FREEDOM OF RELIGION

I.

PUBLIC AID TO RELIGION AGLIPAY Vs. RUIZ

FACTS: The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine Independent Church, seeks the issuance from this court of a writ of prohibition to prevent the respondent Director of Posts from issuing and selling postage stamps commemorative of the Thirty-third International Eucharistic Congress.

In May, 1936, the Director of Posts announced in the dailies of Manila that he would order the issues of postage stamps commemorating the celebration in the City of Manila of the Thirty-third international Eucharistic Congress, organized by the Roman Catholic Church. The petitioner, in the fulfillment of what he considers to be a civic duty, requested Vicente Sotto, Esq., member of the Philippine Bar, to denounce the matter to the President of the Philippines. In spite of the protest of the petitioner's attorney, the respondent publicly announced having sent to the United States the designs of the postage stamps for printing

ISSUE : WON the selling of stamps in commemorating the Thirty-third International Eucharistic Congress. constitutional

HELD: YES .The stamps were not issue and sold for the benefit of the Roman Catholic Church. Nor were money derived from the sale of the stamps given to that church. On the contrary, it appears from the latter of the Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's complaint, that the only purpose in issuing and selling the stamps was "to advertise the Philippines and attract more tourist to this country." The officials concerned merely, took advantage of an event considered of international importance "to give publicity to the Philippines and its people

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC (IDCP) vs. Office of the Executive Secretary, et al (2003) FACTS: Petitioner IDCP, a corporation that operates under DSWD, is a non-governmental organization that extends voluntary services to the Filipino people, especially to Muslim communities. Among the functions petitioner carries out is to conduct seminars, orient manufacturers on halal food and issue halal certifications to qualified products and manufacturers. On October 26, 2001, respondent Office of the Executive Secretary issued EO 46 5 creating the Philippine Halal Certification Scheme and designating respondent Office on Muslim Affairs (OMA) to oversee its implementation. Under the EO, respondent OMA has the exclusive authority to issue halal certificates and perform other related regulatory activities. Petitioner contends that the subject EO violates the constitutional provision on the separation of Church and State and that it is unconstitutional for the government to formulate policies and guidelines on the halal certification scheme because said scheme is a function only religious organizations, entity or scholars can lawfully and validly perform for the Muslims. 1

ISSUE: Whether the EO is violates the constitutional provision as to freedom of religion

RULING: The Court grants the petition. OMA deals with the societal, legal, political and economic concerns of the Muslim community as a "national cultural community" and not as a religious group. Thus, bearing in mind the constitutional barrier between the Church and State, the latter must make sure that OMA does not intrude into purely religious matters lest it violate the non-establishment clause and the "free exercise of religion" provision found in Article III, Section 5 of the 1987 Constitution. Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the common good." Without doubt, classifying a food product as halal is a religious function because the standards used are drawn from the Qur'an and Islamic beliefs. By giving OMA the exclusive power to classify food products as halal, EO 46 encroached on the religious freedom of Muslim organizations like herein petitioner to interpret for Filipino Muslims what food products are fit for Muslim consumption. Also, by arrogating to itself the task of issuing halal certifications, the State has in effect forced Muslims to accept its own interpretation of the Qur'an and Sunnah on halal food. Only the prevention of an immediate and grave danger to the security and welfare of the community can justify the infringement of religious freedom. If the government fails to show the seriousness and immediacy of the threat, State intrusion is constitutionally unacceptable. In a society with a democratic framework like ours, the State must minimize its interference with the affairs of its citizens and instead allow them to exercise reasonable freedom of personal and religious activity. There is no compelling justification for the government to deprive Muslim organizations, like herein petitioner, of their religious right to classify a product as halal, even on the premise that the health of Muslim Filipinos can be effectively protected by assigning to OMA the exclusive power to issue halal certifications. The protection and promotion of the Muslim Filipinos' right to health are already provided for in existing laws and ministered to by government agencies charged with ensuring that food products released in the market are fit for human consumption, properly labeled and safe. Unlike EO 46, these laws do not encroach on the religious freedom of Muslims. With these regulatory bodies given detailed functions on how to screen and check the quality and safety of food products, the perceived danger against the health of Muslim and nonMuslim Filipinos alike is totally avoided. The halal certifications issued by petitioner and similar organizations come forward as the official religious approval of a food product fit for Muslim consumption. The petition is GRANTED. Executive Order 46, s. 2000, is hereby declared NULL AND VOID.

Fonacier vs. Court of Appeals [GR L-5917, 28 January 1955] Facts: Upon the death of Mons. Aglipay, the Supreme Head of the Iglesia Filipina Independiente (IFI) since 1902, Mons. Santiago A. Fonacier was elected Obispo Maximo, on 14 October 1940, in accordance with the constitution of the church. The latter's successor should have been elected by the Asamblea Magna of the Church on 1 September 1943. However, due to the circumstances brought about by the Pacific War, it was agreed, on 16 December 1941, by the Bishops stationed in Manila and neighboring provinces that Mons. Fonacier should hold over as Obispo Maximo of the IFI, for the duration of the emergency created by the year. After the liberation of the Philippines, and on 1 September 1945, an attempt was made to convene the Asamblea Magna for the purpose of electing the Obispo Maximo, but owing to lack of quorum, the Bishops present agreed that Mons. Fonacier would continue for another year, or until 1 2

September 1946. On 2 September 1945, the Consejo Supremo de Obispos (Supreme Council of Bishops) of the IFI convened and approved the designation of bishops to their respective bishoprics. In that meeting Mons. Alejandro Remollino was assigned as bishop of the diocese of Cavite. Upon learning that the latter notified the priests of his bishopric regarding his assignment, Mons. Fonacier wrote him a letter dated 18 September 1945 enjoining him from assuming the duties of his office and from taking possession of the diocese of Cavite until he (Fonacier) had approved the appointment made by the Supreme Council as provided for in the constitution. To this letter Bishop Remollino replied explaining his side and adding that he was ready to defend his stand on the matter before the courts of justice. In view of this attitude, Mons. Fonacier ordered the expulsion of Bishop Remollino from the church and also of Bishop Manuel Aguilar whom Mons. Fonacier suspected to be the instigator of certain acts of insubordination and defamation against him. On 1 December 1945, Bishop Manuel Aguilar filed charges against Mons. Fonacier as Supreme Bishop which were submitted to a meeting of the Supreme Council of Bishops, held on 21 January 1946, which decreed the forced resignation of Mons. Fonacier, and to the Asamblea Magna or Asamblea General of the church, held on 22 January 1946. This body approved the forced resignation of Mons. Fonacier and elected Bishop Gerardo M. Bayaca as Supreme Bishop to succeed Mons. Fonacier. When notified of his removal as Obispo Maximo and required to turn over all the funds, documents and other properties of the church to his successor, Mons. Fonacier refused. The case was instituted in the Court of First Instance of Manila by the IFI, represented by its Supreme Bishop Gerardo M. Bayaca, against Mons.Fonacier seeking to require the latter to render an accounting of his administration of all the temporal properties he has his possession belonging to said church and to recover the same from him on the ground that he had ceased be the Supreme Bishop of said religious organization. On 1 September 1946 the Asamblea Magna convened and elected Mons. Isabelo de los Reyes, Jr. as Obispo Maximo. On the same date Mons. Fonacier and some of his followers met at the Manila Hotel and elected Mons Juan Jamias as their Supreme Bishop. Thus two factions of the IFI were created. Thus, Bishop Isabelo de los Reyes, Jr., was made a co-plaintiff in a supplementary complaint. The faction under Mons. Isabelo de los Reyes, Jr. according to the statement of the Director of National Library, issued on 22 May 1947, had 19 bishops and 252 priests while the faction under Mons. Juan Jamias had 10 bishops and only 40 priests. Thus on 23 June 1947, the Secretary of Public Instruction promulgated an order to the effect that for administrative purposes, Mons. Isabelo de los Reyes, Jr., was recognized as sole head of the IFI and the applications of priests of said church for permits to solemnize marriages would be granted if it were shown thereon that they recognized Isabelo de los Reyes, Jr., as the Obispo Maximo of said church. The Supreme Court, however, denied the power of the Secretary to stop the Fonacier group from obtaining licenses to solemnize marriages. On 22 January 1948, the bishop and priests under Mons. De los Reyes, Jr., had increased from 252 to 293 while those under Mons. Jamias were only 64 and Mons. De los Reyes, Jr. was duly registered as "corporation sole for the administration of the temporalities of the Iglesia Filipina Independiente, pursuant to the provisions of Articles 154-164 of the Corporation Law." On 17 May 1950, the trial court rendered judgment declaring Mons. Isabelo de los Reyes, Jr. as the sole and legitimate Supreme Bishop of the IFI, and ordering Mons. Fonacier to render an accounting of his administration of the properties and funds of the church "from the time he began occupying the position of Secretario de Economia Temporal thereof until the present time." When the case was taken to the Court of Appeals, the latter found the decision of the Court of origin in accordance with law and the evidence and affirmed the same in toto. The case was elevated to the Superme Court by virtue of a petition for review interposed by Mons. Fonacier.

Issue: Whether the civil courts have jurisdiction to determine the legality of the ouster of certain bishops of the IPI, to determine the proper faction to hold the churchs property, and/or pass upon matters involving the churchs amendment of its constitution, etc.

Held: Where a decision of an ecclesiastical court plainly violates the law it professes to administer, or is in conflict with the laws of the land, it will not be followed by the civil courts. In some instances, not only have the civil courts assumed the right to inquire into the jurisdiction of religious tribunals and the regularity of their procedure, but they have subjected their decisions to the test of fairness or to the test furnished by the constitution and laws of the church. Thus, it has been held that expulsion of a member without notice or an opportunity to be heard is not conclusive upon the civil courts when a property right is involved. Where there is a schism which leads to a separation into distinct and conflicting bodies, the rights of such bodies to the use of the property must be determined by ordinary principles which govern voluntary associations. If the principle of government in such cases is that the majority rules, then the numerical majority of members must control the right to the use of the property. If there be within the congregation officers in whom are vested the powers of such control, then those who adhere in the acknowledged organism by which the body is governed are entitled to the use of the property. The minority in choosing to separate themselves into a distinct body, and refusing to recognize the authority of the government body, can claim no rights in the property from the fact that they had once been members of the church or congregation. Herein, the properties of the IFI are held by a religious congregation, and that the numerical majority is on the side of the faction of Mons. de los Reyes, et. al. where the number of its bishops and priests, as of 22 January 1948, were 293 as against 64 of Mons. Fonacier's group. On the other hand, the amendments of the constitution, restatement of articles of religion and abandonment of faith or abjuration alleged by Mons. Fonacier, having to do with faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule of a church and having reference to the power of excluding from the church those allegedly unworthy of membership, are unquestionably ecclesiastical matters which are outside the province of the civil courts

II.

INTRAMURAL RELIGIOUS DISPUTE

III.

FREE EXERCISE CLAUSE ESTRADA VS ESCRITOR A.M. No. P-02-1651, August 4, 2003 FACTS: Complainant Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., requesting for an investigation of rumors that respondent Soledad Escritor, court interpreter, is living with a man not her husband. They allegedly have a child of eighteen to twenty years old. Estrada is not personally related either to Escritor or her partner. Nevertheless, he filed the charge against Escritor as he believes that she is committing an immoral act that tarnishes the image of the court, thus she should not be allowed to remain employed therein as it might appear that the court condones her act. Respondent Escritor testified that when she entered the judiciary in 1999, she was already a widow, her husband having died in 1998. She admitted that she has been living with Luciano Quilapio, Jr. without the benefit of marriage for twenty years and that they have a son. But as a member of the religious sect known as the Jehovah's Witnesses and the Watch Tower and Bible 4

Tract Society, their conjugal arrangement is in conformity with their religious beliefs. In fact, after ten years of living together, she executed on July 28, 1991 a "Declaration of Pledging Faithfulness," insofar as the congregation is concerned, there is nothing immoral about the conjugal arrangement between Escritor and Quilapio and they remain members in good standing in the congregation. ISSUE: Whether or not respondent should be found guilty of the administrative charge of "gross and immoral conduct." HELD: Benevolent neutrality recognizes that government must pursue its secular goals and interests but at the same time strives to uphold religious liberty to the greatest extent possible within flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided it does not offend compelling state interests. It still remains to be seen if respondent is entitled to such doctrine as the state has not been afforded the chance has demonstrate the compelling state interest of prohibiting the act of respondent, thus the case is remanded to the RTC. Benevolent neutrality is inconsistent with the Free Exercise Clause as far as it prohibits such exercise given a compelling state interest. It is the respondents stance that the respondents conjugal arrangement is not immoral and punishable as it comes within the scope of free exercise protection. Should the Court prohibit and punish her conduct where it is protected by the Free Exercise Clause, the Courts action would be an unconstitutional encroachment of her right to religious freedom. The Court cannot therefore simply take a passing look at respondents claim of religious freedom, but must instead apply the compelling state interest test. The government must be heard on the issue as it has not been given an opportunity to discharge its burden of demonstrating the states compelling interest which can override respondents religious belief and practice.

IV.

FREEEDOM TO PROPAGATE RELIGIOUS DOCTRINE American Bible Society vs. City of Manila Facts: American Bible Society is a foreign, non-stock, non-profit, religious, missionary corporation duly registered and doing business in the Philippines through its Philippine agency established in Manila in November, 1898 City of Manila is a municipal corporation with powers that are to be exercised in conformity with the provisions of Republic Act No. 409, known as the Revised Charter of the City of Manila American Bible Society has been distributing and selling bibles and/or gospel portions throughout the Philippines and translating the same into several Philippine dialect City Treasurer of Manila informed American Bible Society that it was violating several Ordinances for operating without the necessary permit and license, thereby requiring the corporation to secure the permit and license fees covering the period from 4Q 1945-2Q 1953 To avoid closing of its business, American Bible Society paid the City of Manila its permit and license fees under protest American Bible filed a complaint, questioning the constitutionality and legality of the Ordinances 2529 and 3000, and prayed for a refund of the payment made to the City of Manila. They contended: 5

a. They had been in the Philippines since 1899 and were not required to pay any license fee or sales tax b. it never made any profit from the sale of its bibles City of Manila prayed that the complaint be dismissed, reiterating the constitutionality of the Ordinances in question Trial Court dismissed the complaint American Bible Society appealed to the Court of Appeals Issue: WON American Bible Society liable to pay sales tax for the distribution and sale of bibles Ruling: NO Under Sec. 1 of Ordinance 3000, one of the ordinance in question, person or entity engaged in any of the business, trades or occupation enumerated under Sec. 3 must obtain a Mayors permit and license from the City Treasurer. American Bible Societys business is not among those enumerated However, item 79 of Sec. 3 of the Ordinance provides that all other businesses, trade or occupation not mentioned, except those upon which the City is not empowered to license or to tax P5.00 Therefore, the necessity of the permit is made to depend upon the power of the City to license or tax said business, trade or occupation. 2 provisions of law that may have bearing on this case: a. Chapter 60 of the Revised Administrative Code, the Municipal Board of the City of Manila is empowered to tax and fix the license fees on retail dealers engaged in the sale of books b. Sec. 18(o) of RA 409: to tax and fix the license fee on dealers in general merchandise, including importers and indentors, except those dealers who may be expressly subject to the payment of some other municipal tax. Further, Dealers in general merchandise shall be classified as (a) wholesale dealers and (b) retail dealers. For purposes of the tax on retail dealers, general merchandise shall be classified into four main classes: namely (1) luxury articles, (2) semi-luxury articles, (3) essential commodities, and (4) miscellaneous articles. A separate license shall be prescribed for each class but where commodities of different classes are sold in the same establishment, it shall not be compulsory for the owner to secure more than one license if he pays the higher or highest rate of tax prescribed by ordinance. Wholesale dealers shall pay the license tax as such, as may be provided by ordinance The only difference between the 2 provisions is the limitation as to the amount of tax or license fee that a retail dealer has to pay per annum As held in Murdock vs. Pennsylvania, The power to impose a license tax on the exercise of these freedoms provided for in the Bill of Rights, is indeed as potent as the power of censorship which this Court has repeatedly struck down. It is not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question. It is in no way apportioned. It is flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the constitutional liberties of press and religion and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax. Further, the case also mentioned that the power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close all its doors to all those who do not have a full purse Under Sec. 27(e) of Commonwealth Act No. 466 or the National Internal Revenue Code, Corporations or associations organized and operated exclusively for religious, charitable, . . . or educational purposes, . . .: Provided, however, That the income of whatever kind and character 6

from any of its properties, real or personal, or from any activity conducted for profit, regardless of the disposition made of such income, shall be liable to the tax imposed under this Code shall not be taxed The price asked for the bibles and other religious pamphlets was in some instances a little bit higher than the actual cost of the same but this cannot mean that American Bible Society was engaged in the business or occupation of selling said "merchandise" for profit Therefore, the Ordinance cannot be applied for in doing so it would impair American Bible Societys free exercise and enjoyment of its religious profession and worship as well as its rights of dissemination of religious beliefs. Wherefore, and on the strength of the foregoing considerations, We hereby reverse the decision appealed from, sentencing defendant return to plaintiff the sum of P5,891.45 unduly collected from it.

V.

EXEMPTION FROM UNION SHOP

Victoriano vs Elizalde Victoriano, an Iglesia ni Cristo member, has been an employee of the Elizalde Rope Factory since 1958. He was also a member of the EPWU. Under the CBA between ERF and EPWU, a close shop agreement is being enforced which means that employment in the factory relies on the membership in the EPWU; that in order to retain employment in the said factory one must be a member of the said Union. In 1962, Victoriano tendered his resignation from EPWU claiming that as per RA 3350 he is an exemption to the close shop agreement by virtue of his being a member of the INC because apparently in the INC, one is forbidden from being a member of any labor union. It was only in 1974 that his resignation from the Union was acted upon by EPWU which notified ERF about it. ERF then moved to terminate Victoriano due to his non-membership from the EPWU. EPWU and ERF reiterated that he is not exempt from the close shop agreement because RA 3350 is unconstitutional and that said law violates the EPWUs and ERFs legal/contractual rights. ISSUE: Whether or not RA 3350 is unconstitutional. HELD: The right to religion prevails over contractual or legal rights. As such, an INC member may refuse to join a labor union and despite the fact that there is a close shop agreement in the factory where he was employed, his employment could not be validly terminated for his non-membership in the majority therein. Further, the right to join a union includes the right not to join a union. The law is not unconstitutional. It recognizes both the rights of unions and employers to enforce terms of contracts and at the same time it recognizes the workers right to join or not to join union. But the RA recognizes as well the primacy of a constitutional right over a contractual right.

VI.

DISQUALIFICATION FOR LOCAL GOVERNMENT OFFICIALS

FORTUNATO R. PAMIL vs. HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol, Branch III, and REV. FR. MARGARITO R. GONZAGA The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to an elective municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was then filed by petitioner, himself an aspirant for the office, for his disqualification 2 based on this Administrative Code provision: In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving salaries or compensation from provincial or national funds, or contractors for public works of the municipality. 3 The suit did not prosper, respondent Judge sustaining the right of Father Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code of 1971. The matter 7

was then elevated to this Tribunal by petitioner. It is his contention that there was no such implied repeal, that it is still in full force and effect. Thus was the specific question raised.

There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the Court is divided on the issue. Seven members of the Court are of the view that the judgment should be affirmed as the challenged provision is no longer operative either because it was superseded by the 1935 Constitution or repealed. Outside of the writer of this opinion, six other Justices are of this mind They are Justices Teehankee, Muoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding principle of the supremacy of the Constitution or, at the very least, the repeal of such provision bars a reversal. 4 The remaining five members of this Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other hand, hold the position that such a prohibition against an ecclesiastic running for elective office is not tainted with any constitutional infirmity.

The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the remaining seven does not suffice to render the challenged provision ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics are concerned, must be accorded respect. The presumption of validity calls for its application. Under the circumstances, certiorari lies. That is the conclusion arrived at by the writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They have no choice then but to vote for the reversal of the lower court decision and declare ineligible respondent Father Margarito R. Gonzaga for the office of municipal mayor. With the aforesaid five other members, led by the Chief Justice, entertaining no doubt as to his lack of eligibility, this petition for certiorari must be granted.

Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion sets forth the reasons why there are constitutional objections to the continuing force and effectivity of Section 2175 as far as ecclesiastics are concerned.

1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under the present Charter, it is explicitly declared: No religious test shall be required for the exercise of civil or political rights. 5 The principle of the paramount character of the fundamental law 6 thus comes into play. There are previous rulings to that effect. 6 The ban imposed by the Administrative Code cannot survive. So the writer of this opinion would hold.

2. This is to conform to this provision of the 1935 Charter: All laws of the Phi lippine Islands shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, until amended, altered, modified, or repealed by the Congress of the Philippines, and all references in such laws to the government or officials of the Philippines shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution. 7 It was first applied in People v. Linsangan, 8 decided in December, 1935, barely a month after that Constitution took effect. This Court held that Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who remains delinquent in the payment of cedula tax, 9 was no longer in force. As stated by the then Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt or nonpayment of poll tax: 10 It seems too clear to require demonstration t hat section 2718 of the Revised 8

Administrative Code is inconsistent with section 1, clause 12, of Article Ill of the Constitution in that, while the former authorizes imprisonment for non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of the Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment of conviction can be based thereon. 11

De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code, could remove at pleasure any of the appointive officials under the Charter of the City of Baguio. 13 Relying on such a provision, the then President Quirino removed petitioner De los Santos, who was appointed City Engineer of Baguio on July 16, 1946, and chose in his place respondent Gil R. Mallare. Why such a power could not pass the test of validity under the 1935 Constitution was pointed out by Justice Tuason thus: So, unlike legislation that is passed in defiance of the Constitution, assertive and menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by the court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by the Constitution itself by express mandate before the petitioner was appointed. 14

Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of the 1935 Constitution, as authoritatively construed, Article 145 of the Revised Penal Code was found to be inoperative. As therein provided, the penalty of prision correccional is imposed on any public officer or employee who, while the Congress was in regular or special session, would arrest or search a member thereof, except in case he had committed a crime punishable by a penalty higher than prision mayor. This Court ruled that the Revised Penal Code extended unduly the legislative privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then was contrary to and in defiance of the clear expression of the will of the Constitutional Convention of 1934 that such immunity was never intended to exempt members of a legislative body from an arrest for a criminal offense, the phrase treason, felony and breach of the peace being all-inclusive. Reference was likewise made to the prevailing American doctrine to that effect as enunciated by Williamson v. United States. 17

3. It would be an unjustified departure from a settled principle of the applicable construction of the provision on what laws remain operative after 1935 if the plea of petitioner in this case were to be heeded. The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is to impose a religious test. Torcaso v. Watkins 18 an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: this Maryland religious test for public office unconstitutionally invades the appellants freedom of belief and religion and therefore cannot be enforced against him. 19

The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate. It is not a valid argument against this conclusion to assert that under the Philippine Autonomy Act of 1916, there was such a prohibition against a religious test, and yet such a ban on holding a municipal position had not been nullified. It suffices to answer that no question was raised as to its validity. In Vilar v. Paraiso, 20 decided under the 1935 Constitution, it was assumed that there was no conflict with the fundamental law.

4. This is the first case then where this Court has to face squarely such an issue. This excerpt from the opinion of Justice Moreland in the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a force unimpaired by the passage of time: Relative to the theory that Act No. 1627 has stood so long and been silently acquiesced in for so great a length of time that it should not be disturbed, it may be said that the fact that certain individuals have, by ignorance or neglect, failed to claim their fundamental rights, furnishes no reason why another individual, alert to his rights and their proper enforcement, should be prevented from asserting and sustaining those rights. The fact that Smith and Jones have failed to demand their constitutional rights furnishes no basis for the refusal to consider and uphold the constitutional rights of Richard Roe In the case of Sadler v. Langham (34 Ala. 311), this same question was under consideration and the court in resolving it said: It may be urged, that these statutes have stood, and been silently acquiesced in for so great a length of time, they should not now be disturbed. We are sensible of the force of this argument. It will be observed, however, that in Tennessee, the decision which declared the private road law unconstitutional was pronounced forty years after the enact. judgment of the statute; and in New York, after seventy years had elapsed. It is, perhaps, never too late to re- establish constitutional rights, the observance of which had been silently neglected. 22 To support such a conclusion, no less than the great Chief Justice Marshall, speaking for this Court in United States v. More, in disposing of a contention by one of the parties as to appellate jurisdiction having been previously exercised and therefore beyond dispute was likewise relied upon. Thus: No question was made in that case as to the jurisdiction petition. It passed sub silentio, and the court does not consider itself bound by that case. 23 So it should be in this litigation. As set forth at the outset, it is not even necessary to annul the challenged Administrative Code provision. It is merely declared inoperative by virtue of the mandate of the 1935 Constitution, similarly found in the present Charter.

5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding force. The attack on the continuing effectivity of Section 2175 having failed, it must be, as noted at the outset, given full force and application.

WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside. Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of Albuquerque, Bohol, there being a failure to elect. No pronouncement as to costs.

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