islands there should exist a government of laws and not a government of men and that this decision may serve to bulwark the fortifications of an orderly Government of laws and to protect individual liberty from illegal encroachments.