PRELIMINARIES

Government Power vs. Individual Freedom

1. Among the changes brought about by the Period of Enlightenment was the shift of
power from the crown to the individual. The long reign of monarchs came to an end, and
the rule of the people became the standard. The government, while still the repository of
power, was limited to its role as the protector of the people and the guardian of rights.
Liberalism, which took its cue from individualism, advocated the principle of
egalitarianism, in which men, regardless of their status in life, are regarded as equals in
terms of rights before the law. Modern democracies are founded on these liberal ideals, in
that the heart of democratic objectives is the protection of human dignity and respect for
human rights.

2. Nonetheless, the government remains to be a powerful institution, capable of

summoning the military, evoking its past image as the uncontestable holder of
sovereignty. In fact, republicanism essentially requires delegation of powers to the
government; that although the people remain to be the sovereign, actual exercise of it is
given to the government. Protection and service of the people is the primal duty of the
government, but be that as it may, the government is still the single biggest institution
that exercises sovereign powers.

3. More so, it possesses the inherent powers which the Constitution itself does not
confer. Every government for it to exist exercises police power, power of eminent
domain, and power of taxation. A constitution does not grant such powers to the
government; a constitution can only define and delimit them and allocate their exercise
among various government agencies.[1] These are awesome powers, which, if left
uncheck, may seriously restrict and jeopardize the freedom of individuals. Thus, it is
inbuilt in every democratic constitution to meticulously include provisions guaranteeing
the rights of the individuals and those restricting the powers of the government. This is to
prevent the tragedy that the government created by the people will in turn be the
instrument to enslave and abuse them.

4. The Bill of Rights (Article III) is an indispensable part of the Constitution. In fact, it is
one of the most important parts of the fundamental law since it aims at balancing the
power of the government and the various freedoms of the individual. As will be seen
below, the Bill of Rights provide for two things: first, restrictions directed against the
state, and, second, explicit identification and limitation of rights of the individuals. On the
one hand, the government exercises its tremendous powers, but its powers are limited by
the Constitution. On the other hand, the individuals are guaranteed of their rights, but
subject also to limitations in recognition of the powers of the government. What balances
the two (power and freedom) are the limitations provided by the Constitution, which
limitations are by nature compromises or solutions to situations resulting from the
overlapping or conflict of the two realms. For example, while the government has the
inherent authority to take and convert a property for public use, and the people on the
other have the right to hold their private property, the Constitution, contemplating a case
of overlap or conflict between the two, compromises both by prescribing that the
government gives just compensation to the private owner who in turn must surrender his
property.

Meaning of the Bill of Rights

1. From the foregoing, it is not difficult to understand that the Bill of Rights refers
to the declaration and enumeration of the fundamental civil and political rights of
a person with the primary purpose of safeguarding the person from violations by
the government, as well as by individuals and group of individuals. It includes the
protection of the following rights:
(a) Civil rights or those rights belonging to individuals by virtue of their
citizenship, such as freedom to contract, right to property, and marriage among
others;

(b) Political rights which are rights pertaining to the citizenship of the individual
vis--vis the administration of the government, such as right of suffrage right to
hold office, and right to petition for redress of wrong;

(c) Socio-economic rights or those which ensure the well-being and economic
security of an individual; and

(d) Rights of the accused which refer to protections given to the person of an
accused in any criminal case.

2. It must be noted that the restriction provided in the Bill of Rights is directed
against the government, so that it does not govern private relations. As far as
the Constitution is concerned, Article III can be invoked only against the
government. Nonetheless, with the inclusion of almost all the constitutional
rights in Article 32 of the Civil Code, the same may now be invoked in civil cases
involving relations between private persons. Thus, the definition above indicates
that the bill of rights is a safeguard not just against the abuses of the
government but also of individuals or group of individuals.

RIGHT TO DUE PROCESS AND EQUAL PROTECTION

Life, Liberty, and Property

1. Constitutional Provision. Section 1, Article III of the Constitution states No

person shall be deprived of life, liberty, or property without due process of law,
nor shall any person be denied the equal protection of the laws. The provision
speaks of due process and equal protection.

2. Scope of Protection. The protection covers all persons, whether citizens or

aliens, natural or juridical.

3. Meaning of Life, Liberty, and Property. Due process and equal protection cover
the right to life, liberty, and property. It is important therefore to know the
meaning of the three.

(a) Life. When the constitution speaks of right to life, it refers not just to physical
safety but also to the importance of quality of life. Thus, right to life means right
to be alive, right to ones limbs against physical harm, and, equally important,
right to a good quality of life.[2] Life means something more than mere animal
existence.[3]

(b) Liberty. It includes negative and positive freedom. Negative freedom

means freedom from, or absence of, physical constraints, while positive freedom
means freedom to exercise ones faculties. Right to liberty therefore includes the
two aspects of freedom and it cannot be dwarfed into mere freedom from
physical restraint or servitude, but is deemed to embrace the right of man to
enjoy his God-given faculties in all lawful ways, to live and work where he will, to
earn his livelihood by any lawful calling, to pursue any vocation, and enter into
contracts.[4]

(c) Property. It refers either to the thing itself or right over the thing. As a thing,
property is anything capable of appropriation, and it could be personal or real. As
a right, it refers to right to own, use, possess, alienate, or destroy the thing. The
constitution uses property in the sense of right, and as such it includes, among
others, right to work, ones employment, profession, trade, and other vested
rights. It is important to note however that privileges like licenses are not
protected property; but they may evolve in a protected right if much is invested
in them as means of livelihood. Public office is not also a property; but to the
extent that security of tenure cannot be compromised without due process, it is
in a limited sense analogous to property.[5]

5. These rights are intimately connected. For example, if ones property right
over employment is taken away, the same will adversely affect ones right to life
since quality of living is jeopardized. Consequently, in the absence of property
and a good quality of life, the ability to do what one wants is impeded.

6. Hierarchy of Rights. While the rights are intimately related, they have a
hierarchy. As to their order of importance, right to life comes first, followed by
right to liberty, and then right of property.

Due Process

1. Meaning. Due process of law is a constitutional guarantee against hasty and

unsupported deprivation of some persons life, liberty, or property by the
government. While is it true that the state can deprive its citizens of their life,
liberty, or property, it must do so in observance of due process of law. This right
is the embodiment of the supporting idea of fair play[6] and its essence is that
it is a law which hears before it condemns, which proceeds upon inquiry and
renders judgment only after trial.[7]

2. When Invoked. The right is invoked when the act of the government is
arbitrary, oppressive, whimsical, or unreasonable. It is particularly directed
against the acts of executive and legislative department.

3. Two Aspects of Due Process. Due process of law has two aspects: procedural
and substantive. Basically, the procedural aspect involves the method or manner
by which the law is enforced, while the substantive aspect involves the law itself
which must be fair, reasonable, and just.

4. Procedural due process requires, essentially, the opportunity to be heard in

which every citizen is given the chance to defend himself or explain his side
through the protection of general rules of procedure. It contemplates notice and
opportunity to be heard before judgment is rendered.

In judicial proceedings, the requirements of procedural due process are:[8]

(a) An impartial or objective court or tribunal with jurisdiction over the subject
matter;

(b) Court with jurisdiction over the person of the defendant or the property which
is the subject of the proceeding;
(c) Defendant given the opportunity to be heard (requirement on notice and
hearing); and

(d) Judgment rendered after lawful hearing.

Since some cases are decided by administrative bodies, the Court also provides
requirements of procedural due process in administrative proceedings. These
requirements, also known as seven cardinal primary rights, are:[9]

(a) The right to a hearing, where a party may present evidence in support of his
case;

(b) The tribunal must consider the evidence presented;

(c) The decision of the tribunal must be supported by evidence;

(d) The evidence must be substantial. Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a
conclusion;

(e) The evidence must have been presented at the hearing, or at least contained
in the record and known to the parties affected;

(f) The tribunal or body or any of its judges must rely on its own independent
consideration of evidence, and not rely on the recommendation of a subordinate;
and

(g) The decision must state the facts and the law in such a way that the parties
are apprised of the issues involved and the reasons for the decision.

5. Notice and Opportunity to be Heard. What matters in procedural due process

are notice and an opportunity to be heard.

(a) Notice. This is an essential element of procedural due process, most

especially in judicial proceedings, because without notice the court will not
acquire jurisdiction and its judgment will not bind the defendant. The purpose of
the notice is to inform the defendant of the nature and character of the case filed
against him, and more importantly, to give him a fair opportunity to prepare his
defense. Nevertheless, the notice is useless without the opportunity to be heard.

(b) Opportunity to be Heard. It must be emphasized that what is required is not

actual hearing but a real opportunity to be heard.[10] If, for instance, a
person fails to actually appear in a hearing even though he was given the chance
to do so, a decision rendered by the court is not in violation of due process.
Moreover, strict observance of the rule is not necessary, especially in
administrative cases. In fact, in administrative proceedings, notice and hearing
may be dispensed with for public need or for practical reasons. It is also sufficient
that subsequent hearing is held if the same was not previously satisfied.

6. Substantive due process requires that the law itself is valid, fair, reasonable,
and just. For the law to be fair and reasonable it must have a valid objective
which is pursued in a lawful manner. The objective of the government is valid
when it pertains to the interest of the general public, as distinguished from those
of a particular class. The manner of pursuing the objective is lawful if the means
employed are reasonably necessary and not unduly oppressive.

7. Under the doctrine of void for vagueness, a statute or law that is vague is void
because it violates the rights to due process. A statute is vague when it lacks
comprehensible standards which men of ordinary intelligence must necessarily
know as to its common meaning but differ as to its application. Such kind of
statute is opposed to the Constitution because it fails to accord persons proper
understanding or fair notice, and because the government is given unbridled
freedom to carry out its provision. For this doctrine to be operative, however, the
statute must be utterly vague. Thus, if a law, for example, could be interpreted
and applied in various ways, it is void because of vagueness. Corollary to this is
the doctrine of overbreadth which states that a statute that is overly broad is
void. This is because it prevents a person from exercising his constitutional
rights, as it fails to give an adequate warning or boundary between what is
constitutionally permissive and not. If a law, for instance, prohibits a bystander
from doing any annoying act to passersby, the law is void because annoying
act could mean anything to a passerby and as such, overly broad.

Equal Protection

1. Meaning. The guarantee of equal protection means that no person or class of

persons shall be deprived of the same protection of the laws which is enjoyed by
other persons or other classes in the same place and in like circumstances.[11]
It means that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The guarantee does
not provide absolute equality of rights or indiscriminate operation on persons.
Persons or things that are differently situated may thus be treated differently.
Equality only applies among equals. What is prohibited by the guarantee is the
discriminatory legislation which treats differently or favors others when both are
similarly situated.

2. Purpose. The purpose of the guarantee is to prohibit hostile discrimination or

undue favor to anyone, or giving special privilege when it is not reasonable or
justified.

3. Reasonable Classification. Well established is the rule that reasonable

classification does not violate the guarantee, provided that the classification has
the following requisites:[12]

(a) It must be based upon substantial distinctions;

(b) It must be germane to the purpose of the law;

(c) It must not be limited to existing conditions only; and

(d) It must apply equally to all members of the class.

4. Example. In one case,[13] Section 66 of the Omnibus Election Code was

challenged for being unconstitutional, as it is violative of the equal protection
clause. The provision distinguishes between an elective official and an appointive
official in the filing of theire certificate of candidacy. While elective officials are
not deemed resigned upon the filing their certificates, appointive officials are.
The Supreme Court held that the law is constitutional and not violative of equal
protection since the classification is valid. The Court argues that elective office is
different from appointive office, in that the mandate of the former is from the
people, while that of the latter is from the appointing authority. The term of the
elective officials are likewise longer than that of the appointive officials. Thus, the
classification is adjudged reasonable and valid.

5. Discrimination against Aliens. Although the protection extends to both citizens

and aliens, discrimination against aliens may be held valid under certain
circumstances. For example, citizens by virtue of their membership to the
political community possess complete civil and political rights, while aliens do
not have complete political rights. The former can vote during elections, run for
public office, own real property, while aliens cannot.

6. Review of Laws. If the laws are scrutinized by the court, it said to be subject to
judicial review. There are three standards followed by the court in judicial
review, these are:

(a) Deferential review in which laws are upheld to be valid or consistent to the
guarantee of equal protection when they are rational and the classifications
therein bear a relation to a legitimate governmental interests or purpose. In here
the courts do not seriously inquire into the substantiality of the interest and
possibility of alternative means to achieve the objectives;

(b) Intermediate review in which the substantiality of the governmental interest

is closely scrutinized as well as the availability of less restrictive means or
alternatives. This standard is used if the classification involves important but not
fundamental interests; and

(c) Strict scrutiny in which the government is required to show the presence of a
compelling government interest, rather than a mere substantial interest, and the
absence of a less restrictive means for achieving the interest. Upon showing of
these requirements, the limitation of a fundamental constitutional right is
justified. This standard is used if the law classifies persons and limits others of
their exercise of fundamental rights.

ARRESTS, SEARCHES AND SEIZURES

Right against Unreasonable Searches and Seizures

1. Constitutional Provision. Section 2, Article III states that people have the
inviolable right to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose, and
a search warrant or warrant of arrest can only be issued upon showing of a
probable cause determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be
seized.

2. Scope. The protection extends to all persons, aliens or citizens, natural or

juridical. It is a personal right which may be invoked or waived by the person
directly affected[14] against unreasonable arrests or searches by the
government and its agencies. It cannot, however, be invoked against private
individuals.
Warrant of Arrest and Search Warrant

1. Generally, the right against unreasonable searches and seizures requires that
before a person is arrested or a personal property seized, it must be supported
by a valid warrant of arrest or a search warrant. The exceptions are in cases of
valid warrantless arrests and searches.

2. A warrant of arrest is a written order of the court, issued in the name of the
Philippines, authorizing a peace officer to arrest a person, and put him under the
custody of the court.

3. A search warrant is a written order of the court, authorizing or directing a

peace officer to search a specific location, house, or other premises for a
personal property allegedly used in a crime or may be utilized as a tool to prove
a crime.

Requisites of a Valid Warrant

1. Since as a general rule, an arrest or search is reasonable when it is covered by

a valid warrant, it is thus important to know the requisites a valid warrant. The
Court enumerates the requisites as follows:

(a) It must be based upon a probable cause. Probable cause refers to such facts
and circumstances which would lead a reasonably discreet and prudent man to
believe that an offense has been committed and that the objects sought in
connect with the offense are in the place sought to be searched;

(b) The probable cause must be determined personally by the judge. That the
judge personally determines the probable cause means that he personally
evaluates the report and the supporting documents submitted by the public
prosecutor regarding the existence of the probable cause, or, if the same is
insufficient, require additional evidence to aid him in arriving at a conclusion as
to the existence of probable cause.[15] Thus, personal determination does not
mean that he must personally examine the complainant and his witnesses.[16]
He may rely on reports and evidence submitted to him, on the basis of which he
determines the existence of probable cause and orders the issuance of warrant.
What is prohibited is to rely solely on the recommendation of the prosecutors
without doing any determination on his own;

(c) The determination must be made after examination under oath or affirmation
of the complainant and the witness he may produce; and

(d) It must particularly describe the place to be searched and the persons or
things to be seized. The property subject to search includes those used in the
commission of the offense, stolen or embezzled and other proceeds or fruits of
the offense, or used or intended to be used in the commission of the offense.

2. General warrants are those that do not particularly describe the place to be
searched or the persons or things to be seized. They are unconstitutional
because the sanctity of the domicile and privacy of communication and
correspondence of individuals are placed at the mercy, caprice, and passion of
peace officers.[17]

Warrantless Arrest
1. When Warrantless Arrest Valid. Arrest without warrant is strictly construed as
an exception to the general rule requiring warrant. Under the Rules of Court,[18]
a peace officer or a private person may arrest a person even without a warrant
under the following instances:

(a) In flagrante delicto arrest. When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to commit an offense;

(b) Hot pursuit. When an offense, has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be arrested has
committed it; and

(c) Arrest of escaped prisoners. When the person to be arrested is a prisoner who
has escaped from a penal establishment of place where he is serving final
judgment or temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

2. Citizen Arrest. It must be noted that a lawful warrantless arrest may be

performed not just by a peace officer but also by a civilian. This is permitted
under the rules under limited circumstances, and it is called citizen arrest.

3. In the case of flagrante delicto arrest, an offense is committed in the

presence of the arresting officer or civilian. For example, if a person pushes
illegal drugs in the presence of a police officer, the latter can arrest the pusher
even without a warrant of arrest because an offense is actually being committed
in his presence. The same principle underlies the buy-bust or entrapment
operations conducted by police officers in catching law offenders. In one case,
[19] the Court held that rebellion is a continuing offense, and so the rebel may
be arrested anytime even without a warrant because he is deemed to commit
the offense in the presence of the arresting officer or person.

4. Illegal Detention is the offense committed by the arresting officer or civilian if

the warrantless arrest is performed outside the above rules.

Warrantless Searches

A search is valid even without a warrant, under the following instances:

(a) Search as an incident to a lawful arrest. When a valid arrest precedes the
search or contemporaneous with it, and the search is limited to the immediate
vicinity of the place of arrest, for purposes of securing dangerous objects and
effects of the crime;

(b) Consented search. When the right has been voluntarily waived by person who
has a right, aware of such right, and has an actual intention to relinquish such
right;

(c) Plainview search. When prohibited articles are within the sight of an officer
who has the right to be in a position to that view;

(d) Visual search at checkpoints. When the search at stationary checkpoints is

pre-announced, and limited to a visual search only;
(e) Terry search. When a police officer, in interest of effective crime prevention,
performs a stop-and-frisk or patting of outer clothing for dangerous weapons,
after observing a suspicious conduct on the part of a citizen;

(f) Search of moving vehicles, vessels, and aircrafts for violation of laws;

(g) Inspection of buildings and other premises for the enforcement of fire,
sanitary, and building regulations; and

(h) Search in airports and other populous places.

Administrative Searches and Arrests

1. In cases of deportation, where the State expels an undesirable alien from its
territory, court intervention and proceedings are not required. Nonetheless, the
aliens constitutional rights are still preserved because they are given fair trial
and administrative due process.

2. Important to note is that no probable cause is required in deportation

proceedings.[20] It is the Commissioner of Immigration or any officer designated
by him, not the judge, who issues the administrative warrant, after determination
by the Board of Commissioners of the existence of a ground for deportation.

RIGHT TO PRIVACY

Provisions and Laws on Right to Privacy

1. Constitutional Provisions. The right to privacy is scattered throughout the Bill

of Rights.[21] The right against unreasonable searches and seizures, in Section 2,
is an expression of this right, inasmuch as it is based on the sacred right to be
secure in the privacy of ones person, house, paper, and effects. Due process of
law, in Section 1, also provides the same privacy security by protecting an
individuals life, liberty, and property against undue interference by the
government. Section 6 speaks of the right to establish and change ones home
which likewise deals with the privacy and comfort of ones home. The right to
form unions or associations under Section 8, and the right against self-
incrimination under Section 17 are also privacy rights which need protection
against undue intrusion by the government.

2. Nonetheless, the word privacy is expressly provided in Section 3(1), Article

III, which states that the privacy of communication and correspondence shall be
inviolable except upon lawful order of the court, or when public safety or order
requires otherwise, as prescribed by law. Privacy of communication and
correspondence is also an expression of the right to privacy.

3. Statutory Reinforcements. To reinforce these constitutional provisions, the

Congress has passed laws that recognize and protect the zones of privacy of an
individual. These laws include: (a) The Civil Code of the Philippines; (b) The
Revised Penal Code; (c) Anti-Wire Tapping Act; (d) The Secrecy of Bank Deposits;
and (e) Intellectual Property Code.

Privacy of Communication and Correspondence

1. Subject of the Right. Invasion of communication and correspondence is one
kind of search.[22] However the subject of search is not a tangible object but an
intangible one, such as telephone calls, text messages, letters, and the like.
These forms of communication and correspondence may be intruded into by
means of wiretapping or other means of electronic eavesdropping. What the
constitution prohibits is government intrusion, by means of wiretapping or
electronic eavesdropping, into the privacy of communication without a lawful
court order or when public safety and order does not demand.

2. Rule. As a rule, the government cannot intrude into the privacy of

communication and correspondence. The exceptions are: (a) when the court
allows the intrusion, and (b) when public safety and order so demands.

Anti-Wire Tapping Act

1. R.A. 4200 or the Anti-Wire Tapping Act, as a reinforcement of privacy of

communication, is a law which prohibits a person not authorized by all the
parties to any private communication, to wire tap or use any devise to secretly
overhear, intercept, record, or communicate the content of the said
communication to any person.

2. Wire tapping or the use of record may be permitted in civil or criminal

proceedings involving specified offenses principally affecting national security,
and only with previous authorization by the court which must comply with the
requirements of a warrant. The authority is effective only for sixty days.

Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to
privacy in life, liberty, or security is violated or threatened to be violated by an
unlawful act or omission of a public official or employee, or of a private individual
or entity engaged in the gathering, collecting or storing of data or information
regarding the person, family, home, and correspondence of the aggrieved party.

Exclusionary Rule

1. The exclusionary rule states that any evidence unlawfully obtained is

inadmissible as evidence before the courts. This is based on Section 3(2), Article
III which provides that any evidence obtained in violation of right to privacy of
communication or right to due process of law shall be inadmissible for any
purpose in any proceeding. The same rule is applied to any evidence taken in
violate of R.A. 4200.

2. The rule is also called Fruit of the Poisonous Tree Doctrine. The name of the
doctrine metaphorically describes what happens to an evidence (fruit) taken
through unlawful means (poisonous tree). The evidence-fruit is discarded
because it may infect or destroy the integrity of the case and forfeit the purpose
of the law.

3. For example, if police officers search a house without a search warrant and the
same does not fall under any of the instances of a valid warrantless search, the
evidence obtained even if material in the case cannot be admitted in court. Or if
police officers wiretap a conversation without court authorization, the recorded
conversation shall be excluded as an evidence in court. Thus, the evidences are
said to be fruits of a poisonous tree.

FREEDOM OF EXPRESSION

Meaning and Scope

1. Constitutional Provision. Section 4, Article III provides that no law shall be

passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for
redress of grievances. The right underscores tolerance to different views and
thoughts.

2. Aspects of the Right. Freedom of expression has four aspects, to wit: (a)
freedom of speech; (b) freedom of expression; (c) freedom of the press; and (d)
freedom of assembly. Nonetheless, the scope of the protection extends to right
to form associations or societies not contrary to law, right to access to
information on matters of public concern, and freedom of religion. These are all
crucial to the advancement of beliefs and ideas and the establishment of an
uninhibited, robust and wide-open debate in the free market of ideas.[23]

3. Importance of the Right. Freedom of expression is accorded the highest

protection in the Bill of Rights since it is indispensable to the preservation of
liberty and democracy. Thus, religious, political, academic, artistic, and
commercial speeches are protected by the constitutional guarantee.

4. Limitation. The right is not absolute. It must be exercised within the bounds of
law, morals, public policy and public order, and with due regard for others rights.
Thus, obscene, libelous, and slanderous speeches are not protected by the
guarantee. So are seditious and fighting words that advocate imminent lawless
conduct.

Freedom from Prior Restraint and Subsequent Punishment

1. Freedom of speech and of the press has two aspects: (a) freedom from prior
restraint, and (b) freedom from subsequent punishment.

2. On the one hand, freedom from prior restraint means freedom from censorship
or governmental screening of what is politically, morally, socially, and artistically
correct. In here, persons and the media are freed from total suppression or
restriction by the government of what could be disseminated, and prevents the
government from being a subjective arbiter of what is acceptable and not.
Although the system of prior restraint is presumed unconstitutional, it is allowed
under the following instances:[24]

(a) Undue utterances in time of war;

(b) Actual obstruction or unauthorized dissemination of military information;

(c) Obscene publication; and

(d) Inciting to rebellion.

3. On the other hand, freedom from subsequent punishment refers to the
assurance that citizens can speak and air out their opinions without fear of
vengeance by the government. Subsequent chastisement has the effect of
unduly curtailing expression, and thus freedom therefrom is essential to the
freedom of speech and the press. The State, however, can validly impose
subsequent punishment under the following instances:

(a) Libel which is the most common form of subsequent punishment, refers to a
public and malicious imputation of a crime, vice or defect, real or imaginary or
any act or omission, status tending to cause dishonor, discredit or contempt of a
natural or juridical person, or blacken the memory of one who is dead;[25]

(b) Obscenity which includes works (taken as a whole) appealing to prurient

interest or depicting sexual conduct as defined by law or lacking of serious
literary, artistic, political or scientific value;[26]

(c) Criticism of official conduct made with actual malice;[27] and

(d) School articles which materially disrupt class work or involves substantial
disorder or invasion of rights of others.[28]

Tests to Determine When Right Maybe Suppressed

There are six tests or rules to determine when the freedom may be suppressed.
These are:

(1) Dangerous Tendency Test which provides that if a speech is capable of

producing a substantive evil which the State is mandated to suppress or prevent,
even if it did not materialize, the State is justified of restricting the right. This
rule has already been abandoned;

(2) Clear and Present Danger Test which is a more libertarian rule, provides that
the finding out of substantive evil is not enough to suppress the right. Rather the
substantive evil must have clear and present danger type depending on the
specific circumstances of the case. This rule is consistent with the principle of
maximum tolerance and is often applied by the Court in freedom of expression
cases;

(c) Balancing of Interest Test which provides that when there is conflict between
a regulation and freedom of speech, the court has the duty to determine which of
the two demands greater protection;

(d) Grave-but-Improbable Danger Test which was meant to supplant the clear
and present danger test, determines whether the gravity of the evil, less its
improbability to happen, can justify the suppression of the right in order to avoid
the danger;[29]

(e) OBrien Test which provides that when speech and non-speech elements
are combined in the same course of conduct, a sufficiently important
government interest that warrants the regulation of the non-speech element
can also justify incidental limitations on the speech element; and
(f) Direct Incitement Test which determines what words are uttered and the likely
result of the utterance, that is, whether or not they will directly incite or produce
imminent lawless action.

Restrictions on Freedom of Speech

1. Two Kinds of Restrictions. The State may impose two kinds of restrictions on
speech under a system of prior restraint: content-based restriction and content-
neutral restriction. The restriction is content-based when restriction is directed to
the speech itself, while the restriction is content-neutral when it is directed, not
to the speech itself, but to the incidents (such as time, place, or manner) of the
speech. An example of a content-based restriction is when the government
prohibits speeches against the President, in which case the restriction is on the
speech itself. An example of a content-neutral restriction is when the
government regulates the manner of posting campaign advertisements, in which
case the restriction is on the manner the right is made.

2. Appropriate Tests for Each Restriction. If the governmental restriction is

content-based, the applicable rule or test is the clear and present danger test.
This is to give the government a heavy burden to show justification for the
imposition of such prior restraint which bears a heavy presumption of
unconstitutionality. If the restriction is content-neutral, the applicable rule is only
an intermediate approach, inasmuch as the restraint is only regulatory and does
not attack the speech directly.

3. Example. In one case, the court held that the act of granting a permit to rally
under the condition that it will be held elsewhere is a content-based restriction
and not content-neutral because it is directed to the exercise of the speech right
itself and not merely to the manner. As such, the applicable test is the clear and
present danger test.[30]

Regulations on Mass Media

Mass media may be broadcast media (e.g. television and radio) or print media
(e.g. newspaper). The two have a substantial difference in that broadcast media
has a uniquely pervasive presence in the lives of Filipinos. Thus, freedom of
television and radio broadcasting is somewhat lesser than the freedom accorded
to the print media;[31] greater regulation is imposed over broadcast media
because of its greater tendency to invade the privacy of everyone than print
media.

Doctrine of Fair Comment

1. Meaning. Under the doctrine of fair comment, a discreditable imputation

directed against a public person in his public capacity, does not necessarily make
one liable. Although generally every discreditable imputation publicly made is
deemed false and malicious because every man is presumed innocent until
proven guilty, nevertheless, if the imputation directed against a person in his
public is based on established facts, even if the inferred opinion is wrong, the
comments as justified. As long as the opinion might reasonably inferred from the
facts, it is not actionable. In order to that such discreditable imputation to a
public official may be actionable, it must either be a false allegation or a
baseless comment.[32]
2. Example. If a case of theft was filed against a barangay official, and someone
commented that he maliciously stole things from the local residents, the doctrine
of fair comment is applicable, inasmuch as the opinion was based on such fact.
In here, the comment is justified.

Commercial Speech

1. Meaning. Commercial speech is one that proposes a commercial transaction

done in behalf of a company or individual for purposes of profit. It is a protected
speech for as long as it is not false or misleading and does not propose an illegal
transaction.[33]

2. But if the government has a substantial interest to protect, even a truthful and
lawful commercial speech may be regulated.[34]

3. Private speech is accorded more freedom and protection than commercial

speech.

Freedom of Assembly

1. Meaning. Freedom of assembly refers to the right to hold a rally to voice out
grievances against the government.

2. Freedom not Subject to Prior Restraint. As a rule, freedom of assembly is not

subject to prior restraint or prior issuance of permit by government authorities.
Nevertheless, it must be exercised in such a way that will not to prejudice public
welfare. Freedom of assembly is reinforced by Batas Pambansa Blg. 880,
otherwise known as the Public Assembly Acts of 1985, which basically provides
the requirements and procedure for holding rallies. It also implements the
observance of maximum tolerance towards participants of rallies consistent
with the clear and present danger test.

3. Permit Requirement. Under the said law, permit is required to hold a rally. It
must be emphasized, however, that the permit is not a requirement for the
validity of the assembly or rally, because the right is not subject to prior
restraint. Rather, the permit is a requirement for the use of the public place.

4. When Permit not Required. Permit is not required if the rally is held in a private
place, in a campus of a state college or university, or in a freedom park, in which
case only coordination with the police is required. If the application for permit is
not acted upon by the mayor within two working days, then the same is deemed
granted.

5. Political rally during election is regulated by the Omnibus Election Code, not by
BP 880.

Right to Form Associations

1. Constitutional Provision. Section 8, Article III provides that the right of the
people, including those employed in the public and private sectors, to form
unions, associations, or societies for purposes not contrary to law shall not be
abridged.
2. Who may Exercise the Right. The right of association may be exercised by the
employed or the unemployed and by those employed in the government or in
the private sector. It likewise embraces the right to form unions both in the
government and private sector. The right of civil servants to unionize is expressly
provided in Section 2(5), Article IX-B: The right to self-organization shall not be
denied to government employees. The right of labor in general to unionize is
likewise provided in Section 3, Article XIII: [The State] shall guarantee the rights
of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with
law.

3. Right to Strike not Included. The right to form associations or to self-

organization does not include the right to strike. Thus, public school teachers do
not enjoy the right to strike even if they are given the constitutional right of
association.[35] The terms and conditions of employment in the Government,
including in any political subdivision or instrumentality thereof and government
owned and controlled corporations with original charters, are governed by law
and the employees therein shall not strike for purposes of securing changes.[36]

Right to Information

1. Constitutional Provision. Section 7, Article III provides that the right of the
people to information on matters of public concern shall be recognized. Access to
official records, and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis
for policy development, shall be afforded the citizen, subject to such limitations
as may be provided by law.

2. Scope and Limitation. The right guarantees access to official records for any
lawful purpose. However, access may be denied by the government if the
information sought involves: (a) National security matters, military and
diplomatic secrets; (b) Trade or industrial secrets; (c) Criminal matters; and (d)
Other confidential information (such as inter-government exchanges prior to
consultation of treaties and executive agreement, and privilege speech).

FREEDOM OF RELIGION

Two Aspects of Freedom of Religion

1. Freedom of religion has two aspects: (a) the freedom to believe, and (b) the
freedom to act on ones belief. The first aspect is in the realm of the mind, and as
such it is absolute, since the State cannot control the mind of the citizen. Thus,
every person has the absolute right to believe (or not to believe) in anything
whatsoever without any possible external restriction by the government. The
aspect refers to the externalization of belief as it is now brought out from the
bosom of internal belief. Since it may affect peace, morals, public policy, and
order, the government may interfere or regulate such aspect of the right.

2. The second aspect is expressed in Section 5, Article III, thus The free
exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights.

Non-establishment Clause
1. Constitutional Provision. Section 5, Article III provides that no law shall be
made respecting an establishment of religion, or prohibiting the free exercise
thereof.

2. Explanation. The non-establishment clause holds that the State cannot set up
a church or pass laws aiding one religion, all religion, or preferring one over
another, or force a person to believe or disbelieve in any religion.[37] In order
words, it prohibits the State from establishing an official religion. It discourages
excessive government involvement with religion and manifest support to any one
religious denomination. Manifestly, the clause is rooted in the principle of
separation of church and state.

3. Particular Prohibitions. In particular, the non-establishment clause prohibits,

among others, prayers of a particular denomination to start a class in public
schools,[38] financial subsidy of a parochial school,[39] display of the ten
commandments in front of a courthouse,[40] law prohibiting the teaching of
evolution,[41] mandatory reading of the bible,[42] and using the word God in
the pledge of allegiance.[43]

4. Exceptions to the Prohibition. The clause, however, permits the following:

(a) Tax exemption on property actually, directly and exclusively used for
religious purposes;[44]

(b) Religious instruction in sectarian schools[45] and expansion of educational

facilities in parochial schools for secular activities;[46]

(c) Religious instruction in public schools, elementary and high school, at the
option of parents or guardians expressed in writing, within regular class hours by
designated instructors, and without additional costs to the government;[47]

(d) Financial support given to priest, preacher, minister, or dignitary assigned to

the armed forces, penal institution or government orphanage or leprosarium;[48]

(e) Government sponsorship of town fiestas which traditions are used to be

purely religious but have now acquired secular character;[49] and

(f) Postage stamps depicting Philippines as the venue of a significant religious

event, in that the benefit to religious sect is incidental to the promotion of the
Philippines as a tourist destination.[50]

Tests to Determine whether Governmental Act Violates Freedom of Religion

1. Different tests are used to determine if there are governmental violations of

non-establishment clause and free exercise clause. On the on hand, Lemon Test
is used to determine whether an act of the government violates the non-
establishment clause. Under this test, a law or a governmental act does not
violate the clause when it has a secular purpose, does not promote or favor any
set of religious beliefs, and does not get the government too entangled with
religion.[51]

2. On the other hand, Compelling State Interest Test and Clear and Present
Danger Test are used to determine whether there is violation of free-exercise
clause. Compelling state interest test is used to determine if the interests of the
State are compelling enough to justify intrusion into an individuals freedom of
religion. Under this test, government infringement is justified if the burden it
creates on freedom of religion is due to a sufficiently compelling state interest
and the means used to attain its purpose is the least intrusive. Clear and present
danger test is used to determine whether the circumstance are of such nature as
to create a clear and present danger that will bring about a substantive evil
which the state has the right to prevent.

3, Example. In one case,[52] the Court held that expulsion from school is
unjustified if is based on the conflict between religious beliefs and school
practices (saluting the flag). The expulsion violates the right of children to
education. Using the clear and present danger test, the Court held that the
danger of disloyalty which the government is trying to prevent may be the very
same thing that it advocates if expulsion is validated. Times have changed.
Freedom of religion is now recognized as a preferred right.

Religious Solicitations

Under Presidential Decree No. 1564, also known as the Solicitation Law, permit is
required before solicitations for charitable and public welfare purposes may be
carried out. The purpose of the law is to protect the public from fraudulent
solicitations. Nonetheless, permit is no longer required if the solicitation is for
religious purposes. Fraud is much less in religion. If the law is extended to
religion, then it becomes unconstitutional; it constitutes restriction on freedom of
religion as resources necessary for maintenance are deprived of churches.

Conscientious Objector Test

A conscientious objector is someone who sincerely claims the right to refuse to

perform military service[53] and salute a flag[54] on the grounds of freedom of
thought, conscience, and/or religion. He may be granted exemption from military
service or from saluting the flag if he establishes that his objection is sincere,
based on religious training and belief, and not arbitrary.

LIBERTY OF ABODE AND RIGHT TO TRAVEL

Freedom of Movement

1. Constitutional Provision. Section 6, Article III provides that the liberty of

abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel
be impaired except in the interest of national security, public safety, or public
health, as may be provided by law.

2. Aspects of the Freedom. Freedom of movement has two aspects: (a) Freedom
to choose and change ones domicile, and (b) Freedom to travel within and
outside the country. A persons place of abode or domicile is his permanent
residence.

Limitations

1. Freedom of movement is not an absolute right. It has limitations. Liberty of

abode may be impaired or restricted when there is a lawful court order.
2. The right to travel may also be restricted in interest of national security, public
safety, or public health, or when a person is on bail, or under a watch-list and
hold departure order.

Right to Return to Ones Country

Although the right to return to ones country is not among the rights expressly
mentioned in the Bill of Rights, it is nonetheless recognized and protected in the
Philippines. It is a generally accepted principle of international law, and as such it
is part of the law of the land, pursuant to the doctrine of incorporation. It is
different from the right to travel and is guaranteed under the International
Covenant on Civil and Political Rights.[55]

NON-IMPAIRMENT OF CONTRACTS

Contract Clause

1. Section 10, Article III provides that no law impairing the obligation of
contracts shall be passed. This is the so-called contract clause, which seeks to
restrain substantial legislative impairment of, or intrusion into, the obligations of
contracts. What the clause guarantees is the integrity of contracts against undue
interference by the government.

2. For example, if a lawyer enters into a contract with a client by which the latter
will pay 5% of the value of the monetary claim, a subsequent law which deprives
the lawyer of the said value is arbitrary and unreasonable since it is destructive
of the inviolability of contracts, and therefore invalid as lacking of due process.
[56]

Contracts Affected

1. Only valid contracts, either executed or executory, are covered by the

guarantee.

2. The agreement of the parties, as long as it is valid, is the law between them.
Their will should prevail, and this must be respected by the legislature and not
tampered with by subsequent laws. Well-established is the policy that the subject
of contractual agreements is imbued with paramount public interest.

Kind of Impairment Covered

1. For the clause to be operative, the impairment caused by law must be

substantial. Substantial impairment happens when the law changes the terms of
a legal contract between parties, either in the time or mode of performance, or
imposes new conditions, or dispenses with those expressed, or authorizes for its
satisfaction something different from that provided in its terms.[57] In other
words, the act of impairment is anything that diminishes the value of the
contract.[58]

2. The cause of the impairment must be legislative in nature. The obligation of

contract must be impaired by a statute, ordinance, or any legislative act for it to
come within the meaning of the constitutional provision.[59] An administrative
order or court decision is not included in the scope of the constitutional
guarantee.

3. In one case,[60] the Court held that a Rehabilitation Plan approved by the
Securities and Exchange Commission which suspends contractual claims against
an insolvent or bankrupt corporation does not violate the contract clause. The
impairment must be legislative in character. SECs approval of the plan is not a
legislative act but an administrative act. Thus, there is not impairment of the
freedom to contract.

Limitations

1. As between freedom of contract and police power, police power prevails. Thus,
laws enacted in exercise of police power will prevail over contracts. After all,
private rights and interest in contracts must yield to the common good. Every
contract affecting public welfare is presumed to include the provisions of existing
laws and a reservation of police power.

2. The supremacy of police power is felt most clearly in labor contracts and
agricultural tenancy contracts. For instance, a law (Blue Sunday Law) which
provides for work or play on a Sunday is upheld as valid even if it nullifies
existing labor contracts, since it is a legitimate exercise of police power.[61] In
another case, a law (R.A. No. 34) changed the crop-sharing system between the
landlord and tenants from 50-50 to 55-45 in favor of the tenants. The Court held
that the law is valid. Consistent with the policy of social justice, the law favored
the tenants as well as the general welfare of the people in exchange of
contractual rights.

3. The power of taxation and power of eminent domain, inasmuch as they are
also sovereign powers of the state, can validly impair obligations of contracts.

4. Licenses are different from contracts. Licenses are franchises or privileges

given by the State to qualified entities that may be withdrawn or relinquished
when national interests so require. However, like contracts, they yield to police
power.

LEGAL ASSISTANCE AND FREE ACCESS TO COURTS

1. Constitutional Provision. Section 11, Article III provides that free access to the
courts and quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty.

2. Protection for the Poor. Free access is a right covered by the due process
clause, because a person, regardless of his status in life, must be given an
opportunity to defend himself in the proper court or tribunal. Nonetheless, the
right is placed in a separate provision to emphasize the desire for constitutional
protection of the poor.[62]

3. Litigation in Forma Pauperis. In consonance with this constitutional provision,

the Rules of Court provide for litigation in forma pauperis in which paupers and
indigents, who have only their labor to support themselves, are given free legal
services and access to courts.

RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION

Miranda Rights

1. Constitutional Provision. Section 12, Article III enumerates the rights of a

person under custodial investigation for the commission of an offense, to wit:

(a) Right to remain silent, right to have a competent and independent counsel
preferably of his own choice, right to free legal services if he cannot afford one,
and the right to informed of these rights. These rights cannot be waived except
in writing and in the presence of counsel;

(b) Right against the use of torture, force, violence, threat, intimidation, or any
other means which vitiate his free will. Prohibition against secret detention
places, solitary, incommunicado, or other similar forms of detention;

(c) Exclusion of any confession or admission obtained in violation of this

provision or the right against self-incrimination as evidence against him; and

(d) Sanctions against violators and compensation for rehabilitation of victims.

2. Why called Miranda Rights. The present provision is usually referred to as the
Miranda Rights because it is an adoption of the rights provided in the American
case Miranda v. Arizona.[63]

Purpose of the Right

The provision emphasizes on the duty of law enforcement officers to treat

properly and humanely those under investigation. It recognizes the fact that the
environment in custodial investigations is psychologically if not physically
coercive in nature,[64] so that law enforcers should be reminded of the sanctity
of individual rights and the limitations on their means of solving crimes. In fact,
as far as the present provision is concerned, the presumption of regularity of
official acts and the behavior of police or prosecution is not observed if the
person under investigation was not informed.[65]

Custodial Investigation

1. This enumeration of rights above may be invoked during custodial

investigations. Custodial investigation refers to any questioning initiated by law
enforcement officers after a person has been taken into custody. The rights are
available when the person interrogated is already treaded as a particular suspect
and the investigation is no longer a general inquiry into an unsolved crime.
However, during this stage, no complaint or criminal case has been filed yet. As
such, the person suspected to have committed a crime is not yet an accused,
since no case was instituted against him.

2. During custodial investigations, suspects are identified by way of show-ups,

mug shots, and line ups. Show-ups are done by bringing the lone suspect face-
to-face with the witness for identification. Mug shots are performed by showing
photographs to witnesses to identify the suspect. And in line ups, the witness
identifies the suspect from a group of persons.

Extrajudicial Confession
1. Meaning. Extrajudicial consfession refers to a confession or admission of guilt
made outside (extra) the court (judicial). It is a critical area of study in
Constitutional Law. With respect to the present provision, it refers to a confession
given during a custodial investigation, which is not judicial in nature. Under the
Miranda Rights, a person may waive his right to remain silent and admit the
charge against him because anything that he says may be used against him.
However, the waiver or confession must be valid to be admissible as evidence
against him.

2. Requisites for Validity. For an extrajudicial confession to be valid and

admissible as evidence in court, it must be: (a) voluntary; (b) made in the
assistance of a competent and independent counsel; (c) express; and (d) in
writing.

3. Involuntary Confession. There are two kinds of involuntary confession: (a)

confession through coercion;[66] and (b) confession without being informed of
the Miranda rights.[67] Both forms are invalid and cannot be admitted as
evidence against the confidant, the confession considered as a fruit of a
poisonous tree. Extrajudicial confessions must be given voluntarily. However,
there is a distinction between the two. On the one hand, an extrajudicial
confession alleged to be taken through torture or coercion is presumed
voluntarily given and valid since the law enforcers are presumed to perform their
duty regularly, so that the complainant-suspect should prove that there is torture
to invalidate his confession. On the other hand, a confession given without being
informed of the Miranda rights is presumed involuntarily given, so that the law
enforces must prove its regularity.[68]

4. Assistance of Counsel. An extrajudicial confession made in the absence of a

counsel, or even in his presence but without adequate assistance, is also invalid
and inadmissible. The rule requires that the assisting counsel must be
independent and competent. For this matter, a fiscal or a public prosecutor, who
represents the interest of the State, cannot assist the suspect or person under
investigation. His interest is adverse to the latter. Thus, even if competent, he
cannot be an independent counsel for the suspect.

5. A counsel from the Public Attorneys Office is qualified to assist a person in

executing an extrajudicial confession, his interest not adverse to the latter.

6. An extrajudicial confession to a mayor, even if uncounselled, may be

admissible.[69] While a mayor has power of supervision over the police, an
admission to him, not in the capacity of a law enforcer, is deemed freely given.
The uncounselled admission to him does not violate the right to legal assistance
and therefore the confession is admissible as evidence against the confidant. In
addition, extrajudicial confession to a media man who is acting as a news
reporter and not under the supervision of the police, is admissible.

7. Because of the inherent danger of using information from broadcast media,

extreme caution must be taken in further admitting similar evidence or
confession. There is presumption of voluntariness in confessions which media
describes as freely given. They must be strictly scrutinized.

RIGHT TO BAIL

Meaning of Right
1. Constitutional Provision. Section 13, Article III provides that all persons,
except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to
bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.

2. Meaning of Bail. Bail refers to the security given for the temporary release of a
person in custody of the law, furnished by him or a bondsman, conditioned upon
his appearance before any court as may be required. For instance, a person
arrested and detained for the offense of homicide may post a bond for his
temporary release on the condition that he will appear in the court during the
trial or when the court so requires.

3. Purpose of Bail. Probational release through bail is corollary to the right to be

presumed innocent and a means of immediately obtaining liberty.[70] During the
duration of release, the accused is given the chance to prepare his defense,[71]
and thus level the playing field for the parties. Worth emphasizing is the reason
why those charge with offenses punishable by reclusion perpetua and against
whom evidence of guilt is strong, are not allowed to bail. Under such
circumstances, there is improbability of appearance, and bail merely becomes an
instrument of evading the law.

Standards for Fixing Amount of Bail

1. The law does not prescribe for a fix amount of bail. What it requires is that the
amount should be reasonable and not excessive otherwise the right is rendered
useless. Under the Rules of Court, the amount is reasonable if the judge bases it
primarily, but not exclusively, on the following guidelines:[72]

(a) Financial ability of the accused;

(b) Nature and circumstances of offense;

(c) Penalty for offense charged;

(d) Character and reputation of accused;

(e) Age and health of the accused;

(f) Weight of evidence against him;

(g) Probability of his appearance at trial;

(h) Forfeiture of other bonds by him;

(i) The fact that he is a fugitive from justice when arrested; and

(j) Pendency of other cases where he is also under bail.

When Right May be Invoked

1. General Rule. The right to bail may be invoked from the moment of detention
or arrest. Even if no formal charges have been filed yet, for as long as there is
already an arrest, the right may already be availed of.

2. Bail as a Matter of Right. Bail may be invoked as a matter of right if the charge
is not punishable by reclusion perpetua and there is no final judgment of
conviction yet. Technically, the instances when bail is a matter of right are: (a)
Before or after conviction by the MTC; and (b) Before conviction of the RTC of an
offense not punishable by death, reclusion perpetua or life imprisonment.

3. Bail as a Matter of Discretion. Bail may be invoked as a matter of discretion on

the part of the court in the following instances:

(a) After conviction by the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment;

(b) Pending appeal subject to the consent of the bondsman; and

(c) After conviction, pending appeal when the court imposed a penalty of
imprisonment for more than six years but not more than twenty years, and it is
not shown that the accused repeated a crime, an escapee, committed an offense
while under the custody of the probational release, or had the tendency of flight
or to commit another offense.

3. Right not Suspended. The present constitutional provision clearly provides that
the right to bail is not suspended when the President suspends the privilege of
the writ of habeas corpus. While bail and habeas corpus are remedies intended
for the immediate release of a detainee, there are fundamental differences
between them so that the suspension of one does not mean the suspension of
the other. Firstly, in bail, there is an implicit recognition of the validity of
detention or arrest, while in habeas corpus, there is an assumption that the
detention or arrest is illegal. And secondly, the prayer in bail is for the temporary
release of the detainee, whereas in habeas corpus, the prayer is for permanent
release.

When the privilege of habeas corpus is suspended, the remedy of immediate

release cannot be availed of (although filing is still allowed). Under the current
rules, if the detainee files a bail for his temporary release, then it moots the
purpose of habeas corpus, because it destroys the assumption of illegality of the
arrest or detention.

4. The law still allows those who jumped bail to exercise the right before
conviction for as long as bail is still a matter of right. What the court must do in
such cases is to increase the amount of bail.

5. Bail is now available in extradition[73] cases, consistent with the

developments in international law which now treats an individual as a subject or
party.[74]

When Right May not be Invoked

1. It could be inferred from the present provision that the right to bail may not be
invoked if the offense for which the person is detained is punishable by reclusion
perpetua and the evidence of guilt is strong.
2. Important also to note is that the military may not invoke the right to bail.[75]
Among other reasons, allowing military members to bail would pose a great
danger to national security. They are allowed to use firearms and they are paid
using government money. Their sheer number and unique structure, as well as
the military mentality that they carry, may very well result to the overthrow of
the government if continuous allowance of the right to bail is given them most
especially when there are coup attempts. Allowing them to bail could mean
resumption of widespread commission of heinous activities.

Mandatory Hearing

When the offense charged is punishable by reclusion perpetua, before rendering

a judgment, due process demands that the court must conduct a mandatory
hearing to determine if evidence of guilt is strong. This is one of the instances
when bail is a matter of discretion. But if the prosecutor simply manifested that
he leaves it to the sound discretion of the judge to grant bail and the judge
grants the same without hearing, then the judge commits an error because he
cannot repose solely on the prosecutor his decision. Even if there is no objection,
there must be a hearing.[76]

RIGHTS OF THE ACCUSED

Criminal Cases

1. Section 14, Article III deals with the rights of the accused. It contemplates a
scenario where a case has already been filed against a person, in contrast to
custodial investigations where a case may not have been filed yet. The case filed
is a criminal case, in which the parties are the People of the Philippines and the
accused. The People of the Philippines is the complainant, while the accused is
the person formally charged of a crime or offense punishable by law.

2. A case is said to be criminal when it involves the prosecution of a crime by the

State and the imposition of liability on erring individuals. It highlights the relation
of the individual and the state, with the state having the right to inflict
punishment to an offender once his guilt is proven beyond reasonable doubt.

3. The real offended party or victim in a criminal case is the State or the People
of the Philippines, and not the private complainant. This is because what has
generally been violated is the law of the Philippines which provides protection to
the people and guarantees peace and order in the land. Violation of the law
poses danger not just to a private person, but to the people as a whole, and is a
threat to the sovereignty of the State.

4. The accused, who is the person charged in a criminal case, is pitted against
the State. With all its machineries, manpower, and almost unlimited sources of
money, the State is placed in an advantaged position. To level therefore the
playing field, the Constitution provides for numerous rights of the accused and of
persons under investigation. Justice demands that they should be given a
fighting chance against the most power institution, which is the State.

Criminal Due Process

1. Constitutional Provision. Section 14(1), Article III provides that no person shall
be held to answer for a criminal offense without due process of law.

2. The provision refers to due process in criminal cases. As to its procedural

aspect, criminal due process requires that: (a) The accused is brought into a
court of competent jurisdiction; (b) He is notified of the case; (c) He is given the
opportunity to be heard; and (d) There is a valid judgment deliberated and
rendered by the court.[77] As to its substantive aspect, the criminal cases must
be based on a penal law.

3. The right to appeal is not a constitutional right. It is a statutory right granted

by the legislature. But when it is expressly granted by law, then it comes within
the scope of due process.

4. Criminal due process requires impartiality or objectivity on the part of the

court. Although a separate right to impartial trial is granted in Section 14,
paragraph 2 of the Bill of Rights, it refers only to the right of the accused during
trial. Impartiality in criminal due process (Section 14, paragraph 1) is broader
since it extends to preliminary investigations conducted before the filing criminal
cases in court. One of the instances wherein impartiality is compromised is the
so-called trial by publicity. When preliminary investigations are held for purposes
of determining whether an information or a case should be filed against the
respondent, the investigating prosecutor should not be swayed by the
circumstances of pervasive and prejudicial publicity. It was held that prejudicial
publicity may be invoked as denial of due process if it prevents the observance
of those decencies or requirements of procedural due process.[78]

5. A military court has its own unique set of procedures consistent with the
nature and purpose of the military. Because of its distinct features, a military
court cannot try and exercise jurisdiction, even during martial law, over civilians
for offenses allegedly committed by them as long as civilian courts are still open
and functioning.[79] Due process therefore demands that civilians can only be
tried for an offense in civilian courts and not in military courts, unless no civilian
court is available.

Rights of the Accused during Trial

1. Constitutional Provision. Section 14(2), Article III enumerates rights of the

accused in all criminal prosecutions, to wit:

(a) Right to be presumed innocent until the contrary is proved;

(b) Right to be heard by himself and counsel;

(c) Right to be informed of the nature and cause of the accusation against him;

(d) Right to have a speedy, impartial, and public trial;

(e) Right to meet the witnesses face to face; and

(f) Right to have compulsory process to secure the attendance of witnesses and
the production of evidence in his behalf.
2. Criminal Prosecution. These are rights of the accused in criminal
prosecutions. Under the Rules, criminal proceedings start from arraignment up
to the rendition of final judgment by the court. Arraignment refers to that stage
of the criminal proceeding when the information is read to the accused to which
he pleads guilty or not guilty. The proceeding continues until a final judgment is
entered by the court. The judgment is final when there is nothing for the court to
do but to execute it. Thus, during this duration the accused can invoke the said
rights under the proper circumstances.

Right to be Presumed Innocent

1. Meaning. The right refers to the constitutional guarantee that the accused
should be treated as if innocent until he is proven guilty beyond reasonable
doubt.

2. Presumption of Innocence and Criminal Due Process. Basically, the rights in

Section 14(2) are elaborations of criminal due process. The right to presumption
of innocence, for instance, is based on the fundamental procedural rule that the
court must hear first before it condemns. If what the court presumes is the guilt
of the accused, then procedural due process is violated. In fact, the accused is
already in a disadvantaged position since he is pitted against the State.
Presumption of guilt renders the rights of the accused nugatory. To protect
therefore individual rights, in particular ones liberty, it should be the State that
proves the guilt of accused, and not that the accused proves his innocence. It is
the prosecution (State) who has the burden of overcoming the presumption of
innocence. It should rely on its own merits and not on the weakness of the
defense.

2. When Presumption is Overcome. The presumption of innocence is overcome

by proof beyond reasonable doubt. Under the rules of evidence, proof beyond
reasonable doubt is the highest quantum of evidence. Such proof requires that
the court is morally certain that the accused is guilty of the crime, so that if there
is reasonable doubt that lurks in the mind of the judge, the accused must be
acquitted. When the defense creates reasonable doubt, the presumption of
innocence remains. It must be noted that the certainty required by law is not
absolute certainty but moral certainty as to every proposition of proof requisite
to constitute the offense.[80]

3. Why Right is Granted. The philosophy behind the very high quantum of
evidence to establish the guilt of the accused is expressed by the court as
follows: It is better to acquit a person upon the ground of reasonable doubt
even though he may in reality be guilty, than to inflict imprisonment on one who
may be innocent.[81]

4. Presumption of Guilt. The law and rules, however, allow that presumption of
innocence may be overcome by another presumption through prima facie
evidence. Prima facie evidence means an evidence deemed sufficient unless
contradicted. The is based on logic and human experience. When the
prosecution, for instance, establishes that the stolen object is in the possession
of the accused, it creates a prima facie evidence that the accused committed the
crime of theft. The presumption of innocence is overturned, and the evidence
creates a prima facie proof of the guilt of the accused. This does not, however,
mean that the presumption of innocence is finally overcome. The burden of proof
simply shifts from the prosecution to the defense (side of the accused) who will
in turn present contradictory evidence to overcome the prima facie proof.

Right to be Heard by Himself and Counsel

1. Right to be Heard. The right to be heard is the heart of criminal due process.
Basically, it refers to all the mechanisms afforded to the accused during the
criminal proceedings. It is a safeguard against prejudicial and partial judgments
by the courts, as well as a guarantee that the accused be given an opportunity to
participate during trial in defense of himself.

2. Related Rights. Participation of the accused in the right to be heard includes

three specific rights: (a) the right to present evidence and to be present at the
trial; (b) the right to be assisted by counsel; and (c) the right to compulsory
process to compel the attendance of witnesses in his behalf.[82]

3. Ratio of Right to Counsel. The right of the accused to counsel is based on the
reason that only a lawyer has a substantial knowledge of the rules of evidence,
and a non-lawyer, in spite of his education in life, may not be aware of the
intricacies of law and procedure. Depriving a person of such right constitutes
violation of due process.

4. Related Right. Included in the right to counsel is the duty of the court to inform
the accused of his right to counsel before arraignment and to give a counsel in
case the accused cannot afford the services of one. The counsel representing the
accused must be independent and competent. A counsel who has a divided
interest between the prosecution (State) and the defense (accused) is
disqualified on the ground of lack of independence and conflict of interest.

Right to be Informed of Nature and Cause of Accusation

1. Right to be informed is again an essential aspect of procedural due process.

The constitutional mandate is complied with by the arraignment of the accused
in which he is informed by the court of the offense charged to which the accused
either pleads guilty of not guilty.

2. Well-settled is the rule that the allegations in the complaint and not the title of
the case that determines the nature of the offense.

Right to Speedy, Impartial and Public Trial

1. Right to speedy trial is based on the maxim that justice delayed is

justice denied. Unreasonable delays may result to a prolonged suffering of an
innocent accused or an evasion of justice by a truly guilty person. It offends not
just the accused but also the State, inasmuch as what is at stake is the speedy,
inexpensive, and orderly administration of justice. Undue postponements not
only depletes the funds of the defense but also of prosecution. Thus, if the
prosecution unreasonably delays the criminal proceedings because of too many
postponements and unjustifiable absences, the accused may be acquitted on the
ground of violation of right to speedy trial. This does not, however, mean that the
court cannot grant reasonable postponements. What is prohibited is oppressive
and vexatious postponements.
2. Right to impartial trial primarily requires that the judge who sits in the case
must be objective and renders a decision based on the cold neutrality of the
evidence presented. For instance, a judge who is hostile to the accused based on
his comments and utterances, or who is substantially swayed by the prejudicial
publicity of the case, is a partial judge and must be inhibited from the case.

3. Right to public trial demands that the proceedings be conducted in such a way
that the public may know what transpires during the trial. It is not necessary that
the entire public can witness the proceedings; it is enough that the relatives and
friends of the interested parties are accommodated in the trial venue. In fact, the
court is allowed under the rules to order the public to leave the premises of the
court room in interest of morality and order.

Right to Meet the Witnesses Face-to-Face

The right to confrontation enables the accused to test the credibility of the
witnesses. The right is reinforced under the rules of criminal procedure by the so-
called cross-examination. Cross-examination is conducted after the presentation
and direct examination of witnesses by the opposing side. Both parties are
allowed to test the veracity of the testimonies presented by the other.

Right to Compulsory Process

1. Reason for the Right. The form of criminal proceeding is adversarial because
two opposing parties battle out against each other and only one of them could
emerge as victor. It is often the case that the party with the weightier evidence
wins. In criminal proceedings, the accused needs only to create reasonable doubt
on the mind of the court to be acquitted. Nevertheless, evidence is difficult to
find because of peoples anxiety in testifying in court as well as their dislike for
burdensome court processes. In recognition therefore of this fact, the law and
the rules give the accused the right to avail of compulsory means for attendance
of witnesses and production of needed document or things.

2. Kinds of Compulsory Processes. When the person sought to testify is

uncooperative or just afraid of court-related actions, the remedy of subpoena ad
testificandum may be availed to compel the person to testify. When relevant
documents are needed but the holder thereof refuses to produce them, the
remedy of subpoena duces tecum may be availed of to compel the production of
the same.[83] These remedies are also available to the prosecution.

Right to be Present

1. Meaning and Purpose of the Right. As a rule, the accused has the right to be
present at all stages of trial, from arraignment to rendition of judgment, in order
that he may be informed of what transpires in every stage of the proceedings, to
guard himself from technical blunders, and ultimately, to fully defend himself
from the accusation against him. Thus, it is again an incident of criminal due
process.

2. Waiver of Right. Right to be present, inasmuch as it is a right, may be waived

by the accused. For as long as it does not prejudice others, rights may be waived
by its possessor. An example of a valid waiver of the right to be present is the so-
called trial in absentia. Even in the absence of the accused, trial may still
proceed (trial in absentia) if after his arraignment and notification of the date of
the hearing, he still unjustifiably failed to appear. The effect of the waiver is that
the accused will no longer have the right to present evidence and confront the
witnesses.

3. When Right not Waivable. It must be noted that the presence of the accused
becomes a duty, and therefore not waivable, in the following: (a) During
arraignment and plea;[84] (b) When he is to be identified;[85] (c) During the
promulgation of judgment, except when it is for a light offense.[86] In all these
instances, the accused must appear because his non-appearance may either
prejudice his rights or that of the State.

PRIVILEGE OF THE WRIT OF HABEAS CORPUS

1. Constitutional Provision. Section 15, Article III states that the privilege of the
writ of habeas corpus shall not be suspended except in cases of invasion or
rebellion, when the public safety requires it. This is a reiteration of Section 18,
Article VII. What is constitutionally guaranteed is the right of a person detained
by another to test or challenge, through habeas corpus, the validity of his
detention when the authority of the detaining person or agency is at issue.

2. The writ of habeas corpus is a written order issued by the court directed to a
person detaining another commanding him to produce the body of the prisoner
at a designated time and place, with the day and cause of his capture and
detention, to do, to submit to, and to receive whatever court or judge awarding
the writ shall consider in his behalf. When a person is illegally confined or
detained, or when his liberty is illegally restrained, he has the constitutional right
to file a petition of habeas corpus. Should the court find out that the person is
illegally confined or detained, he shall be immediately released from detention.

3. When Privilege Suspended. The privilege of habeas corpus is suspended in

cases of rebellion or invasion. This is in order to meet the exigencies in such
cases.

4. Writ of Amparo. Aside from the writ of habeas corpus, the writ of amparo is
another available remedy to any person whose right to life, liberty, and security
has been violated or threatened to be violated by an unlawful act or omission of
a public official or employee, or of a private individual or entity. This remedy is
especially available in cases of enforced disappearances and extrajudicial
killings.

RIGHT TO SPEEDY DISPOSITION OF CASES

Section 16, Article III states that all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative
bodies. Unlike the right to speedy trial which applies only in criminal
proceedings, the right to speedy disposition of cases may be invoked in all cases,
whether judicial, quasi-judicial, or administrative. Thus, right to speedy
disposition of cases is broader than right to speedy trial.

RIGHT AGAINST SELF-INCRIMINATION

Meaning of Right against Self-Incrimination

Section 17, Article III provides that no person shall be compelled to be a witness
against himself. This constitutional guarantee is better known as right against
self-incrimination. The right allows a person not to answer an incriminating
question. An incriminating question is one that if answered renders a person
liable for an offense. However, it is only when the incriminating question is put to
a witness stand that the right may be invoked.

When Right Available

1. The right is available in all government proceedings, whether criminal or civil,

and whether judicial or quasi-judicial or administrative. It is even available in
legislative investigations and impeachment proceedings. In addition, the right
may be invoked by all persons subject to judicial examination and legislative
investigation. Thus it may be invoked not just by the accused in criminal cases,
but also defendants in civil cases, and witnesses in all kinds of proceedings.

2. The right, nonetheless, is not self-executing. It is not automatically operational

once an incriminating question is asked. It must be properly invoked by objecting
to an incriminating question. For example, when a witness is subjected to direct
examination by the opposing party, and the opposing counsel asked was there
an instance that you cheated on your wife?, the right may be invoked by a
timely objection to the incriminating question. If no objection is raised, then the
answer may be used as evidence against the witness for the proper criminal
charge.

3. Although all persons subject to judicial, quasi-judicial, administrative, and

legislative investigations can invoke the right under proper circumstances,
special utilization of the right is given to the accused. A witness can invoke the
right only when the question tends to be self-incriminating, but an accused can
invoke the same in two ways. First is by refusing to testify altogether during trial.
And the second is, when he chooses to testify, by refusing to answer questions
that tend to incriminate him for another offense.

4. In criminal proceedings what is prohibited is physical or moral compulsion to

extort communication from the accused. Subjecting the body of the accused
when material to solve the case is allowed and not violative of the right. In one
case, the Court held that writing is not a pure mechanical act but requires the
use of the intellect. Thus, an accused cannot be compelled to write or sign and
use the same as evidence against him.

5. State witnesses cannot avail of the right because the very purpose of their
being state witnesses is to give them immunity or protection to testify. Their
testimonies are so crucial to the resolution of a criminal case so that in
attainment thereof immunity is given to them by the State. This means that they
will no longer be prosecuted for the crime for which they are testifying. Since
they have to unravel everything, even their guilt, in exchange of immunity, the
right against self-incrimination could no longer be invoked.

Basis of the Right

1. The philosophy behind the constitutional guarantee is similar to the other

rights of the accused. From the very start, the accused is already in an adverse
position pitted against the entire machinery of the State. If evidence will still be
taken from the lips of the accused, it would even tilt the scales heavily in favor of
the State.

2. The right is founded on public policy and humanity.[87] Public policy demands
that a person be spared from answering incriminating questions because
requiring him would likely lead to the crime of perjury, which is basically lying to
the court after having promised to tell the truth and nothing but the whole truth.
Humanity prevents extorting confession by duress.

RIGHT AGAINST INVOLUNTARY SERVITUDE

1. Constitutional Provision. Section 18, Article III provides that no person should
be detained solely by reason of his political beliefs and aspirations, nor should
involuntary servitude in any form exist, except as a punishment for a crime. The
first part of the provision deals with the right not to be detained by reason solely
of political beliefs and aspirations. This is essentially embodied in the freedom of
expression but with emphasis on the prohibition against incarceration of
political prisoners. The second part deals with the right against involuntary
servitude. Involuntary servitude refers to the compulsory service of another or
simply modern day slavery. The right is based on the egalitarian principle of
democracy which prescribes equality of everyone in law, and on humanity which
prevents degradation of human dignity through enforced labor.

2. Slavery is an ancient practice of treating man as a commodity under the

complete power of the master. This has never been practiced in the Philippines,
but has its remnants in modern forms of enforced labor and peonage. Enforced
labor happens when a person is unlawfully compelled to work against his will; it
is involuntary and to a certain extent resembles slavery. When a person, because
of poverty or lack of money, works for another in payment of his debt, the same
is prohibited by the present guarantee even if the service is rendered voluntarily.
This voluntary service in payment of debt is called peonage. While it appears
voluntary, peonage is prohibited because the person is forced to work by the
circumstances of his indebtedness, although not by his creditor.

2. Exceptions. Involuntary servitude may be allowed under the following

instances: (a) as punishment for crime; (b) in the case of personal, military or
civil service in defense of the State; and (c) in compliance to a return to work
order issued by the Department of Labor and Employment.

RIGHT AGAINST EXCESSIVE FINES AND CRUEL PUNISHMENTS

Meaning of Excessive Fine and Cruelty

1. Constitutional Provision. Section 19(1), Article III states that excessive fines
shall not be imposed, nor cruel, degrading or inhuman punishment inflicted

2. A fine is excessive when it is unreasonable and beyond the limits prescribed

by law. The amount of the fine is said to be unreasonable if the court does not
take into consideration certain standards, such as the nature of the offense, and
the circumstances of the person punished by fine. The imposed fine may never
go beyond the statutory prescription, otherwise it is unlawfully excessive.

3. A punishment is cruel when it is shocking to the conscience of mankind and it

involves prolonged suffering and agony to the person punished. For a penalty to
violate the constitutional guarantee, it must be so flagrant and oppressive so as
to be degrading to human dignity, and it must be unreasonably disproportionate
to the nature of the offense as to shock the senses of the community.[88] The
mere severity of a penalty does not make the punishment cruel or inhumane, for
as long as it is within the limits provided by law. As one maxim states, even if
the law is harsh, it is still the law (dura lex sed lex). A penalty that is germane to
purpose of the penal law is not cruel and inhumane.

4. Lastly, a penalty must be acceptable to the contemporary society. Ancient

forms of punishment, such as pillory, disembowelment, and crucifixion, which are
already considered barbarous practices, are cruel and inhumane. If a person, for
instance, is paraded around town naked with a tag on his neck saying I am a
thief; do not imitate me, the form of punishment is cruel and inhuman; it is
barbarous and so ancient that it is no longer acceptable to the present-day
society.

Death Penalty

1. Constitutional Provision. Section 19(2) also states that neither shall death
penalty be imposed, unless, for compelling reasons involving heinous crimes, the
Congress hereafter provides for it. Any death penalty already imposed shall be
reduced to reclusion perpetua. The present provision abolishes death penalty,
although with a reservation that the Congress can subsequently pass a law
imposing it for compelling reasons involving heinous crimes.

2. Death Penalty not Cruel. The constitutional provision on death penalty or

capital punishment does not explicitly mention that it is cruel and inhumane. In
fact, the Constitution allows the Congress to impose death penalty for the right
reasons. It could even be argued that extinguishment of human life is not cruel
and inhumane for the following reasons:

(a) It is proportionate to the nature of the offense. Death penalty may only be
imposed by Congress in the commission of heinous crimes and for compelling
reasons. Heinous crimes are crimes which are so flagrant and evil so as to be
shocking to the conscience of civilized persons, such as genocide, rape with
homicide, murder, rebellion, and treason, especially when committed against the
innocent and helpless. With compelling reasons, Congress may impose death
penalty since it is proportionate to the atrocities committed;

(b) This form of penalty still has currency in the contemporary time. Death by
lethal injection is prevalently practiced by many countries for the punishment of
heinous offenses; and

(c) Death by lethal injection is not cruel and inhumane because it does not
prolong suffering or inflict excruciating agony to the person punished. In truth, it
only induces the person to sleep through a lethal substance injected in the
bloodstream which thereafter painlessly put the person to death.

Proper Treatment of Persons Legally Detained or Imprisoned

1. Constitutional Provision. Section 19(2), Article III provides that the

employment of physical, psychological, or degrading punishment against any
prisoner or detainee or the use of substandard or inadequate penal facilities
under subhuman conditions shall be dealt with by law.
2. Purpose of the Right. This constitutional guarantee recognizes the
inalienability of human dignity. Even when a person is imprisoned or detained,
and even if he commits heinous crimes, he is still a person entitled to proper
treatment and protection. Paraphrasing it, the Constitution provides that even if
a person is imprisoned or detained, he must be protected against physical,
psychological, or degrading punishment, and is entitled to the use of standard or
adequate penal facilities under humane conditions.

RIGHT AGAINST IMPRISONMENT FOR DEBT

1. Constitutional Provision. Section 20, Article III provides that no person shall be
imprisoned for debt or non-payment of a poll tax.

2. A debt, as covered by the constitutional guarantee, refers to a contractual

obligation by a debtor to pay money to the creditor. If by reason of poverty or
lack of money a person cannot pay his debt, he cannot be imprisoned by reason
thereof. The creditor only has himself to blame if he voluntarily agreed to lend
money to someone who apparently cannot pay or whom he thought could pay
but did not. Nevertheless, although the debtor cannot be imprisoned, his
property may be taken or attached by the court, and then sold at public auction
in payment of his debt to the creditor.

3. Estafa is not covered by this constitutional guarantee. What is punished in

estafa is not the non-payment of debt but the deceit accompanying the act of
non-payment.

4. Non-payment of poll tax cannot be a cause of imprisonment. A poll tax is a tax

of a fixed amount imposed on individuals residing within a specified territory,
whether citizens or not, without regard to their property or the occupation in
which they may be engaged.[89] Community tax or residence tax is an example
of poll tax. As far as poll tax is concerned, non-payment is not punished by the
government in consideration of the plight of the poor who cannot even afford to
pay it. Poverty could never be a reason for a persons imprisonment. It must be
emphasized, however, that as regards other forms of taxes, non-payment may
be a cause of imprisonment. Failure to pay income taxes is considered a crime
(tax evasion), and punishable under the law by imprisonment.

RIGHT AGAINST DOUBLE JEOPARDY

Meaning of Double Jeopardy

1. Constitutional Provision. Section 21, Article III states that no person shall be
twice put in jeopardy of punishment for the same offense. If an act is punished
by a law and an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act. This is more famously known as
the right against double jeopardy.

2. Double jeopardy means that a person is twice put at the risk of conviction for
the same act or offense. The right against double jeopardy therefore means that
a person can only be indicted or charge once by a competent court for an
offense. When a person, for instance, has been charged of homicide and the
court acquitted him of the case, he can no longer be prosecuted for the same
offense or act. He can now invoke his right against double jeopardy.

3. There are two types of double jeopardy. The first happens when a person is put
twice in jeopardy of punishment for the same offense, and the second happens
when an act is punishable by a law and an ordinance at the same time, in which
case the conviction or acquittal in either one of them constitute as bar to another
prosecution for the same act.

3. The requisites of double jeopardy are:[90]

(a) A valid complaint or information;

(b) Filed before a competent court;

(c) To which the defendant has pleaded; and

(d) The defendant was previously acquitted or convicted or the case dismissed or
otherwise terminated without his express consent.

When Double Jeopardy Could Be Claimed

1. Before double jeopardy could be claimed, there must be a first jeopardy. The
first jeopardy attaches only: (a) upon good indictment; (b) before a competent
court; (c) after arraignment; (d) when a valid plea has been entered; and (e) the
case was dismissed or otherwise terminated without the consent of the accused.
A case is said to be terminated without the consent of the accused when there is
acquittal or a final decision convicting him.

2. To substantiate therefore the claim for double jeopardy, the following must be
proven:

(a) A first jeopardy must have attached prior to the first jeopardy;

(b) The first jeopardy must have been validly terminated; and

(c) The second jeopardy must be for the same offense, or the second offense
includes or is necessarily included in the offense charged in the first information,
or is an attempt to commit the same or is a frustration thereof.

RIGHT AGAINST EX POST FACTO LAW AND BILL OF ATTAINDER

Meaning of Ex Post Facto Law

1. Constitutional Provision. Section 22, Article III provides that no ex post facto
law or bill of attainder shall be enacted.

2. An ex post facto law is one which:

(a) Makes criminal an act done before the passage of the law which was innocent
when done, and punishes such an act;
(b) Aggravates a crime, or makes it greater than it was, when committed;

(c) Changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;

(d) Alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of the
offense;

(e) Assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful; and

(f) Deprives a person accused of a crime of some lawful protection to which he

has become entitled, such as the protection of a former conviction or acquittal,
or a proclamation of amnesty.[91]

3. Applicable only in Criminal Cases. The constitutional prohibition applies only in

criminal cases.[92] One of the characteristics of criminal law is prospectivity in
which only crimes committed after the enactment of a penal are punishable. It
cannot retroact and punish acts which were not yet criminalized before its
passage. The basic rule is that before an act may be considered an offense or
crime, it must first be defined as a crime and a penalty must be imposed for it
under a law passed by the legislative body. An act therefore is not a crime if
there is no law punishing it. In the same vein, a person does not commit a crime,
no matter how apparently illegal it is, if there is no law defining and punishing it.
It is for this reason that an ex post facto law is not allowed because it
criminalizes what was not yet a crime during its commission.

Meaning of Bill of Attainder

1. Definition. A bill of attainder is a legislative act which inflicts punishment

without trial. Its essence is the substitution of a legislative for a judicial
determination of guilt.[93]

2. Two Kinds of Bill of Attainder: (a) the bill of attainder proper which involves the
legislative imposition of death penalty, and (b) bill of pains and penalties which
involves imposition of a lesser penalty.

3. Reason for Prohibition. The prohibition against bill of attainder is an

implementation of the principle of separation of powers. The legislature cannot
bypass the judiciary by enacting a law that punishes an act without need of
judicial proceedings. The legislative department should be confined to its law-
making function; it cannot encroach the authority of the courts by prescribing a
law that directly adjudges guilt without judicial determination.

4. Example. In one case, the Court held that the Anti-Subversion Law (R.A. 1700)
is not a bill of attainder.[94] The law declared the Communist Party of the
Philippines (CPP) a clear and present danger to Philippine security, and thus
prohibited membership in such organization. It is not a bill of attainder because it
does not define a crime, but only lays a basis for the legislative determination
that membership in CPP and any other organization having the same purposes is
a crime. It does not automatically secure judgment by mere membership. In
operation, the law does not render unnecessary judicial proceedings. The guilt of
the individual members of subversive groups must still be judicially established.