Lecture delivered on January 29, 2008 by retired Chief Justice Artemio V. Panganiban at the Malolos Constitution Lecture Series sponsored by the Bulacan State University, Malolos Bulacan
Magandang umaga po sa inyong lahat. Lubos po akong nagagalak at nakabalik muli ako rito sa Bulacan State University. Isa pung makaking kagalakan ang pumarito, sapagkat itinuturing ko na pung isang tahanan at paaralan ang pamantasang ito. Mula po nuong minarapat ninyong bigyan ako ng karangalang maging isang “Doctor of Laws, honoris causa” itinuring ko na po ang aking sarili na isa na ring alumnus ng BSU.
Kaya nga po, bagaman alam kong hindi ako karapatdapat maging isang bisitang pangdangal at pangunahing panauhin sa inyong panayam ngayon, ay malugud ko pa ring tinanggap ang paanyaya n.i naging Magistrado Jose de la Rama, upang magkaroon ako ng pagkakataong muling makapiling kayong lahat.
Kaya’t pinasasalamatan ko si Magistrado de la Rama at ang BSU Marcelo H. del Pilar College of Law sa kanilang anyaya. Binabati ko rin sila sa kanilang pagpili ng proyectong ito upang ipagpasinaya ang ika-109 na guning taon ng proclamasyon ng Saligang Batas ng Malolos nuong ika-21 ng Enero, isang libo walong daan at siyam na pu’t siyam.
Talagang Dapat Ipagdiwang
Talagang dapat ipagdiwang ang Malolos Constitution, hindi lamang dahil sa ito ay isang simbolo ng ating kalayaan sa lahat ng mga banyaga, kungdi upang sariwaiin din sa alaala na nuon pa man, mahigit na isang daan taon na ang nakararaan, ang ating bayang Pilipinas ay isa ng constitutional democracy. Bukod duon, maari din nating ipagmalaki na ang ating Saligang Batas ng Malolos ay kaayayang ehemplo ng isang completong Constitution, sapagka’t ito’y tumutugon sa tatlong pinakakailangan elemento ng isang saligang batas.
Indeed, we feel proud that our Malolos Constitution has all the earmarks of a good fundamental law. It contains the three basic elements of a model constitution, because it has provisions 1) listing the bill of rights of our people; 2) outlining the structure of our government; and 3) stating how it can be amended or revised by the sovereign people. In other words, it is a 1) Constitution of liberty; 2) a Constitution of government; and 3) a Constitution of sovereignty, all at the same time.
Ganoon pa man, hindi ko po intensyong talakayin ang buong Malolos Constitution. Kung gagawin ko po iyon, maski isang buwan tayong magtatalakayan, hindi po tayo matatapos. Bagkos, tatalakayin ko lamang po ang isang maliit na parte na iniutos ng ating magiting at mabuting decano ng BSU College of Law, “Ang Pagiging Hiwalay ng Simbahan sa Pamahalaan” o the Separation of Church and State.
Ngayon pa lamang sa simula, ibig ko nang ipahiwatig na ang ating talakayin ay sensitibo at masalimoot. Nguni’t pipiliting ko pong ibigay ang aking abang kuru-kuro sa Ingles at sa ating Wikang Pambansa.
In the United States, the doctrine of Church and State relations has always been a heated subject of debate for over 200 years now since it was first included in the US Constitution. There, the conceptual discussions have reached a point in which the separation is so rigid as to make the State godless. In our country, we have not gone that far. We merely separate the affairs of any one religion from the affairs of the State.
Laying the Premise
In the recent past, we have read in the newspapers or heard and saw over the radio and television, the men and women of the cloth commenting on how our government has been characterized by rampant corruption, violence, extra-judicial killing, and disappearances; and how our people have been become poorer and more miserable by the day and by the year.
On the other hand, high officials of government have all been highly visible in big prayer rallies; more so, when the election fever is at its highest, and political hopefuls come a-courting religious congregations for their blessings and support.
Do these activities on either end violate the separation of the Church from the State? Now, just before I attempt an answer, let us walk through this doctrine of separation.
Early beginnings
The Spanish Constitution of 1876 ordained Catholicism as the state religion. Although the Spanish Constitution itself was not expressly extended to the Philippines, our country – as a Spanish colony – nonetheless embraced Catholicism as its religion. The Spanish Penal Code of 1884, which was in effect in the Philippines, protected Catholicism.
Under that set-up, there was no dividing line between the Catholic Church, as a religious denomination, and the State as a secular institution. Civil authorities exercised religious functions and the friars exercised civil powers. We all know of course that the union did not work perfectly well. Many of the revolts dotting our nation’s history were, in most part, violent reactions against abusive religious leaders wielding strong political influence and civil powers.
The Americans, however, altered that cozy relationship. As early as December 10, 1898 during the conclusion of the Treaty of Paris between the United States and Spain, the American guaranteed religious freedom to the Philippines. The Treaty provided that “the inhabitants of the territories over which Spain relinquishes or cedes her sovereignty shall be secured in the free exercise of religion.”
Religious Freedom Under The Malolos Constitution
A month later, on January 22, 1899, the Filipinos guaranteed themselves religious freedom when they adopted the Malolos Constitution under General Emilio Aguinaldo. Its very Preamble, that expressed the highest aspirations of our people, recognized the presence of a Power that was higher and greater than the State. To be sure, the original Preamble was written in Spanish but let me translate it into English for the purposes of our conference today, thus:
WE, the Representatives of the Filipino people, lawfully convened, in order to establish justice, provide for the common defense, promote the general welfare, and to secure for ourselves the blessings of liberty, imploring the aid of the Sovereign Legislator of the Universe to help us attain these objectives, have voted, decreed, and sanctioned the following:
Sapagka’t ang mga katagang ito ay napakahaga sa ating pulong ngayon, bayaan ninyong ang mga ito’y isatagalog ko:
KAMI, ang mga kinatawan ng mamamayang Pilipino, alinsunod sa batas, ay nagtipon-tipon, upang maitatag ang katarungan, paglaanan ng kalahatang pagtatanggol, maitaguyod ang kabutihang panglahat, at upang matiyak natin ang biyaya ng kalayaan, ay humihiling ng tulong sa Pinakamataas na Mambabatas ng Sangsinukob, na matamo ang mga layuning ito, ay nagpatibay, nag-utos at nagpasya ng mga sumusunod:
To complete our study on the provisions of the Malolos Constitution that are relevant to our topic today, let me quote further from Title III of the Malolos Constitution on the topic of “Religion”, thus:
“Article 5. The State recognizes the freedom and equality of all religions, as well as the separation of the Church and the State. Bayaan ninyong isatagalog ko rin ito:
Artikulo 5. Kinikilala ng pamahalaan ang kalayaan at pagkakapantay-pantay ng lahat ng relihiyon, gayoon din ang pagiging hiwalay ng Simbahan at Pamahalaan.
While the authors of the Malolos Constitution, in its Preamble, implored “the aid of the Sovereign Legislator of the Universe” to attain the ends they had determined for the Filipino people, they voted, decreed and sanctioned that “[t]he State recognizes the freedom and equality of all religions, as well as the separation of the Church and the State.”
The Malolos Constitution and government were, however, short-lived as the Americans took over the reigns of government. US President William McKinley’s Instructions to the Second Philippine Commission, the body created to take over the civil government in the Philippines in 1900, guaranteed religious freedom. This provision, which was based on the First Amendment of the United States Constitution, directed:
“That no law shall be made respecting the establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed … that no form of religion and no minister of religion shall be forced upon the community or upon any citizen of the Islands, that, on the other hand, no minister of religion shall be interfered with or molested in following his calling.”
The Instructions also declared that “(t)he separation between State and Church shall be real, entire and absolute.”
The freedom of religion clause was thereafter contained in every organic act of the Philippines. Thus, Article 5 of the Philippine Bill of 1902 provided that:
“No law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that free exercise and enjoyment of religious worship, without discrimination or preference, shall forever be allowed.”
This Bill was declared in one early case to have “caused the complete separation of church and state, and the abolition of all special privileges and all restrictions heretofore conferred or imposed upon any particular religious sect.”
Jones and Tydings-McDuffie Laws
The same provision was expanded in the Philippine Autonomy Act, more popularly known as the Jones Law of 1916. This time, it included a prohibition against the use of public money or property for religious purposes. Thus, the 14th paragraph of Section 3 provided:
“That no law shall be made respecting an establishment of religion or prohibiting the free exercise thereof, and that the free exercise and enjoyment of religious profession and worship without discrimination or preference, shall forever be allowed; and no religious test shall be required for the exercise of civil or political rights. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or for the use, benefit or support of any priest, preacher, minister, or other religious teachers or dignitary as such.”
The Philippine Independence Law, otherwise known as the Tydings-McDuffie Law of 1934, which authorized the drafting of a Philippine constitution preparatory to the grant of independence, enjoined Filipinos to include a provision on freedom of religion.
Section 2(a) of the Tydings-McDuffie Law required the formulation and drafting of a constitution that shall contain a provision stating that “(a)bsolute toleration of religious sentiment shall be secured and no inhabitant or religious organization shall be molested in person or property on account of religious belief or mode of worship.” Likewise, it prescribed the inclusion of a provision that “[p]roperty owned by the United States, cemeteries, churches, and parsonages or convents appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.”
Work then began on the 1935 Constitution. In accordance with the Tydings-McDuffie Law, the Constitutional Convention included the following provision in Section 7 of Article IV (the Bill of Rights)
Sec. 7. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof, and the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
The other mandatory provision prescribed by the Tydings-McDuffie Law, on the other hand, was cast as Section 22 (3) of Article VI on the Legislative Department. It read:
Section 22. x x x (3) Cemeteries, churches, and parsonages or convents appurtenant thereto, and all lands, buildings, and improvements used exclusively for religious, charitable, or educational purposes shall be exempt from taxation.
An almost identical provision on religious freedom was contained in Section 8 of the Bill of Rights of the 1973 Constitution. What was different was a clause in the General Provisions saying that “(t)he separation of church and state shall be inviolable.”
Meanwhile, the exemption from taxation clause, then under the article on the National Assembly (Article VIII), was modified to read:
Section 17. x x x
(3) Charitable institutions, churches, personages or convents appurtenant thereto, mosques and non-profit cemeteries, and all lands, buildings and improvements actually, directly, and exclusively used for religious or charitable purposes shall be exempt from taxation.
The Separation under the 1987 Constitution
The 1973 religion clauses were reproduced in the 1987 Constitution under the Bill of Rights in Article III, Section 5. So was the provision exempting churches, parsonages, etc. from taxation.
The provision on separation of church and state was included verbatim in the 1987 Constitution, now, as a state principle in Section 6, Article II.
It is interesting also to note that the 1987 Constitution opens with the following Preamble:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.
Religion Clauses
All in all, the constitutional provisions on religion refer to: (1) the non-establishment clause which prohibits the establishment of a particular religion by the state;10 (2) the free exercise of religion clause, which guarantees all persons the right to express their views freely about their “relations to (their) Creator and to the obligations they impose of reverence to His being and character, and obedience to His Will”; and (3) the tax exemption clause, which grants tax exemptions under specified conditions. Now, I shall dwell on the first two clauses as they relate to the doctrine of separation of Church and State.
The Non-Establishment Clause
Cases involving the non-establishment clause have invariably sought to protect the people’s choice of religion within the bounds of their conscience and free from the dictates of the State. Clearly, the purposes are two-fold: one, to encourage voluntarism and two, to insulate the political process from interfaith dissension. Thus, the non-establishment clause demands that government be neutral with regard to religious matters, especially in the “competition” among different religious groups.
In the 1937, the non-establishment clause was put to the test in the Aglipay v. Ruiz. In this case, the issuance and sale by the government of postage stamps commemorating the 33rd International Eucharistic Congress of the Catholic Church was assailed by the Philippine Independent Church as a breach of the constitutional prohibition against the use of public money for religious purposes.
After an extensive discussion of religious freedom and the role of religion, Justice Jose P. Laurel – writing for the Supreme Court – declared that the issuance and sale of the stamps did not violate the non-establishment clause. True, the stamps related to an event of a religious character, but “the resulting propaganda, if any, received by the Roman Catholic Church, was not the aim and purpose of the Government.” The government, he stressed, “should not be embarrassed in its activities simply because of incidental results, more or less religious in character, if the purpose is one which could legitimately be undertaken by appropriate legislation.”
Garces v. Estenzo, although not exactly raising the separation of church and state as an issue, nevertheless reiterated the Aglipay ruling. There, the Court found nothing illegal in the acquisition and display of the image of San Vicente Ferrer, the patron saint of the barrio, because the purchase was made in connection with the celebration of the barrio fiesta honoring the patron saint, and not for the purpose of favoring any religion or interfering with religious matters or the religious beliefs of the barrio residents.
In 1978, a novel issue cropped up in Pamil v. Teleron. What was at issue in this case was Section 2175 of the Revised Administrative Code of 1917, which disqualified ecclesiastics from being appointed or elected as officers of a municipality.
The Court was sharply divided on the issue, 7 to 5. With one vote short of the number required to declare the law unconstitutional, the first 7 members of the Court, regarded the law as a religious test which offended the religious freedom guaranteed by the Constitution.
On the other hand, the prevailing five other members of the Court who proceeded from the perspective of the non-establishment clause, upheld the law as a safeguard against the constant threat of the union of church and state. Thus, the Court upheld the validity of the Section 2175 of the Revised Administrative Code and declared respondent priest ineligible for the office of municipal mayor.
Of course, the Pampanguenos of today know better. They now have a priest as governor! Note, however, that the present Constitution does not prohibit priests from running for public office. In fact, the Constitutional Commission that prepared the 1987 Charter had priests, like Bishop Teodoro Bacani and Fr. Joaquin Bernas, as members.
Disputes among members of religious congregations constitute another type of cases involving the non-establishment clause. In Fonacier v. Court of Appeals, the Court had to determine who was the legitimate bishop of the Philippine Independent Church so it could rule on the issue of who had the right of control over certain properties of that religious congregation.
Using the internal laws of the Independent Church, the Court ruled that Petitioner Fonacier was legitimately ousted and Respondent de los Reyes was the duly elected head of the Church. Thereupon, it disposed of the property issue by declaring that within religious congregations which were strictly independent of any other superior ecclesiastical association (such as the Philippine Independent Church), controversies relating to property should be decided by the rules governing any voluntary association. If the congregation adopts the majority rule, then the majority should prevail; if it adopts adherence to duly constituted authorities within the congregation, then that should be followed. Under these rules, Fonacier lost the case.
It is interesting to note, however, that while the Court exercised jurisdiction over the case, it refused to dwell on matters relating to faith, practice, doctrine, form of worship, ecclesiastical law, custom and the rules of a church involving the power of excluding allegedly unworthy members. These matters, it said, were unquestionably ecclesiastical matters that were outside the province of the civil courts.
Free Exercise Clause
The Free Exercise Clause of the Constitution takes its bearing from the notion that freedom of belief, including religious belief, is as limitless as one’s imagination and thought. However, the exercise of religious belief is an altogether different matter. In here lies the difficulty of interpretation as shown by the next few cases I will mention.
The first is American Bible Society v. City of Manila. This case involved ordinances of the City of Manila requiring plaintiff American Bible Society to secure a mayor’s permit and a municipal license before it could sell bibles as a part of its ministry. The plaintiff argued that the directive amounted to religious censorship and restraint over the free exercise and enjoyment of religious profession.
While the Court stated that the constitutional guaranty of the free exercise and enjoyment of religious profession and worship carries with it the right to disseminate religious information, its ruling was not along this line. Neither did it apply the clear and present danger rule it enunciated as justifying a restraint of freedom of expression. Rather, it held that the questioned ordinances were not applicable to the plaintiff as it was not engaged in the business or occupation of selling bibles for profit. The second case is Gerona v. Secretary of Education. It concerned members of the Jehovah’s Witnesses who challenged a Department of Education Order directing the compulsory raising of the flag in all public schools pursuant to a law, Republic Act No. 1265.
Because petitioner’s children refused to salute the Philippine flag, sing the national anthem, or recite the patriotic pledge, they were expelled from their school. This prompted their parents to seek protection under the Free Exercise Clause. Petitioners had claimed that their refusal to salute the flag was based on their religious belief that the Philippine flag was an image.
Looking at the issue as a clash between the exercise of religious belief and the law, the Court proceeded to determine if the acts involved constituted a religious ceremony in conflict with the beliefs of the petitioners. It held thereafter that the flag was not an image, the flag salute was not a religious ceremony, and there was nothing objectionable about the singing of the national anthem. It upheld the questioned Order and the expulsion of petitioner’s children.
The Gerona ruling was overturned three decades later in 1993 in Ebralinag v. The Division Superintendent of Schools. Again in Ebralinag, the issue involved the expulsion from school of some Jehovah’s Witnesses who refused to take part in the flag ceremony by saluting the flag, singing the national anthem and reciting the patriotic pledge, all in violation of the Administrative Code of 1987.
Applying the “grave and imminent danger” test laid down in Justice (later Chief Justice) Claudio Teehankee’s dissent in German v. Barangan, a unanimous Court held this time that “[f]orcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their religious beliefs, will hardly be conducive to love of country or respect for duly constituted authorities.”
In between Gerona and Ebralinag was the 1974 case, Victoriano v. Elizalde Rope Workers Union. Here, the prohibition imposed by the Iglesia ni Kristo on its members like Petitioner Victoriano from affiliating with any labor organization was put forth to contest a closed shop agreement between the employer and its union.
Among the questions raised before the Court was whether the law exempting members of a religious sect from affiliating with a union was unconstitutional for granting an exemption offensive to the Establishment Clause.
The Court declared that the constitutional provisions on establishment and free exercise of religion “not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect,” it also “assures the free exercise of one’s chosen form of religion within limits of utmost amplitude.”
It stressed that “(a)lthough the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect.”
There are many more cases involving the religious freedom clause but I am afraid I do not have the time to discuss all of them. Let me just give a few observations of my own.
1) The Philippine Supreme Court is not predisposed to invalidate a law that seems offensive to religious freedom; instead it tries to carve out an exception to accommodate religious exercise when it is justified. This seems to be the teaching of Estrada v Escritor, in which Justice (now Chief Justice) Reynato S. Puno, after a scholarly presentation of the separation principle, enunciated the benevolent neutrality doctrine.
2) Religion cases often involve competing values, which the Court has to consider and weigh depending on the facts and circumstances of each case.
3) A case may be decided differently depending on the perspective used – whether the Establishment Clause or the Free Exercise clause.
Sa loob po ng nakaraang oras, tinangka ko pong sagutin ang masalimuot na mga tanong sa ating talakayin ngayon. Masasabi nating mula nuong ipasinaya ang Malolos Constitution hanggang ngayon, nagaruon tayo sa Pilipinas ng isang pananaw sa isyu ng pagiging magkahiwalay ng Simbahan at Estado na iba sa pananaw sa Amerika.
Dito po sa bayan atin, nagdarasal tayo bago magsimula ng pagpupulong. Bago simulan ang sesyon ng Kabinete at ng Kongreso ay nagdarasal muna ng “invocation.” Kahit po sa ating panayam ngayon, nagkaruon tayo ng “Panalagin” bago tayo nagsimula. Pati po ang hudicatura, mula sa Kataas Taasang Hukuman hanggang sa mga Municipal Courts, nagsisimula po ang mga hearing sa pagdarasal ng “Centennial Prayer for the Courts,” that is worded, thus:
“Almighty God, we stand in Your holy presence as our Supreme Judge. We humbly beseech You to bless and inspire us so that what we think, say and do will be in accordance with Your will.
Enlighten our minds, strengthen our spirit, and fill our hearts with fraternal love, wisdom and understanding, so that we can be effective channels of truth, justice and peace. In our proceedings today, guide us in the path of righteousness for the fulfillment of Your greater glory. Amen.”
As I discussed in my book Reforming the Judiciary (2002 ed.), this ecumenical prayer was composed by the Executive Committee for the Supreme Court’s Centenary Celebrations, which I had the honor of chairing. Its wordings were finalized after patient and repeated consultations with major religious groups in the country: Catholic, Protestant, Muslim, Born-again and others.
This prayer hews closely to the Preamble of the Malolos and the 1987 Constitutions. The Malolos Preamble speaks of a “Sovereign or Supreme Lawmaker,” while the 1987 Constitution implores the aid of “Almighty God.” Similarly, the judiciary’s official prayer seeks the help of “Almighty God” and acknowledges the presence of “our Supreme Judge.”
To sum up, the Philippines is theist, not atheist, not even agnostic. In fact, it is monotheist; it worships one God. That is why, its concepts and interpretations of the separation of the Church and the State, though originating from the United States, have been evolved over the last one hundred years in a uniquely Filipino manner, as the Malolos Constitution itself is uniquely Filipino.
Maraming salamat po.
The Personal Website of Retired Chief Justice Panganiban 