AGLIPAY Vs. RUIZ

G.R. No. L-45459             March 13, 1937

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

ICTORIANO VS. ELIZALDE UNION   Leave a commentBENJAMIN VICTORIANO, plaintiff-appellee, vs. ELIZALDE ROPE WORKERS’ UNION and ELIZALDE ROPE FACTORY, INC., defendants, ELIZALDE ROPE WORKERS’ UNION, defendant-appellant.GRN L-25246 September 12, 1974

FACTS:Benjamin Victoriano (Appellee), a member of the religious sect known as the “Iglesia ni Cristo”, had been in the employ of the Elizalde Rope Factory, Inc. (Company) since 1958. He was a member of the Elizalde Rope Workers’ Union (Union) which had with the Company a CBA containing a closed shop provision which reads as follows: “Membership in the Union shall be required as a condition of employment for all permanent employees workers covered by this Agreement.”

Under Sec 4(a), par 4, of RA 975, prior to its amendment by RA 3350, the employer was not precluded “from making an agreement with a labor organization to require as a condition of employment membership therein, if such labor organization is the representative of the employees.” On June 18, 1961, however, RA 3350 was enacted, introducing an amendment to par 4 subsection (a) of sec 4 of RA 875, as follows: “xxx but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization”.

Being a member of a religious sect that prohibits the affiliation of its members with any labor organization, Appellee presented his resignation to appellant Union. The Union wrote a formal letter to the Company asking the latter to separate Appellee from the service because he was resigning from the Union as a member. The Company

in turn notified Appellee and his counsel that unless the Appellee could achieve a satisfactory arrangement with the Union, the Company would be constrained to dismiss him from the service.

Appellee filed an action for injunction to enjoin the Company and the Union from dismissing Appellee. The Union invoked the “union security clause” of the CBA and assailed the constitutionality of RA 3350 and contends it discriminatorily favors those religious sects which ban their members from joining labor unions.

ISSUE:Whether Appellee has the freedom of choice in joining the union or not.RULING:YES. The Constitution and RA 875 recognize freedom of association. Sec 1 (6) of Art III of the Constitution of 1935, as well as Sec 7 of Art IV of the Constitution of 1973, provide that the right to form associations or societies for purposes not contrary to law shall not be abridged. Section 3 of RA 875 provides that employees shall have the right to self-organization and to form, join of assist labor organizations of their own choosing for the purpose of collective bargaining and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection. What the Constitution and the Industrial Peace Act recognize and guarantee is the “right” to form or join associations. A right comprehends at least two broad notions, namely: first, liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself without being prevented by law; and second, power, whereby an employee may, as he pleases, join or refrain from joining an association. It is, therefore, the employee who should decide for himself whether he should join or not an association; and should he choose to join, he himself makes up his mind as to which association he would join; and even after he has joined, he still retains the liberty and the power to leave and cancel his membership with said organization at any time. The right to join a union includes

the right to abstain from joining any union. The law does not enjoin an employee to sign up with any association.

The right to refrain from joining labor organizations recognized by Section 3 of the Industrial Peace Act is, however, limited. The legal protection granted to such right to refrain from joining is withdrawn by operation of law, where a labor union and an employer have agreed on a closed shop, by virtue of which the employer may employ only members of the collective bargaining union, and the employees must continue to be members of the union for the duration of the contract in order to keep their jobs. By virtue of a closed shop agreement, before the enactment of RA 3350, if any person, regardless of his religious beliefs, wishes to be employed or to keep his employment he must become a member of the collective bargaining union. Hence, the right of said employee not to join the labor union is curtailed and withdrawn.

To that all-embracing coverage of the closed shop arrangement, RA No.3350 introduced an exception, when it added to Section 4 (a) (4) of the Industrial Peace Act the following proviso: “but such agreement shall not cover members of any religious sects which prohibit affiliation of their members in any such labor organization”. Republic Act No. 3350 merely excludes ipso jure from the application and coverage of the closed shop agreement the employees belonging to any religious sects which prohibit affiliation of their members with any labor organization. What the exception provides is that members of said religious sects cannot be compelled or coerced to join labor unions even when said unions have closed shop agreements with the employers; that in spite of any closed shop agreement, members of said religious sects cannot be refused employment or dismissed from their jobs on the sole ground that they are not members of the collective bargaining union. It does not prohibit the members of said religious sects from affiliating with labor unions. It still leaves to said members the liberty and the power to affiliate, or not to affiliate, with

labor unions. If, notwithstanding their religious beliefs, the members of said religious wets prefer to sign up with the labor union, they can do so. If in deference and fealty to their religious faith, they refuse to sign up, they can do so; the law does not coerce them to join; neither does the law prohibit them from joining, and neither may the employer or labor union compel them to join.The Company was partly absolved by law from the contractual obligation it had with the Union of employing only Union members in permanent positions. It cannot be denied, therefore, that there was indeed an impairment of said union security clause.

The prohibition to impair the obligation of contracts is not absolute and unqualified. The prohibition is general. The prohibition is not to be read with literal exactness, for it prohibits unreasonable impairment only. In spite of the constitutional prohibition, the State continues to possess authority to safeguard the vital interests of its people. Legislation appropriate to safeguarding said interests may modify or abrogate contracts already in effect. For not only are existing laws read into contracts in order to fix the obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The contract clause of the Constitution. must be not only in harmony with, but also in subordination to, in appropriate instances, the reserved power of the state to safeguard the vital interests of the people. This has special application to contracts regulating relations between capital and labor which are not merely contractual, and said labor contracts, for being impressed with public interest, must yield to the common good.

The purpose to be achieved by RA 3350 is to insure freedom of belief and religion, and to promote the general welfare by preventing discrimination against those members of religious sects which prohibit their members from joining labor unions, confirming thereby their natural, statutory and constitutional right to work, the fruits of which

work are usually the only means whereby they can maintain their own life and the life of their dependents.

The individual employee, at various times in his working life, is confronted by two aggregates of power collective labor, directed by a union, and collective capital, directed by management. The union, an institution developed to organize labor into a collective force and thus protect the individual employee from the power of collective capital, is, paradoxically, both the champion of employee rights, and a new source of their frustration. Moreover, when the Union interacts with management, it produces yet a third aggregate of group strength from which the individual also needs protection – the collective bargaining relationship.

The free exercise of religious profession or belief is superior to contract rights. In case of conflict, the latter must yield to the former.

The purpose of RA 3350 is to serve the secular purpose of advancing the constitutional right to the free exercise of religion, by averting that certain persons be refused work, or be dismissed from work, or be dispossessed of their right to work and of being impeded to pursue a modest means of livelihood, by reason of union security agreements. To help its citizens to find gainful employment whereby they can make a living to support themselves and their families is a valid objective of the state. The Constitution even mandated that “the State shall afford protection to labor, promote full employment and equality in employment, ensure equal work opportunities regardless of sex, race or creed and regulate the relation between workers and employers.”

The primary effects of the exemption from closed shop agreements in favor of members of religious sects that prohibit their members from affiliating with a labor organization, is the protection of said employees against the aggregate force of the collective bargaining agreement, and relieving certain citizens of a burden on their religious beliefs; and

by eliminating to a certain extent economic insecurity due to unemployment, which is a serious menace to the health, morals, and welfare of the people of the State, the Act also promotes the well-being of society. It is our view that the exemption from the effects of closed shop agreement does not directly advance, or diminish, the interests of any particular religion. Although the exemption may benefit those who are members of religious sects that prohibit their members from joining labor unions, the benefit upon the religious sects is merely incidental and indirect.

The purpose of RA 3350 was not to grant rights to labor unions. The rights of labor unions are amply provided for in Republic Act No. 875 and the new Labor Code.

The Act does not require as a qualification, or condition, for joining any lawful association membership in any particular religion or in any religious sect; neither does the Act require affiliation with a religious sect that prohibits its members from joining a labor union as a condition or qualification for withdrawing from a labor union. Joining or withdrawing from a labor union requires a positive act Republic Act No. 3350 only exempts members with such religious affiliation from the coverage of closed shop agreements. So, under this Act, a religious objector is not required to do a positive act-to exercise the right to join or to resign from the union. He is exempted ipso jure without need of any positive act on his part.

WHEREFORE, the instant appeal is dismissed.

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 EPWU’s and ERF’s 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.

A.M. No. MTJ-92-691 September 10, 1993

SULU ISLAMIC ASSOCIATION OF MASJID LAMBAYONG, complainant, vs.JUDGE NABDAR J. MALIK, Municipal Trial Court, Jolo, Sulu, respondent.

 

PER CURIAM:

On June 5, 1992, Imam Hashim Abdulla, Imam Hadji Tambing, Hatib Illih Musa, an officers and members of the Sulu Islamic Association of Masjid Lambayong, filed an administrative complaint against Judge Nabdar J. Malik, Presiding Judge of the Municipal Trial Court in Jolo, Sulu, charging him with violation of R.A. 2260 (An Act to Amend and Revise the Laws Relative to Philippine Civil Service) and serious misconduct committed as follows:

1. Nepotism — by recommending the appointment of Omar Kalim, his nephew, and Hanina Kalim, his niece-in-law, as process server and clerk, respectively;

2. Graft and Corruption — by using Omar Kalim to extort money from court litigants, e.g.:

a. P13,000.00 in exchange for the freedom of Datu Tating Erwin, who had been charged an accessory in a robbery case;

b. demanding P10,000.00 thru a certain P/Sgt. Duran Abam Tating, Erwin's brother-in-law; and

c. blackmailing litigants;

3. Immorality — engaging in an adulterous relationship with another woman with whom he has three children.

In his letter/comment dated October 19, 1992, Judge Malik alleged that the complainants are fictitious persons and that the charges against him are false and fabricated. He asked that the complaint be dismissed.

The Supreme Court referred the case to Judge Harun Ismael of the Regional Trial Court of Jolo, Sulu, for investigation report and recommendation.

On April 7, 1993, Judge Malik addressed a letter to Judge Ismael, enclosing affidavits of four witnesses, namely : (1) Imam Hashim

Abdulla; (2) Mrs. Jamura Tambing; (3) Mr. Mirad Tambing; and (4) Marina Balais Malik.

He alleged that Datu Tating Erwin is the nephew of Kaya B. Sarabi who had previously filed "many fabricated charges" (p. 235, Rollo) against him which had been dismissed by the Supreme Court. He implied that Erwin was being used by Sarabi, and that the affidavit was false.

Imam Hashim Abdulla, one of the "complainants," denied any knowledge of, or participation in, the filing of the complaint against Judge Malik. He disowned his supposed signature in the complaint as a forgery. He alleged that Judge Malik is his neighbor and he knows him to be "honest and righteous" (p. 238, Rollo).

Illih Musad, another "complainant," died on February 24, 1991 yet. His widow, Jamura Musad, executed an affidavit certifying that she knows Judge Malik personally because he has been her neighbor for many years. It was physically impossible for her late husband to have signed the complaint dated June 5, 1992 against Judge Malik because her husband died more than a year before the signing of the complaint.

The signature of another complainant, Imam Hadji Tambing Arong, was impugned by his son, Mirad Tambing. He said his father could not have signed the complaint because he had been sick and bedridden for five years before his death. In fact, he died on August 15, 1992.

Marina Balais Malik, wife of respondent Judge N. Malik, disowned her supposed affidavit which she supposedly signed before Notary Public Attorney Rodrigo Martinez in Zamboanga City, in February 1991 (p. 250, Rollo).

She, however, denied having appeared before the Notary Public to subscribe said affidavit which attacks the "honor and integrity of her beloved husband" (p. 251, Rollo).

After conducting an investigation of the charges, Judge Ismael on May 25, 1993, submitted a Report to the court. Of the three (3) charges against Judge Malik, only the charge or nepotism holds.

On the charge or graft and corruption, Judge Ismael observed that:

. . . practically all of those who testified denied any knowledge of any particular instance that Judge Malik extorted or received bribe money from litigants having pending cases before his sala. Mrs. Beatriz Abbas, Clerk of Court II of Municipal Trial Court of Jolo, Sulu presided by Judge Malik, testified that the people praised highly Judge Malik because of his honesty. She attests to this because she was, at one time told by Judge Malik to return to litigants something which litigants wanted to give to Judge Malik. However, one of those who testified confided, but refused to be quoted in his testimony for fear of reprisal, suggested that in order for the Court to be spared of any ill suspicion, Omar Kalim should be transferred to another Municipal Circuit Trial Court branch where Judge Malik has no supervision. Accordingly, it's just not nice and good looking to have Omar Kalim where he is now. This information is worth considering. The only obstacle is Judge Malik is Acting Judge in all Municipal Circuit Trial Court branches except Siasi, Sulu. However, no hard evidence was adduced linking Judge Malik to graft and corruption as alleged in the complaint. (p. 51, Rollo.)

With regard to the charge of adultery or immorality, the investigating Judge observed that under Muslim Law the marriage of a Tausug (the tribal group to which Judge Malik belongs) to as many as four (4) wives in sanctioned provided the man can support them and does not neglect any or them. Judge Ismael's report states:

As regards the claim that Judge Malik has two (2) wives, all those who testified at the investigations confirmed the same. Mrs. Marina Balais-Malik, the first wife, admitted that Judge Malik has a second wife (Lourdes) but she does not

mind them since she and her children are financially taken cared of — all their eight children are going to school and three (3) have reached college level. Moreover, under the Muslim Shari'a (Law) marrying more than one wife is allowed provided the man can afford financially and can give equity and justice to the wives. Mrs. Marina Balais Malik claims that Judge Malik is financially capable.

The Holy Qur'an (the Muslim Holy Scripture) provides in Surah 4:3 (Chapter 4, verse 3) thus:

3. And if ye fear that ye shall not.Be able to deal justlyWith the orphans,Marry women of your choiceTwo, or three, or four;But if, ye fear that ye shall notBe able to deal justly (with them)The only one, orThat which your right hand possessThat will be more suitable,To prevent youFrom doing injustice.

Strictly, Islam enjoins only monogamous marriage. While Islam allows marrying more than one wife, it however sets limitation, i.e., not more than four at a time and the man be financially capable in order for him to provide equity and justice to the wives. Theme revelations came to the Prophet Muhammad after the Battle of Uhud whereby many Mujahideens died thus leaving more widows and orphans. This particular revelation serve, as it was then, as a remedy to the impending situation of the widows and

orphans left unattended. By allowing the mujahideens to take them in marriage helped prevent them from engaging in illicit marital relations like fornication. Marrying more than one wife does not per secreate any stint (sic) of social immorality, since this marriage, like any other ordinary marriages, is made public and are (sic) accepted by the people in the community. Any issue out of this marriage is legitimate before the eyes of the Almighty Lord and the people.

True, Islam sanctions such marriage but very few Muslim males practice it. Worst yet today, however, this permissible marriage is used as a means of building social standing in the community. As a judge, there is no doubt that Judge Malik has acquired higher respect and social standing in the community, and is deemed financially capable. Hence, he can marry more than one wife in accordance with the Muslim Shari'a. (pp. 49-50, Rollo.)

Mrs. Marina Malik consented to her husband's wish to contract, a second marriage because he does not neglect to support her children. Three of them are in college. She has no ill-feelings against Malik's second wife, who married her husband under Muslim law. Since Art. 180 of P.D. No. 1083, otherwise known as the Code of Muslim Personal laws of the Philippines, provides that the penal laws relative to the crime of bigamy "shall not apply to a person married . . . under Muslim Law," it is not "immoral" by Muslim standards for Judge Malik to marry a second time while his first marriage exists.

The charge of nepotism, however, is a different matter.

Judge Nabdar Malik was appointed and confirmed as Judge of Municipal Court of Jolo on May 29, 1972. He assumed office on May 29, 1972. 1 On June 16, 1978, he recommended the appointment of his nephew, Omar Kalim, the son of his older sister, Nuridjan Ambutong, to the position of Janitor of his court. He falsely certified that Kalim was not related to him by affinity or consanguinity within the third degree:

This is to certify that Mr. Omar Kalim, a proposed appointee for the position of Janitor in the Municipal Court of Jolo,

Branch 1, is not related to the undersigned within the third degree either by affinity or consanguinity.

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NABDAR J. MALIKMunicipal Judge

(Certification dated June 16, 1978, 201 File.)

The truth is that, being his sister's son, Kalim is related to Judge Malik by consanguinity within the third degree.

Later, Omar Kalim was promoted an MTC Aide and still later, in 1985, he became a Process Server. 2 In support of Kalim's promotion, Judge Malik again issued a false certification that Kalim in not related to him by affinity or consanguinity.

This is to certify that MR. OMAR N. KALIM, a proposed appointee for the position of MTC PROCESS SERVER in the Office of the Municipal Trial Court of Jolo, is not related to the undersigned appointed official either by affinity or consanguinity. (Certification dated January 2, 1985, 201 File.)

Similarly, Kalim falsely denied his relationship to Judge Malik in answer to question No. 23 in his Personal Data Sheet.

Are you related within the third degree of consanguinity or of affinity to the appointing or recommending authority, or to the chief of bureau or office, or to the person who has immediate supervision over you in the Office, Bureau or Ministry you are to be appointed?

His answer was "No".

The prohibition against nepotism in the government service is found in Section 59, Chapter 7, Book V of the Administrative Code of 1987 which reads:

Sec. 59. Nepotism. — (1) All appointments in the national, provincial, city and municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons exercising immediate supervision over him, are hereby prohibited.

As used in this Section, the word "relative" and members of the family referred to are those related within the third degree either of consanguinity or of affinity.

(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines: Provided, however, That in each particular instance full report of such appointment shall be made to the Commission.

The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.

(3) In order to give immediate effect to these provisions, cases of previous appointments which are in contravention hereof shall be corrected by transfer, and pending such transfer, no promotion or salary increase shall be allowed in favor of the relative or relatives who were appointed in violation of these provisions.

In the case of Layno vs. People (213 SCRA 686, 696-697), the incumbent Mayor, of Lianga, Surigao, appointed his legitimate son as Meat Inspector, but certified that the appointee was not a relative by consanguinity or affinity. He was prosecuted criminally and punished for falsification of public document (Art. 171, par. 4 or the RPC).

One of the legal issues raised was whether the appointing authority is obliged to disclose his true relationship to the appointee., That question was answered by this Court in the affirmative:

The law on nepotism, as provided in Section 49(a) or PD No. 807, prohibits the appointing or recommending authority from making any appointment in the national, provincial, city or municipal governments or in any branch or instrumentality thereof, including government-owned or controlled corporations, in favor of his (appointing or recommending authority's) relative within the third degree of consanguinity or affinity. Thus, in order to guarantee that the law is duly observed, it is required, among others, that the appointment paper should be accompanied by a certification of the appointing or recommending authority stating therein that he is not related to the appointee within the third degree of consanguinity or affinity. Although Section 49(a) or PD No. 807 does not explicitly provide that the appointing or, recommending authority shall, disclose his true relationship with the appointee in the form or a certification, nonetheless, in the light of the rulings in the aforecited cases, the legal obligation or the appointing or recommending authority to state the true facts required to be stated in the certification is inherent in the law on prohibition against nepotism and the nature and purpose of such certification.

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. . . . As aptly observed by the Solicitor General in his Memorandum —

The general purpose of P.D. No. 807 is to "insure and promote the constitutional mandate that appointments in the Civil Service shall be made only according to merit and fitness, to provide within the public service a progressive system of personnel administration, and to adopt measures to promote moral and the highest degree of responsibility,

integrity, loyalty, efficiency, and professionalism in the Civil Service." (Section 2, PD No. 807.)

The civil service laws are designed to eradicate the system of appointment to public office base on political considerations and to eliminate as far as practicable the element of partisanship and personal favoritism in making appointments. These laws intend to establish a merit system of fitness and efficiency as the basis of the appointment; to secure more competent employees, and thereby promote better government. (Meran vs. Edralin, 154 SCRA 238 [1987])..

Indeed, there are many cases wherein local elective officials, upon assumption to office, wield their new-found power by appointing their own protegees, and even relatives, in violation of civil service laws and regulations. Victory, at the polls should not be taken as authority for the commission of such illegal acts. (Mendoza vs. Quisumbing, G.R. No. 78053, June 4, 1990, citing Nemenzo vs. Sabillano, 26 SCRA 1 [1968]).

By making untruthful statements and certifications regarding their relationship to each other, Judge Malik and his nephew, Omar Kalim, committed the crime of falsification under Article 171, subparagraph 4 of the Revised Penal Code.

Nepotism is a ground for disciplinary action under Section 46, subpar. 30, Chapter 5, Book V of the Administrative Code of 1987:

Sec. 46. Discipline: General Provisions. — (a) No officer or employee in the Civil Service shall be suspended or dismissed except for cause an provided by law and after due process.

(b) The following shall be grounds for disciplinary action:

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(30) Nepotism as defined in Section 59 of this Title.

Section 67 (Penal Provision) of the Administrative Code provides the following penalty therefor:

Sec. 67. Penal Provision. — Whoever makes any appointment or employs any person in violation of any provision of this Title or the rules made thereunder or whoever commits fraud, deceit or intentional misrepresentation of material facts concerning other civil service matters, or whoever violates, refuses or neglects to comply with any of such provisions or rules, shall upon conviction be punished by a fine not exceeding one thousand pesos or by imprisonment not exceeding six (6) months, or both such fine and imprisonment in the discretion of the court. (Executive Order 292, Emphasis ours.)

Disclosure of one's relatives in the Government is required of every public official or employee:

Sec. 8. . . .

(B) Identification and disclosure of relatives. — It shall be the duty of every public official or employee to identify and disclose, to the best of his knowledge and information, his relatives in the Government in the form, manner and frequency prescribed by the Civil service Commission. (Sec. 8 (B), Rep. Act 6713 [Code of Conduct and Ethical Standards for Public Officials and Employees].)

Judge Malik did not merely fail to disclose his relationship to Omar Kalim, but he falsely certified that he was not related to the latter.

Kalim, likewise, falsely denied his relationship to Judge Malik. Their acts violated the Code of Conduct and Ethical Standards for Public Officials and Employees and are punishable under Section 11 of the Code, with removal from office.

Sec. 11. Penalties. — (a) Any public official or employee, regardless of whether or not he holds office or employment in a casual, temporary, holdover, permanent or regular capacity, committing any violation of this Act shall be punished with a fine not exceeding the equivalent of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the gravity of the offense after due notice and hearing by the appropriate body or agency. If the violation is punishable by a heavier penalty under another law, he shall be prosecuted under the latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000.00), or both, and, in the discretion of the court of competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause for removal or dismissal of a public official or employee, even if no criminal prosecution is instituted against him. (Emphasis supplied.)

Section 23, Rule XIV of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent Civil Service Laws, classifies nepotism as a grave offense punishable with dismissal from the service, even as a first offense.

Sec. 23. Administrative offenses with its corresponding penalties are classified into grave, less grave, and light, depending on the gravity of its nature and effects of said acts on the government service.

The following are grave offenses with its corresponding penalties:

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(m) Nepotism [1st Offense, Dismissal]

Moreover, by committing nepotism and covering up his malfeasance by falsely disavowing any relationship to the appointee, Judge Malik is also guilty of gross ignorance of the law and falsification and violated the Code of Judicial Conduct, which requires that "a judge shall not allow family, social, or other relationship to influence his judicial conduct or judgment" (Canon 2, Rule 2.03) and enjoins a judge to "be faithful to the law" (Canon 3, Rule 3.01). Violations of the Code of Judicial Conduct are serious offenses punishable by any of the following sanctions under Section 10-A, Rule 140 of the Rules of Court, as amended:

1. Dismissal from the service with forfeiture of benefits (except accrued leaves) and disqualification from reinstatement or appointment to any public office including a government-owned or controlled corporation;

2. Suspension for three (3) to six (6) months without salary and benefits; or

3. A fine of not less than P20,000.00 but not more than P40,000.00.

With respect to Judge Malik's niece-in-law, Hanina M. Hailidani Kalim, her appointment did not violate the law against nepotism.

Hanina began her service in the judiciary on August 6, 1973. She was then known as "Mrs. Hanina M. Hailidani-Ainin," for she was married to Hadji Abubakar Ainin, clerk of the Municipal Court, Branch 1. Omar Kalim entered the service in 1978 or five years after Hanina. She was already a widow when she and Kalim met and married in a ceremony performed by Judge N. Malik on July 24, 1982. Evidently, when Hanina was appointed as a member of Judge Malik's staff in 1973, she was not yet related to him by affinity or consanguinity. Her marriage to Omar Kalim after both had entered the government service is expressly excluded from the prohibition against nepotism. Section 59 of the Administrative Code of 1987 provides that:

Sec. 59. . . .

(2) . . . "The restriction mentioned in subsection (1) shall not be applicable to the case of a member of a family who, after his or her appointment to any position in an office or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or retention therein of both husband and wife may be allowed.

WHEREFORE, the Court finds Judge Nabdar J. Malik GUILTY of nepotism, falsification and violation of the Code of Judicial Conduct. His Process Server and nephew, Omar Kalim, is likewise found GUILTY of falsification and deceit. The Court hereby orders their DISMISSAL from the service, with prejudice to re-employment in the government, including government-owned or controlled corporations, with forfeiture of all retirement benefits and privileges (if any), except the money value of their earned leave credits. Respondent Judge is ORDERED to cease and desist immediately from rendering any order or decision, or continuing any proceedings, in any case whatsoever, effective immediately upon receipt of a copy of this Resolution.

SO ORDERED.

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Ebranilag v. The Division of Supt. of Schools DigestEbranilag, et. al. v. The Division Supt. of Schools

March 1, 1993

FACTS: 

1. In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and elementary school students in several towns of in Cebu province. All minors, they are assisted by their parents who belong to the religious group known as Jehovah's Witness. This is a consolidated petition.

2. All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu  for  refusing  to  salute the flag,  sing the national  anthem and recite   the  patriotic pledge as required  by  RA  1265  of   July   11,   1955,   and  by  DO  No.   8   of   the  DECS  making   the  flag   ceremony compulsory in all educational institutions

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

4.  The Jehovah's  Witnesses admittedly  teach their  children not  to salute the flag,  sing  the national anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or "religious devotion’ only given to God.They consider the flag as an image or idol representing the State . They think   the   action   of   the   local   authorities   in   compelling   the   flag   salute   and   pledge   transcends constitutional limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect against official control 

5. In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine national anthem, salute the Philippine flag and recite the patriotic pledge.

6.   The   students   and   their   parents   filed   these   special   civil   actions   for Mandamus,Certiorari and Prohibition alleging that the public respondents acted without or in excess of their jurisdiction and with grave abuse of discretion — (1) in ordering their expulsion without prior notice and hearing, hence, in violation of their right to due process, their right to free public education, and their right to freedom of speech, religion and worship 

7. The Court issued a TRO and a writ of preliminary mandatory injunction and ordered to immediately re-admit the petitioners to their respective classes until further orders. 

ISSUE: Whether or not the expulsion is valid

NO. The court upheld the petitioners' right under the Constitution to refuse to salute the Philippine flag on account of their religious beliefs. Religious freedom as a fundamental right deserving the "highest priority and amplest protection among human rights. It reversed the expulsion orders made by the public respondents therein as violative of both the free exercise of religion clause and the right of citizens to education under the 1987 Constitution. 

Although the Court upholds in this decision   nevertheless, that another foreign invasion of our country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag.

American Bible Society vs. City of ManilaGR No. L-9637 | April 30, 1957

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:

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 Mayor’s permit and license from the City Treasurer. American Bible Society’s 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 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 Society’s 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