Republic of the
Philippines
SUPREME COURT
Manila
EN BANC
ALEJANDRO ESTRADA,
Complainant,
A.M.
No.
P-02-1651
(formerly OCA
I.P.I.
No. 00-1021-P)
August 4, 2003
-versus-
SOLEDAD S.
ESCRITOR,
Respondent.
DISSENTING OPINION
CARPIO,
J.:
I dissent from the majority
opinion remanding this case for further proceedings. The ostensible
purpose
of the remand is to allow respondent Soledad S. Escritor "to buttress
the
sincerity of her claimed religious belief" and for the Solicitor
General
"to meet the test of 'compelling state interest' to override
respondent's
religious belief."
However, Escritor expressly
admits that she is cohabiting with Luciano D. Quilapio, Jr. who is
married
to another woman. Escritor's conduct is that of a concubine under
Article
334 of the Revised Penal Code outlawing concubinage. Escritor may now
be
subjected to disciplinary sanction for conduct prejudicial to the best
interest of the service. Escritor's religious belief, no matter how
sincere,
cannot exempt her from Article 334 of the Revised Penal Code declaring
concubinage a criminal act. Sincerity or insincerity in religious
beliefs
is not a test in allowing or disallowing exemption from a harmful
conduct
that the State has a right to suppress.cralaw:red
A remand of this case
for further proceedings is clearly unnecessary. Escritor's unlawful
cohabitation
with Quilapio is an admitted fact regardless of the outcome of the
remand
of this case. Escritor's cohabitation with Quilapio constitutes
concubinage
which is a crime under our laws.cralaw:red
The issue then would
inevitably turn on whether Escritor, or any citizen for that matter,
may
invoke religious freedom to justify conduct that patently violates our
criminal statutes. Such conduct in the present case is concubinage.
However,
under the same claim of religious freedom, such conduct may be bigamy,
sacrifice of infants or infanticide, sacrifice of virgins or murder, or
use and possession of prohibited drugs as part of religious rituals.
This
is the issue that I address in this dissent, after showing that
Escritor's
conduct is neither disgraceful nor immoral.cralaw:red
Escritor and Quilapio
have lived together since 1980. They have a 21-year old son whom they
raised
together. Escritor was previously married but her husband left her in
1979
for another woman. Escritor's husband died in 1998. Escritor joined the
judiciary only in 1999. On the other hand, Quilapio and his legal wife
were already separated in fact even before Escritor and Quilapio began
living together. Quilapio's wife has not filed any complaint against
either
Quilapio or Escritor.cralaw:red
On 22 August 2000, complainant
Alejandro Estrada filed this complaint for disgraceful and immoral
conduct
against Escritor for cohabiting with a man who is not her husband.
Complainant,
who is not a court employee, admits not knowing Escritor personally.cralaw:red
I do not find Escritor
liable for "disgraceful and immoral conduct." The Jehovah's Witnesses,
the church to which Escritor and Quilapio belong, formally approved[1]
in 1991 their relationship as husband and wife after a long and careful
consideration by church elders. The members of the Jehovah's Witnesses
have fully accepted the Escritor and Quilapio couple as part of their
Christian
community. In their religious and social community, Escritor and
Quilapio
are seen and treated just like any other husband and wife. The couple's
cohabitation has not created any scandal, moral outrage or malicious
gossip
in their congregation or even in the community where they live and
work.
On the contrary, those who come to know of the couple's predicament in
life express their sincerest sympathy and compassion.chanrobles virtual law library
When the Catholic Church
annuls a marriage, and the parties remarry in church with different
partners
even without a court annulment of their marriage, do we condemn their
second
marriages as "disgraceful and immoral conduct"? When a Muslim man lives
with more than one wife, do we declare his relationship with his other
wives as "disgraceful and immoral"? In Sulu Islamic Association of
Masjid
Lambayong v. Malik,[2]
this Court ruled that a Muslim judge who takes a second wife is not
guilty
of disgraceful and immoral conduct because such practice is "not
'immoral'
by Muslim standards." The Muslim judge is not also criminally liable
for
bigamy because Shari'a law allows a Muslim to have more than one wife.cralaw:red
In De Dios v. Alejo,[3]
the Court quoted with approval a decision of the Board of Civil Service[4]
dismissing an immorality charge against a clerk who, in the words of
the
Board, "does not exercise a moral influence in the community" and whose
conduct "has not jeopardized the honor of any third person." The Board
explained that those most concerned with the relationship — the
unfaithful
legal wife who no longer lived with respondent, the woman living with
respondent
and the four children, have not "voiced an objection to the situation
as
it existed for ten (10) years." The Board added that technically, the
clerk
was "guilty of immorality, but actually this can hardly be considered
as
notoriously disgraceful immoral conduct."chanrobles virtual law library
The term "disgraceful
and immoral conduct" is not necessarily a single, ironclad universal
code
applicable to all situations, ethnic groups and religions. This Court
has
recognized a "Muslim standards" on disgraceful and immoral conduct with
respect to multiple marriages by Muslims. We cannot reject a "Jehovah's
Witnesses standards" on the same matter without violating the equal
protection
clause,[5]
the free exercise of religion,[6]
and the separation of Church and State provision[7]
of the Constitution.cralaw:red
In disgraceful and immoral
conduct, the conduct must not only be immoral, it must also be
disgraceful.
Immoral conduct means conduct that is willful, flagrant or shameless,
and
which shows a moral indifference to the opinion of the good and
respectable
members of the community.[8]
Disgraceful conduct means conduct that is ignominious, shameful, and
dishonorable.[9]
Judge Bonifacio Maceda, whom the Court assigned to investigate the
administrative
charge, did not find the relationship between Escritor and Quilapio
disgraceful
and immoral in view of the acceptance of the relationship by members of
the Jehovah's Witnesses.[10]
Even the complainant admits that Escritor is a "decent woman."[11]
Indeed, no one has testified that Escritor's relationship with Quilapio
is ignominious, shameful, or dishonorable conduct. Not a single witness
who qualifies as a "good and respectable member of the community" has
testified
that Escritor's conduct is willful, flagrant and shameless.cralaw:red
However, while Escritor
is not guilty of disgraceful and immoral conduct, her cohabitation with
the legally married Quilapio, a fact Escritor readily admits,
constitutes
conduct prejudicial to the best interest of the service. Quilapio,
whose
marriage to another woman still subsists, is liable for concubinage
under
Article 334 of the Revised Penal Code for cohabiting with Escritor.
There
is no showing that Quilapio's wife has consented to Quilapio's
cohabitation
with Escritor. In concubinage, the concubine is a necessary co-accused
of the offending spouse.[12]
The concubine is punished with destierro. While no one can criminally
prosecute
Quilapio and Escritor without the complaint of Quilapio's legal wife,[13]
still this Court cannot countenance such unlawful conduct by a court
employee.
In conduct prejudicial to the best interest of the service, the
immorality
of the conduct is not in issue. What is in issue is the adverse effect
of the conduct on the efficiency, integrity and credibility of the
civil
service, and in the case of the judiciary, its impact on the
administration
of justice.cralaw:red
The Court cannot simply
turn a blind eye to conduct of a court employee that, by the employee's
own admission, violates our criminal statutes. Such conduct is
prejudicial
to the best interest of the administration of justice. Court employees,
from the highest magistrate to the lowliest clerk, are expected to
abide
scrupulously with the law. They are held to a higher standard since
they
are part of the judicial machinery that dispenses justice. The courts
of
justice cannot harbor those who openly and knowingly commit a crime.
Courts
of justice would lose, their moral authority and credibility if they
condone
violators of the law. They would be remiss in their solemn duty of
upholding
the law if they continue to employ those who admit running afoul with
our
criminal statutes. Thus, there exists a compelling state interest to
hold
Escritor to the same standards required of every court employee. If
unsanctioned,
Escritor's unlawful conduct would certainly impair the integrity and
credibility
of the judiciary.chanrobles virtual law library
Unlike in Sulu Islamic
Association of Masjid Lambayong v. Malik,[14]
no law validates the cohabitation of Escritor with Quilapio. For the
Court
to provide a safe haven to Escritor despite her admission of
cohabitation
with Quilapio would undermine the integrity and capacity of this Court
to dispense justice equally and fairly. The Jehovah's Witnesses cannot
declare Escritor's cohabitation with Quilapio as lawful, although it
can
declare such cohabitation as compatible with its religious beliefs. The
Court cannot penalize Escritor's cohabitation as immoral in view of the
freedom of religion and the separation of Church and State. However, on
the same principle of separation of Church and State, the Court can
penalize
Escritor's cohabitation as conduct prejudicial to the best interest of
the service.cralaw:red
Thomas Jefferson, who
championed[15]
the free exercise of religion and non-establishment clauses in the U.S.
Constitution, from which we adopted our own counterpart provisions,
wrote
to the Baptists in 1802 when he was President:
Believing with you that
religion is a matter which lies solely between man and his God, that he
owes account to none other for his faith and worship, that the
legislative
powers of government reach actions only, and not opinions, I
contemplate
with sovereign, reverence that act of the whole American people which
declared
that their legislature should "make no law respecting an establishment
of religion, or prohibiting the free exercise thereof," thus building a
wall of separation between Church and State. Adhering to this
expression
of the supreme will of the nation in behalf of the rights of
conscience,
I shall see with sincere satisfaction the progress of those sentiments
which tend to restore to man all his natural rights, convinced he has
no
natural right in opposition to his social duties.[16]
(Emphasis supplied.)
In the landmark case
of Reynolds v. United States,[17]
the U.S. Supreme Court stated that Jefferson's explanation is "almost
an
authoritative declaration of the scope and effect" of the two
constitutional
clauses. The legislature has no power to regulate mere religious belief
or opinion. The legislature, however, may regulate actions or conduct,
even though religiously motivated, that violate the public order. The
legislature's
power to outlaw concubinage, bigamy, polygamy and other conduct harmful
to public order, despite religious practices allowing such conduct, is
well-settled in American jurisprudence.[18]chanrobles virtual law library
In Employment Division
v. Smith,[19]
the U.S. Supreme Court rejected a claim by the Native American Church
that
smoking peyote,[20]
classified as a "controlled substance," is protected by the free
exercise
of religion if done as part of a religious ceremony. The U.S. Supreme
Court
clarified its earlier ruling in Wisconsin v. Yoder[21]
by stating that it had "never held that an individual's religious
beliefs
excuse him from compliance with an otherwise valid law prohibiting
conduct
that the State is free to regulate."
In Smith, the U.S. Supreme
Court stated that the legislation prohibiting "controlled substances"
was
a "neutral law that applied to all citizens" and did not single out the
Native American Church. Applying the "hybrid test," the U.S. Supreme
Court
held that the free exercise of religion, standing alone without any
other
constitutional right being invoked, cannot defeat the State's right to
regulate the use of "controlled substances."
In the instant case,
Escritor's sole constitutional justification in claiming exemption from
the prohibition on concubinage is her religious belief. Escritor does
not
claim that her conduct is protected by any other guarantee under the
Bill
of Rights. Moreover, Article 334 of the Revised Penal Code, as
originally
enacted and as presently in force, does not single out the Jehovah's
Witnesses.cralaw:red
The power of the legislature
to declare concubinage a crime against the State is certainly beyond
dispute.
In effect, the legislature pronounces a socially reprehensible act,
which
may or may not constitute an immoral act by certain religious
standards,
a crime that the State has a right to suppress to protect public order
and the general welfare. The wall of separation between Church and
State
is no defense against the State's police power over conduct
constituting
concubinage, bigamy or polygamy.cralaw:red
While Escritor's cohabitation
with Quilapio conforms to the religious beliefs of the Jehovah's
Witnesses,
the cohabitation violates Article 334 of the Revised Penal Code. The
State
cannot interfere with the religious beliefs of the Jehovah's Witnesses,
in the same way that the Jehovah's Witnesses cannot interfere with the
State's prohibition on concubinage. The free exercise of religion
protects
practices based on religious grounds provided such practices do not
violate
existing laws enacted in the reasonable exercise of the State's police
power.[22]chanrobles virtual law library
As early as in 1933
in People v. Bitdu,[23]
this Court has ruled that religious practices cannot override laws
relating
to public policy. In Bitdu, the accused, a Muslim woman charged with
bigamy,
raised the defense that under Muslim religious customs she validly
divorced
her first husband. At that time there was no statute recognizing
divorces
and multiple marriages under Shari'a law. In rejecting this defense,
this
Court quoted with approval the trial court's decision stating as
follows:
x x x In
the Philippine Islands we have a law (Act No. 2710) enumerating the
causes
and conditions under which divorce may be secured and granted. Any
divorce
obtained in the Philippine Islands for causes and under conditions
other
than those enumerated in said law, would have no legal effect. The
habits
and customs of a people, the dogmas or doctrines of a religion cannot
be
superior to or have precedence over laws relating to public policy
x
x x. (Emphasis supplied.)
In Bitdu, the Solicitor-General
urged this Court to uphold the validity of Muslim divorces, citing the
case of American Indians whose customs and practices on marriages and
divorces
were, and still are, recognized by the United States Government. This
Court
stated:
The decisions of American
courts, cited by the Solicitor-General, sustaining the validity of
divorces
granted to members of Indian tribes according to the customs and usages
thereof, are likewise not in point. The various Indian tribes in the
United
States were dealt with by the Government of the United States as
independent
nations and treaties were made with them.cralaw:red
As to the suggestion
of the Solicitor-General that divorces among the Moros according to
their
religious practices should be recognized as valid as a matter of public
policy, because in the contrary case "there would be no end of criminal
prosecutions, for polygamy still abounds among them, and the
remarriages
of people divorced under the Koran are the order of the day," that is a
matter for the consideration of the Legislature and the
Governor-Generalx
x x (Emphasis supplied.)chanrobles virtual law library
The free exercise of
religious belief is absolutely protected, but the freedom to act
according
to such religious belief is subject to the police power of the State.[24]
As held in Reynolds v. United States[25]
which involved the practice of polygamy:
In our opinion, the
statute immediately under consideration is within the legislative power
of Congress. It is constitutional and valid as prescribing a rule of
action
for all those residing in the Territories, and in places over which the
United States have exclusive control. This being so, the only question
which remains is, whether those who make polygamy a part of their
religion
are excepted from the operation of the statute. If they are, then those
who do not make polygamy a part of their religious belief may be found
guilty and punished, while those who do, must be acquitted and go free.
This would be introducing a new element into criminal law. Laws are
made
for the government of actions, and while they cannot interfere with
mere
religious belief and opinions, they may with practices. Suppose one
believed
that human sacrifices were a necessary part of religious worship, would
it be seriously contended that the civil government under which he
lived
could not interfere to prevent a sacrifice? Or if a wife religiously
believed
it was her duty to burn herself upon the funeral pile of her dead
husband,
would it be beyond the power of the civil government to prevent her
carrying
her belief into practice?
So here, as a law of
the organization of society under the exclusive dominion of the United
States, it is provided that plural marriages shall not be allowed. Can
a man excuse his practices to the contrary because of his religious
belief?
To permit this would be to make the professed doctrines of religious
belief
superior to the law of the land, and in effect to permit every citizen
to become a law unto himself. Government could exist only in name under
such circumstances. (Emphasis supplied.)
Article 334 of the Revised
Penal Code seeks to protect marriage as the foundation of the family.
The
Constitution mandates that "[M]arriage, as an inviolable social
institution,
is the foundation of the family and shall be protected by the State."
Article
334 of the Revised Penal Code is a reasonable exercise of the State's
police
power to protect a social institution that the Constitution declares as
"inviolable." The religious teachings of the Jehovah's Witnesses cannot
amend or repeal Article 334 of the Revised Penal Code on concubinage.
Escritor
clearly recognized this when she promised "to legalize"[26]
in the future her union with Quilapio.cralaw:red
Under the Revised Administrative
Code of 1987, one of the grounds for disciplinary action is "conduct
prejudicial
to the best interest of the service."[27]
The penalty for a first offense is suspension of six months and one day
to one year. A second offense is punishable with dismissal from the
service.[28]chanrobles virtual law library
Escritor, however, deserves
the same compassionate treatment accorded to a similarly situated court
employee in De Dios v. Alejo[29]
if Escritor should end her unlawful relationship with Quilapio. In De
Dios,
the Court, in deciding not to dismiss an employee because he finally
terminated
his cohabitation with another woman, ruled:
In the instant case,
We cannot close our eyes to the important considerations that
respondents
have rendered government service for more than thirty-three and
twenty-five
years, respectively, and that there is no showing that they have ever
been
found guilty of any administrative misconduct during all those periods.
In the case of respondent Alejo, it seems rather sadistic to make her
suffer
the extreme penalty of dismissal from the service after she had taken
care
of her co-respondent's four children, giving them the needed love and
attention
of a foster mother after they were completely abandoned by their errant
and unfaithful natural mother. Even respondent Marfil, if to a lesser
degree,
is deserving of compassion. Most importantly, respondents have amply
demonstrated
that they recognize their mistake and have, therefore, actually mended
their ways by totally breaking their relationship complained of, in
order
to conform with the imperatives of public interest. Objectively
speaking,
it cannot be denied that such separation requires a great deal of
sacrifice
and entails personal difficulties that cannot be easily ignored, thus
making
the resolution of respondents to give up what is most meaningful to
them
worthy of some measures of liberality in the imposition of the
indispensable
penalty which has to be meted to them. (Emphasis supplied.)chanrobles virtual law library
Therefore, any initial
penalty imposed on Escritor should be lifted the moment she ends her
cohabitation
with Quilapio.cralaw:red
Given the circumstances,
it would deem unduly harsh to penalize Escritor for cohabiting for the
last 23 years with a man she believes is her husband and she knows is
the
father of her son. No third party has claimed or suffered injury
because
of their cohabitation. On the contrary, suspending or even dismissing
her
for her continued cohabitation would only work hardship on her family.
The remedy, however, lies not with this Court but with the legislature.
We can only call the legislature's attention to Escritor's failure "to
legalize" her union with Quilapio, a failure that deserves legislative
inquiry and probably remedy, even as we are bound to apply the law
without
fear or favor.cralaw:red
Accordingly, I vote
to suspend respondent Soledad S. Escritor for six months and one day
without
pay for conduct prejudicial to the best interest of the service.
However,
the suspension shall be lifted immediately upon Escritor's
manifestation
to this Court that she has ceased cohabiting with Luciano D. Quilapio,
Jr. Moreover, respondent Escritor is warned that her continued
cohabitation
with Quilapio, during or after her suspension and while Quilapio's
marriage
with his legal wife still subsists, shall merit the penalty of
dismissal
from the service.cralaw:red
Panganiban, Carpio-Morales
and Callejo, Sr., JJ., concur.
____________________________
Endnotes: CARPIO, J., dissenting
opinion:
[1]
Escritor and Quilapio signed the Declaration Pledging Faithfulness with
their church leaders witnesses. This document states:chanroblesvirtuallawlibrary
Declaration
of Pledging Faithfulnesschanrobles virtual law library
I,
Soledad S. Escritor, do here declare that I have accepted Luciano D.
Quilapio,
Jr., as my mate in marital relationship; that I have done all within my
ability to obtain legal recognition of this relationship by the proper
public Authorities and it is because of having been unable to do so
that
I therefore make this public declaration pledging faithfulness in this
marital relationship.
I
recognize this relationship as a binding tie before "Jehovah" God and
before
all persons to be held to and honored in full accord with the
principles
of God's Word. I will continue to seek the means to obtain legal
recognition
of this relationship by the civil authorities and if at any future time
a change in circumstances make (sic) this possible, I promise to
legalize
this union.
[2]
Adm. Matter No. MTJ-92-691, 10 September 1993, 226 SCRA 193.
[3]
Adm. Matter No. P-137, 15 December 1975, 68 SCRA 354.
[4]
Now the Civil Service Commission.chanrobles virtual law library
[5]
Section 1, Article III of the 1987 Constitution provides: "No person
shall
be x x x denied the equal protection of the laws."
[6]
Section 5, Article III of the 1987 Constitution provides: "No law shall
be made respecting an establishment of religion, or prohibiting the
free
exercise thereof. The free exercise and enjoyment of religious
profession
and worship, without discrimination or preference, shall forever be
allowed.
No religious test shall be required for the exercise of civil and
political
rights."
[7]
Section 6, Article II of the 1987 Constitution provides: "The
separation
of Church and State shall be inviolable."
[8]
Arciga v. Maniwang, Admin. Case No. 1608, 14 August 1981, 106 SCRA 594;
Black's Law Dictionary, p. 751, 6th Edition (1990).
[9]
Black's Law Dictionary, p. 468, ibid.chanrobles virtual law library
[10]
Report and Recommendation of Investigating Judge Bonifacio Maceda dated
1 July 2002.
[11]
TSN, 12 October 2000, p. 7; Rollo, p. 23.chanrobles virtual law library
[12]
Article 334 of the Revised Penal Code provides:chanroblesvirtuallawlibrarychanrobles virtual law library
"The
crimes of adultery and concubinage shall not be prosecuted except upon
the complaint filed by the offended spouse.
The
offended party cannot institute criminal prosecution without including
both the guilty parties if they are both alive, nor, in any case, if he
shall have consented or pardoned the offenders.
x
x x
x
x x
x
x x."
[13]
Ibid.chanrobles virtual law library
[14]
See Note 2. Article 180 of Presidential Decree No. 1083, otherwise
known
as the Code of Muslim Personal Laws of the Philippines, provides: "The
provisions of the Revised Penal Code relative to the crime of bigamy
shall
not apply to a person married in accordance with the provisions of this
Code or, before its effectivity, under Muslim law." In the United
States,
Native Americans are allowed to marry according to their customs as
long
as they "are members of a tribe recognized and treated with as such by
the United States government." Thus, a Native American can enter into a
polygamous marriage if his tribe's customs allow it, even if it
conflicts
with state law (Hallowell v. Commons, 210 F. 793, 8th Circuit, 1914).
The
various Indian tribes in the United States were dealt with by the U.S.
Government as independent nations and treaties were made with them
[People
v. Bitdu, 58 Phil. 817 (1933)].chanrobles virtual law library
[15]
While generally credited as the leading advocate of the First
Amendment,
Thomas Jefferson was neither a framer nor signer of the U.S.
Constitution.
In Everson v. Board of Education [330 U.S. 1 (1947)], the credit for
authoring
the First Amendment is given to James Madison, an author of the
Federalist
Papers and known as the "Father of the Constitution." In his dissenting
opinion in Wallace v. Jaffree [472 U.S. 38 (1985)], Justice William
Rehnquist
totally belittles Jefferson's role in the adoption of the First
Amendment.
Rehnquist claims that Jefferson "would seem to any detached observer as
a less than ideal source of contemporary history as to the meaning of
the
Religion Clause of the First Amendment." Rehnquist even criticizes
Jefferson's
"wall of separation" as a "misleading metaphor."
[16]
Quoted in Reynolds v. United States, infra, see note 16.chanrobles virtual law library
[17]
98 U.S. 145.chanrobles virtual law library
[18]
David Barton, The Image and the Reality: Thomas Jefferson and the First
Amendment, 17 Notre Dame Journal of Law, Ethics and Public Policy 399
(2003).
[19]
414 U.S. 872 (1990).chanrobles virtual law library
[20]
A Mexican intoxicant made from the tops of a spineless, dome-shaped
cactus
native to Mexico and the southwest United States.
[21]
406 U.S. 205 (1972).chanrobles virtual law library
[22]
Joaquin G. Bernas, The 1987 Constitution of the Republic of the
Philippines.
A Commentary (2003), Vol. 1, p. 321, citing Reynolds v. United States,
98 U.S. 145 (1878).
[23]
58 Phil. 817 (1933).chanrobles virtual law library
[24]
Ibid., p. 322, citing Cantwell v. Connecticut, 310 U.S. 296 (1944).
[25]
See note 16.chanrobles virtual law library
[26]
Declaration Pledging Faithfulness, see note 1.chanrobles virtual law library
[27]
Section 46(27), Chapter 6, Book V of the 1987 Revised Administrative
Code.
[28]
Section 52(20) of Civil Service Commission Memorandum Circular No.
19-99.
[29]
See note 3. |