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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.
 
 

VITUG, J.:chanroblesvirtuallawlibrary

The facts, mostly conceded, would appear to be a little less than adequate to respond to some fundamental issues spawned by the case. The controversy involves Soledad S. Escritor, a court interpreter of the Regional Trial Court of Las Piñas, Branch 253, who, admittedly, has since 1980 and while married to another, been cohabiting with Luciano Quilapio Jr., himself married to another. Escritor and Quilapio have a nineteen-year old son. Private complainant, Alejandro Estrada, is not personally related to Escritor nor does he personally know her. He, however, would have her relationship with Quilapio adjudged by this Court to be immoral in consonance with the pertinent provisions of the Administrative Code.[1] In her defense, Escritor contends that under the rules of the Jehovah's Witnesses, a religious sect of which she is a member, the act of signing a Declaration Pledging Faithfulness,[2] is sufficient to legitimize a union which would otherwise be classified as adulterous and bigamous. Escritor alleges that in compliance with the foregoing rules, she and her partner signed the Declaration Pledging Faithfulness in 1991 and by virtue of such act, they are, for all purposes, regarded as husband and wife by the religious denomination of which they are devout adherents.

The ponencia has thus justifiably discussed the ramifications of the constitutionally protected right of freedom of religion clause on the issue. Nevertheless, one cannot help but have a few misgivings. Escritor has admitted to having lived with Quilapio since 1980, or for a period of twenty-three years, yet she has signed the Declaration of Pledging Faithfulness only on 28 July 1991, or a total of eleven years since her questioned cohabitation. The delay might be attributed to a number of reasons. One possibility would be that Escritor and Quilapio have tried to comply with the rules of the religious sect which, as can be so gleaned from the wordings of the Declaration, requires one with an impediment to legalize a subsequent union to do "all within his ability to obtain recognition of the relationship by the proper authorities." The facts do not show that either Escritor or Quilapio, complied with the foregoing requisite by seeking the annulment of their respective marriages during the first eleven years of the questioned union. It may be of no moment that Escritor has joined the judiciary only in 1999, already then a widow, and thus capacitated to enter into another marriage because then and now Quilapio remains married to another. Does the act of Escritor in signing the declaration pledging faithfulness, long after the actual union, a fait accompli, serve to legitimize what might not originally be? I fear that the focus would have to instead be on Escritor's freedom of personal belief, i.e., whether the invoked provision in the Administrative Code would impinge on Escritor's freedom of an honestly held belief that her conduct is morally acceptable and justifiable. The issue then is the meaning of "immorality," the standards that can be used to measure it and the role that society must be perceived to play. Not all moral norms are covered by law nor are all laws moral norms.chanrobles virtual law library

It is established that adultery and concubinage constitute criminal offenses. Thus, I shall not delve on the legal and philosophical intricacies that surround them. The question should rather be, given the settings, whether under the basic facts and circumstances thus far disclosed, such "immoral conduct" should be dealt with and sanctioned by law. If so, one might likewise examine under what "moral" authority the law purports to so act.chanrobles virtual law library

The ponencia has taken pains to distinguish between secular and private morality, and reached the conclusion that the law, as an instrument of the secular State should only concern itself with secular morality. I agree with its well-written dissertation emphasizing, in particular, that the state can interfere with "private immoralities" to the extent that they affect the general or the common good. Defining, however, the line where an immoral conduct crosses the private sphere to the realm of a general concern could be a most daunting task. Can it be argued, for instance, that there having been no private offended party, their respective legal spouses never having filed any criminal or civil complaint against them, the relationship between Escritor and Quilapio should be confined solely to the sphere of private morality? This question but typifies the thorny relationship, in turn, between law and morality that has engaged philosophers for centuries — Does society possess the right to pass judgment on matter of morals? Second, if it has the right to pass such judgment, has it also the right to use the weapon of law to enforce it?

Philippine laws on the subject are veritable repositories of moral laws that sanction immoral conduct which, at first glance, could appear to be private and to cause no harm to larger society but nevertheless dealt with. Examples of such instances include general references to "good moral character" as a qualification and as a condition for remaining in public office, and sex between a man and a prostitute, though consensual and private, and with no injured third party, remains illegal in this country. Until just about a month ago, the United States Supreme Court has outlawed acts of sodomy or consensual sexual relations between two consenting males, even if done in the privacy of the bedroom.[3] Are moral laws such as these justified? Do they not unduly impinge on one's own freedom of belief? chanrobles virtual law library

Law and morals, albeit closely connected, may proceed along different planes. Law is primarily directed at man's behavior while morals are directed at his animus or state of mind.[4] While the law often makes reference to one's state of mind, it does not, however, punish the existence of immoral intent without more. It requires only that at the risk of punitive sanctions for disobedience, one must refrain from the temptation to act in accordance with such intent to the detriment of another. The ethical principle is generally cast, affirmatively or negatively, in the form of a direct command, whereas the legal rule speaks, generally, of the consequences that attend the violation of a duty.[5] As to purpose, law and morals further diverge. Morals strive for individual perfection, while law aim at harmony in the community.[6]chanrobles virtual law library

Not all societal mores are codified into laws. We have yet to see a law outlawing vanity, pride, gluttony or sloth. Nor are all laws necessarily moral. Slavery is outlawed but not so in our distant past. Laws allowing racial segregation prejudicial to blacks or denying the right to suffrage to women may seem to be relics of a long gone uncivilized society if one forgets that the abolition of these "immoral laws" is but less than a century ago.chanrobles virtual law library

The observation brings to the fore some characteristics of morals, which make it unwise to insist that it be, at all times, co-extensive with law — First, morals are not entirely error free. To insist that laws should always embody the prevailing morality without questioning whether the morals sought to be upheld are in themselves right or wrong would be a dangerous proposition. Second, morals continuously change over time, often too slowly to be immediately discerned. To ensure that laws keep pace with the ever-changing moralities would be quite a perplexed, if not a futile, an endeavor. Third, standards of morality vary. Modern society is essentially pluralist. People of different faiths owe common allegiance to the State. Different moral judgments flow from varying religious premises that, obviously, the law cannot all accommodate.[7]

That law and morals are closely intertwined is a traditionally held belief. One school of thought even go as far as calling a law without morality as not law at all; but naked power, and that human beings not only have a legal, but also the moral obligation to obey the law.[8] It suggests that where law clashes with morality, it can impose no obligation, moral or otherwise, upon anyone to obey it; one may actually be morally bound to disobey such law.[9] The ancient role held by the Christian Church as being the ruler of both spiritual and temporal affairs of men has laid that groundwork for the impression. The Judaic-Christian God is thought to be the source of both law and morality and man has come to know of His law and morals through the human soul, the human conscience and the human mind.[10] With the rise of the secular state in the 16th and 17th centuries and the corresponding decline in the authority of the Church, legal thinkers such as Pufendorf, Vattel, and Burlamaqui would establish legal systems based on scientific principles deduced from the nature of men and things, that would guide the behavior of the metaphysical man in directions that promote political order and assure a measure of protected individual dignity.[11] Such treatises on natural law have offered model political systems based on scientific principles logically deduced from the nature of man and the nature of things, serving to give a kind of scientific legitimacy to the newly formed nation states emerging in the 17th and 18th centuries under human sovereigns. Not surprisingly, sovereigns of that era promulgated natural law codes consisting of religious commandments, quasi-human moral values and civic virtues all couched in the language of legal proscriptions proclaimed and enforced by secular states.[12] Human conduct condemned by God's law and forbidden by the sovereign's law would be said to be morally, as well as legally, reprehensible or malum in se.[13]

As the law of the state became inexorably intertwined with higher moral law, based on both divine law and the law of nature, so, also, human law was seen to carry the moral authority of both.[14] Jurisprudential ramifications could hardly be contained.cralaw:red

In the last 19th century, legal reformers have consciously inculcated moral concepts such as fault, intent, and extenuating circumstances into both civil and criminal law. Law and morals have been drawn closer together so that legal accountability, more accurately than not, would likewise reflect moral culpability.[15] Vestiges of these reforms are still enshrined in our laws. In the Revised Penal Code, for example, mitigating, extenuating or aggravating circumstances that may either decrease or increase the penalties to be meted on an offender are all based on the moral attributes of the crime and the criminal.chanrobles virtual law library

With the emergence of the secular state, the greatest contribution of liberals to the issue is not the discovery of a pre-existing, necessary distinction between law and morality; rather, it is their attempt at separation, the building of the wall to separate law from morality, whose coincidence is sublimely monstrous.[16] Liberals attempt to divorce law from morality by characteristically adhering to some form of "harm" principle: public authority may justly use law as coercive factor only to prevent harm to non-consenting third parties. More specifically, the main distinguishing feature of liberalism is its opposition to morals law or the legal interference up to and including (sometimes) prohibition of putatively "victimless" immoralities such as sodomy, prostitution, fornication, recreational drug use, suicide and euthanasia.[17] Liberals argue that moral laws are, in principle, unjust.cralaw:red

This surge of liberalism has set the trend in the courts to adopt a neutral and disinterested stand in cases involving moral issues, often at the expense of obscuring the values which society seeks to enforce through its moral laws. This matter brings to mind the case of Grisworld vs. Connecticut[18] where the US Supreme Court, despite a presupposition that contraception is always wrong, nevertheless, has invalidated that state's anti-contraceptive law. In so deciding, the US Supreme Court has not met head-on the issue of whether the use of contraception is immoral but instead has struck down the law as being invalid on the ground of marital privacy. Should Grisworld then be taken to sanction a moral right to do a moral wrong?

On September 1957 in England, the Committee on Homosexual Offenses and Prostitution chaired by Sir John Wolfenden has recommended in its report to the British Parliament that homosexual behavior between two consenting adults in private should no longer be a criminal offense. The thesis holds that it is not the duty of the law to concern itself with immorality as such. The report has proposed to resolve questions of the legitimacy of legally enforcing moral obligations by distinguishing immoralities that implicate public interests from immoralities that are merely private.[19] The Wolfenden Report would spark an academic debate that persists to this day.chanrobles virtual law library

Patrick Devlin, then a High Court judge, has argued at the British Academy's 1959 Maccabaean Lecture that it would be a mistake to posit a private sphere of immorality into which the law ought not to venture. Devlin's legal moralism hinges on the theory that moral offenses insofar as they affect common good are fit subjects for legislation. Whether behavior, private or public may affect common good in such a manner that endanger the fabric of society and should thus be suppressed by law is a question of fact, which can be answered only after a full consideration of the conditions prevailing in a given society.[20] To Devlin, morals are not merely a matter of private judgment; society should be in a position to enforce its moral standards as a means of self-preservation, "whatever its morality happens to be."[21] Devlin would thus become the forerunner of ethical relativism which suggests that there is no "right" and "wrong" in any absolute sense, that right or wrong depend entirely on the culture in which one happens to live.[22] Devlin then would tolerate individual freedom only as far as possible and as long as it is consistent with the integrity of society.[23] Hence, while privacy is respected, it may be forfeited where one person injures another.[24]

H.L.A. Hart refutes Devlin's suggestion that immorality, even if private, can be likened to treason, against which it is permissible for society to take steps to preserve itself.[25] Hart sees Devlin's view of people living in a single society as having common moral foundation as overly simplistic. To Hart, societies have always been diverse. With the rise of democracy, society could more accurately be called a collectivity of ideas and attitudes, an assemblage or gathering of people who live together and work together and govern themselves collectively in spite of the great diversities that divide them.[26] Hart places emphasis on the right to privacy and freedom of action which ought to be protected and should be interfered with only when private behavior ceases to be private and becomes a menace to the public or to some part of the public.[27] One may deduce from Hart's arguments that private consensual moral offenses should not be legally prohibited because of the difficulties in enforcing such laws and the near impossibility of detecting most offenses without an unconscionable invasion of privacy.[28]chanrobles virtual law library

Hart criticizes attempts to impose the morality of the majority on a few. Justification for punishment especially when applied to conduct not harmful to others represents a value to be pursued at the cost of human suffering, the bare expression of moral condemnation and treats the infliction of suffering as a uniquely appropriate mode of expression. The idea that we may punish offenders against a moral code not to prevent harm but simply as a means of venting or expressing moral condemnation is uncomfortably close to human sacrifice as a form of religious worship.[29] To Hart, Vox populi does not necessarily translate to Vox Dei.[30] Hart particularly singles out laws aimed at enforcing sexual morality as oppressive — "Laws designed to enforce sexual morality to the extent that they interfere with certain forms of sexual expression and restrict the sexual outlet that may be available, impose an acute form of suffering upon those who are thus deprived of the only outlet available to them." Such laws and the coercive measures that may be used to enforce them "may create misery of quite a special degree. All restraints then must be justified by strong reasons."[31] Quoting John Stuart Mill in his essay "On Liberty", Hart expounds — "The only purpose for which power can rightfully be exercised over any member of a civilized community against his will is to prevent harm to others. His own good, either physical or moral is not a sufficient warrant. He cannot be rightfully compelled to do or forbear because it will be better for him to do so, because it will make him happier, because in the opinion of others, to do so would be wise or right."[32]

But Hart is not without his critics, among them being Robert P. George. George acknowledges that laws per se cannot make men moral; laws can only succeed in commanding outward conformity to moral rules but cannot compel internal acts of reason. Such an instance would be a law requiring all people to contribute to the charities. While fear of sanctions would force one to make such contribution, the same does not necessarily make him charitable. George, however, contends that laws can be utilized to make men moral by: (1) preventing further sell-corruption, (2) preventing bad example (3) helping to preserve the moral ecology and (4) educating people about right and wrong.[33] Thus, to him, moral laws punishing victimless sexual immoralities, for example, proceed from the conviction that the acts are truly wrong and that they damage the characters of the people who perform them, block the path to virtue, and in specific ways offend against the common good.[34] George cites Aristotle who, centuries ago, had long anticipated but criticized and firmly rejected the doctrine of mainstream contemporary liberalism, namely the belief that the law should merely be a guarantor of men's rights against another — instead of being, as it should be, a rule of life such as will make the members of the polis good and just.chanrobles virtual law library

Robert George submits, and I agree, that while morality cannot be legislated, laws can help make men moral by creating a "moral ecology" and profoundly affecting notions in society about what is morally acceptable, forbidden and required. People shape their own lives and often treat others very differently in the light of these notions. The point is, "a good moral ecology benefits people by encouraging and supporting their efforts to be good, a bad moral ecology harms people by offering them opportunities and inducements to do things that are wicked."[35] To illustrate, the decision of US Supreme Court in Brown vs. Topeka Board of Education in 1954 and of the Civil Rights Act of 1964 has primarily been responsible in changing society's perception on forced segregation or interracial marriage.cralaw:red

It might then be deduced that moral laws are justified when they (1) seek to preserve the moral value upheld by society and (2) when the morality enforced in a certain case, is true and correct. It is within these standards that the provision against "immorality" in the Administrative Code must be examined to the extent that such standards can apply to the facts and circumstances in the instant case before the Court. As a rule then, moral laws are justified only to the extent that they directly or indirectly serve to protect the interests of the larger society. It is only where their rigid application would serve to obliterate the value which society seeks to uphold, or defeat the purpose for which they are enacted, would a departure be justified.chanrobles virtual law library

Marriage is one area where law and morality closely intersect. The act of respondent Escritor of cohabiting with Quilapio, a married man, can only be called "immoral" in the sense that it defies and transgresses the institution of marriage. Society having a deep interest in the preservation of marriage, adultery is a matter of public, not merely private, concern, that cannot readily be ignored.[36] This deep seated interest is apparent in our Civil Code so replete with rules as in defining the parties' legal capacity to marry, in laying down the essential requisites of the union, in regulating the rights and duties of the spouses, even their property relations, and in protecting the rights of children. Marriage has acquired a legal definition as early as the 12th century that has since grown towards a cherished institution with Gregorian Reform of the 11th and 12th centuries.cralaw:red

With the separation of the Church and State, marriage has retained its status as a legally protected viculum because it is perceived to be imbued with societal interest as a foundation of the family and the basic unit of society. While Islamic states recognize polygamous marriages and, in Western countries, divorce is acceptable, in the Philippines, however, absolute monogamy is still the order of the day. Societal interest in monogamous unions is grounded on the belief that the cohesiveness of the family is better protected, and children, prized for their role in the perpetuation of the future of the community, are better reared when spouses remain together. These societal interests are embodied in moral laws geared towards protecting the monogamous nature of Philippine marriages.[37] But I do not endeavor to examine whether Philippine society is correct in viewing monogamy as the better means for the protection of societal interest on the family but I do would focus myself on, given the facts of the case, whether or not societal interest is rightly served.cralaw:red

Thus, I, in conscience, would take exception to the 1975 case of De Dios vs. Alejo.[38] In De Dios, respondents Elias Marfil and Julieta O. Alejo, deputy sheriff and stenographer of the then Court of First Instance of Rizal, respectively, were administratively found guilty of immorality for living together despite Marfil's prior existing marriage with another woman. Never mind if Marfil exerted valiant efforts to save his marriage by enduring the recriminations, unhappiness and extreme incompatibility he had with his wife. Never mind if notwithstanding his efforts, his wife abandoned him and their four children to live with another man. Never mind if Alejo took on the duties and responsibilities of being the mother to his children, rearing them as though they were her very own long after their natural mother had left them. Never mind if the children had, in fact, regarded her as their very own mother. Never mind if she was a good wife to the man she was living with, fulfilling the wifely duties long after the legal wife had abdicated them. Never mind if in all respects, they had become a family. Did not the Court in adjudging them guilty of immorality and in ordering them to put an end to their relationship, destroy a de facto family? Did not its narrow-minded view of marriage as a contractual transaction and its exacting application of the standards of monogamy, in effect, defeat the very moral purpose for which the law was put into place?

 Are we not sacrificing the substance of marriage — that is a union of man and woman in a genuine, loving and respectful relationship and, in effect, the substance of a family, for a mere shell of intricate legality? Lest I be misunderstood, I am not advocating for a departure from the elevated concept marriage as being a legally protected union. I merely express concern that a blanket application of moral laws affecting marriage, without regard to the peculiarities of every case, might defeat the very purpose for which those laws are put into place.cralaw:red

Thus, I vote for the remand of the case to allow a thorough examination on whether a strict application of the provision in the administrative code prohibiting immorality, under the facts and circumstances of the case, would defeat the very purpose which it seeks to serve. A remand would allow the parties to assess the factual issues, to adduce further evidence, if necessary, and to make out their case towards this direction.
 

____________________________

Endnotes:
 

[1] Book V, Title I, Chapter VI, Section 46(b) (5) of the Revised Administrative Code provides; viz.:chanroblesvirtuallawlibrary
 Sec. 46. Discipline: General Provisions — (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause as provided by law and after due process.
 (b) The following shall be grounds for disciplinary action:chanroblesvirtuallawlibrarychanrobles virtual law library
xxx          xxx          xxxchanrobles virtual law library
 (5) disgraceful and immoral conduct
 [2] DECLARATION PLEDGING FAITHFULNESS
 I, Soledad S. Escritor, do hereby 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 and that it is because of having been unable to do so that I therefore make this public declaration pledging faithfulness in this marital relationship.chanrobles virtual law library
 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 the circumstances makes this possible, I promise to legalize this union.
 Signed this 28th day of July, 1991.chanrobles virtual law library
[3] Lawrence, et al. v. Texas, US Supreme Court, 26 June 2003.chanrobles virtual law library
[4] Louis Altman, Calimann on Unfair Competition, Trademarks and Monopolies, (4th Edition) Current through the Spring 2003 Supplement
[5] Ibid.chanrobles virtual law library
[6] Ibid.chanrobles virtual law library
[7] Norman St. John-Stevas, "Law and Morals," Hawthorne Books Publishers, N.Y. 1st Edition, October 1964, at p. 18.
[8] Calvin Woodard, Symposium: The Moral Lawyer. "Thoughts on the Interplay Between Morality and Law in Modern Legal Thought." Notre Dame Law Review 1989.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Jeanne L. Schroeder and David Gray Carlson, "Review Essay: Kenneth Starr: Diabolically Evil?" California Law Review, March 2000.
[17] Gerard Bradley, "Plural Perfectionism: A Review Essay of Making Men Moral", Notre Dame Law Review, 1996.
[18] 381 US 479 (1965).
[19] Robert P. George, "Making Men Moral", Civil Liberties and Public Morality," Clarendon Press, Oxford, 1993.
[20] Norman St. John-Stevas, supra, at p. 27.chanrobles virtual law library
[21] Gerard V. Bradley, supra.chanrobles virtual law library
[22] Burton M. Leiser, Liberty, Justice and Morals: Contemporary Value Conflicts," MacMillan Publishing Co., Inc., New York, 1973, at p. 12.
[23] Ibid., p. 25.chanrobles virtual law library
[24] Ibid., p. 13.
[25] Ibid.chanrobles virtual law library
[26] Ibid., pp. 28-32.
[27] Ibid.
[28] Ibid.chanrobles virtual law library
[29] Hart, infra, at 65-66.
[30] Hart, infra, at p. 79.
[31] Leiser, supra., at p. 15.chanrobles virtual law library
[32] H.L.A. Hart, "Law, Liberty and Morality," Stanford University Press, Stanford California, 1963, pp. 4-5.
[33] Robert P. George, supra., at p. 1.chanrobles virtual law library
[34] Bradley, supra.chanrobles virtual law library
[35] Bradley, supra.
[36] Leiser, supra., at p. 12.
[37] Crimes against chastity under our Revised Penal Code include adultery, concubinage, and bigamy. Under our Civil Code, divorce is not allowed. Annulment of marriage, which capacitates a person to contract a subsequent marriage, is granted only in very limited instances.
[38]  68 SCRA 354.