file:estrada vs escritor am p_02_1651 august 4, 2003 j_ carpio.htm

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.

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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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.

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]

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.

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.

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]

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.

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-General. xxx.  (Emphasis supplied)

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.

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]

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)

Therefore, any initial penalty imposed on Escritor should be
lifted the moment she ends her cohabitation with Quilapio.

Given the circumstances, it would seem 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.

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.