Consti2review 1

CONSTITUTIONAL LAW REVIEW ATENEO DE
THE MONTEJO LECTURES DAVAO

COLLEGE
OF LAW
“All the effort in the world won't purposes of the regulation. The means must be reasonable by
matter if you're not inspired.” themselves because even if the objective of the regulation is for
― Chuck Palahniuk, Diary public interest but if the means are unreasonable, they may not
be considered as valid or legal means, and the regulatory
26 July 2012 measures maybe tested for the lawfulness of the means. This is
where most of the cases in police power are destined because
DUE PROCESS AND EQUAL PROTECTION AS the lawfulness of the subject is generally given whereas the
LIMITATIONS ON POLICE POWER, EMINENT lawfulness of the means would have tested whether or not these
DOMAIN AND TAXATION are reasonable or necessary in order to achieve the objectives of
the law. It does not follow the general principle that the end
A. Fundamental Principles on Constitutional Law and should justify the means. The means must be reasonable or
the Bill of Rights lawful.
Okay, now we are starting with the Bill of rights. Now, this power can be used through the exercise of eminent
domain or through the exercise of the power to tax. For example,
Based on the discussions of fundamental powers, you already there is a regulation on importation so that there is protection of
know police power, eminent domain and the power to tax. Their the interest of the Filipino manufacturer or producer, the State
constant is that they are called inherent. Once the State comes may impose higher duties and taxes for imported products. So
into being, meaning the elements of the state - people, territory, while ostensibly it is considered as a taxation measure, the actual
government, sovereignty are present and existing, these or real intent of the regulation is to protect or promote the local
fundamental powers can be exercised without any need of a manufacturers.
constitutional or statutory conferment. The provisions in the
Constitution as well as in related issuances by Congress in terms Eminent Domain
of statute are therefore considered as limitations of these
fundamental powers. It can also be through eminent domain; the classic exercise is the
enactment of the CARP law. The CARP law has long been
For the valid exercise of police power, the police power is declared as not unconstitutional as early as the case of
considered the most limitable, most demanding of all the powers Association of Small Land Owners vs. DAR Secretary where
of State. It is the most demanding because it would affect any the SC said it is actually not purely an exercise of eminent
human activity that can be imaginable in terms of regulation. It is domain for taking of real property for public use upon giving of
however dynamic because it is supposed to adapt to the just compensation because it is actually a regulatory measure to
demands of the times. What have been considered as valid regulate property ownership for the promotion of common good
regulations before in the exercise of certain rights may no longer based on the social justice provisions in the Constitution
be considered valid today because they are no longer considered equitably defusing wealth by supposedly distributing these lands.
part of the regulation. That is the intent of the Constitution, to give to the poor and take
from the rich.
Lawful Subject viz Lawful Means
Association of Small Landowners vs. Secretary of DAR
G.R. No. 78742 July 14, 1989
Now the general test used for the exercise of police power, would
be 1) the lawfulness of the subject or lawful subject and 2) the FACTS: Article XIII on Social Justice and Human Rights includes a
lawfulness of the means or lawful means. call for the adoption by the State of an agrarian reform program.
The State shall, by law, undertake an agrarian reform program
founded on the right of farmers and regular farm workers, who are
The lawfulness of the subject simply answers the question of landless, to own directly or collectively the lands they till or, in the
which interest should be protected by reason of the regulation or case of other farm workers, to receive a just share of the fruits
the exercise of police power. More or less, this refers to any thereof. RA 3844, Agricultural Land Reform Code, had already
been enacted by Congress on August 8, 1963. This was
public interest matter. So if what is to be protected is the interest substantially superseded almost a decade later by PD 27, which
of the many as compared to a few, then the required lawfulness was promulgated on Oct 21, 1972, along with martial law, to
of the subject is generally satisfied or complied with. Now, the provide for the compulsory acquisition of private lands for
lawfulness of the means require that there must be a causal distribution among tenant-farmers and to specify maximum
retention limits for landowners. On July 17, 1987, Cory issued EO
connection between the means employed to achieve the
1 Transcribed by: IV-MANRESA, 2012-2013©
Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman•
•Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza•
•Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
COLLEGE
OF LAW
228, declaring full land ownership in favor of the beneficiaries of Equal protection simply means that all persons or things similarly
PD 27 and providing for the valuation of still unvalued lands situated must be treated alike both as to the rights conferred and
covered by the decree as well as the manner of their payment. the liabilities imposed. The petitioners have not shown that they
This was followed on July 22, 1987 by PP 131, instituting a belong to a different class and entitled to a different treatment. The
comprehensive agrarian reform program (CARP), and EO 229, argument that not only landowners but also owners of other
providing the mechanics for its implementation. After which is the properties must be made to share the burden of implementing land
enactment of RA 6657, Comprehensive Agrarian Reform Law of reform must be rejected. There is a substantial distinction between
1988, which Cory signed on June 10. This law, while considerably these two classes of owners that is clearly visible except to those
changing the earlier mentioned enactments, nevertheless gives who will not see. There is no need to elaborate on this matter. In
them suppletory effect insofar as they are not inconsistent with its any event, the Congress is allowed a wide leeway in providing for
provisions. a valid classification. Its decision is accorded recognition and
respect by the courts of justice except only where its discretion is
In considering the rentals as advance payment on the land, the abused to the detriment of the Bill of Rights.
executive order also deprives the petitioners of their property rights
as protected by due process. The equal protection clause is also
violated because the order places the burden of solving the Now eminent domain as understood is the highest and most
agrarian problems on the owners only of agricultural lands. No exact idea of property right… the State which entitled to acquire
similar obligation is imposed on the owners of other properties. private property in the concept of compulsory sale. The traditional
The petitioners maintain that in declaring the beneficiaries under
characterization of the exercise of eminent domain is based on
PD 27 to be the owners of the lands occupied by them, EO 228 the old and traditional concept of eminent domain as taking of
ignored judicial prerogatives and so violated due process. Worse, lands. Under the so-called Regalian doctrine, all lands originally
the measure would not solve the agrarian problem because even belong to the State. It is only by State allowance that these lands
the small farmers are deprived of their lands and the retention
rights guaranteed by the Constitution.
are thereafter classified as alienable, disposable and therefore
can be subjected to private ownership. So when the State takes
In his comment the Sol-Gen asserted that the alleged violation of these lands, it is just taking what it rightfully belongs to it. But as
the equal protection clause, the sugar planters have failed to show we all know, private property in eminent domain, as society
that they belong to a different class and should be differently
treated. The Comment also suggests the possibility of Congress
develops, is not necessarily limited to real property or lands.
first distributing public agricultural lands and scheduling the There can be expropriation of private property which includes
expropriation of private agricultural lands later. From this viewpoint, personal property except the two traditional exceptions of
the petition for prohibition would be premature. money, and those considered personal actions or personal
ISSUE: Whether or not there was a violation of the equal
options of an individual. These cannot be expropriated. Other
protection clause. than these, any other property, even if they form intangible things
like connectivity, for example mobile phone providers, as held in
HELD: The SC ruled affirming the Sol-Gen. The argument of the the case of PLDT. The SC has said that the compulsory
small farmers that they have been denied equal protection interconnection in PLDT and other providers would come in the
because of the absence of retention limits has also become form of expropriation. The property of PLDT is private property
academic under Sec 6 of RA 6657. Significantly, they too have not
questioned the area of such limits. There is also the complaint that even if we talk about connectivity, which is also considered
they should not be made to share the burden of agrarian reform, private property.
an objection also made by the sugar planters on the ground that
they belong to a particular class with particular interests of their REPUBLIC OF THE PHILIPPINES VS. PLDT
own. However, no evidence has been submitted to the Court that 26 SCRA 620 (1969)
the requisites of a valid classification have been violated.
FACTS: Public petitioner commenced a suit against private
Classification has been defined as the grouping of persons or respondent praying for the right of the Bureau of
things similar to each other in certain particulars and different from Telecommunications to demand interconnection between the
each other in these same particulars. To be valid, it must conform Government Telephone System and that of PLDT, so that the
to the following requirements: Government Telephone System could make use of the lines and
facilities of the PLDT. Private respondent contends that it cannot
be compelled to enter into a contract where no agreement is had
(1) it must be based on substantial distinctions;
between them.
(2) it must be germane to the purposes of the law;
(3) it must not be limited to existing conditions only; and
(4) it must apply equally to all the members of the class. ISSUE: Whether or not interconnection between PLDT and the
Government Telephone System can be a valid object for
The Court finds that all these requisites have been met by the expropriation.
measures here challenged as arbitrary and discriminatory.

COLLEGE
OF LAW
HELD: Yes, in the exercise of the sovereign power of eminent

domain, the Republic may require the telephone company to Now with respect to the determination of just compensation, the
permit interconnection as the needs of the government service
may require, subject to the payment of just compensation. The use
principle has always been that the owner must have to be given a
of lines and services to allow inter-service connection between the chance to prove the value of the property though that is not
both telephone systems, through expropriation can be a subject to necessarily the value that has to be paid, at least, there is that
an easement of right of way. opportunity in compliance to the requirement of due process. The
owner has to be given that. So while a law may provide for the
Now, in eminent domain, while the limitations are provided for in minimum value or say formula to compute the value, the owner
the Constitution that there must have to be taking, being in the must be allowed to present evidence to prove the value of just
concept of ousting the owner from its beneficial or common use compensation. In the end, that would be for the court to decide
and it has to be more than a momentary period, there must be a how much the value should be.
degree of permanence required. It must also take private
property as we said except those two which cannot be Now there are instances when a property, let us say land, most
expropriated; it must also be taking for public use. especially land, where not the entire property is expropriated, so
there is a remainder for the owner to use. Now, the use of the
Concept of Public Use remainder will have to be considered under the concept of
consequential damage or consequential benefit. If the remainder
The concept of public use has developed through jurisprudence of the property will not be that useful to the owner that will be
and as required by the demands of time. While traditionally considered consequential damage and therefore that will have to
eminent domain is exercised over land, the old concept is that, be added to the value of the property. Conversely, if the
there must have a benefit to the public in general. So that the old remainder after the expropriation will increase in value benefitting
concept of public use is based on the number of people the owner more than its potential uses before the expropriation,
benefited. So if it is only benefiting the few, the taking is not then the property owner must have to suffer because the
considered for public use because the direct advantage must be consequential benefit will have to be deducted from the just
for the many. compensation.
However, in several cases, usually involving land reform whether Question of Propriety
in rural and urban areas, the SC has allowed that taking of these
lands for distribution for a few is considered taking for public use. Now, despite all these, that all these conditions or requirements
Although it would only directly benefit the few, it would actually of the Constitution are complied with, the first question to ask in
indirectly benefit the public. The same with the taking of lands for the exercise of eminent domain is always the question of
conversion into economic zones, like ecotourism zones. While propriety or necessity. Is it necessary to exercise the power of
only few individuals benefit directly from the taking, but because eminent domain or expropriation? In several cases, the SC ruled
of the business employment that these businesses will generate, that eminent domain is an extraordinary remedy if the property
there will be indirect benefit to workers and their family so taking owner is not willing to sell. Which presupposes therefore that
there is for public use. when the expropriator would want to take property, there is no
immediate expropriation but there must have to be an offer to buy
Just Compensation the property at the level of the buyer and the seller. It is only
when the property owner is not going to sell or that there is no
Just compensation is actually a concept and theory that it must agreement as to the price to the property like in an ordinary sale,
be based on owner's loss. However, there are several laws on that there should be eminent domain. So the question of
the matter of just compensation. The traditional one would refer necessity or propriety.
to the cost of the land or market value, which will consider of
course the cost of acquisition, the present use of the property, the In one old case, the question of propriety was asked because the
potential use of the property. In later legislations like the CARP private property of the petitioner was expropriated despite the
law, the law has even provided for certain formulae for computing fact that the local government unit has existing vacant property.
the value of the property while there are some laws which have The question is, could the expropriator expropriate a property, in
also provided for the minimum value, meaning the law has stated this case a LGU, for purposes of let us say construction of an
in the provision that the minimum value of the property should be amusement center when it has an existing vacant lot which could
this much.

COLLEGE
OF LAW
serve the same purpose? The SC said you cannot because

again it is always be a question of propriety or necessity. the flexible tariff laws under paragraph 2,
By the way, in taking, there is a concept that the taking is not “(2) The Congress may, by law, authorize the president to fix
limited to the literal act of taking. The taking now is characterized within specified limits, and subject to such limitations and
as ousting the owner of the beneficial of use of the property or restrictions as it may impose, tariff rates, import and export
preventing the owner from exercising full enjoyment of the right to quotas, tonnage and wharfage dues, and other duties or
use over his property. So, good examples would be, in a dam imposts within the framework of the national development
project, if there is a dam to be constructed, the lands upstream program of the Government.”
would necessarily be inundated. There is no actual taking. The
expropriator, NAPOCOR in that case, did not actually take actual the exemption under paragraph 3, for
property but because of the increase in the level of the water real property tax on charitable
upstream because of the construction of the dam, necessarily the institutions, etc.
riverbanks of the property by the banks would be inundated. So
the owners will be deprived of full enjoyment of the potential uses “(3) charitable institutions, churches, and parsonages or
of the property. So that will also be considered as taking. convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements,
Or if there is a prohibition on easement, then there would also be actually, directly, and exclusively used for religious,
taking because the property cannot be fully enjoyed by the charitable, or educational purposes shall be exempt from
owner. Good example would be if your property is adjacent to an taxation.”
airport runway. You can be prevented from constructing a high-
rise building. It could cause safety issues on the airplanes taking
Under paragraph 4, tax exemption can
of and landing to the airport. So while the property is for you to
be granted provided there is majority
enjoy, you can be prevented from fully enjoying the property. Or
vote of Congress.
commonly, you may have been exposed to the transmission
towers or transmission lines. In the old cases you must have
come across decisions where the SC said that the property “(4) no law granting any tax exemption shall be
owner will have to be paid just compensation in the form of an passed without the concurrence of a majority of all
“easement of the right of way” because you can still use the parts the members of Congress.”
of the land surrounding transition towers and under or beneath
the transition lines. However, in later cases, the SC says no, that Article XIV, Section 4, paragraph 3
should be fully paid because the property owners have actually revenues and assets of non-stock, non-
been deprived of the full enjoyment of the property. So, from the profit educational institution are exempt
old concept of just paying the easement of right of way for the from income taxes
transmission lines crossing your property, now the entire value of
the property has to be paid for just compensation. This means (3) All revenues and assets of non-stock, non-profit
that the just compensation is for the entire property which is educational institutions used actually, directly, and
affected by the transmission towers and transmission lines exclusively for educational purposed shall be
because the owner is ousted from the full use of the property. exempt from taxes and duties. xxx”
Power of Taxation and paragraph 4 of the same article,

grants, endowments, donations or
By the way, the power to tax, there is not much to discuss than contributions which are actually, directly
your knowledge of taxation. The only reference to the part of tax and exclusively used educational
in the Constitution is the uniform and equitable rule in taxation purposes are exempt.
under Article VI section 28 paragraph 1,
“(4) Subject to conditions prescribed by law, all
“(1) The rule of taxation shall be uniform and grants, endowments, donations, or contributions
equitable. The Congress shall evolve a progressive used actually, directly, and exclusively for
system of taxation” educational purposes shall be exempt from tax.”
COLLEGE
OF LAW
limited sense, it can considered state action they can be limited

Now, these powers can be delegated. Police power can be by the bill of rights.
delegated by Congress to the LGUs. That has been provided for
under Section 16 of RA 7160. This is the General Welfare MANILA PRINCE HOTEL vs. GSIS
Clause. In Section 16 there are 2 distinct powers there of LGUs G.R. No. 122156 February 3, 1997
on police power. First would refer to the general grant of power to Pursuant to the privatization program of the government, GSIS
enact ordinances and regulate the activities for the protection of decided to sell 30-51% of the Manila Hotel Corporation. Two
general welfare and second, those which Congress may delegate bidders participated, MPH and Malaysian Firm Renong Berhad.
specifically to LGUs from time to time. If there is none, the LGUs MPH’s bid was at P41.58/per share while RB’s bid was at
P44.00/share. RB was the highest bidder hence it was logically
can exercise police power under the general welfare clause. considered as the winning bidder but is yet to be declared so.
Pending declaration, MPH matches RB’s bid and invoked the
Section 16. General Welfare. - Every local government unit shall Filipino First policy enshrined under par. 2, Sec. 10, Art. 12 of the
exercise the powers expressly granted, those necessarily implied 1987 Constitution**, but GSIS refused to accept. In turn MPH filed
therefrom, as well as powers necessary, appropriate, or incidental a TRO to avoid the perfection/consummation of the sale to RB.
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their RB then assailed the TRO issued in favor of MPH arguing among
respective territorial jurisdictions, local government units shall others that:
ensure and support, among other things, the preservation and 1. Par. 2, Sec. 10, Art. 12 of the 1987 Constitution needs an
enrichment of culture, promote health and safety, enhance the right implementing law because it is merely a statement of
of the people to a balanced ecology, encourage and support the principle and policy (not self-executing);
development of appropriate and self-reliant scientific and 2. Even if said passage is self-executing, Manila Hotel does not
technological capabilities, improve public morals, enhance fall under national patrimony.
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants. ISSUE: Whether or not RB should be admitted as the highest
bidder and hence be proclaimed as the legitimate buyer of shares.
Eminent domain can be delegated not only to LGUs but also to
private entities which are usually considered quasi-public HELD: No. MPH should be awarded the sale pursuant to Art 12 of
corporations because of the services that they have, that they the 1987 Const. This is in light of the Filipino First Policy.
offer, like PLDT and all these Telcos, water districts, the electric
companies and cooperatives. Under the National Electrification Par. 2, Sec. 10, Art. 12 of the 1987 Constitution is self executing.
The Constitution is the fundamental, paramount and supreme law
Administration Law, the electric cooperatives have the power to of the nation, it is deemed written in every statute and contract.
exercise eminent domain in relation to the services they are
offering. So, not limited to LGUs but also to private entities. Manila Hotel falls under national patrimony. Patrimony in its plain
and ordinary meaning pertains to heritage. When the Constitution
The power to tax cannot be delegated except to the local speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very
government. From the national government, the Local well used the term natural resources, but also to the cultural
Government Code provides taxing power to the LGUs. It cannot heritage of the Filipinos. It also refers to our intelligence in arts,
be delegated to private entities. sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the
mental ability or faculty of our people. Note that, for more than 8
Now, we have had discussed the rule on construction of decades (9 now) Manila Hotel has bore mute witness to the
constitutional provisions. Now, generally, with respect to the Bill triumphs and failures, loves and frustrations of the Filipinos; its
of rights, the Bill of rights is supposed to be, in the study of existence is impressed with public interest; its own historicity
constitutional law, limitation of the state powers. They are associated with our struggle for sovereignty, independence and
nationhood.
therefore claimable exclusively against the exercise of the any of
the state powers. In a limited sense however, there can be
Herein resolved as well is the term Qualified Filipinos which not
exercise of or claim of the bill of rights to limit acts of private only pertains to individuals but to corporations as well and other
individuals or private entities when – at least in 2 occasions: 1) juridical entities/personalities. The term “qualified Filipinos” simply
when the action of the private entity is considered as state action. means that preference shall be given to those citizens who can
Remember the case of Manila Prince Hotel vs. GSIS. Manila make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate
Hotel is supposed to be considered as a GOCC. GSIS is also the pampering and preferential treatment to Filipino citizens or
considered also a GOCC but can the acts of these entities be organizations that are incompetent or inefficient, since such an
questioned and limited by the bill of rights? The SC said in a indiscriminate preference would be counter productive and inimical

COLLEGE
OF LAW
to the common good. The constitutional injunction declaring “the privacy of

communication and correspondence [to be] inviolable” is no less
In the granting of economic rights, privileges, and concessions, applicable simply because it is the wife (who thinks herself
when a choice has to be made between a “qualified foreigner” and
a “qualified Filipino,” the latter shall be chosen over the former.”
aggrieved by her husband’s infidelity) who is the party against
whom the constitutional provision is to be enforced. The only
**Section 10. The Congress shall, upon recommendation of the exception to the prohibition in the Constitution is if there is a
economic and planning agency, when the national interest “lawful order [from a] court or when public safety or order
dictates, reserve to citizens of the Philippines or to corporations or requires otherwise, as prescribed by law.” Any violation of this
associations at least sixty per centum of whose capital is owned by provision renders the evidence obtained inadmissible “for any
such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact purpose in any proceeding.”
measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
There are several provisions in the Constitution which may refer
In the grant of rights, privileges, and concessions covering to the rights to privacy, most common there is your right against
the national economy and patrimony, the State shall give
preference to qualified Filipinos. reasonable search and seizure. But this is not a direct provision
that the person has the right to privacy.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with “Section 2. The right of the people to be secure in
its national goals and priorities. their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
An action of a private entity is considered a state action if the nature and for any purpose shall be inviolable,
State is supposed to be, by the circumstances defined, to have and no search warrant or warrant of arrest shall
acted employing itself to the controversy or the action in issue except upon probable cause to be
question. The other is 2) in the concept of the right to privacy. determined personally by the judge after
You all know that the Constitution does not provide for any examination under oath or affirmation of the
provision with respect to rights to privacy. The nearest perhaps is complainant and the witnesses he may produce,
the right to privacy in correspondence and communication. And and particularly describing the place to be
based on the ruling in the Zulueta case, the SC has somehow searched and the persons or things to be seized.”
applied that section or provision in the Constitution to be
claimable by a private individual against a private individual. The State, under section 2, cannot search your house, cannot
Again, generally, these are only claimable against the State for search your belongings, and cannot even arrest you without
those considered as state action. warrant, generally. That is because you are entitled to be left or
left alone under the concept of right to privacy. There are other
ZULUETA vs. CA statutes on the right to privacy but they are more on statutory
February 10, 1996 rights rather than constitutional rights. The discussion on the right
to privacy as affecting private individuals, meaning the
FACTS: The wife forcibly opened the drawers at the clinic of her constitutional right is claimed against a private individual may be
doctor-husband and took diaries, checks and greeting cards of had in that limited respect. But largely, it should be claimed only
his alleged paramours. Thereafter, she used the same in their against the State.
legal separation case.
Due Process: Substantive and Procedural
ISSUES: (1) Whether or not there was a violation of the right to
privacy. (2) Whether or not right to privacy can be invoked by a Now, due process, the basic concept of due process is fairness.
private individual. There has to be some form of fairness when the State would
have to take some of our rights and there are two components
HELD: Said documents are inadmissible in evidence. This is so there – the substantive and procedural. Substantive due process
because the intimacies of husband and wife does not justify the would refer to the intrinsic validity of the law, there is a proper
breaking of cabinets to determine marital infidelity. exercise of the legislative power, there is a valid government
purpose, the law is not oppressive and arbitrary, and part of the
constitutional requirement to make a law effective is to comply
COLLEGE
OF LAW
the requirement of publication. If the law has not been passed in party as provided for by the rules, which has not been granted
accordance with the processes of passing a bill under the him or deprived of him, the usual disposition of the SC is that
Constitution, then it affects the substantive validity of such there is a violation of this due process. This disposition of the SC
legislation. The procedural, this is simply characterized as that has also led to some questions on whether or not the twin notice
which hears before it condemns, proceeds upon inquiry and rule for example, under the labor code, is a requirement of legal
renders judgment only after trial. So, there has to be some form process. Before the employee is supposed to be terminated or
of opportunity on the part of the accused or defendant to be otherwise disciplined, he must be entitled to the two notices. The
heard before judgment is rendered based on the rules with first is the notice of the violation with the opportunity to explain.
respect to trial. There must have to be an investigation where he may be
represented by counsel if he so desires. And he must be given
Now, the law or the concept of due process treats procedural due reasonable time for that. How many days is reasonable time? Is
process differently in the judicial cases and the administrative there a requirement on days? Okay. And the second notice if the
cases. In administrative cases, you already know the several employee will have to be disciplined, he mus6t have to be given
cardinal primary rights while in judicial cases there are technically a copy of the order in writing. Now if this is not complied with, the
four conditions. Impartial court with jurisdiction over the persons twin notice rule, is there a violation of due process rights?
of the parties, there opportunity to be heard, and judgment is
rendered upon a lawful hearing. The essence of procedural due Now, you very well remember the case of Isetan where the SC
process is based on the discussions in several cases would lead has said that this is not actually a question of due process
us to conclude that it is only an opportunity. For so long as the because the constitutional provision on due process is the State
opportunity is there, and it has not been deprived of that party denying a person his right to due process. In the case of an
there is sufficient chance or opportunity for him to be heard then employee as against his employer, its not a case against the
that is supposed to be complying with the constitutional State against the employee. It is a case between the employer
requirement of due process. Same with administrative cases and the employee where the constitutional due process clause
because of the seven cardinal primary rights would not even does not come into play. Nonetheless, the two notice rule is also
require a formal type of hearing. What the procedural due a requirement if you have to stress it as a form of a statutory due
process in administrative cases require substantially would still process, to give that person the employee the right to be heard
be on the opportunity to present evidence which is required in before he is condemned. Again, this is not the constitutional
any proceeding. concept of due process but that which has been provided for by
law. Imagine in the case of a student who is facing a disciplinary
Now, the question is asked whether due process is a case before the school’s disciplinary tribunal. Now under the
constitutional right or a statutory right. In certain respects, the “procedural due process” in school’s disciplinary tribunal, we all
general characterization should be that due process is a know that the student must have to be informed as well in writing
constitutional right because Section 1 would tell us that there is the charges with sufficient opportunity to present his evidence as
that Due Process Clause. But because of certain rules that the well and that the tribunal must render its decision based on the
SC or the different administrative agencies may have issued and evidence presented. The parties however do not have the right to
promulgated pursuant to a valid delegation that there are cross-examine the witnesses against them. They only have the
instances or issues which would refer to statutory grants. So for right to present witnesses for them in their favor or, to rebut the
example, the right to appeal is technically not a constitutional evidence or testimonies of the other party.
right. The right to appeal is a statutory right being provided in
the rules in cases as may be allowed or provided for. Because Now that is part supposedly the procedural due process of
the constitutional right to due process is always complied when school’s disciplinary court. Now the question is again asked is
the case is heard for the first time. Because that is the only that the constitutional due process mentioned. That is not the
requirement that there is opportunity of the party to be heard and constitutional due process because that is not between the
allowed to present his evidence before judgment is rendered in student and the State. It is between the school and the student.
favor or against that party. So if that has been complied with, the Nonetheless, because of the requirement of fairness, that before
other modes of appeal, review will have to be granted by law or a judgment or decision is rendered against a person he must be
the rules and not by the constitution. So if what is violated is the heard, there is that consideration that is also part of due process.
right to due process it must have to be distinguished whether it is Definitely, not the constitutional kind but those which may have
a constitutional or statutory violation. In any cases however, if been provided by statutes or by rules.
there is already that mode of review or appeal on the part the

COLLEGE
OF LAW
Now, you’re familiar with the drug related cases. In the ordinary the moment. So before that liberty can be taken away from him,
course of things, if you are the respondent in a criminal case, you he must have to be granted his due process. And that is the
are notified by the prosecutor that a case is filed against you and opportunity to be heard. In any other context if it were not as
you are required to file a counter-affidavit. Then if there is no between the State, the due process takes a different perspective
clarificatory hearing, there is a resolution to indict you for because it is no longer constitutional. Though cases will use the
example. What is your first remedy available? File a motion for phrase “denial of due process” “violated his due process right”
reconsideration. If that MOR is denied, what is your available that should not be taken in the context of the constitutional grant
remedy? You can file a Petition for Review before the Regional but in another only statutory allowances.
State Prosecutor or the Dept. of Justice depending on the type of
hearing. After that from the RSPO you can DOJ Secretary or 
from DOJ Secretary you can go to the Office of The President, PARAS, TINE
part of the administrative remedies that you must have to TINAPAY, EARL
exhaust. Now in drug related cases and that there is a resolution,
circular by the DOJ that in case the resolution of the prosecutor is
for dismissal, it goes to an automatic review to the DOJ Secretary
and the parties are not given a copy of the resolution. Now what
if the Secretary of Justice will reverse the ruling from dismissal to
indicting. What is your remedy now from the DOJ Secretary? So “The study of law can be disappointing at times, a
you lose one or several remedies available. matter of applying narrow rules and arcane procedure
to an uncooperative reality; a sort of glorified
Or for example, under the law creating the Sandiganbayan, we accounting that serves to regulate the affairs of those
have now several criminal cases which are triable with the
who have power--and that all too often seeks to
Sandiganbayan against public officers. There are two
explain, to those who do not, the ultimate wisdom and
considerations there. One is the salary grade of the employee.
justness of their condition.
What’s the salary grade? 27 or higher. Lower if there is a
conspiracy theory. And there are aside from that the
consideration of the violation. There are only a few violation that But that's not all the law is. The law is also memory;
are triable with the Sandiganbayan. Now if you are a public the law also records a long-running conversation, a
officer with salary grade less than 27, and your are charge none nation arguing with its conscience.”
of those crimes triable with the Sandiganbayan law, from the trial ― Barack Obama, Dreams from My Father
court, say MTC, when you are convicted, you can appeal it to the
RTC right? From the RTC to the CA. and eventually by certiorari
with the SC. But if you are salary grade 27 and you commit any
of those crimes, you are tried in the Sandiganbayan. And if you
are convicted in the Sandiganbayan, where do you go? See. You
lose some of these available remedies if you were not in that
category. Now in one case, that case of Sandiganbayan, that has
been asked if whether it violates equal protection because there
is a different statement with respect to these covered employees
and those not covered. Those not covered have several chances
of paying their way to freedom (class laughs). Uh no. Having
every decision reviewed or appealed, not paid. It was wrong.
While those with the Sandiganbayan, they only have one chance
of review or appeal. Well the SC held that is justified because
they belong to different classes. But again, if it were to be due
process, it will have to be in the constitution as against the
exercise of the State of its power. So no person shall be denied
of his life, liberty or property without due process. So when the
person is charged for committing a criminal act, it is to deprtive
him of his liberty because death penalty cannot be imposed as of

COLLEGE
OF LAW
1 August 2012 The rest of the rights in our Constitution are only provided for
peculiar to our Constitution. These are eminent domain, non-
impairment clause, right to bail, suspension of the writ of the
DUE PROCESS IN GENERAL habeas corpus, speedy disposition of cases, use of inadequate
or substandard penal facility and non-imprisonment for debt.
These are so called peculiar to our Constitution because they are
PROCEDURAL AND SUBSTANTIVE DUE PROCESS not normally found in other constitutions or more else which
discusses the so called hierarchy of rights.
When the State exercises its inherent powers with respect to the
constitutional right guaranties, we have come across a lot of Now in substantive due process, there are 3 general standards
cases where the SC has tried to balance the conflicting interest– being used. This has been discussed in the case of Southern
the power of the State in exercising its inherent power as against vs. Anti-terrorism, 632 SCRA 146. These 3 general standards
the protection of these constitutional rights. Generally, the SC used to review substantive due process if there is a question of
has applied of what we now know as of balancing of interest test whether the law or action of the government violates substantive
to determine whether the State authority or power should be due process. The 3 tests are (very important!):
upheld over the claim of individual protection of rights. In these 1. Strict Scrutiny Test
cases, the SC has considered a conscious effort to determine in 2. Intermediate Scrutiny Test
taking into consideration of these powers and would decide 3. Rational or Differential Test.
cases with respect to this interplay in a given situation or type of
situation. These 3 tests were originally or first used under the discussion of
equal protection on the basis of classification. However, the SC
With respect to these constitutional rights that we have, there is has used these tests to test cases involving questions of
such a thing as hierarchy of rights. Which of these rights are substantive due process.
preferred under the Constitution? Generally, there are 3 rights
which occupy the highest or the first 3 in the hierarchy of rights In strict scrutiny test, there must have to be a compelling state
which are generally not permitted to be derogated by any of the interest that must have to be shown and that there are available
power of the State. These are: means which are less restrictive to individual freedoms (murag
1. arbitrary deprivation of life; ang dapat kay there are no other available less restrictive
2. freedom from torture, cruel, degrading or inhuman available means ) that must be proven also to allow a valid
punishment and; government regulation. So if a regulation is to be tested under
3. freedom of thought, conscience and religion which strict scrutiny there must have to be 2 things to be proven;
includes political belief or aspirations and no religious 1. That there is a compelling state interest that
test for exercise of civil or political rights. must have to be observed and
2. There are less restrictive available means of
In the hierarchy of rights, these are the rights under regulating individual liberties to allow possible
consideration generally there are no state regulation. state regulation. (I think dapat there are no other
less restrictive available means )
The rest of the rights in the hierarchy will be arbitrary arrest,
detention, search and seizure which should include the But this test is usually used when the law in question deals with
provisions on ex-post facto or bill of attainder and involuntary fundamental rights such as speech, gender or race. In strict
servitude, the provision of equal protection, the rights of accused, scrutiny, the presumption of constitutionality has a very narrow
presumption of innocence, rights during investigation, double application. To state it differently, the presumption of
jeopardy, privilege against self incrimination, the next will be the constitutionality may not even apply because the State has to
right to privacy and privacy of communication, next will be abode prove that there is a compelling state interest and that there are
and travel, next will be speech, assembly and formation, and the no other less restrictive means available to regulate individual
last would be the right to association. These rights can be liberties.
derogated or there can be permissible derogation particularly
during times of emergencies. In intermediate review, the substantiality of government interest
is seriously looked into and the availability of less restrictive
alternatives is considered. Here, 2 things;
COLLEGE
OF LAW
1. There is government interest which must 1. Regulatory ordinance must not contravene
have to be shown to be substantial not the Constitution or the law;
necessarily compelling and 2. It must not be unfair or oppressive;
3. It must not be partial or discriminatory;
2. That there are available less restrictive
4. It must not prohibit a legitimate activity but
alternatives for regulating liberties. can only regulate;
5. It must be general and must be consistent
This test is usually used when the laws in question affect gender with public policy and;
and legitimacy. 6. The ordinance must not be administrative (?)
(please check this because ingon ni sir admin
The last test is differential or rational review test. There is only pero sa case na White Light it must not be
a need to show that the regulation rationally further a legitimate unreasonable)
government interest. There is no need for the court to inquire into
the substantiality of that government interest or that there are White Light Corporation vs. City of Manila
less restrictive alternatives available. What is needed to be G.R. No. 122846. January 20, 2009
shown is that the legislation rationally furthers a government
interest. This test is used when the law in question affects Facts: On December 3, 1992, City Mayor Alfredo S. Lim
signed into law and ordinance entitled An Ordinance
economics or the economy. Prohibiting Short-time Admission, Short-time Admission
Rates, and Wash-up Schemes in Hotels, Motels, Inns,
So it largely depends on what rights are played as against a Lodging Houses, and Similar Establishments in the City
government interest. If it refers to fundamental rights, it’s always of Manila. On December 15, 1992, the Malate Tourist and
Development Corporation (MTDC) filed a complaint for
a strict scrutiny test, that there is no presumption of declaratory relief with prayer for a writ of preliminary
constitutionality, the State has the burden of proving 2 things- injunction and/or temporary restraining order (TRO) with the
state interest that is compelling and that there are no less Regional Trial Court of Manila, Branch 9 and prayed that the
restrictive means available for regulating it. Ordinance be declared invalid and unconstitutional. On
December 21, 1992, petitioners White Light Corporation,
Titanium Corporation and Sta. Mesa Tourist Development
The strict scrutiny test has also been applied to laws dealing with Corporation filed a motion to intervene, which was granted
freedom of the mind or political process. The US Supreme by the RTC. MTDC moved to withdraw as plaintiff which was
Court has expanded it to suffrage, judicial access and also granted by the RTC.
interstate travel. Interstate travel to us is actually liberty of travel On January 14, 1993, the RTC issued a TRO directing the
within the Philippines. There is no interstate travel here because City to cease and desist from enforcing the Ordinance. On
we are not comprised of sub states. October 20, 1993, the RTC rendered a decision declaring
the Ordinance null and void. The City then filed a petition for
review on certiorari with the Supreme Court. However, the
These standards are applied when there is a question on validity Supreme Court referred the same to the Court of Appeals.
of deprivation and as we all know if it is tested under judicial The City asserted that the Ordinance is a valid exercise of
review, there’s always that question of grave abuse of discretion. police power pursuant to Local government code and the
While these are the general test used, there are individual tests Revised Manila charter. The Court of Appeals reversed the
decision of the RTC and affirmed the constitutionality of the
which are applicable to individual exercises of authority. As we Ordinance.
have mentioned before, like in police power, the 2 standard tests,
the lawfulness of the subject and the lawfulness of the means. Issue: Whether the Ordinance is constitutional.
There are also standard tests used to determine of whether the
Held: No, it is not constitutional. The test of a valid
regulation is valid. In eminent domain we have the validity of the ordinance is well established. A long line of decisions
exercise of regulation based on the elements or conditions. including City of Manila has held that for an ordinance to be
valid, it must not only be within the corporate powers of the
In regulatory ordinance for local governments as stated in the local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the
case of White Light Corp. vs. City of Manila, 576 SCRA 1416, following substantive requirements: (1) must not contravene
the local regulatory ordinance must have to be within the powers the Constitution or any statute; (2) must not be unfair or
of the LGU to pass, must have been passed by the LGU oppressive; (3) must not be partial or discriminatory; (4)
according to the procedure as provided in LGC and third it must must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not
satisfy 6 other substantial requirements. These are: be unreasonable.

COLLEGE
OF LAW
related activities. It is also extended to religious freedom and

The Ordinance prohibits two specific and distinct business other fundamental rights such as life, liberty, conscience, petition,
practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to assembly, pursuit of happiness and privacy. It is not however
be rooted in the police power as conferred on local applicable to penal laws in general. The reason for disallowing
government units by the Local Government Code through facial challenges on penal laws in general is because it will
such implements as the general welfare clause. prevent the state from prosecuting any person simply because
the person can question the constitutionality of penal statute
The apparent goal of the Ordinance is to minimize if not which ruling may also affect part persons who are not parties to
eliminate the use of the covered establishments for illicit
sex, prostitution, drug use and the like. These goals, by the case.
themselves, are unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the desirability of That is the difference with respect to “as applied challenge”.
these ends does not sanctify any and all means for their When the criminal statute is questioned as unconstitutional and it
achievement. However well-intentioned the Ordinance may
be, it is in effect an arbitrary and whimsical intrusion into the does not involve speech and any of those fundamental rights,
rights of the establishments as well as their patrons. The “as applied challenge” maybe allowed, the reason for that as to
Ordinance needlessly restrains the operation of the that specific accused or defendant, the law maybe
businesses of the petitioners as well as restricts the rights of unconstitutional. I may have mentioned here before about the
their patrons without sufficient justification.
decision of RTC 11 Judge Europa about unconstitutionality of
that provision on vagrancy law. That is an example of “as applied
Also in the case of Southern vs. Anti-Terrorism, 632 SCRA 146
challenge” as against that individual the law has to be considered
(2010), there was a mentioned of void for vagueness doctrine.
by that court as unconstitutional. Of course it does not apply to all
We have come across this doctrine in People vs. Siton, 600
the rest who are not parties to the case. That is allowed because
SCRA 476 (2009) and the previous case to that that under the
each person charged before the court in violation of criminal
void for vagueness doctrine there is an issue in substantive due
statute may have different circumstance than the rest. If the
process the law which is vague. Under this doctrine, it is stated
circumstance is so and that tested against the law in question,
that a law which is vague is void because it generally, one, it
that law maybe considered as unconstitutional to him if applied.
would fail to give the subjected persons or activity fair notice of
So that maybe allowed even in ordinary criminal case provided it
the law and secondly, it would give the state authorities a right or
is made “as applied challenge”.
discretion in the implementation. A statute is void therefore
considered vague if the provisions of the law are by characteristic
Again, facial invalidation is generally not allowed in criminal
that men of common intelligence would necessarily differ as
cases except those involving speech or those involving
to its meaning or a guess as to its meaning can differ as to
fundamental rights. This allowance is considered by court as
its application.
permissible because these are our fundamental rights. If this
regulation of one’s right to speech is declared unconstitutional,
The voidness however of the law is not to be based on the use of
the effect would not only be to the person challenging the
imprecise language or that the law is ambiguous. It is vague if it
constitutionality of the law but also to those who may in the
cannot be interpreted, that with the application of the rules of
future commit the same act or exercise the same right and also
statutory construction the statute cannot be interpreted and given
with respect to other fundamental rights.
meaning. It is only then the statute is considered vague and
therefore considered void.
Overbreadth doctrine on the other hand has nothing to do with
what is void, what is vague or what is should be under facial
The void for vagueness doctrine has resulted into three other
challenge. This doctrine applies to statue which are clear, there is
discussions. They are:
no vagueness, there’s no ambiguity as to who are covered, what
1. Facial Challenge
acts are covered, what are the penalties, but they cover certain
2. Overbreadth doctrine
fundamentally protected rights. So the State in promulgating a
3. As applied challenge
law has covered an act have been covered to begin with that’s
why there’s an overbreadth in the application of the power of the
Facial Challenge is a challenge of law that it is not constitutional.
state in relation to the law having been promulgated. That can be
There is a word by word, phrase by phrase, provision by
questioned by anybody and usually this would involve
provision examination on whether or not the law is valid or
fundamental rights because even if you are not a party to the
whether the law is unconstitutional. Facial challenges are
case because it affects you just the same if that law is not
generally allowed only in cases involving free speech and
COLLEGE
OF LAW
declared unconstitutional – a law maybe declared common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of
unconstitutional under the overbreadth doctrine. There is an over
due process of law.”
breadth in the application or in the exercise of the power of the
state by defining an act, providing penalties therefor because it The Regional Trial Court, in asserting the
have been defined as regulated and it should not have been unconstitutionality of Article 202 (2), take support mainly
from the U.S. Supreme Court’s opinion in the Papachristou
regulated to begin with. That is the overbreadth doctrine.
v. City of Jacksonville case. The underlying principles
in Papachristou are that: 1) the
PEOPLE VS. SITON assailed Jacksonville ordinance “fails to give a person of
600 SCRA 476 (2009) ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute;” and 2) it encourages
FACTS: Respondents Evangeline Siton and Krystel Kate or promotes opportunities for the application of
Sagarano were charged with vagrancy pursuant to Article discriminatory law enforcement.
202 (2) of the Revised Penal Code. Instead of submitting
their counter-affidavits as directed, respondents filed The said underlying principle in Papachristou that the
separate Motions to Quash[3] on the ground that Article 202 Jacksonville ordinance, or Article 202 (2) in this case, fails
(2) is unconstitutional for being vague and overbroad. to give fair notice of what constitutes forbidden conduct,
finds no application here because under our legal system,
In an Order dated April 28, 2004, the municipal trial court ignorance of the law excuses no one from compliance
denied the motions. Respondents thus filed an original therewith.
petition for certiorari and prohibition with the Regional Trial
Court of Davao City, directly challenging the Thus, the U.S. Supreme Court in Jacksonville declared the
constitutionality of the anti-vagrancy law, claiming that the ordinance unconstitutional, because such activities or
definition of the crime of vagrancy under Article 202 (2), habits as nightwalking, wandering or strolling around
vague, results as well in an arbitrary identification of without any lawful purpose or object, habitual
violators, since the definition of the crime includes in its loafing, habitual spending of time at places where alcoholic
coverage persons who are otherwise performing ordinary beverages are sold or served, and living upon the earnings
peaceful acts. of wives or minor children, which are otherwise common
The State, through the Office of the Solicitor General, and normal, were declared illegal. But these are specific
argued that pursuant to the Court’s ruling in Estrada v. acts or activities not found in Article 202 (2). The closest to
Sandiganbayan, the overbreadth and vagueness doctrines Article 202 (2) – “any person found loitering about public or
apply only to free speech cases and not to penal semi-public buildings or places, or tramping or wandering
statutes. It also asserted that Article 202 (2) must be about the country or the streets without visible means of
presumed valid and constitutional, since the respondents support” – from the Jacksonville ordinance, would be
failed to overcome this presumption. “persons wandering or strolling around from place to place
without any lawful purpose or object.” But these two acts
The Regional Trial Court issued the assailed Order are still not the same: Article 202 (2) is qualified by “without
granting the petition. In declaring Article 202 (2) visible means of support” while the Jacksonville ordinance
unconstitutional, the trial court opined that the law is prohibits wandering or strolling “without any lawful purpose
vague. It held that the “void for vagueness” doctrine is or object,” which was held by the U.S. Supreme Court to
equally applicable in testing the validity of penal statutes. constitute a “trap for innocent acts.”
ISSUE: WHETHER THE REGIONAL TRIAL COURT Finally, we agree with the position of the State that first and
COMMITTED A REVERSIBLE ERROR IN DECLARING foremost, Article 202 (2) should be presumed valid and
UNCONSTITUTIONAL ARTICLE 202 (2) OF THE constitutional. When confronted with a constitutional
REVISED PENAL CODE question, it is elementary that every court must approach it
with grave care and considerable caution bearing in mind
HELD: The Court finds for petitioner.The power to define that every statute is presumed valid and every reasonable
crimes and prescribe their corresponding penalties is doubt should be resolved in favor of its
legislative in nature and inherent in the sovereign power of constitutionality. The policy of our courts is to avoid ruling
the state to maintain social order as an aspect of police on constitutional questions and to presume that the acts of
power. The legislature may even forbid and penalize acts the political departments are valid in the absence of a clear
formerly considered innocent and lawful provided that no and unmistakable showing to the contrary. To doubt is to
constitutional rights have been abridged. However, in sustain, this presumption is based on the doctrine of
exercising its power to declare what acts constitute a separation of powers which enjoins upon each department
crime, the legislature must inform the citizen with a becoming respect for the acts of the other
reasonable precision what acts it intends to prohibit so that departments. The theory is that as the joint act of
he may have a certain understandable rule of conduct and Congress and the President of the Philippines, a law has
know what acts it is his duty to avoid. This requirement has been carefully studied, crafted and determined to be in
come to be known as the void-for-vagueness accordance with the fundamental law before it was finally
doctrine which states that “a statute which either forbids or enacted.
requires the doing of an act in terms so vague that men of

COLLEGE
OF LAW
Southern Hemisphere Engagement Network, Inc. v. not justify a facial review of its validity. A facial challenge is
Anti-Terrorism Council allowed to be made to a vague statute and to one, which
is overbroad because of possible chilling effect
FACTS: This case consists of 6 petitions challenging the upon protected speech.
constitutionality of RA 9372, “An Act to Secure the State
and Protect our People from Terrorism,” aka Human This rationale does not apply to penal statutes. Criminal
Security Act of 2007. statutes have general in terrorem effect. If facial
challenge is allowed, the State may well be prevented from
Petitioner-organizations assert locus standi on the basis of enacting laws against socially harmful conduct.
being suspected “communist fronts” by the government, Overbreadth and vagueness doctrines then have special
whereas individual petitioners invoke the” transcendental application only to free speech cases. They are inapt for
importance” doctrine and their status as citizens and testing the validity of penal statutes.
taxpayers.
2. Since a penal statute may only be assailed for being
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, vague as applied to petitioners, a limited vagueness
and PCR allege they have been subjected to “close analysis of the definition of “terrorism” in RA 9372 is
security surveillance by state security forces,” their legally impossible absent an actual or imminent charge
members followed by “suspicious persons” and” vehicles against them.
with dark windshields,” and their offices monitored by “men
with military build.” They likewise claim they have been a. The doctrine of vagueness and the doctrine of
branded as “enemies of the State.” overbreadth do not operate on the same plane.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, i. A statute or acts suffers from the defect
KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT, of vagueness when:
Migrante, HEAD, and Agham would like the Court to take
judicial notice of respondents’ alleged action of tagging  It lacks comprehensible standards that
them as militant organizations fronting for the CPP and men of common intelligence must
NPA. They claim such Tagging is tantamount to the effects necessarily guess at its meaning and
of proscription without following the procedure under the differ as to its application.
law.
 It is repugnant to the Constitution in 2
Meanwhile, IBP and CODAL base their claim of locus ways:
standi on their sworn duty to uphold the Constitution. a. Violates due process for failure to
accord fair notice of conduct to avoid
Petitioners claim that RA 9372 is vague and broad, in that b. Leaves law enforcers unbridled
terms like “widespread and extraordinary fear and panic discretion in carrying out
among the populace” and “coerce the government to give its provisions and becomes an
in to an unlawful demand” are nebulous leaving law arbitrary flexing of the Government
enforcement agencies with no standard to measure muscle.
the prohibited act.
ii. The over breadth doctrine decrees that a
ISSUE: WON RA 9372 is vague and broad in defining the governmental purpose to control or prevent
crime of terrorism. activities constitutionally subject to state
Held: NO. regulations may not be achieved by means, which
1. The doctrines of void-for-vagueness and sweep unnecessarily broadly and thereby invade
overbreadth find no application in the present case the area of protected freedoms.
since these doctrines apply only to free speech cases
and that RA 9372 regulates conduct, not speech. b. A “facial” challenge is likewise different from an
a. Romualdez v. Sandiganbayan: The overbreadth and the “as applied” challenge.
vagueness doctrines have special application only to free
speech cases, and are not appropriate for testing the i. “As applied” challenge considers only extant facts
validity of penal statutes. affecting real litigants.
b. Romualdez v. COMELEC: A facial invalidation of criminal ii “Facial” challenge is an examination of the entire law,
statutes is not appropriate, but the Court nonetheless pinpointing its flaws and defects, not only on the basis
proceeded to conduct a vagueness analysis, and of its actual operation to the parties, but also on the
concluded that the therein subject election offense under assumption or prediction that its very existence may
the Voter’s Registration Act of 1996, with which the therein cause others not before the court to refrain from
petitioners were charged is couched in precise language. constitutionally protected speech oractivities.
c. The aforementioned cases rely heavily on Justice Under no case may ordinary penal statutes be subjected to
Mendoza’s Separate Opinion in the Estrada case: a facial challenge. If facial challenge to a penal statute is
Allegations that a penal statute is vague and overbroad do
COLLEGE
OF LAW
permitted, the prosecution of crimes may be hampered. No is not only applicable to one specific operator or public utility
prosecution would be possible.
operator but it will affect the rest or all of those in the particular
3. There is no merit in the claim that RA 9372 regulates industry. There is no specific operator targeted because all of the
speech so as to permit a facial analysis of its validity. operators are targeted and the power of these regulatory offices
a. Section 3 of RA 9372 provides the following elements to fix rates are not limited to the exercise of quasi-judicial power.
of the crime of terrorism:
i. Offender commits an act punishable under

RPC and the enumerated special penal laws; G.R. No. 183626 October 4, 2010
ii. Commission of the predicate crime sows and SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC.
creates a condition of widespread and (SURNECO) vs.
extraordinary fear and panic among the ENERGY REGULATORY COMMISSION
populace;
iii. The offender is actuated by the desire to Petitioner Surigao Del Norte Electric Cooperative, Inc.
coerce the government to give in to an unlawful (SURNECO) is a rural electric cooperative organized and existing
demand. by virtue of Presidential Decree No. 269.
b. Petitioners contend that the element of “unlawful On February 8, 1996, the Association of Mindanao Rural Electric
demand” in the definition of terrorism must necessarily be Cooperatives, as representative of SURNECO and of the other 33
transmitted through some form of expression protected rural electric cooperatives in Mindanao, filed a petition before the
by the free speech clause. The argument does not then Energy Regulatory Board (ERB) for the approval of the
persuade. What RA 9372 seeks to penalize is conduct, not formula for automatic cost adjustment and adoption of the National
speech. Power Corporation (NPC) restructured rate adjustment to comply
with Republic Act (R.A.) No. 7832.
c. Petitioners’ notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one particle Held:
of an element of the crime. Almost every commission of a It is beyond cavil that the State, in the exercise of police power,
crime entails some mincing of words on the part of can regulate the rates imposed by a public utility such as
offender. Utterances not elemental but inevitably SURNECO. As we held in Republic of the Philippines v. Manila
incidental to the doing of the criminal conduct alter Electric Company—
neither the intent of the law to punish socially harmful
conduct nor the essence of the whole act as conduct The regulation of rates to be charged by public utilities is founded
and not speech. upon the police powers of the State and statutes prescribing rules
for the control and regulation of public utilities are a valid exercise
thereof. When private property is used for a public purpose and is
affected with public interest, it ceases to be juris privati only and
EQUAL PROTECTION becomes subject to regulation. The regulation is to promote the
common good. Submission to regulation may be withdrawn by the
owner by discontinuing use; but as long as use of the property is
Now, let’s go to equal protection. continued, the same is subject to public regulation.
There’s a case between Surigao Electric vs. ERC. This is a Likewise, SURNECO cannot validly assert that the caps set by
case involving imposition of rates by public utilities. The question, R.A. No. 7832 are arbitrary, or that they violate the non-impairment
clause of the Constitution for allegedly traversing the loan
can they be regulated under the police power? It is a no brainer, agreement between NEA and ADB. Striking down a legislative
it should be regulated. The only discussion here perhaps is the enactment, or any of its provisions, can be done only by way of a
nature of the rate fixing authority of our regulatory bodies. In rate direct action, not through a collateral attack, and more so, not for
fixing, there are two considerations: One, the quasi-judicial the first time on appeal in order to avoid compliance. The
challenge to the law’s constitutionality should also be raised at the
function of the regulatory office or the quasi-legislative function of earliest opportunity.
the regulating office in fixing the rate. If the rates are fixed under
the body’s quasi-judicial function, then the requirements of due Even assuming, merely for argument’s sake, that the ERC
process or notice and hearing must have to be satisfied. Because issuances violated the NEA and ADB covenant, the contract had to
yield to the greater authority of the State’s exercise of police
it will only apply to a particular party or particular operator in that power. It has long been settled that police power legislation,
case. But if the rate is fixed under the exercise of its quasi- adopted by the State to promote the health, morals, peace,
legislative power then notice and hearing need not be complied education, good order, safety, and general welfare of the people
as a requirement of due process because regulatory departments prevail not only over future contracts but even over those already
in existence, for all private contracts must yield to the superior and
or offices involved in public utilities are always given the power to legitimate measures taken by the State to promote public welfare.
fix the rates based on public hearings and consultations and that
should satisfy the requirement of due process because anyway it
COLLEGE
OF LAW
This case of White Light vs. City of Manila... This is an old case State police power whose exercise enjoys the presumption of
involving an old problem in the City of Manila. As you have read, validity.
this involves the power of the local government unit to enact an The Ordinance makes no distinction between places frequented by
ordinance to limit or regulate the business involving operations of patrons engaged in illicit activities and patrons engaged in
hotels and motels to curb the increasing problem of prostitution. legitimate actions. Thus it prevents legitimate use of places where
illicit activities are rare or even unheard of. A plain reading of
section 3 of the Ordinance (“SECTION 3. Pursuant to the above
policy, short-time admission and rate, wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels,
G.R. No. 122846 January 20, 2009 inns, lodging houses, pension houses and similar establishments
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and in the City of Manila.) shows it makes no classification of places of
STA. MESA TOURIST & DEVELOPMENT CORPORATION lodging, thus deems them all susceptible to illicit patronage and
vs.CITY OF MANILA, represented by DE CASTRO, MAYOR subject them without exception to the unjustified prohibition.
ALFREDO S. LIM
The behavior which the Ordinance seeks to curtail is in fact already
On December 3, 1992, Mayor Lim signed into law the Ordinance prohibited and could in fact be diminished simply by applying
prohibiting short time admission in hotels, motels, lodging houses, existing laws. Less intrusive measures such as curbing the
pension houses and similar establishments in the City of Manila. proliferation of prostitutes and drug dealers through active police
work would be more effective in easing the situation. So would the
On December 15, 1992, the Malate Tourist and Development strict enforcement of existing laws and regulations penalizing
Corporation (MTDC) filed a complaint for declaratory relief with prostitution and drug use. These measures would have minimal
prayer for a writ of preliminary injunction and/or temporary intrusion on the businesses of the petitioners and other legitimate
restraining order (TRO). MTDC prayed that the Ordinance, insofar merchants. Further, it is apparent that the Ordinance can easily be
as it includes motels and inns as among its prohibited circumvented by merely paying the whole day rate without any
establishments, be declared invalid and unconstitutional. MTDC hindrance to those engaged in illicit activities. Moreover, drug
claimed that as owner and operator of the Victoria Court in Malate, dealers and prostitutes can in fact collect "wash rates" from their
Manila it was authorized by P.D. No. 259 to admit customers on a clientele by charging their customers a portion of the rent for motel
short time basis as well as to charge customers wash up rates for rooms and even apartments.
stays of only three hours.
The Decision of the RTC is REINSTATED. Ordinance No. 7774 is
On December 21, 1992, petitioners White Light Corporation hereby declared UNCONSTITUTIONAL.
(WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and
Development Corporation (STDC) filed a motion to intervene and This is an old issue because in the old case of Ermita-Malate
to admit attached complaint-in-intervention on the ground that the
Ordinance directly affects their business interests as operators of Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
drive-in-hotels and motels in Manila. of Manila, (the City ordinance requiring patrons to fill up a
prescribed form stating personal information such as name,
The Court of Appeals reversed the decision of the RTC and gender, nationality, age, address and occupation before they
affirmed the constitutionality of the Ordinance.
could be admitted to a motel, hotel or lodging house. This earlier
Held: That the Ordinance prevents the lawful uses of a wash rate ordinance was precisely enacted to minimize certain practices
depriving patrons of a product and the petitioners of lucrative deemed harmful to public morals. A purpose similar to the
business ties in with another constitutional requisite for the annulled ordinance in City of Manila which sought a blanket ban
legitimacy of the Ordinance as a police power measure. It must
appear that the interests of the public generally, as distinguished on motels, inns and similar establishments in the Ermita-Malate
from those of a particular class, require an interference with private area. However, the constitutionality of the ordinance in Ermita-
rights and the means must be reasonably necessary for the Malate was sustained by the Court.) The SC has upheld as
accomplishment of the purpose and not unduly oppressive of discussed the matter of the regulation requiring several providing
private rights. It must also be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights for an ordinance requiring several acts to be done before a
can work. More importantly, a reasonable relation must exist person may be permitted inside the motel in Metro Manila. One
between the purposes of the measure and the means employed of which was the requirement of lighting in the lobby. There is a
for its accomplishment, for even under the guise of protecting the requirement of filling-up of registration documents. There is a
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded. limitation for not allowing the room to be let out for more than
Lacking a concurrence of these requisites, the police measure once in a period of 24 hours. There is a limitation in allowing
shall be struck down as an arbitrary intrusion into private rights. As minors to be admitted as guests without the company of their
held in Morfe v. Mutuc, the exercise of police power is subject to parents or legal guardians and there are corresponding penalties
judicial review when life, liberty or property is affected. However,
this is not in any way meant to take it away from the vastness of for violations. In that old case, the SC has ruled that this
regulation is permissible. And in this new case White Light, the

COLLEGE
OF LAW
same issue was raised. There is also a provision in the ordinance and/or adjacent lots that are solely devoted for use as parking
providing for the same regulations on the exercise of this spaces.
business. And the SC had the occasion to discuss what I have Respondents received information that, pursuant to Senate
mentioned earlier, that aside from the general test of lawfulness Committee Report No. 225, the DPWH Secretary and the local
or standards of lawfulness of the means, the local ordinance building officials of Manila, Quezon City, and Las Piñas intended to
exercised in its regulatory function must have to comply with institute, through the OSG, an action to enjoin respondents from
collecting parking fees, and to impose upon said establishments
those three (3) basic requirements or conditions and the six (6) penal sanctions under PD No. 1096 (National Building Code) and
substantive requirements. its IRR. With the threatened action against it, respondent SM
Prime filed, on 3 October 2000, a Petition for Declaratory
“The test of a valid ordinance is well established. A long line of Relief8 under Rule 63.
decisions including City of Manila has held that for an ordinance Held:
to be valid, it must not only be within the corporate powers of the The Building Code, which is the enabling law and the
local government unit to enact and pass according to the Implementing Rules and Regulations do not impose that parking
procedure prescribed by law, it must also conform to the following spaces shall be provided by the mall owners free of charge. Absent
such directive, respondents are under no obligation to provide
substantive requirements: (1) must not contravene the them for free. In conclusion, the total prohibition against the
Constitution or any statute; (2) must not be unfair or oppressive; collection by respondents of parking fees from persons who use
(3) must not be partial or discriminatory; (4) must not prohibit but the mall parking facilities has no basis in the National Building
may regulate trade; (5) must be general and consistent with Code or its IRR. The State also cannot impose the same
prohibition by generally invoking police power, since said
public policy; and (6) must not be unreasonable. prohibition amounts to a taking of respondents’ property without
payment of just compensation.
I think that what is most important there is that the ordinance
must not prohibit but must only regulate the business. A business Ok. Equal protection. We have said that the inclusion of the equal
which is otherwise legal can be regulated and cannot be totally protection clause under the same Section 1 of the due process
prohibited or declared to be illegal per se or per accidens like clause is by design and not by accident. General violations of
operation of motels or hotels. There is nothing illegal about it. It due process or arbitrariness are usually questioned under the
can be regulated for the protection of the public interest matter due process clause but specific instances of violations or acts of
like public health because of the responsible parenthood thing. arbitrariness are usually raised under equal protection issues
Ok. What other cases? This case of Office of the Solicitor because it affects a particular class or individual. Now, the equal
General vs. Ayala (G.R. No. 177056, September 2009). This protection clause in the Constitution simply requires that all
involves private parking in malls which collect fees. Now, in this persons or things similarly situated should be treated alike both
case, there was a proposal where private malls cannot collect as to the rights conferred and responsibilities imposed.
parking fees, so can that be allowed? SC said that the law is not
valid and it is not in the valid exercise of police power because The equal protection just like due process has two components:
mall owners have obviously spent money for the construction of (1) the substantive parts and (2) the procedural parts. Procedural
these parking areas and they have the right to exact reasonable is simply that the law must have to be applied equally to those in
parking fees. If there is a law prohibiting from collecting parking the same class. Equal protection does not require absolute
fees, it will result into taking in the concept of eminent domain equality, it only requires substantive equality among equals
and they must have to be paid with just compensation if the and the equality is measured or determined on the basis of valid
ordinance prohibits them from exacting parking fees because classification which is based on similarities and some particular
they are prevented them from the beneficial use of the property which is not shared by the rest with respect to the same
which has been converted into a parking lot. particulars. There is, again, no absolute similarity in all but at
least to these specifics they are similar and they are not shared
G.R. No. 177056 September 18, 2009 with the rest who do not belong to said class.
THE OFFICE OF THE SOLICITOR GENERAL vs.
AYALA LAND INCORPORATED, ROBINSON'S LAND
CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM Now for there to be a valid classification the law has always
PRIME HOLDINGS, INC. required that the classification must rest on (1) substantial
distinction. (2) It must be germane to the purpose of the law. The
The shopping malls operated or leased out by respondents have
parking facilities for all kinds of motor vehicles, either by way of classification must (3) not be limited to existing conditions only
parking spaces inside the mall buildings or in separate buildings and that (4) it must be equally applicable to those belonging to
the same class.
COLLEGE
OF LAW
are income tax brackets where individuals may have different

When it is said that the law must be based on substantial income taxes but because they belong to the same category or
distinction, the distinction must be of considerable value or class, they have the same burden so while they do not pay the
importance. As to what or how considerable the classification or same amount, the burden imposed to them under the laws of
distinction is actually based on the second condition that it must taxation are the same because they belong to the same class.
be germane to the purpose of the law, meaning, there is
reasonable connection with the means to accomplish the Now, standards of judicial review as mentioned before… the
purpose of the law. For example, when you say classification rational of the intermediate and strict scrutiny test have first been
based on gender, it may be substantial if the purpose of the law used in equal protection cases. They have just been used also in
is to grant maternity or paternity benefits but gender if used for cases involving substantive due process. Now, they are of the
purposes of granting minimum wages then it is not substantial same discussions whether in equal protection or in substantive
because it is not germane to the purpose of the law. The purpose due process. The strictest test here would be the strict scrutiny
being is to give a fair day’s wage to a fair day’s labor. A fair day’s test and this is used on issues on a equal protection or
labor is not dependent on whether one is a man or woman. So discrimination is based on the fundamental rights. So I think if
far as long as one gives a fair day’s labor, he must be paid a fair the local ordinance in Davao on anti-discrimination eventually
day’s wage. So gender, in that case, cannot be considered pass and if there should be a question, it should be tested under
substantial. Age like minority or majority may be substantial if you the strict scrutiny test. Whether or not it is a valid regulation on an
look into protecting public morality or morality of children, also issue on discrimination based on race, gender, power, religion
health. But if for the purpose of education, you could not say that and other factors mentioned therein. There are constitutionally-
children should have more access to education than those who imposed equalities in the Constitution: provisions on economic
are adults because each one should have an equal access to equality, on political equality and on social equality. There is a
education whether it should be free or at least given a substantial provision there where political wealth or economic wealth should
subsidy. Again, the substantiality of the distinction must have to be diffused or property ownership, I have read somewhere, I do
be based on whether the distinction is germane to the purpose of not know who wrote this which says “you cannot legislate the
the law. Aliens or citizens, if you are talking about the exercise of poor into prosperity by legislating the wealthy out of property”
profession, it cannot be argued that constitutionally exercise of which is actually true, you take property from the wealthy does
profession is reserved for Filipino citizens only except in cases not mean that the poor can prosper. I don’t know. You cannot
provided by law. But if you say enjoyment of the rights under the multiply wealth by dividing it or that the government cannot give
Bill of Rights, citizenship is not a valid classification because to anybody anything that the government does not take first from
every citizen except every person, except the right to information, somebody else. The government will not actually give something
should be allowed to enjoy protection under the Constitution. As it owns to the poor to prosper. It takes it somewhere else
mentioned earlier, the classification must not be limited to normally from the rich to give to the poor. So, we, the poor will be
existing conditions only. This should also mean that for so long happy. I remember those because I had a discussion one time
as the problem sought to be addressed by the legislation then the with another professor and he said these are fundamental
ordinance or the law must have to be existing as well. While we mistakes in the Constitution. Fundamental because it is the
all know that there are laws which would take effect only after a fundamental law of the land. How could you diffuse property or
fixed period of time, that is not unconstitutional because these legislate the poor into prosperity by taking the wealth of the rich?
are laws which are necessary to protect only the particular issue Because if you take it from the rich, normally, government will still
which is to be addressed for a limited period of time. But if it is a have to pay just compensation. So where will the government
purely regulatory measure, for example, it cannot be made to take what it will have to pay for just compensation? Take them
apply only for the present because if there is only one individual, from the rich, but as Obama would have it, “tax the rich to give to
entity or activity covered by the legislation for now, it maybe the poor”. Probably I took this from Obama’s political opponents.
considered as unconstitutional because it becomes a specific Ok, let’s continue tomorrow.
target of the legislation and not applicable to those who may
come under the classification. The classification, to be 
reasonable, should be in terms applicable to future conditions as
well. Now, the classification must also be equally applicable to all
in the same class, this requires substantial symmetry not literal GIVERO, KATRINA “KONGKONG”
equality in the application for it has always been an example that LEYES, HANNA
is given in the income tax payment in your law on taxation. There

COLLEGE
OF LAW
“Always remember, your focus

determines your reality.”
― George Lucas

COLLEGE
OF LAW
equal protection of the laws, through whatever agency or whatever

2 August 2012 guise is taken.
It, however, does not require the universal application of the laws
EQUAL PROTECTION to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
Before we leave the item on Equal Protection, there’s 1 case classification. Indeed, the equal protection clause permits
involving EO 1 of PNoy creating the Philippine Truth classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
Commission. In this case of Biraogo vs. Philippine Truth classification rests on substantial distinctions; (2) It is germane to
Commission, the SC nullified the creation of the Commission on the purpose of the law; (3) It is not limited to existing conditions
the ground of violation of equal protection. The dismissal was only; and (4) It applies equally to all members of the same class.
based on the reasoning that the non-inclusion of past "Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
administrations similarly situated (since the only object of the must include or embrace all persons who naturally belong to the
investigation was the Arroyo administration) constitutes class. "The classification will be regarded as invalid if all the
arbitrariness. The Arroyo administration, according to the SC, is members of the class are not similarly treated, both as to rights
not a class by itself and if the object of the commission is to conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
inquire into the excesses of the previous administration, then the members of the class should possess the same characteristics
everybody (i.e. those before Arroyo) must have to be included. in equal degree. Substantial similarity will suffice; and as long as
The non-inclusion therefore of the other past administrations this is achieved, all those covered by the classification are to be
constitutes class legislation. treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
LOUIS "BAROK" C. BIRAOGO vs. non-application of the law to him."
THE PHILIPPINE TRUTH COMMISSION OF 2010
G.R. No. 192935 December 7, 2010 The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
Concept of the Equal Protection Clause included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
One of the basic principles on which this government was founded conditions. It must not leave out or "underinclude" those that
is that of the equality of right which is embodied in Section 1, should otherwise fall into a certain classification. As elucidated in
Article III of the 1987 Constitution. The equal protection of the laws Victoriano vs. Elizalde Rope Workers' Union and reiterated in a
is embraced in the concept of due process, as every unfair long line of cases,
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a The guaranty of equal protection of the laws is not a guaranty of
more specific guaranty against any form of undue favoritism or equality in the application of the laws upon all citizens of the state.
hostility from the government. Arbitrariness in general may be It is not, therefore, a requirement, in order to avoid the
challenged on the basis of the due process clause. But if the constitutional prohibition against inequality, that every man,
particular act assailed partakes of an unwarranted partiality or woman and child should be affected alike by a statute. Equality of
prejudice, the sharper weapon to cut it down is the equal protection operation of statutes does not mean indiscriminate operation on
clause. persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
"According to a long line of decisions, equal protection simply identity of rights. The Constitution does not require that things
requires that all persons or things similarly situated should be which are different in fact be treated in law as though they were
treated alike, both as to rights conferred and responsibilities the same. The equal protection clause does not forbid
imposed." It "requires public bodies and institutions to treat discrimination as to things that are different. It does not prohibit
similarly situated individuals in a similar manner." "The purpose of legislation which is limited either in the object to which it is directed
the equal protection clause is to secure every person within a or by the territory within which it is to operate.
state’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its The equal protection of the laws clause of the Constitution allows
improper execution through the state’s duly constituted classification. Classification in law, as in the other departments of
authorities." "In other words, the concept of equal justice under the knowledge or practice, is the grouping of things in speculation or
law requires the state to govern impartially, and it may not draw practice because they agree with one another in certain
distinctions between individuals solely on differences that are particulars. A law is not invalid because of simple inequality. The
irrelevant to a legitimate governmental objective." very idea of classification is that of inequality, so that it goes
The equal protection clause is aimed at all official state actions, not without saying that the mere fact of inequality in no manner
just those of the legislature. Its inhibitions cover all the determines the matter of constitutionality. All that is required of a
departments of the government including the political and valid classification is that it be reasonable, which means that the
executive departments, and extend to all actions of a state denying classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
COLLEGE
OF LAW
and that it must apply equally to each member of the class. This The public needs to be enlightened why Executive Order No. 1
Court has held that the standard is satisfied if the classification or chooses to limit the scope of the intended investigation to the
distinction is based on a reasonable foundation or rational basis previous administration only. The OSG ventures to opine that "to
and is not palpably arbitrary. [Citations omitted] include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness."
Applying these precepts to this case, Executive Order No. 1 should The reason given is specious. It is without doubt irrelevant to the
be struck down as violative of the equal protection clause. The legitimate and noble objective of the PTC to stamp out or "end
clear mandate of the envisioned truth commission is to investigate corruption and the evil it breeds."
and find out the truth "concerning the reported cases of graft and
corruption during the previous administration" only. The intent to The probability that there would be difficulty in unearthing evidence
single out the previous administration is plain, patent and manifest. or that the earlier reports involving the earlier administrations were
Mention of it has been made in at least three portions of the already inquired into is beside the point. Obviously, deceased
questioned executive order. Specifically, these are: presidents and cases which have already prescribed can no longer
be the subjects of inquiry by the PTC. Neither is the PTC expected
WHEREAS, there is a need for a separate body dedicated solely to conduct simultaneous investigations of previous administrations,
to investigating and finding out the truth concerning the reported given the body’s limited time and resources. "The law does not
cases of graft and corruption during the previous administration, require the impossible" (Lex non cogit ad impossibilia).
and which will recommend the prosecution of the offenders and
secure justice for all; Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
SECTION 1. Creation of a Commission. – There is hereby century’s worth of graft cases. However, the fact remains that
created the PHILIPPINE TRUTH COMMISSION, hereinafter Executive Order No. 1 suffers from arbitrary classification. The
referred to as the "COMMISSION," which shall primarily seek and PTC, to be true to its mandate of searching for the truth, must not
find the truth on, and toward this end, investigate reports of graft exclude the other past administrations. The PTC must, at least,
and corruption of such scale and magnitude that shock and offend have the authority to investigate all past administrations. While
the moral and ethical sensibilities of the people, committed by reasonable prioritization is permitted, it should not be arbitrary
public officers and employees, their co-principals, accomplices and lest it be struck down for being unconstitutional. In the often quoted
accessories from the private sector, if any, during the previous language of Yick Wo vs. Hopkins,
administration; and thereafter recommend the appropriate action Though the law itself be fair on its face and impartial in
or measure to be taken thereon to ensure that the full measure of appearance, yet, if applied and administered by public authority
justice shall be served without fear or favor. with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar
SECTION 2. Powers and Functions. – The Commission, which circumstances, material to their rights, the denial of equal justice is
shall have all the powers of an investigative body under Section still within the prohibition of the constitution. [Emphasis supplied]
37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of It could be argued that considering that the PTC is an ad hoc body,
reported cases of graft and corruption referred to in Section 1, its scope is limited. The Court, however, is of the considered view
involving third level public officers and higher, their co-principals, that although its focus is restricted, the constitutional guarantee of
accomplices and accessories from the private sector, if any, during equal protection under the laws should not in any way be
the previous administration and thereafter submit its finding and circumvented. The Constitution is the fundamental and paramount
recommendations to the President, Congress and the law of the nation to which all other laws must conform and in
Ombudsman. [Emphases supplied] accordance with which all private rights determined and all public
authority administered. Laws that do not conform to the
In this regard, it must be borne in mind that the Arroyo Constitution should be stricken down for being unconstitutional.
administration is but just a member of a class, that is, a class of While the thrust of the PTC is specific, that is, for investigation of
past administrations. It is not a class of its own. Not to include past acts of graft and corruption, Executive Order No. 1, to survive,
administrations similarly situated constitutes arbitrariness which must be read together with the provisions of the Constitution. To
the equal protection clause cannot sanction. Such discriminating exclude the earlier administrations in the guise of "substantial
differentiation clearly reverberates to label the commission as a distinctions" would only confirm the petitioners’ lament that the
vehicle for vindictiveness and selective retribution. subject executive order is only an "adventure in partisan hostility."
In the case of US v. Cyprian, it was written: "A rather limited
Though the OSG enumerates several differences between the number of such classifications have routinely been held or
Arroyo administration and other past administrations, these assumed to be arbitrary; those include: race, national origin,
distinctions are not substantial enough to merit the restriction of the gender, political activity or membership in a political party, union
investigation to the "previous administration" only. The reports of activity or membership in a labor union, or more generally the
widespread corruption in the Arroyo administration cannot be taken exercise of first amendment rights."
as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread To reiterate, in order for a classification to meet the requirements of
reports of impropriety. They are not inherent in, and do not inure constitutionality, it must include or embrace all persons who
solely to, the Arroyo administration. As Justice Isagani Cruz put it, naturally belong to the class. "Such a classification must not be
"Superficial differences do not make for a valid classification." based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be
COLLEGE
OF LAW
in similar circumstances and conditions. Furthermore, all who are So in those cases the search would become unreasonable and
in situations and circumstances which are relative to the subject to the rule on exclusion (i.e. any items seized on the
discriminatory legislation and which are indistinguishable from
those of the members of the class must be brought under the
occasion of the unreasonable search would be considered as
influence of the law and treated by it in the same way as are the inadmissible in evidence.)
members of the class."
The Court is not unaware that "mere underinclusiveness is not  REQUIREMENTS OF SEARCH WARRANTS
fatal to the validity of a law under the equal protection clause."
"Legislation is not unconstitutional merely because it is not all-
embracing and does not include all the evils within its reach." It has The Rules of Court provide for the requirements for the issuance
been written that a regulation challenged under the equal of search warrants:
protection clause is not devoid of a rational predicate simply 1. an application must be under oath or affirmation;
because it happens to be incomplete. In several instances, the
underinclusiveness was not considered a valid reason to strike 2. there is determination of probable cause to be done
down a law or regulation where the purpose can be attained in personally by the judge.
future legislations or regulations. These cases refer to the "step by
step" process. "With regard to equal protection claims, a legislature Probable cause has been defined as such amount of facts or
does not run the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise, to cover every circumstances which would lead a prudent judge to believe that a
evil that might conceivably have been attacked." crime has been committed and that the fruits, effects or objects of
the crime are in the place to be searched. There is also a
In Executive Order No. 1, however, there is no inadvertence. That requirement of a hearing for the determination of probable cause.
the previous administration was picked out was deliberate and The hearing is obviously summary in character but what is
intentional as can be gleaned from the fact that it was underscored required under the Rules is that there must have to be an oath or
at least three times in the assailed executive order. It must be
noted that Executive Order No. 1 does not even mention any affirmation during or before the examination and that the judge
particular act, event or report to be focused on unlike the must have to ask searching questions on the applicant and/or
investigative commissions created in the past. "The equal witnesses. There were several cases in the past that [ruled that]
protection clause is violated by purposeful and intentional leading questions would not be allowed or are insufficient for the
discrimination."
judge to determine probable cause. The answers must have to
be based on the personal knowledge of the applicant and/or
REQUIREMENTS OF FAIR PROCEDURE witnesses. This is a rule on Evidence i.e. that a person can only
be allowed to testify on facts which he has perceived through the
A. Arrests, Searches and Seizures use of his senses so that if the matters taken in the application
Section 2, Article III, 1987 Constitution turn out to be false, such applicant and/or witnesses can be held
Section 3, Article III, 1987 Constitution liable for false testimony.
Now, let’s go to the requirements of fair procedure, search and Now in one case, People vs. Mamaril (October 6, 2010), the SC
seizure and arrest. The concept of the protection against had occasion to characterize the test for the proper determination
unreasonable search and seizure is largely based on privacy (the of probable cause. The issue raised by the appellant on appeal
right to be let and left alone). The State therefore is not allowed was that there was no proper determination of probable cause
to conduct searches in any house, dwelling or search the based on the line of questioning of the applicant (a police officer)
documents or other effects of any person unless it is warranted. considering that there were only few questions asked. The SC
The Constitution extends the protection to unreasonable search said that there are no general criteria on the amount of probable
and seizure only so that if the search and seizure is reasonable, cause (or the amount of questions that the judge must ask for
then that is not protected. The unreasonable searches and probable cause to be properly determined). What is important is
seizures would cover: that the judge must personally believe that there exists probable
cause based on the facts and circumstances of the case. Again,
1. search without warrant where it does not fall in any of there is no hard and fast rule as to how the determination of
the 6 general/common exceptions or probable cause should be made because it is largely dependent
2. even if there is a warrant, either the warrant was on findings and the application of these facts by the judge.
illegally obtained or the warrant legally obtained is
illegally presented. PEOPLE OF THE PHILIPPINES vs. OLIVE RUBIO MAMARIL
G.R. No. 171980 October 6, 2010

COLLEGE
OF LAW
The contention of the accused-appellant, as asserted through the conditions obtaining in given situations and its existence depends
Public Attorney’s Office, is that the issued search warrant was not to a large degree upon the findings or opinion of the judge
based on probable cause. The accused-appellant relied heavily on conducting the examination.
its argument that SPO4 Gotidoc, as the applicant of the search
warrant, did not testify on facts personally known to him but simply
It is presumed that a judicial function has been regularly
relied on stories that the accused- appellant was peddling illegal
performed, absent a showing to the contrary. A magistrate’s
drugs.
determination of a probable cause for the issuance of a search
warrant is paid with great deference by a reviewing court, as long
The requisites for the issuance of a search warrant are: (1) as there was substantial basis for that determination.
probable cause is present; (2) such probable cause must be
determined personally by the judge; (3) the judge must examine, in
The defense’s reliance of the quoted testimony of the police officer
writing and under oath or affirmation, the complainant and the
alone, without any other evidence to show that there was indeed
witnesses he or she may produce; (4) the applicant and the
lack of personal knowledge, is insufficient to overturn the finding of
witnesses testify on the facts personally known to them; and (5)
the trial court. The accused-appellant, having failed to present
the warrant specifically describes the place to be searched and the
substantial rebuttal evidence to defeat the presumption of
things to be seized.
regularity of duty of the issuing judge, will not be sustained by this
Court.
On the other hand, probable cause means such facts and
circumstances which would lead a reasonable discreet and
prudent man to believe that an offense has been committed and Also, the next requirement is that the warrant must be issued in
that the objects sought in connection with the offense are in the connection with one specific offense, thus, avoiding what is
place sought to be searched. known as scatter shot warrant. The theoretical basis for
disallowing a warrant issued for more than one specific offense is
Based on the records, the Court is convinced that the questioned that the judge will have difficulty in determining probable cause
search warrant was based on a probable cause. A portion of the
direct testimony of SPO4 Gotidoc is hereby quoted: that a crime has been committed and such will be subjected to a
search warrant with respect to the fruits, proceeds or things to be
Q: What is your basis for applying for search warrant against the used (for purposes of determining probable cause, if the warrant
accused? should be issued for more than 1 specific offense). So only 1
offense for every warrant. In this case of Tan vs. Sy Tiong Gue,
A: Because there were many persons who were going to her place the search warrant here was issued for robbery but the
and we’ve been hearing news that she is selling prohibited drugs information (for robbery) was dismissed thereafter. The question
and some of them were even identified, sir. raised here is: can the item seized under the warrant be used as
evidence in a case of qualified theft? Remember that double
Q: But you did not conduct any surveillance before you applied for jeopardy had not set in yet because the information (for robbery)
search warrant?
had been dismissed. The SC said NO considering that the
dismissal of the information (for robbery) was for lack of sufficient
A: Prior to the application for search warrant, we conducted
surveillance already.
cause or prima facie case of taking. If there’s no taking, there
could be no qualified theft.
Q: Because personally you heard that the accused was dealing
prohibited drugs and that was the basis for you to apply for search ROMER SY TAN vs. SY TIONG GUE
warrant with Branch 66? G.R. No. 174570 February 22, 2010
A: Yes, sir. (Emphasis supplied) x x x A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal property
Section 6, Rule 126 of the Rules on Criminal Procedure provides described therein and to bring it before the court. The issuance of
that: a search warrant is governed by Rule 126 of the Rules of Court,
the relevant sections of which provide:
If the judge is satisfied of the existence of facts upon which the
application is based or that there is probable cause to believe that Section 4. Requisites for issuing search warrant. — A search
they exist, he shall issue the warrant, which must be substantially warrant shall not issue except upon probable cause in connection
in the form prescribed by these Rules. (Emphasis supplied) with one specific offense to be determined personally by the judge
after examination under oath or affirmation of the complainant and
There is no general formula or fixed rule for the determination of the witnesses he may produce, and particularly describing the
probable cause since the same must be decided in light of the

COLLEGE
OF LAW
place to be searched and the things to be seized which may be A perusal of the Sinumpaang Salaysay and the Transcript of
anywhere in the Philippines.1avvphi1 Stenographic Notes reveals that Judge Lanzanas, through
searching and probing questions, was satisfied that there were
good reasons to believe that respondents, accompanied by five
Section 5. Examination of complainant; record. — The judge must,
maids, took five boxes of Hennessy XO owned by the Guan Yiak
before issuing the warrant, personally examine in the form of
Hardware and brought them to the 8th floor of 524 T. Pinpin St.,
searching questions and answers, in writing and under oath, the
Binondo, Manila; and that a person named "Yubol" took various
complainant and the witnesses he may produce on facts
checks from the company’s vault, which was later brought to the
personally known to them and attach to the record their sworn
7th floor of 524 T. Pinpin St., Binondo, Manila. When they entered
statements together with the affidavits submitted.
the premises, Felicidad Chan Sy was accompanied by two
policemen, which stunned Romer Sy Tan, so that he was not able
Section 6. Issuance and form of search warrant. — If the judge is to do anything in the face of the calculated and concerted actions
satisfied of the existence of facts upon which the application is of his grandmother, Felicidad Chan Sy, and her seven
based or that there is probable cause to believe that they exist, he companions. Based on the foregoing circumstances, Romer Sy
shall issue the warrant, which must be substantially in the form Tan believed that the crime of robbery was committed by the
prescribed by these Rules. respondents.
Therefore, the validity of the issuance of a search warrant rests The power to issue search warrants is exclusively vested in the
upon the following factors: (1) it must be issued upon probable trial judges in the exercise of their judicial functions. A finding of
cause; (2) the probable cause must be determined by the judge probable cause, which would merit the issuance of a search
himself and not by the applicant or any other person; (3) in the warrant, needs only to rest on evidence showing that, more likely
determination of probable cause, the judge must examine, under than not, a crime has been committed and that it was committed by
oath or affirmation, the complainant and such witnesses as the the accused. The determination of whether probable cause exists
latter may produce; and (4) the warrant issued must particularly as to justify the issuance of a search warrant is best left to the
describe the place to be searched and persons or things to be sound discretion of a judge. Apparent in the case at bar and as
seized. aptly found by the RTC judge, there was probable cause justifying
the issuance of the search warrants. This was established by the
Sinumpaang Salaysay and the testimonies, consisting of no less
In the case at bar, the CA concluded that the RTC did not comply than 37 pages, given by witnesses who had personal knowledge of
with any of the requisites required for the issuance of the subject facts indicating that the crime of robbery had been committed and
search warrants. The CA ratiocinated that although the RTC judge that the objects sought in connection with the offense were in the
personally determined if probable cause existed by examining the place sought to be searched. The facts narrated by the witnesses
witnesses through searching questions, and although the search while under oath, when they were asked by the examining judge,
warrants sufficiently described the place to be searched and things were sufficient justification for the issuance of the subject search
to be seized, there was no probable cause warranting the issuance warrants.
of the subject search warrants. We do not agree.
Jurisprudence dictates that probable cause, as a condition for the

issuance of a search warrant, is such reasons supported by facts
and circumstances as will warrant a cautious man to believe that ROMER SY TAN vs. SY TIONG GUE (MR)
his action and the means taken in prosecuting it are legally just G.R. No. 174570 December 15, 2010
and proper. Probable cause requires facts and circumstances that
would lead a reasonably prudent man to believe that an offense On March 22, 2010, respondents filed a Motion for
has been committed and that the objects sought in connection with Reconsideration wherein respondents informed this Court, albeit
that offense are in the place to be searched. In Microsoft belatedly, that the Regional Trial Court (RTC) granted their motion
Corporation v. Maxicorp, Inc., this Court stressed that: for the withdrawal of the Information filed in Criminal Case No. 06-
241375. As such, respondents prayed that the decision be
The determination of probable cause does not call for the reconsidered and set aside and that the quashal of the subject
application of rules and standards of proof that a judgment of search warrants be rendered moot and academic on the basis of
conviction requires after trial on the merits. As implied by the words the dismissal of the criminal case.
themselves, "probable cause" is concerned with probability, not
absolute or even moral certainty. The prosecution need not present Consequently, in view of the withdrawal of the Information for
at this stage reasonable doubt. The standards of judgment are Robbery, the quashal of the subject search warrants and the
those of a reasonably prudent man, not the exacting calibrations of determination of the issue of whether or not there was probable
a judge after a full-blown trial. cause warranting the issuance by the RTC of the said search
warrants for respondents’ alleged acts of robbery has been
Applying these set standards, this Court finds that there was no rendered moot and academic. Verily, there is no more reason to
grave abuse of discretion on the part of the RTC judge in issuing further delve into the propriety of the quashal of the search
the subject search warrants. warrants as it has no more practical legal effect.

COLLEGE
OF LAW
Furthermore, even if an Information for Qualified Theft be later filed like in this case where there is a specific address, there is no
on the basis of the same incident subject matter of the dismissed more need to put in the description that the house is a 2 storey
case of robbery, petitioner cannot include the seized items as part
of the evidence therein. Contrary to petitioner’s contention, he
structure with several rooms. The appellant apparently raised the
cannot use the items seized as evidence in any other offense issue because 1 of the rooms of the said 2 storey house was not
except in that in which the subject search warrants were issued. used by him but had been rented for quite a while to somebody.
Section 4, Rule 126 of the Revised Rules of Court provides: But that was not taken by the RTC and the CA considering that
this is a question on the particularity in the description of the
Section 4. Requisites for issuing search warrant. — A search place (to be searched).
warrant shall not issue except upon probable cause in connection
with one specific offense to be determined personally by the judge
after examination under oath or affirmation of the complainant and PEOPLE OF THE PHILIPPINES vs.
the witnesses he may produce, and particularly describing the ESTELA TUAN y BALUDDA
place to be searched and things to be seized which may be G.R. No. 176066 August 11, 2010
anywhere in the Philippines.1avvphi1
Equally without merit is accused-appellant’s assertion that the
Thus, a search warrant may be issued only if there is probable Search Warrant did not describe with particularity the place to be
cause in connection with only one specific offense alleged in an searched.
application on the basis of the applicant’s personal knowledge and
his or her witnesses. Petitioner cannot, therefore, utilize the A description of the place to be searched is sufficient if the
evidence seized by virtue of the search warrants issued in officer serving the warrant can, with reasonable effort,
connection with the case of Robbery in a separate case of ascertain and identify the place intended and distinguish it
Qualified Theft, even if both cases emanated from the same from other places in the community. A designation or
incident. description that points out the place to be searched to the
exclusion of all others, and on inquiry unerringly leads the peace
Moreover, considering that the withdrawal of the Information was officers to it, satisfies the constitutional requirement of definiteness.
based on the findings of the CA, as affirmed by this Court, that In the case at bar, the address and description of the place to be
there was no probable cause to indict respondents for the crime of searched in the Search Warrant was specific enough. There was
Robbery absent the essential element of unlawful taking, which is only one house located at the stated address, which was accused-
likewise an essential element for the crime of Qualified Theft, all appellant’s residence, consisting of a structure with two floors and
offenses which are necessarily included in the crime of Robbery composed of several rooms.
can no longer be filed, much more, prosper.
In view of the foregoing, the Court upholds the validity of the
Search Warrant for accused-appellant’s house issued by MTCC
Judge Cortes, and any items seized as a result of the search
The last 2 requisites for the issuance of a search warrant would conducted by virtue thereof, may be presented as evidence
be: against the accused-appellant.
3. the particularity in the description of the place to be
searched and Now, don’t confuse this with that old case involving PICOP in
4. the particularity in the description of the things to be Bislig City. The issue there was on the particularity in the
seized. description of the place (to be searched) because PICOP is a
very big compound. What was sought to be searched there were
Now, with respect to the place to be searched…In this case of the structures where illegal firearms and ammunitions were
People vs. Tuan , 628 SCRA 226, the issue raised by the supposed to have been kept and stored. In that case, the SC
appellant with respect to the description of the house to be said that the warrant failed to describe the particular structure to
searched was based on the fact that the warrant application and be searched simply because it (PICOP) is a very big compound
the warrant itself did not include the description of the house as (including forest land, among others). So if it were to be a big
a 2 storey house with several rooms. The judge issued a warrant compound where the structures are considerably separated from
for a particular house in a specific address. So is that sufficient to each other, there must have to be a sufficient description of
satisfy the requirement of particularity of description? The SC which structure in the said address is sought to be searched—not
said YES. What is important (in particularity of description) would only of the address of the big compound.
be to allow the searching officer (the one with the warrant) to
sufficiently determine which place is sought to be searched and PAPER INDUSTRIES CORPORATION OF THE
the subject of the search warrant. We must remember that the PHILIPPINES (PICOP) vs.
warrant is the authority which gives the searching party the right JUDGE MAXIMIANO C. ASUNCION
G.R. No. 122092 May 19, 1999
to enter the premises. So that if the warrant is sufficient by itself,
COLLEGE
OF LAW
Thus, this Court has held that "this constitutional right [i]s the different from that stated in the warrant on the claim that the place
embodiment of a spiritual concept: the belief that to value the actually searched — although not that specified in the warrant —
privacy of home and person and to afford it constitutional [was] exactly what they had in view when they applied for the
protection against the long reach of government is no less than to warrant and had demarcated in the supporting evidence. What is
value human dignity, and that his privacy must not be disturbed material in determining the validity of a search is the place stated
except in case of overriding social need, and then only under in the warrant itself, not what the applicants had in their thoughts,
stringent procedural safeguards." Additionally, the requisite of or had represented in the proofs they submitted to the court issuing
particularity is related to the probable cause requirement in that, at the warrant. Indeed, following the officers' theory, in the context of
least under some circumstances, the lack of a more specific the facts of this case, all four (4) apartment units at the rear of
description will make it apparent that there has not been a Abigail's Variety Store would have been fair game for a search.
sufficient showing to the magistrate that the described items are to
be found in particular place.
The place to be searched, as set out in the warrant, cannot be
amplified or modified by the officers' own personal knowledge of
In the present case, the assailed search warrant failed to described the premises, or the evidence they adduced in support of their
the place with particularly. It simply authorizes a search of "the application for the warrant. Such a change is proscribed by the
aforementioned premises," but it did not specify such premises. Constitution which requires inter alia the search warrant to
The warrant identifies only one place, and that is the "Paper particularly describe the place to be searched as well as the
Industries Corporation of the Philippines, located at PICOP persons or things to be seized. It would concede to police officers
Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The PICOP the power of choosing the place to be searched, even if it not be
compound, however, is made up of "200 offices/building, 15 plants, that delineated in the warrant. It would open wide the door to
84 staff houses, 1 airstrip, 3 piers/wharves, 23 warehouses, 6 POL abuse of the search process, and grant to officers executing a
depots/quick service outlets and some 800 miscellaneous search warrant that discretion which the Constitution has precisely
structures, all of which are spread out over some one hundred fifty- removed from them. The particularization of the description of the
five hectares." Obviously, the warrant gives the police officers place to be searched may properly be done only by the Judge, and
unbridled and thus illegal authority to search all the structures only in the warrant itself; it cannot be left to the discretion of the
found inside the PICOP compound. police officers conducting the search. (Emphasis supplied.)
In their Opposition, the police state that they complied with the The other matter with respect to the description of the place to be
constitutional requirement, because they submitted sketches of the
premises to be searched when they applied for the warrant. They searched is mistake of the address. Now, in all warrant
add that not one of the PICOP Compound housing units was applications, it is required now (under a separate issuance of the
searched, because they were not among those identified during SC) that there must have to be a sketch so that the judge also
the hearing. will be informed of the place intended to be searched. This
supposed sketch is to be included in the records for the purpose
These arguments are not convincing. The sketches allegedly of issuing the warrant.
submitted by the police were not made integral parts of the search
warrant issued by Judge Asucion. Moreover, the fact that the
raiding police team knew which of the buildings or structures in the What if there is a mistake in the description of the place, say as
PICOP Compound housed firearms and ammunitions did not to the address indicated in the warrant? Would the warrant be
justify the lack of particulars of the place to be searched. valid and therefore served validly as well in the correct address—
Otherwise, confusion would arise regarding the subject of the
warrant — the place indicated in the warrant or the place identified not in the address as mistakenly indicated in the warrant? The
by the police. Such conflict invites uncalled for mischief or abuse of first consideration is that the warrant is the piece of paper which
discretion on the part of law enforces. authorizes entry into a property. Most often than not, the ones
serving the warrant would be the applicant and the witnesses.
Thus, in People v. Court of Appeals, this Court ruled that the There are instances (however) where these [search warrants] are
police had no authority to search the apartment behind the store, not served by the applicant and the witnesses but by any other
which was the place indicated in the warrant, even if they intended
it to be the subject of their application. Indeed, the place to be law enforcement agency. Normally these are the same persons
searched cannot be changed, enlarged or amplified by the police, [the applicant and the witnesses] who have previously conducted
viz.: surveillance on the determination of probable cause later when
they are to testify in the summary hearing. So they usually know
. . . In the instant case, there is no ambiguity at all in the warrant. where the place is actually located (the subject of the search). If
The ambiguity lies outside the instrument, arising from the absence the mistake in the warrant as to the address is clearly
of a meeting of the minds as to the place to be searched between
the applicants for the warrant and the Judge issuing the same; and
typographical (not really a mistake which would give rise to
what was done was to substitute for the place that the Judge had confusion), then the service of the warrant in the correct address
written down in the warrant, the premises that the executing and the search conducted therein would be considered valid—
officers had in their mind. This should not have been done. It [was] not because of the knowledge of the searching party per se but
neither fair nor licit to allow police officers to search a place

COLLEGE
OF LAW
because the search was really intended in that place. This has JEMIL, PETRON GASUL DEALERS ASSOCIATION, and
happened in one case. It’s no longer included in the outline. This TOTALGAZ DEALERS ASSOCIATION,
G.R. No. 182147; December 15, 2010
involves an address somewhere in Cebu, in Mandaue City. A
person applied for SW where the address was, say, 123 Petitioners were stockholders of Omni Gas Corporation (Omni). It
Bonifacio St., a common name for a street in every locality. is engaged in the business of trading and refilling of Liquefied
However, what was typed in the search warrant (SW) was merely Petroleum Gas (LPG) cylinders. The case started when the JGAC
Law Office sent a letter to the NBI requesting, on behalf of their
Cebu City. That notwithstanding, the SW indicated also the clients (Shellane Dealers Association, Inc., Petron Gasul Dealers
business name for which the SW was issued. The SC said this Association, Inc., and Totalgaz Dealers Association, Inc.,) for the
was already sufficient. The error in this case was merely surveillance, investigation, and apprehension of persons or
typographical. The SW was considered to have been validly establishments in Pasig City that are engaged in alleged illegal
trading of petroleum products and underfilling of branded LPG
issued; hence, it could be validly executed. cylinders in violation of BP 33, as amended by PD 1865.
4. Particularity in the description of the things to be seized The NBI’s test-buy yielded positive results for violations of BP 33.
Thus, the NBI served warrants which resulted in the seizure of
several items from Omni’s premises. Before the Supreme Court,
What is required here is sufficiency of description. Omni argued, among others, whether a probable cause exists
against them for violations of Sec. 2 (a) and (c) of BP 33.
As such, based on the circumstances, the exact quantity of say,
the drugs, or identity of the firearms to be seized (i.e. the serial The SC found probable cause based on, among others, the
following grounds:
number, the caliber)—these are not necessary for the purpose of
complying with this requirement. xxx
Fourth. The issue of ownership of the seized branded LPG
This is because under the circumstances, it is not reasonably cylinders is irrelevant and hence need no belaboring. BP 33, as
amended, does not require ownership of the branded LPG
expected that the applicant or witnesses would have a clear and cylinders as a condition sine qua non for the commission of
accurate description as to the quantity or quality. So, mostly, it offenses involving petroleum and petroleum products. Verily, the
would be phrased as “so much of the drugs,” described as offense of refilling a branded LPG cylinder without the written
methamphetamine hydrochloride or marijuana leaves, or in case consent of the brand owner constitutes the offense regardless of
the buyer or possessor of the branded LPG cylinder.After all, once
of firearms, “pistols or rifles” would suffice—all based on the a consumer buys a branded LPG cylinder from the brand owner or
circumstances. its authorized dealer, said consumer is practically free to do what
he pleases with the branded LPG cylinder. He can simply store
Case in Point (CIP): Ty v. De Jemil (2010) the cylinder once it is empty or he can even destroy it since he has
paid a deposit for it which answers for the loss or cost of the empty
branded LPG cylinder. Given such fact, what the law manifestly
It was held that the property to be seized based on the warrant prohibits is the refilling of a branded LPG cylinder by a refiller who
need not belong to the person against whom the warrant was has no written authority from the brand owner. Apropos, a refiller
issued. cannot and ought not to refill branded LPG cylinders if it has no
written authority from the brand owner.
It must be remembered that in crimes (where searches are Fifth. The ownership of the seized branded LPG cylinders,
usually done) say, drugs or illegal possession of firearms, the allegedly owned by Omni customers as petitioners adamantly
criminal act is not premised on one’s ownership of the drugs or profess, is of no consequence. The law does not require that the
property to be seized should be owned by the person against
firearms, rather, it is based on one’s possession. Mere whom the search warrants is directed. Ownership, therefore, is of
possession or (effective) control is sufficient to constitute a no consequence, and it is sufficient that the person against whom
prima facie proof of your culpability. the warrant is directed has control or possession of the property
sought to be seized. Petitioners cannot deny that the seized LPG
cylinders were in the possession of Omni, found as they were
The fact of your non-ownership (of the drugs or firearms) will not inside the Omni compound.
destroy said proof since ownership was never, in the first place, a In fine, we also note that among those seized by the NBI are 16
consideration for your apprehension. This also holds true if your LPG cylinders bearing the embossed brand names
defense is non-ownership of the place where the things seized of Shellane, Gasul andTotalgaz but were marked as
Omnigas. Evidently, this pernicious practice of tampering or
were found—mere possession or control of the items is enough. changing the appearance of a branded LPG cylinder to look like
another brand violates the brand owners’ property rights
ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY DY, as infringement under Sec. 155.1 of RA 8293. Moreover,
and ALVIN TY vs. NBI SUPERVISING AGENT MARVIN E. DE tampering of LPG cylinders is a mode of perpetrating the criminal
offenses under BP 33, as amended, and clearly enunciated under
COLLEGE
OF LAW
DOE Circular No. 2000-06-010 which provided penalties on a per

cylinder basis for each violation. It can be seen with said provision thus that gone are
Foregoing considered, in the backdrop of the quantum of evidence
the days when the judge can issue a SW in one place
required to support a finding of probable cause, we agree with the but it will be enforced in any another place. In the case
appellate court and the Office of the Chief State Prosecutor, which earlier cited, PICOP v. Asuncion, the warrant there was
conducted the preliminary investigation, that there exists probable issued in the Quezon City and was served in BISLIG.
cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP
33, as amended.
This was valid before, but not now. Under Rule 126, the
Probable cause has been defined as the existence of such facts proper issuing court would be those as enumerated
and circumstances as would excite belief in a reasonable mind, therein.
acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted.
There is however a special exception to Rule 126, Sec.
2, that is:
After all, probable cause need not be based on clear and
convincing evidence of guilt, as the investigating officer acts upon
SC A.M. Order 03-8-02
reasonable belief—probable cause implies probability of guilt and
requires more than bare suspicion but less than evidence which GUIDELINES ON THE SELECTION AND DESIGNATION
would justify a conviction. OF EXECUTIVE JUDGES AND DEFINING THEIR
POWERS, PREROGATIVES AND DUTIES
5. The issuance of the SW was pursuant to a proper (See attached file for Full Text)
application with the issuing court
This AM Order concerns crimes which are heinous,
GR: SEC. 2, RULE 126 illegal gambling…. (see enumeration). The SC said
EXC: A.M. ORDER 3-8-02 that SW for any of these crimes can be applied for in
the Executive Judge (or if they are not available, the
Under Sec. 2, Rule 126, as a rule, the warrant must be Vice-Executive Judges) of RTC of Manila or Quezon
issued by the court which has territorial jurisdiction over City and the SW issued shall be valid for service
the place where the crime was supposedly committed ANYWHERE in the Philippines.
and where it shall be enforced.
Chapter V. Specific Powers, Prerogatives and Duties of
The exception would be if there is no court or judge in Executive Judges in Judicial Supervision
xxx
that court of said place, then the proper court is any SEC. 12. Issuance of search warrants in special criminal cases by
court within the judicial region where the crime was the Regional Trial Courts of Manila and Quezon City.– The
supposed to have been committed. (For instance, if Executive Judges and, whenever they are on official leave of
there is no RTC, then you can apply with MTC). absence or are not physically present in the station, the Vice-
Executive Judges of the RTCs of Manila and Quezon City shall
have authority to act on applications filed by the National Bureau of
Investigation (NBI), the Philippine National Police (PNP) and the
Sec. 2. Court where application for search warrant Anti-Crime Task Force (ACTAF), for search warrants involving
heinous crimes, illegal gambling, illegal possession of firearms and
shall be filed.* --An application for search warrant
ammunitions as well as violations of the Comprehensive
shall be filed with the following: Dangerous Drugs Act of 2002, the Intellectual Property Code, the
1. Any court within whose territorial jurisdiction Anti-Money Laundering Act of 2001, the Tariff and Customs Code,
as amended, and other relevant laws that may hereafter be
a crime was committed. enacted by Congress, and included herein by the Supreme Court.
2. For compelling reasons stated in the
application, any court within the judicial The applications shall be personally endorsed by the heads of
region where the crime was committed if the such agencies and shall particularly describe therein the places to
be searched and/or the property or things to be seized as
place of the commission of the crime is prescribed in the Rules of Court. The Executive Judges and Vice-
known, or any court within the judicial region Executive Judges concerned shall issue the warrants, if justified,
where the warrant shall be enforced. which may be served in places outside the territorial jurisdiction of
the said courts.
SC A.M. No. 99-20-09-SC, Resolution clarifying guidelines on The Executive Judges and the authorized Judges shall keep a
the application for enforceability of search warrants. special docket book listing names of Judges to whom the

COLLEGE
OF LAW
applications are assigned, the details of the applications and the applied for should be the court which has territorial jurisdiction
results of the searches and seizures made pursuant to the over the place where the crime was committed) was the belief
warrants issued.
This Section shall be an exception to Section 2 of Rule 126 of the
that witnesses to crimes are usually found (or residing) in the
Rules of Court. same place intended to be searched. That is the general rule
only; there is no requirement that they must be so.
Period of Validity of Search Warrant ARTHUR DEL ROSARIO and ALEXANDER DEL ROSARIO,
Petitioners, v. HELLENOR D. DONATO, JR. and RAFAEL V.
GONZAGA, Respondents. March 5, 2010
The SW is valid 10 days from issuance, and not from the
receipt of copy of the same by the law officers. Philip Morris Products, Inc. Philip Morris wrote the NBI, requesting
assistance in curtailing the proliferation of fake Marlboro cigarettes
in Angeles City, Pampanga. After doing surveillance work in that
a) It is within said period that searches and seizures can city, Respondent Donato, Jr., the NBI agent assigned to the case,
be made. Otherwise, it will be void. (Sec. 10, Rule 126) succeeded in confirming the storage and sale of such fake
cigarettes at the house that belonged to petitioner del Rosario.
b) Any search and seizure conducted in a day can be
Respondent Donato applied for a search warrant. The NBI agents
continued to another day, provided the next day falls proceeded to implement the warrant; however, their search yielded
within that 10 day period. no fake Marlboro cigarettes.
Subsequently, Petitioners filed a complaint for P50 million in

Time of the Search damages against Respondents. The latter answered the complaint
with a motion to dismiss on the grounds of: a) the failure of the
As a rule, the search can be conducted only during daytime. complaint to state a cause of action; b) forum shopping; and c) the
NBI agents’ immunity from suit, they being sued as such
(Sec. 9, Rule 126). Search during nighttime may be conducted as agents. The RTC denied the motion, which was annulled by CA.
an exception if authorized by the court thru a special order after Petitioners sought reconsideration of the decision but the CA
application therein. The reason for this is that there are more denied it; hence, this petition for review.
“evils” during nighttime which must be avoided.
Issues
Requirement of Witnesses 1. Whether or not the CA correctly ruled that the complaint of
the petitioners did not state a cause of action; and
2. Whether or not the CA correctly ruled that the petitioners
Under Sec. 8, Rule 126: were guilty of forum shopping.
Sec. 8. Search of house, room, or premises to be Rulings

made in presence of two witnesses. – No search of a
[One]
house, room, or any other premises shall be made
except in the presence of the lawful occupant thereof or The CA held that the petitioners’ complaint before the RTC failed to
any member of his family or in the absence of the latter, state a cause of action. This was because while said complaint
two witnesses of sufficient age and discretion residing alleged that the NBI agents unlawfully procured and enforced the
search warrant issued against the Del Rosarios, it failed to state
in the same locality. the ultimate facts from which they drew such conclusion.
According to the Del Rosarios, the allegations in their complaint

As such, it is common in searches that barangay officials are stated a cause of action against respondents NBI agents.
However, the court found that all that the Del Rosarios alleged was
present as independent persons witnessing the same. that respondents NBI agents used an unlawfully obtained search
warrant against them, evidenced by the fact that, contrary to the
CIP: Del Rosario v. Donato, Sr. (2010) sworn statements used to get such warrant, the NBI agents found
no fake Marlboro cigarettes in petitioner Alexander del Rosario’s
premises.
The SC said that the applicants and witnesses need not be
residents of the place intended to be searched. It must be noted that a judicially ordered search that fails to
yield the described illicit article does not of itself render the
This ruling came about because the reason for the provision Sec. court’s order “unlawful.”
2, Rule 126 (requiring that the court where the SW must be

COLLEGE
OF LAW
The Del Rosarios did not allege that respondents NBI agents improperly obtained or enforced search warrant. Unfortunately,
violated their right by fabricating testimonies to convince the RTC their complaint, as worded, failed to state a proper cause of action.
of Angeles City to issue the search warrant. Their allegation that
the NBI agents used an unlawfully obtained search warrant is a Petitioner Arthur del Rosario claims that respondents NBI agents
mere conclusion of law. While a motion to dismiss assumes as wrongfully included him as respondent in their application for a
true the facts alleged in the complaint, such admission does not search warrant since he neither owned the house at 51 New York
extend to conclusions of law. Statements of mere conclusions of Street nor resided in it.
law expose the complaint to a motion to dismiss on ground of
failure to state a cause of action.
The court said that the rules do not require respondents in
search warrant proceedings to be residents of the premises to
Further, the allegation that the search warrant in this case was
be searched. If this were the case, criminals in possession of
served in a malicious manner is also not sufficient. Allegations
illegal articles could simply use other people’s residence for storing
of bad faith, malice, and other related words without ultimate facts
such articles to avoid being raided and searched.
to support the same are mere conclusions of law.
The Del Rosarios’ broad assertion in their complaint that the The procedure for the issuance of SW and
search was conducted “in full and plain view of members of the
community” does not likewise support their claim that such search
Warrant of Arrest is different.
was maliciously enforced. There is nothing inherently wrong with
search warrants being enforced in full view of neighbors. In fact, This is so even if the Constitution provides that (together) they
when the respondent or his representative is not present during the shall not issue except upon…. (see provision: Sec. 2, Article III).
search, the rules require that it be done in the presence of two
residents of the same locality. These safeguards exist to protect
persons from possible abuses that may occur if searches were As to Warrants of Arrest
done surreptitiously or clandestinely.
Under the Rules of Court, the criminal case against an accused
[Two]
has already been processed during preliminary investigation or
Invoking Section 21 of this Court’s AM 02-1-06-SC, the CA held preliminary examination. As such, what is now before the court
that, rather than file a separate action for damages, the Del for the issuance of warrant (of arrest) is a complete set of records
Rosarios should have filed their claim for compensation in the coming from the investigating officer him or herself (whether from
same proceeding and with the same court that issued the writ of
search and seizure. The Del Rosarios were thus guilty of forum the prosecutor or the MTC judge [if s/he is still allowed to do so,
shopping. today? No longer…] or by the Ombudsman in appropriate cases).
The SC found this untenable as the subject search warrant was The judge is required to personally go over these complete
not issued under A.M. 02-1-06-SC, which governed the issuance of
a writ of search and seizure in a civil action for infringement filed by records, meaning all the affidavit complaint/s, counter-affidavit/s
an intellectual property right owner against the supposed infringer (if any), documentary evidences, the finding of the investigating
of his trademark or name. officer (resolution) and the Information (which is prepared by the
investigating office and approved by the officer therein). The
Philip Morris, the manufacturer of Marlboro cigarettes, did not go judge must go over these.
by this route. Philip Morris did not file a civil action for infringement
of its trademark against the Del Rosarios before the RTC of
Angeles City. Instead, Philip Morris sought assistance from the With those records in hand, under the Rules of Court, the judge
NBI for the apprehension and criminal prosecution of those has these three rights:
reportedly appropriating its trademark and selling fake Marlboro
cigarettes.
1. To determine whether or not there is probable cause to
proceed, that is, whether or not there is probable cause
In turn, the NBI instituted a police action that included applying for
a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule to cause the indictment of the accused.
126 of the Rules of Criminal Procedure (not under the provisions of
A.M. 02-1-06-SC) against the Del Rosarios upon the belief that If the judge does not find any probable cause or does not
they were storing and selling fake Marlboro cigarettes in violation
of the penal provisions of the intellectual property law.
continue with the indictment, the judge must require the
investigating officer (the prosecutor) to submit, within a certain
The proceeding under Rule 126, a limited criminal one, does period of time, further documents or evidence for him or her (the
not provide for the filing of counterclaims for damages judge) to determine whether or not there is probable cause to
against those who may have improperly sought the issuance
of the search warrant. Consequently, the Del Rosarios had the
proceed.
right to seek damages, if the circumstances warranted, by
separate civil action for the wrong inflicted on them by an
COLLEGE
OF LAW
It would seem that under the Rules of Court, the judge can
determine probable cause just like a prosecutor (referring to this The difference as to the procedure for their issuance primarily
right). This is a variation from the previous discussions that the lies on the presence or absence of an indictment.
determination by the judge of the existence of a probable cause,
when the case docket is received by him from the investigating When the search warrant is applied for, granted, and issued by
office, is to determine probable cause for the issuance of warrant the court, there is yet to be an indictment or charge. This is
only. because the reason why the SW was applied for in the first place
is to secure evidence so that the subject person may be indicted
In the old case of Lim (no citation), the SC said that the judge in (under a proper charge or case).
determining the probable cause for the existence of a warrant is
actually performing a judicial function, whereas the determination But when it is the warrant of arrest that is going to be issued,
by the investigating officer as to the existence of a probable there is already a prior determination by the investigating officer
cause to indict a person in court is an executive function. that the crime has been committed and there is already a well-
founded belief that the person respondent has probably
But now, under the Rules of Court, the judge, upon receiving the committed the same and, therefore, s/he must be brought to trial.
full set of documents from the investigating officer can both, one, As such, after the warrant of arrest is issued by the judge, there
perform the executive function by determining the existence of would be then no longer issue as to whether or not there would
probable cause whether or not there is a well-engendered belief be case against that person to be tried before the court. The
to charge the person in court. If there is none (probable cause), same has been resolved initially.
the judge must require the prosecution to submit additional
evidence. Further Distinctions
And second, if after that or even before that the judge really SEARCH WARRANT OF ARREST
believes there is no really probable cause to continue with the WARRANT
indictment or prosecution of the case, then the judge can dismiss 1. As to its 10 days from None.
the case. This is the second right: lifetime its issuance
It is valid until it is served.
2. If the judge believes there is no probable cause to continue
with the indictment or prosecution of the case, then the judge The 10 day period referred
can dismiss the case. to under the Rules of
Court (Sec. 4, Rule 113)
3. The judge, upon finding the existence of a probable cause to refers to the requirement
continue with the indictment, must then determine whether or of return or the duty of the
not there is a probable cause to issue the warrant of arrest. enforcing officer to return
the warrant to the court,
Now, is there a difference between those two? There is: whether or not it has been
a) In the first determination, it is for the purpose of determining served. This is not the life
whether there is a need to proceed or continue with the of warrant of arrest.
indictment;
b) In the second, it is for the purpose of determining whether or not In practice, if after the
there is a need to place the person under the custody of the return was made the
court. accused was not yet
indicted or the arrest was
Thus, if the judge finds there is a probable cause to issue a not successful, an alias
warrant of arrest, then the warrant shall issue. warrant is issued upon
application by the
prosecution. This issues
Now if you compare that with Search Warrants: as a matter of course.
As to Search Warrants That alias warrant will be

COLLEGE
OF LAW
outstanding and will Now, search of a moving vehicle is largely justified on account of
continue to have effect the nature of a vehicle which is easy to take away from the
until the accused has jurisdiction of the place where it is intended to be searched.
been arrested. Nonetheless, even if it is a known exception, what is required is a
2. As to the As a rule, it None. minimum determination of probable cause, that the vehicle
time of must be in must be stopped and therefore must be searched.
implementat daytime. The arrest can be made at
ion anytime of the day and It is not correct to assume that just because search of moving
there is no limitation as to vehicles is a known exception that law enforcement agents would
place. It can be just or be allowed to stop a vehicle and search that vehicle for no
implemented anywhere apparent reason.
within the territorial
jurisdiction of the court. Again, there is a minimum determination of probable cause that
3. As to the It must be This need not be shown to there is a need to stop that vehicle and search it.
manner of shown to the the person to be arrested. What is that probable cause?
implementat person who
ion is in control Although it must be shown Almost the same as that of a judge but this time, only to be
of the place to the accused at some determined by a police officer and not by a judge.
intended to later time when the same
be searched will be requested, but So, such facts and circumstances which would lead that police
definitely not needed officer that a crime has been committed and the goods, effects,
during the arrest per se. and objects to be used for the commission of the crime are in the
motor vehicle.
VALID INSTANCES OF WARRANTLESS That minimum determination is a state of mind and would not be
SEARCHES AND ARRESTS easy to dispute. Now, in relation to search of moving vehicles,
most of the cases here, you would notice, would involve the
There are 6 generally known exceptions to warrantless searches participation of informants, the putting up of checkpoints and the
and seizures. There are also 6 as to warrantless arrests. police officers eventually getting hold of that vehicle in a
However, there is a common exception for both: checkpoint. Those are usually the same set of facts in almost all
cases of search of moving vehicles that have reached the
Common ground: Lack of sufficient opportunity to Supreme Court. So:
secure a warrant
An information is received, reliable information from a reliable
That would justify generally the so called warrantless search or source that this person will be travelling in that motor vehicle.
There is a sufficient description of a motor vehicle travelling along
warrantless arrest. Again, there is no sufficient opportunity to
this route and bringing with him illegal items or contraband; and
secure a warrant.
true to the information relayed, at some point in time later in the
day, this motor vehicle is stopped at a checkpoint purposely put
Now, the 6 exceptions are:
up based on that information.; and a person which would fit the
description given by the reliable informant is… not really
1.) Search of moving vehicles
apprehended because it is supposed to be searched and then
2.) Search incident to a valid arrest
arrest. There is no such thing as arrest then searched in cases of
3.) Evidence seized in plain view
search of moving vehicles. So, this is always the situation.
4.) The stop and frisk situation
5.) Searches under express waiver, and
Now, in relation to putting up of checkpoints, the Supreme Court
6.) Search under the Customs and Tariffs Code
has already made a pronouncement in the case of Davilla where
putting up of checkpoints and the searches conducted in the
checkpoint must have to follow certain guidelines:
SEARCH OF MOVING VEHICLES

COLLEGE
OF LAW
1. The decision to put up a checkpoint must have to suspiciously because there was an extensive search, and it (gun)
be determined by the responsible officers, the one was found in his glove compartment. If you regularly pass those
in command, because that person would be in the checkpoints, why would you place your handgun in the glove
compartment, why not place it somewhere else where they do
best position to determine which of his men will be
not usually conduct this search.
allocated for purposes of putting up a checkpoint.
Either magaling yung task force or tanga yung nahuli. I was
2. The checkpoint must have to be manned not only reminded when some lawyers were in the list thingy… there was
by enlisted personnel, but also, there must have to a time when lawyers were firing their firearms to distressed
be for purposes of responsibility. themselves and a lot of lawyers had firearms, some were license
some with not. And for those licensed, some do not even have
3. The checkpoint must have to be stationary. It must the permit to carry the firearm outside the residence. So there
not be mobile except in emergency situations like were questions asked, how would I bring my handgun or my
there is an ongoing bank robbery, there is an guns to the firing range and there were several who said “Why? If
ongoing crime being committed, where police you are bringing them to the firing range, would you place them
on your hood? Of course you will have to conceal them, place
officers in the field will determine which would be
them in places where they would not look for it. Because if there
the best locations to set up the checkpoints to is nothing suspicious about you running your vehicle in a highway
avoid the escape of the perpetrators. Generally, it going to the firing range, they will not stop and search your
would have to be stationary. vehicle… ahh.. Okay. Do not place it on the hood of your vehicle,
place it somewhere else.
4. The search in the checkpoints must have to be
limited to visual search. So that the vehicles must SEARCH INCIDENT TO A VALID ARREST
have to be detained in those checkpoints
Okay, now the second instance is search incident to a valid
consistent with what is required for the conduct of
arrest.
a visual search. The rule is visual search—no
extensive search is allowed unless, (here we go Now, I mentioned earlier in search of moving vehicles based on
again), there is a minimum determination of those usual set of facts, they do not effect an arrest, they just
probable cause that an extensive search must conduct the search and then effect the arrest later, after the
have to be conducted. In Davao, we are used to discovery of the illegal item or contraband. Mostly, if they see this
the checkpoints of Task Force Davao and I think person fitting the description, they will search the bags or
belongings nearest to that person. And in all these cases where
they have largely complied with the requirement of
the Supreme Court upheld the search for moving vehicles, they
a visual search unless, you look suspicious, where validated it because there was a search first before the arrest
an extensive search will have to be conducted. was made.
That is why I was wondering, I’ve read in today’s local papers Now, search incident to a valid arrest is of a different species as
that one person is violated for violation the special gun ban rule that of search of moving vehicles situation, because here there
in Davao from August 1 – 31 in the task force Davao checkpoint must have to be an arrest first before a search will have to be
in the south wondering because, how was that firearm conducted. The arrest must have to be valid before the search is
discovered? Was that person carrying it with him or pointing it to allowed and would be considered as valid. The search however,
the task personnel? (giggles). to be valid, must have to follow the two limitations:
If you have been to those checkpoints regularly, you would notice 1.) Limitation on time
that, in the visual search they would look at you, look at your 2.) Limitations on space
dashboard, and look at the direction of the glove compartment.
They would not even ask you to open the glove compartment Limitation on time because, the reason why a search is allowed
because that is not part of visual search. Unless of course you immediately after a valid arrest is, to protect the arresting officer
are acting suspiciously. Perhaps that person was acting form any act of violence that may be committed on him by the

COLLEGE
OF LAW
person arrested on account of concealed weapons. That is why equipped with any right to be in the place to be
search is allowed immediately after the arrest. searched to begin with, then any search conducted
thereafter would not be considered as valid.
Second, in order for the arresting officer to secure the evidence
that may have been used or fruits or objects which may be used 2.) The evidence is inadvertently discovered—meaning ,
for the commission of the offense—which may have been in the
there was no intent to look for this object or thing
possession or in the person of the person arrested or, within his
immediate vicinity. except that in the course of the search, these things
were accidentally discovered. Again, this is a state of
And that should be the reason for allowing the requirement of mind, but, it is usually appreciated if say, the search
the second limitation, limitation on space. The search must was conducted on account of a search warrant. There
have to be conducted on the person only of the person arrested were items listed on the search warrant, say, the items
as well as within the immediate environment which he has were drugs. And the conduct of the search where drugs
effective control.
would normally be stashed or normally be found if kept
Again, this is in relation to the objects or fruits of the crime or or hidden, found firearms which turned out to be not
other objects that he may use to commit a crime or other licensed. Then this is a good example of that
weapons which he may use to effect an escape or to avoid an (mumbles, sounds like ”daywhore”), “inadvertently” or
arrest. “accidentally” discovered.
So, the limitation is extended to the immediate vicinity where he 3.) Evidence is open to the eye or hand of the searching
has effective control. Otherwise, it if were to be literally on his officer – it simply means, again, that it strengthens the
person then it would be easy for that person arrested to escape requirement that there is no intent to really search for
liability simply by throwing away all those things that would have
these things. They were just discovered, they are open
been seized from his person to avoid any liability.
It will not however extend to the space or environment where he for the eye to see or open for the hand to feel when the
no longer has effective control. In one earlier case, the arrest for valid search was conducted.
example, was effected in the living room of the house, the search
conducted in the separate rooms of the safe house were not 4.) The evidence of illegality is immediately apparent—this
considered as valid searches because they were not already is where most of the cases are discussed. The
complying with the limitation on space. It must have to be in the evidence of illegality to be apparent is literal. It must be,
living room. just by looking at it, the officer can make a conclusion
that this is an illegal item or contraband. There is no
EVIDENCE SEIZED IN PLAIN VIEW
need for the police officer to exercise discretion that
This is the so called “plain view doctrine”. Now in plain view this could be or may be illegal.
doctrine, this justifies also the seizures made of items not listed
or described in the search warrant. There is some confusion, (I Now this plain view doctrine is almost always applied in cases
know it’s not you but for some),where, the question is asked, can involving drugs and firearms simply, because the presumptions
an item be seized even if it is not described or listed in the here in the country on possession of firearms and drugs are
warrant. The answer is yes, provided it falls under any of these against regularity or allowance. We do not have the constitutional
exceptions, and one of the most common exceptions would be right to bear arms and therefore, if a person is caught possessing
the so called evidence in plain view. Now in evidence in plain a firearm, the obligation is on him, to prove that he is duly
view, the requirements are: permitted and duly allowed to carry that farm. So the presumption
is always against regularity.
1.) There is a justification for the prior intrusion – meaning,
Same with drugs—regulated rugs included. We have prohibited
the police officers must have a right to be in the place
and regulated drugs. Even where the drugs are regulated drugs,
where the search was made before there can be an it is the person arrested in possession of these regulated drugs to
allowed seizure therein. If they were not properly prove that he is duly permitted to have or possess these drugs.

COLLEGE
OF LAW
Of course, if prohibited, there is no other recourse but that person illegally used or illegally obtained in violation of these laws.
is to be arrested. You cannot prove that you are in possession of Otherwise, the mere identification of these items which are not
marijuana duly authorized by the state because it is medicinal for illegal per se will not constitute as sufficient justification on
you. It is not accepted as a theory or law in the country. In other description to validate the seizure of these items.
states in the US, marijuana is medicinal in certain quantities, wag
lang mag overdose. (NB: there is no practical toxic level of In some old cases involving piracy, or video piracy, this case of
marijuana; hence, you cannot overdose on it”—Wa El). Sunny Philippines, this case of Columbia Pictures... The seizure
of television sets and video recorders and other items used in the
Okay. So, there was one case, ahhmmm… it’s no longer here, so called violation of intellectual property rights, but which were
one of the older cases. The arrest was made in the living room not sufficiently described as having been used for such illegal
because of a buy bust operation. And so they searched the activity were ordered returned by the court because the
immediate vicinity of the living room. They went to the next room; possession of these items are not illegal per se.
it was actually the kitchen, where they found a plastic bag. The
plastic was opaque; it was not translucent, hanging by a nail on What is so illegal for possessing a television set? Or a video
the wall. Hey brought it down and they opened it. They saw some recorder? Eh mahilig lang talaga akong mag record kaya may
item wrapped in newspaper. When they opened it up, they were sampu ako dyan. So there must have to be a description that
bricks of dried marijuana. these items are illegally used in violation of these laws.
So the question is, are those bricks of dried marijuana leaves Gambling, the same, normally the money or monies are always
admissible in evidence? (Actually, it should be “buds” not described as bets. Because if you only indicate there, “money”, it
“leaves”, the flowering portion of the plant, and it is “cured”, not will end up to be kept by the police officer.. no no (sniggles). They
“dried”—Wa El) will return… not kept, returned to the person from whom they
were taken. Let us continue next meeting.
Supreme Court said:

-It will not fall under search incident of a valid arrest because they
went in the next room. The living room was partitioned with a wall
from the kitchen. ASONG, JP LEO
KINTANAR, KRISZA JOY
-Secondly, it could not fall under evidence in plain view because, LAMAN, JAHMES ”WA EL”
the evidence of illegality is not immediately apparent. They had to
bring down the bag, opened the packing of newspaper, to
determine, to discover that it was indeed a prohibited drug. That
being the case, the Supreme Court said, the evidence of illegality
is not immediately apparent.
Without inspiration the best powers of the mind
For illegal gambling for example, if there is a raid for illegal
remain dormant. There is a fuel in us which needs to
gambling, what can be seized in plain view?
be ignited with sparks.
Money? Can money be seized when there is a search on —Johann Gottfried Von Herder
account of illegal gambling under plain view doctrine?
Is the evidence of illegality just by looking at money immediately

apparent? Di noh? "I returned, and saw under the sun, that the race is
not to the swift, nor the battle to the strong, neither
That is why in relation to these special offenses, not when the yet bread to the wise, nor yet riches to men of
possession is illegal per se by presumption, like drugs and understanding, nor yet favour to men of skill; but
firearms. If they were to be like, violation of the Internal Revenue time and chance happeneth to them all."
~Ecclesiastes 9:11
Code, violation of Intellectual Property Code. The description of
the things to be seized must also be indicated to have been

COLLEGE
OF LAW
items taken consisting of sachets which turn out to be MET

(shabu). So, the question was whether or not the search and
August 7, 2012 seizure of these drugs was considered valid and therefore
admissible under the doctrine of pain view.
VALID INSTANCES OF WARRANTLESS The SC reiterated the conditions in which search in plain view
SEARCHES AND SEIZURES shall be applicable.
A. SEARCH OF MOVING VEHICLES The first—and which is the most important requisite or condition
—is that there must have to be a valid prior intrusion. The
The exception as to warrantless searches and seizures has also intrusion must have to be valid before all the rest of the
been applied to searches and seizure of MOVING VESSELS. conditions will be appreciated in favor of the applicability of the
Like searches on MOTOR VESSELS (in the same doctrine.
characterization of MOVING VEHICLES), [they] can be also be
brought out of the territorial jurisdiction of the search warrant Now, based on the facts of the case, the knowledge of the police
where it is supposed to be implemented or served. officers was based on the informant’s tip. Neither did they have
any personal knowledge, nor anything which consisted of
As such, searches of moving vessels are considered covered by probable cause so as to make the entry.
the instance of search of moving vehicles. Thus, there must have
to be also that minimum determination of probable cause. Therefore, the intrusion was not justifiable. Since the intrusion
was not justified, the discovery of the drugs later on would not be
Also covered are searches on AIRCRAFTS. These vehicles have justified as well because they should not have been there to
the same characteristics as that of those previously mentioned. begin with.
In their case, however, the visible searches will be to determine
violations of customs and tariff laws as well as immigration laws.
G.R. No. 191366 December 13, 2010
Also, in some cases, the search-of-moving-vehicles-exception
PEOPLE OF THE PHILIPPINES vs.
has been applied to cover instances of SEARCHES OF ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER,
VEHICLES IN BORDERS. REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y
CUNANAN
In that case, checkpoints are conducted at the borders (land
This case would appear to fall under either a warrantless search
border, no border as to seas). These are [conducted and] allowed incidental to a lawful arrest or a plain view search, both of which
when the vehicles to be searched would cross the border to get require a lawful arrest in order to be considered valid exceptions to
to another state. the constitutional guarantee.
Rule 113 of the Revised Rules of Criminal Procedure provides for

So again, invariably, those instances are covered under searches the circumstances under which a warrantless arrest is lawful. Thus:
of moving vehicles, which by their nature, are moving in or out
the territory where the search warrant will have to be Sec. 5. Arrest without warrant; when lawful. – A peace officer or a
private person may, without a warrant, arrest a person:
implemented.
(a) When, in his presence, the person to be arrested has
B. PLAIN VIEW DOCTRINE committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has just been committed and he has
Now, the last instance to be discussed is SEARCH IN PLAIN probable cause to believe based on personal knowledge of
VIEW. Case in point is PEOPLE vs. MARTINEZ. facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has
This involves a search of residence in Trinidad Subdivision, escaped from a penal establishment or place where he is
Dagupan City while the occupants of the house were having pot serving final judgment or is temporarily confined while his
session. So, the police officer, with the help of the informants, case is pending, or has escaped while being transferred
from one confinement to another.xxx
barged into the residence. There, they verified the informant’s tip
that the accused were actually in pot session. There were several

COLLEGE
OF LAW
The manner by which accused-appellants were apprehended does The evidence was not inadvertently discovered as the police
not fall under any of the above-enumerated categories. Perforce, officers intentionally entered the house with no prior surveillance or
their arrest is illegal. investigation before they discovered the accused with the subject
items. If the prior peeking of the police officers in Bolasa was held
First, the arresting officers had no personal knowledge that at the to be insufficient to constitute plain view, then more so should the
time of their arrest, accused-appellants had just committed, were warrantless search in this case be struck down. Neither can the
committing, or were about to commit a crime. search be considered as a search of a moving vehicle, a
consented warrantless search, a customs search, a stop and frisk,
Second, the arresting officers had no personal knowledge that a or one under exigent and emergency circumstances.
crime was committed nor did they have any reasonable ground to
believe that accused-appellants committed it. The apprehending officers should have first conducted a
surveillance considering that the identity and address of one of the
Third, accused-appellants were not prisoners who have escaped accused were already ascertained. After conducting the
from a penal establishment. surveillance and determining the existence of probable cause, then
a search warrant should have been secured prior to effecting
Neither can it be said that the objects were seized in plain view. arrest and seizure.
First, there was no valid intrusion. As already discussed, accused- The arrest being illegal, the ensuing search as a result thereof is
appellants were illegally arrested. Second, the evidence, i.e., the likewise illegal. Evidence procured on the occasion of an
tea bags later on found to contain marijuana, was not inadvertently unreasonable search and seizure is deemed tainted for being the
discovered. The police officers intentionally peeped first through proverbial fruit of a poisonous tree and should be excluded. The
the window before they saw and ascertained the activities of subject items seized during the illegal arrest are thus inadmissible.
accused-appellants inside the room. The drug, being the very corpus delicti of the crime of illegal
possession of dangerous drugs, its inadmissibility thus precludes
In like manner, the search cannot be categorized as a search of a conviction, and calls for the acquittal of the accused.
moving vehicle, a consented warrantless search, a customs
search, or a stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of The SC noted some other cases In the case of PEOPLE vs.
any such showing. BOLASA, the SC said that even peeping from a hole does not
even constitute plain view.
On the contrary, it indicates that the apprehending officers should
have conducted first a surveillance considering that the identities
and address of the suspected culprits were already ascertained. In the case of BOLASA, there was also an informant’s tip. An
After conducting the surveillance and determining the existence of informant relayed to the police officers that a man and a woman,
probable cause for arresting accused-appellants, they should have supposedly spouses, were packing marijuana leaves in their
secured a search warrant prior to effecting a valid arrest and residence. So what the police did was that they went to the
seizure. The arrest being illegal ab initio, the accompanying search
was likewise illegal. Every evidence thus obtained during the illegal house, peeped through the hole and actually saw in fact that the
search cannot be used against accused-appellants; hence, their spouses were indeed packing marijuana leaves. They then
acquittal must follow in faithful obeisance to the fundamental law. entered the residence, announced the arrest and seized the
evidence.
It has been held that personal knowledge of facts in arrests without
warrant must be based upon probable cause, which means an
actual belief or reasonable grounds of suspicion. The grounds of The SC said there was no justifiable intrusion. They should have,
suspicion are reasonable when the suspicion, that the person to be as in the case of Martinez, applied for a warrant. The SC made a
arrested is probably guilty of committing an offense, is based on rule that the police should have conducted surveillance
actual facts, that is, supported by circumstances sufficiently strong
in themselves to create the probable cause of guilt of the person to under the circumstance. And based on their (police) personal
be arrested. Xxx knowledge, they could have applied for search warrant and
thereafter serve or implement said search warrant.
Neither can it be said that the subject items were seized in plain
view. The elements of plain view are:
(a) A prior valid intrusion based on the valid warrantless arrest in G.R. No. 125754. December 22, 1999
which the police are legally present in the pursuit of their PEOPLE OF THE PHILIPPINES vs. ZENAIDA BOLASA Y
official duties; NAKOBOAN and ROBERTO DELOS REYES.
(b) The evidence was inadvertently discovered by the police who
have the right to be where they are; An anonymous caller tipped off PO3 Dante Salonga and PO3
(c) The evidence must be immediately apparent; and Albert Carizon that a man and a woman were repacking prohibited
(d) "Plain view" justified mere seizure of evidence without further drugs at a certain house in Manila.
search.
PO3 Salonga and PO3 Carizon together with SPO1 Fernando
Arenas immediately proceeded to the house of the suspects and
COLLEGE
OF LAW
parked their car some three hundred (300) meters away. They appellants had just committed, were committing, or were about to
walked towards their quarry's lair accompanied this time by their commit a crime.
unnamed informer.
Second, the arresting officers had no personal knowledge that a
When they reached the house they "peeped (inside) through a crime was committed nor did they have any reasonable ground to
small window and x x x saw one man and a woman repacking believe that accused-appellants committed it.
suspected marijuana."
Third, accused-appellants were not prisoners who have escaped
They entered the house and introduced themselves as police from a penal establishment.
officers to the occupants and thereupon confiscated the tea bags
and some drug paraphernalia. They arrested the two (2) who Neither can it be said that the objects were seized in plain view.
turned out to be the accused Zenaida Bolasa y Nakoboan and
Roberto delos Reyes. Subsequent examination of the tea bags by First, there was no valid intrusion. As already discussed, accused-
NBI Forensic Chemist Rubie Calalo confirmed the suspicion that appellants were illegally arrested. Second, the evidence, i.e., the
the tea bags contained marijuana. tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through
RULING the window before they saw and ascertained the activities of
accused-appellants inside the room.
Arrests and seizures in the following instances are not deemed
“unreasonable” and are thus allowed even in the absence of a In like manner, the search cannot be categorized as a search of a
warrant – moving vehicle, a consented warrantless search, a customs
search, or a stop and frisk; it cannot even fall under exigent and
1. Warrantless search incidental to a lawful arrest (Sec. 12, Rule emergency circumstances, for the evidence at hand is bereft of
126 of the Rules of Court and prevailing jurisprudence); any such showing.
2. Search of evidence in “plain view.” The elements are: (a) a
prior valid intrusion based on the valid warrantless arrest in On the contrary, it indicates that the apprehending officers should
which the police are legally present in the pursuit of their have conducted first a surveillance considering that the identities
official duties; (b) the evidence was inadvertently discovered and address of the suspected culprits were already ascertained.
by the police who have the right to be where they are; (c) the After conducting the surveillance and determining the existence of
evidence must be immediately apparent; and, (d) "plain view" probable cause for arresting accused-appellants, they should have
justified mere seizure of evidence without further search. secured a search warrant prior to effecting a valid arrest and
3. Search of a moving vehicle. Highly regulated by the seizure. The arrest being illegal ab initio, the accompanying
government, the vehicle’s inherent mobility reduces search was likewise illegal. Every evidence thus obtained during
expectation of privacy especially when its transit in public the illegal search cannot be used against accused-appellants;
thoroughfares furnishes a highly reasonable suspicion hence, their acquittal must follow in faithful obeisance to the
amounting to probable cause that the occupant committed a fundamental law.
criminal activity;
4. Consented warrantless search;
5. Customs search; C. STOP AND FRISK
6. Stop and Frisk; and
7. Exigent and emergency circumstances.
This has been considered as an exception because to begin with,
An arrest is lawful even in the absence of a warrant: (a) when the there is no actual intention to search.
person to be arrested has committed, is actually committing, or is
about to commit an offense in his presence; (b) when an offense The STOP and FRISK SITUATION is based on the 1968 ruling of
has in fact been committed and he has reasonable ground to
believe that the person to be arrested has committed it; and, (c) the US SC in the case of TERRY vs. OHIO.
when the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final What happened in that case was that there were 3 accused,
judgment or temporarily confined while his case is pending, or has apparently colored people, who were suspiciously facing a
escaped while being transferred from one confinement to another.
business establishment, according to the police officer who
A person charged with an offense may be searched for dangerous arrested them. The business establishment was a jewelry store.
weapons or anything which may be used as proof of the They were acting suspiciously, so the police officer stopped and
commission of the offense. frisked them for the presence of concealed deadly weapon which
IN THIS CASE, the manner by which accused-appellants were they may use to harm the police officer while effecting the
apprehended does not fall under any of the above-enumerated search. And, eventually they were arrested. When they were
categories. convicted by the state court of Ohio, they appealed to the SC,
which affirmed the decision.
Perforce, their arrest is illegal. First, the arresting officers had no
personal knowledge that at the time of their arrest, accused-

COLLEGE
OF LAW
The SC said that there was no search in the ordinary course of Then, they brought the petitioner to the police station for further
search and seizure. There was only a stopping and frisking of the investigation. In the course of the same, the petitioner was asked
to show the necessary license or authority to possess firearms and
person and incidentally the concealed weapon or contraband ammunitions found in his possession but he failed to do so. He
was discovered upon such. This is where a police officer is was then taken to the Davao Metrodiscom office and the prohibited
given ample latitude based on his experience on a possible articles recovered from him were indorsed to M/Sgt. Didoy the
crime activity on going and therefore the rule allows him to officer then on duty. He was prosecuted for illegal possession of
firearms and ammunitions.
stop the person and frisk him for the purpose.
RULING
First, the general purpose is based on crime prevention. Because Clearly, the search in the case at bar can be sustained under the
of his (police officer) experience, he may have thought that there exceptions.
is an on going criminal activity but he is not sure of it, thus, he is There are many instances where a warrant and seizure can be
given the right to stop and frisk that person. Second, this was for effected without necessarily being preceded by an arrest, foremost
him to be safe while he is still determining whether or not there is of which is the "stop and search" without a search warrant at
indeed an ongoing criminal activity. In such a case, he is allowed military or police checkpoints, the constitutionality or validity of
which has been upheld by this Court in Valmonte vs. de Villa.
to search that person for concealment of weapon that the person
may use to commit violence. It was held in said case that “[n]ot all searches and seizures are
prohibited. Those which are reasonable are not forbidden. A
That characterization however is based on several factors. reasonable search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case.”
The most important is the appropriateness of the
circumstances. Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply
In this case of POSADAS Y ZAMORA vs CA (G.R. No. 89139), looks into a vehicle or flashes a light therein, these do not
constitute unreasonable search.
an old case originally decided in Davao, the landmark case of
TERRY vs. OHIO was applied. The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security measure
This is the circumstance that happened on the height of the to enable the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace and order for
“Sparrow unit” of the CPP- NPA. The persons (involved) while the benefit of the public. Checkpoints may also be regarded as
walking, apparently innocent, and bringing with them market measures to thwart plots to destabilize the government in the
baskets or “buri bags,” were approached by police officers. They interest of public security.
attempted to run but they were eventually accosted. The bags
In this connection, the Court may take judicial notice of the shift to
turned out to contain deadly weapons and ammunitions. So, urban centers and their suburbs of the insurgency movement, so
based on the circumstances, the search would be allowable. The clearly reflected in the increased killings in cities of police and
local judge here applied the TERRY vs. OHIO ruling. military men by NPA "sparrow units," not to mention the abundance
of unlicensed firearms and the alarming rise in lawlessness and
violence in such urban centers, not all of which are reported in
G.R. No. 89139 August 2, 1990 ROMEO POSADAS y ZAMORA,
media, most likely brought about by deteriorating economic
vs.
conditions — which all sum up to what one can rightly consider, at
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF
the very least, as abnormal times.
THE PHILIPPINES
Between the inherent right of the state to protect its existence and
Pat. Ursicio Ungab and Pat. Umbra Umpar were conducting a
promote public welfare and an individual's right against a
surveillance along Magallanes Street, Davao City. While they were
warrantless search which is however reasonably conducted, the
within the premises of the Rizal Memorial Colleges they spotted
former should prevail.
petitioner carrying a "buri" bag and they noticed him to be acting
suspiciously.
True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform in the same manner that all
They approached the petitioner and identified themselves as
governmental power is susceptible of abuse. But, at the cost of
members of the PNP. Petitioner attempted to flee but his attempt to
occasional inconvenience, discomfort and even irritation to the
get away was thwarted by the two notwithstanding his resistance.
citizen, the checkpoints during these abnormal times, when
They then checked the "buri" bag of the petitioner where they
conducted within reasonable limits, are part of the price we pay for
found one (1) caliber .38 Smith & Wesson revolver with two (2)
an orderly society and a peaceful community”
rounds of live ammunition for a .38 caliber gun, a smoke (tear gas)
grenade, and two (2) live ammunitions for a .22 caliber gun.
Thus, as between a warrantless search and seizure conducted at
military or police checkpoints and the search thereat in the case at
bar, there is no question that, indeed, the latter is more reasonable
COLLEGE
OF LAW
considering that unlike in the former, it was effected on the basis of but she was eventually caught up. When the officer inspected the
a probable cause. lighter, it turned out to be shabu.
The probable cause in this case was that when the petitioner acted
suspiciously and attempted to flee with the buri bag, there was a So the question there was whether there was a valid arrest and
probable cause that he was concealing something illegal in the bag seizure upon search and frisk.
and it was the right and duty of the police officers to inspect the
same.
The SC made it fall under the STOP and FRISK SITUATION
It is too much indeed to require the police officers to search the because there was no intention really to arrest that person or any
bag in the possession of the petitioner only after they shall have intention to search the appellant. The police officer was there for
obtained a search warrant for the purpose. Such an exercise may different reason. But because of his experience, he noticed that
prove to be useless, futile and much too late.
the woman was acting suspiciously, for which reason the seizure
The Court reproduces with approval the following disquisition of was considered valid under the STOP and FRISK.
the Solicitor General:
ESQUILLO vs PEOPLE G.R. No. 182010
The assailed search and seizure may still be justified as akin to a
"stop and frisk" situation whose object is either to determine the On the basis of an informant’s tip, PO1 Cruzin, together with PO2
identity of a suspicious individual or to maintain the status quo Angel Aguas (PO2 Aguas), proceeded to Pasay City to conduct
momentarily while the police officer seeks to obtain more surveillance on the activities of an alleged notorious snatcher
information. operating in the area known only as “Ryan.”
This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1 As PO1 Cruzin alighted from the private vehicle that brought him
(1968). In this case, two men repeatedly walked past a store and PO2 Aguas to the target area, he glanced in the direction of
window and returned to a spot where they apparently conferred petitioner who was standing three meters away and seen placing
with a third man. This aroused the suspicion of a police officer. To inside a yellow cigarette case what appeared to be a small heat-
the experienced officer, the behaviour of the men indicated that sealed transparent plastic sachet containing white substance.
they were sizing up the store for an armed robbery. When the
police officer approached the men and asked them for their names, While PO1 Cruz was not sure what the plastic sachet contained,
they mumbled a reply. Whereupon, the officer grabbed one of he became suspicious when petitioner started acting strangely as
them, spun him around and frisked him. Finding a concealed he began to approach her. He then introduced himself as a police
weapon in one, he did the same to the other two and found officer to petitioner and inquired about the plastic sachet she was
another weapon. In the prosecution for the offense of carrying a placing inside her cigarette case.
concealed weapon, the defense of illegal search and seizure was
put up. Instead of replying, however, petitioner attempted to flee to her
house nearby but was timely restrained by PO1 Cruzin who then
The United States Supreme Court held that "a police officer may in requested her to take out the transparent plastic sachet from the
appropriate circumstances and in an appropriate manner approach cigarette case. After apprising petitioner of her constitutional rights,
a person for the purpose of investigating possible criminal PO1 Cruzin confiscated the plastic sachet on which he marked her
behaviour even though there is no probable cause to make an initials “SRE.” A case was filed against her.
arrest."
In her present petition, petitioner assails the appellate court’s
In such a situation, it is reasonable for an officer rather than simply application of the “stop-and-frisk” principle in light of PO1 Cruzin’s
to shrug his shoulder and allow a crime to occur, to stop a failure to justify his suspicion that a crime was being committed, he
suspicious individual briefly in order to determine his identity or having merely noticed her placing something inside a cigarette
maintain the status quo while obtaining more information. . . .” case which could hardly be deemed suspicious.
Meanwhile, in the case of ESQUILLO vs. PEOPLE, G.R. No. To petitioner, such legal principle could only be invoked if there
182010, the police officer was sent on a mission to make were overt acts constituting unusual conduct that would arouse the
suspicion. circumstances leading to petitioner’s arrest.
surveillance on an activity of an alleged pickpocket.
RULING
When he reached the area, he chanced upon petitioner Susan Appellant’s conviction stands. Elucidating on what includes “stop-
Equillo, standing and apparently placing what appears to be a and-frisk” operation and how it is to be carried out, the Court in
People v. Chua held:
small sachet inside a false bottom of a lighter. Since the police
officer, based on his experience, had knowledge that drugs are . . . the act of a police officer to stop a citizen on the street,
contained in such sachets, he went to the appellant and interrogate him, and pat him for weapon(s) or contraband. The
introduced himself as a police officer. The woman started to run police officer should properly introduce himself and make initial
inquiries, approach and restrain a person who manifests unusual

COLLEGE
OF LAW
and suspicious conduct, in order to check the latter’s outer clothing man based on the description and jumped on him and found in
for possibly concealed weapons. his possession unlicensed firearms. So he was charged
The apprehending police officer must have a genuine reason, in
accordingly. The question thus is whether it was a valid stop-and-
accordance with the police officer’s experience and the frisk situation.
surrounding conditions, to warrant the belief that the person to be
held has weapons (or contraband) concealed about him. It should The SC said NO because the circumstance was not appropriate.
therefore be emphasized that a search and seizure should precede
the arrest for this principle to apply.
The facts of the case will show that this happened around noon
time in the corner of two busy streets and that the person was not
This principle of “stop-and-frisk” search was invoked by the Court the only person there because again, these are two busy streets.
in Manalili v. Court of Appeals. In said case, the policemen The SC said there was nothing suspicious with a man holding his
chanced upon the accused who had reddish eyes, walking in a
swaying manner, and who appeared to be high on drugs. Thus,
tummy; it might be that he was just experiencing something that
we upheld the validity of the search as akin to a “stop-and-frisk.” requires him to touch his stomach.
In People v. Solayao, we also found justifiable reason to “stop-and-

frisk” the accused after considering the following circumstances:
G.R. No. 87059 June 22, 1992
the drunken actuations of the accused and his companions, the
THE PEOPLE OF THE PHILIPPINES vs. ROGELIO MENGOTE
fact that his companions fled when they saw the policemen, and
the fact that the peace officers were precisely on an intelligence
There is no question that evidence obtained as a result of an illegal
mission to verify reports that armed persons w[h]ere roaming the
search or seizure is inadmissible in any proceeding for any
vicinity. (emphasis and underscoring supplied; citations omitted)
purpose.
xxx
That is the absolute prohibition of Article III, Section 3(2), of the
What is, therefore, essential is that a genuine reason must exist, in
Constitution. This is the celebrated exclusionary rule based on the
light of the police officer’s experience and surrounding conditions,
justification given by Judge Learned Hand that "only in case the
to warrant the belief that the person who manifests unusual
prosecution, which itself controls the seizing officials, knows that it
suspicious conduct has weapons or contraband concealed about
cannot profit by their wrong will the wrong be repressed."
him.
The Solicitor General, while conceding the rule, maintains that it is
Such a “stop-and-frisk” practice serves a dual purpose: (1) the
not applicable in the case at bar. His reason is that the arrest and
general interest of effective crime prevention and detection, which
search of Mengote and the seizure of the revolver from him were
underlies the recognition that a police officer may, under
lawful under Rule 113, Section 5, of the Rules of Court reading as
appropriate circumstances and in an appropriate manner,
follows:XXX
approach a person for purposes of investigating possible criminal
behavior even without probable cause; and (2) the more pressing
In cases failing under paragraphs (a) and (b) hereof, the person
interest of safety and self-preservation which permit the police
arrested without a warrant shall be forthwith delivered to the
officer to take steps to assure himself that the person with whom
nearest police station or jail, and he shall be proceeded against in
he deals is not armed with a deadly weapon that could
accordance with Rule 112, Section 7.
unexpectedly and fatally be used against the police officer.
We have carefully examined the wording of this Rule and cannot
From these standards, the Court finds that the questioned act of
see how we can agree with the prosecution.
the police officers constituted a valid “stop-and-frisk” operation.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not
an escapee from a penal institution when he was arrested. We
The search/seizure of the suspected shabu initially noticed in
therefore confine ourselves to determining the lawfulness of his
petitioner’s possession - later voluntarily exhibited to the police
arrest under either Par. (a) or Par. (b) of this section.
operative - was undertaken after she was interrogated on what she
placed inside a cigarette case, and after PO1 Cruzin introduced
Par. (a) requires that the person be arrested (1) after he has
himself to petitioner as a police officer. And, at the time of her
committed or while he is actually committing or is at least
arrest, petitioner was exhibiting suspicious behavior and in fact
attempting to commit an offense, (2) in the presence of the
attempted to flee after the police officer had identified himself.
arresting officer.
This case should be differentiated from the case of PEOPLE vs. These requirements have not been established in the case at bar.
MENGOTE. At the time of the arrest in question, the accused-appellant was
merely "looking from side to side" and "holding his abdomen,"
according to the arresting officers themselves. There was
This case was still based on informant’s tip. The police station apparently no offense that had just been committed or was being
received a phone call that there was a man acting suspiciously in actually committed or at least being attempted by Mengote in their
the corner of 2 streets because there was something on his presence.
waistline. So, the police officer went to that place and saw that

COLLEGE
OF LAW
The Solicitor General submits that the actual existence of an For example, in a lease room in a boarding house, who has the
offense was not necessary as long as Mengote's acts "created a right to grant consent? Is it the landlord/lady or the lessee of the
reasonable suspicion on the part of the arresting officers and
induced in them the belief that an offense had been committed and
room? What is the object of the lease? Is the object turn over
that the accused-appellant had committed it." The question is, ownership or only possession to lessee?
what offense? What offense could possibly have been suggested
by a person "looking from side to side" and "holding his abdomen" Even if there is consent, the search must have to be conducted in
and in a place not exactly forsaken?
relation or within the terms of the consent. No problem if the
These are certainly not sinister acts. And the setting of the arrest consent is general, “okay you can search the house etc...”, then
made them less so, if at all. It might have been different if Mengote there is no limitation as to the scope of the search to be
had been apprehended at an ungodly hour and in a place where conducted.
he had no reason to be, like a darkened alley at 3 o'clock in the
morning.
PEOPLE VS. NUEVAS
But he was arrested at 11:30 in the morning and in a crowded
street shortly after alighting from a passenger jeep with his Police officers Fami and Cabling, during a stationary surveillance
companion. He was not skulking in the shadows but walking in the and monitoring of illegal drug trafficking in Olongapo City, came
clear light of day. There was nothing clandestine about his being across Jesus Nuevas, who they suspected to be carrying drugs.
on that street at that busy hour in the blaze of the noonday sun.
Upon inquiry, Nuevas showed them a plastic bag which contained
On the other hand, there could have been a number of reasons, all marijuana leaves and bricks wrapped in a blue cloth. He then
of them innocent, why his eyes were darting from side to side and informed the officers of 2 other persons who would be making
he was holding his abdomen. If they excited suspicion in the minds marijuana deliveries.
of the arresting officers, as the prosecution suggests, it has
nevertheless not been shown what their suspicion was all about. The police officers then proceeded where Nuevas said his
associates, Reynaldo Din and Fernando Inocencio, could be
In fact, the policemen themselves testified that they were located. Din was carrying a plastic which contained marijuana
dispatched to that place only because of the telephone call from packed in newspaper and wrapped therein. When the police
the informer that there were "suspicious-looking" persons in that officers introduced themselves, Din voluntarily handed the plastic
vicinity who were about to commit a robbery at North Bay bag over them. After the items were confiscated, the police officers
Boulevard. The caller did not explain why he thought the men took the three men to the police office.
looked suspicious nor did he elaborate on the impending crime.
Police officer Fami then revealed that when the receipt of the
evidence was prepared, all 3 accused were not represented by
Again, the STOP and FRISK is based on the appropriateness of counsel. He likewise disclosed that he was the one who escorted
the situation. So the appropriateness of the circumstance would all the accused during their physical examination. He also escorted
define whether or not the STOP and FRISK situation should be a all 3 to the fiscal’s office where they were informed of the charges
against them.
ground for warrantless situation.
The 3 were found guilty by the trial court, and the case was
D. EXPRESS WAIVER automatically elevated to the CA for review. However, Nuevas
withdrew his appeal. Thus, the case was considered closed and
terminated as to him. The CA affirmed the trial court.
There are several matters to remember on EXPRESS WAIVER.
First, the waiver must have to be express. It cannot be Issue
considered a waiver therefore if there is a failure of the person to Whether or not Din and Inocencio waived their right against
unreasonable searches and seizures?
whom the right pertains to object or to refuse, or to avoid the
search of his person because most often than not, the failure to Held
object expressly is supposed to be based on one’s fear or No. The search conducted in Nuevas’ case was made with his
perhaps, one’s respect from authority, and not because he consent. However, in Din’s case there was none.
actually allows the search to be conducted. There is a reason to believe that Nuevas indeed willingly submitted
the plastic bag with the incriminating contents to the police officers.
Second, it must be given by the person to whom the right It can be seen that in his desperate attempt to exculpate himself
pertains. In this case of PEOPLE vs. NUEVAS, that was the from any criminal liability, he cooperated with the police, gave them
the plastic bag, and even revealed his associates, offering himself
principle laid down by the Court. It must be given by the person as an informant.
to whom the right pertains. That is why in some cases, there are
instances on the question on “to whom the right pertains?” His actuations were consistent with the lamentable human
inclination to find excuses, blame others, and save oneself even at

COLLEGE
OF LAW
the cost of others’ lives. Thus, the Court would have affirmed The authority given by Ma. Luisa Veroy was relayed by Capt.
Nuevas’ conviction had he not withdrawn his appeal. Obrero to Major Macasaet who answered that Ma. Luisa Veroy has
called him twice by telephone on the matter and that the
On the other hand, with respect to the search conducted in the permission was given on the condition that the search be
case of Din, the Court finds that no such consent had actually been conducted in his presence.
given. The police officers gave inconsistent, dissimilar testimonies
regarding the manner by which they got hold of the plastic bag. The following day, Capt. Obrero and Major Macasaet conducted
Neither can Din’s silence at the time be construed as implied the search pursuant to the authority granted by petitioner Ma.
acquiescence to the warrantless search. Thus, the prosecution Luisa Veroy. The caretakers facilitated their entry into the yard, and
failed to clearly show that Din intentionally surrendered his right using the key entrusted to Edna Soguilon, they were able to gain
against unreasonable searches. entrance into the kitchen. A locksmith, Badiang, had to be
employed to open the padlock of the door leading to the children's
As to Inocencio’s case, his supposed possession of the dried room. Capt. Obrero and Major Macasaet then entered the
marijuana leaves was sought to be shown through his act of children's room and conducted the search. Capt. Obrero recovered
looking into the plastic bag that Din was carrying. The act handgun, printed materials, etc.
attributed to Inocencio is insufficient to establish illegal possession
of the drugs or even conspiracy to illegally possess the same. The Issue
prosecution failed to show by convincing proof that Inocencio knew Whether the articles were inadmissible as evidence for being
of the contents of the bag and that he conspired with Din to violative of the prohibition against unreasonable searches and
possess the illegal items. seizures?
Held
But in one case, that case of VEROY vs. LAYAGUE, the consent Yes. Petitioners aver that while they concede that Capt. Obrero
there to conduct a search was allowed [but only for the purpose had permission from Ma. Luisa Veroy to break open the door of
of ] searching the house for the presence of rebel soldiers. So their residence, it was merely for the purpose of ascertaining
these are people supposedly hiding in the residential building. thereat the presence of the alleged "rebel" soldiers. The
permission did not include any authority to conduct a room to room
Thus, the search is to be conducted only in the place where it is search once inside the house.
reasonably expected that a person would hide.
The Constitution guarantees the right of the people to be secure in
Based on the facts of the case, however, they found the their persons, houses, papers and effects against unreasonable
searches and seizures. However, the rule that searches and
supposed documents, firearms, and ammunitions in the places seizures must be supported by a valid warrant is not an absolute
where it cannot be reasonably expected to a person to be hiding, one. Among the recognized exceptions thereto are:
that is, in the drawer and small cabinet where no human can fit.
The SC said that the search was INVALID. (1) A search incidental to an arrest;
(2) A search of a moving vehicle; and
(3) Seizure of evidence in plain view.
VEROY VS. LAYAGUE
(210 SCRA 92) None of these exceptions pertains to the case at bar. The reason
for searching the house of herein petitioners is that it was
Petitioners are husband and wife who owned and formerly resided reportedly being used as a hideout and recruitment center for rebel
at Skyline, Davao City. In June 1988, they transferred to Quezon soldiers.
City where they are presently residing. The care and upkeep of
their residence was left to two (2) houseboys. The key to the While Capt. Obrero was able to enter the compound, he did not
master's bedroom as well as the keys to the children's rooms were enter the house because he did not have a search warrant and the
retained by petitioners. owners were not present. This shows that he himself recognized
the need for a search warrant, hence, he did not persist in entering
On April 12, 1990, Capt. Obrero, raided the house of herein the house but rather contacted the Veroys to seek permission to
petitioners in Davao City on information that the said residence enter the same. Permission was indeed granted by Ma. Luisa
was being used as a safehouse of rebel soldiers. They were able Veroy to enter the house but only to ascertain the presence of
to enter the yard with the help of the caretakers but did not enter rebel soldiers.
the house since the owner was not present and they did not have a
search warrant. Under the circumstances it is undeniable that the police officers
had ample time to procure a search warrant but did not.
Petitioner Ma. Luisa was contacted by telephone to ask permission Undeniably, the offense of illegal possession of firearms is malum
to search the house. Ma. Luisa Veroy responded that she is flying prohibitum but it does not follow that the subject thereof is
to Davao City to witness the search but relented if the search necessarily illegal per se. Motive is immaterial in mala prohibita but
would not be conducted in the presence of Major Ernesto the subjects of this kind of offense may not be summarily seized
Macasaet. simply because they are prohibited. A search warrant is still
necessary.

COLLEGE
OF LAW
Hence, the rule having been violated and no exception being So in cases of EXIGENCY, where the organized state or
applicable, the articles seized were confiscated illegally and are government is at stake, then there can be so called allowance for
therefore protected by the exclusionary principle. They cannot be
used as evidence against the petitioners in the criminal action
unwarranted searches and seizure.
against them for illegal possession of firearms.
In airports, because of the 9/11 incident, we have seen the
Besides, assuming that there was indeed a search warrant, still in increase of airport security. While there is no compulsion for you
mala prohibita, while there is no need of criminal intent, there must
be knowledge that the same existed. Without the knowledge or
to undergo this checks as part of airport security, if you don’t
voluntariness there is no crime. The criminal case against the want your personal right to be violated, you cannot compel the
petitioners for illegal possession of firearms is DISMISSED. airport personnel or management to allow you to take a flight
without going through the security control of these aircrafts.
SO, the waiver must have to be express and not implied. Failure G. JAIL SAFETY
to object is not considered an express waiver.
In the case of PEOPLE vs. CONDE, the SC made mention that
In sum, express waiver requires an understanding of the right when you are (inmate) incarcerated, there is a diminished right to
of that person for unreasonable searches and seizure, and privacy of the inmate. That is why many matter or things
full understanding of the effect of waiving or granting consent delivered by a relative can be searched. As such, if you delivered
to the search. a cake, the guard can slice it without violation because the right
to privacy is diminished because you are supposed to be
Second, it must have to be given by the person whose right incarcerated. It is based on the protection of STATE INTEREST.
pertains and the search must have to be conducted in relation to
the consent given.
REMEDIES
E. VIOLATION OF CUSTOM AND TARIFF LAWS
The following are the remedies in case of violations:
These searches are allowed because of the difference in
effecting searches therein. In this kind of search, however, there EXCLUSIONARY RULE
must have to be a prohibition that these searches are limited to
the warehouses as well as any modes of transport. This is the constitutional provision protecting the right of the
people against unreasonable searches and seizure. All evidence
As such, these searches cannot extend to residential units or obtained in violation of the right against unreasonable searches
dwelling. Thus, if the search is to be conducted in residential and seizure shall be inadmissible. However this RIGHT MUST
units or dwelling places there must have to be a search warrant HAVE TO BE CLAIMED.
duly applied for and secured from the judge.
Normally it could be claimed when the object evidence is being
Now, in your outline, there are instances not covered by the offered. Under the rules on evidence, oral testimony is offered
six general instances. It is not covered because they have not upon presentation of the witness or his own testimony while
reached the status of the six in the discussion. They have just objects or other documents are offered after the presentation of
been laid lately because of the jurisprudence of the SC. They are the oral testimonies of the witnesses.
as follows:
So, it is usually around that time when there is a formal offer of
F. EXIGENT CIRCUMSTANCES documentary evidence that the EXCLUSIONARY RULE is
claimed by objecting to the offer of the prosecution.
Again based on our discussion on hierarchy of rights, in cases of
emergency, the right against unreasonable searches and seizure MOTION to QUASH
can be regulated and even be violated in some extent because
of the nature of exigency. There is also another procedure by which you could seek a ruling
on the admissibility and this is to file a motion to quash the
information.

COLLEGE
OF LAW
The motion to quash the information is usually filed in the court COMMON INSTANCES
where the case is pending. It is provided for in your Rule 116,
Rules of Court. in such a case, the court will have to determine
In warrantless arrests, there are also six common instances in
whether the evidence is inadmissible. The motion to quash is
warrantless searches.
filed normally before the start of the trial and not during the trial
after the presentation of the prosecution of its evidence.
It is provided in Section 5, Rule 113 of Rules of Court:
First, the inflagrante delicto case,
LIMINE
Second, when the offense has just been committed and that the
person arresting has personal knowledge of the facts that the
There is also what have been allowed (at least in local practice
person to be arrested has committed it.
but not in the rules of court) the so-called LIMINE. This is a pre
Third, when the person to be arrested has escaped from
trial proceeding where the accused would ask the court before
detention facility whether serving prior sentence or pending trial.
trial for [a] determination whether [an evidence] should be
The 3 more are provided for in different provisions:
excluded.
Under Section 24, Rule 114, Rules of Court:
1. If a person is arrested by bonds person, the bonds
CIVIL ACTION for DAMAGES
person need not be armed by a warrant; or
The 2nd remedy is civil action for damages under Article 32 of the 2. If the accused attempts to leave the country, he can be
CC. This refers to violation of civil liberties including the rights arrested even without a warrant in order to prevent
against unreasonable searches and seizure. You can claim situation that he will be out the jurisdiction of the court.
damages under CIVIL LAW.
The last instance is still under Rules of Court, Sec. 13, Rule 113:
In fact, not only the person conducting the search and seizure, 1. The person legally arrested can be rearrested without
but also the officials who ordered the same under the concept of warrant.
RESPONDEAT SUPERIOR.
So, a person who was legally arrested but has escaped before
The damages would range from the actual damages based on he was turned over to penal facility or has been rescued, then
actual injuries suffered due to loss or destruction of property. It that person can be rearrested without warrant.
could also be moral damages for the moral suffering.
So those are the 6 common instances of warrantless arrest.
CRIMINAL VIOLATIONS
DISCUSSIONS
Also these 3 Articles in the RPC are considered as remedies:
1. ART 128 - Violation of So the discussions here are on the first 2 instances. First, the in
domicile. flagrante delicto case and second, where an offense has just
been committed.
2. ART 129 - Search warrants
maliciously obtained and abuse in the
service of those legally obtained.
Now, in the in flagrante delicto cases, a personal knowledge is
required that there has been a commission of an offense
3. ART 130 - Searching because the offense here is being committed, has just been
domicile without witnesses.
committed, is about to be committed, is being committed, or has
just been committed in the presence of the person arresting.
These crimes carry the penalty from the range of arresto mayor
maximum to prision correccional minimum. So, the personal knowledge is upon the offense. It goes without
saying that since it is in flagrante delicto, the identity goes there
So, you can claim these protections, SIMULTANEOUSLY. They as well. But then again, the emphasis is on the offense because
are not exclusive. the offense must have been committed in the presence of the
person arresting.

COLLEGE
OF LAW
Now, as to the second situation, there are two considerations: the have personally knowledge of the fact indicating the identity of
phrase “that the offense has just been committed” and the 2nd the person to be arrested.
phrase “personal knowledge of facts indicating to the person to
be arrested has committed it.” In one case involving a fight where the two accused persons
were picking woods and hollow blocks, crushing the skull of the
Now, in the phrase “that the offense has just been committed.” victim resulting to his death.
the safest rule, I think, is less than 24 hours.
When the call for police investigation came, the police officer
There is a case 12 hours or 18 hours which are still within the went to the hospital and there, they were able to see the
phrase “that the offense has just been committed.” The only condition of the victim, that is, there were pieces of wood and
exception perhaps in some cases that it can go beyond 24 hours hollow block in his skull. Also, they went to the scene of the crime
from the time of commission until the time of arrest would be and they discovered that there was a wood and broken hollow
those considered in “HOT PURSUIT” situations. block soaked in blood. And, the identities of the persons were
actually provided to them by the other persons.
But again, in hot pursuit situations, there must have to be NO
APPRECIABLE BREAK in the sequence of events from the time Thus, the officers eventually made the arrest within 12 hours and
of the commission in the pursuit until the arrest is made. That is the SC said that it was valid based on Rule 113 section 5
the essence of hot pursuit, NO APPRECIABLE GAP. paragraph B because the personal knowledge of the witness
were also confirmed by the person who were in the scene of the
The reason there being that there is no reasonable opportunity to crime upon their investigation.
secure a warrant of arrest because if there is an appreciable gap
from the time of commission to the pursuit until the arrest is In the famous case of ROLITO GO vs. CA, while the name of the
made, then the police officer should have filed a case and should accused ROLITO GO was simply relayed to them, being the
have secured a warrant before effecting the arrest. arresting officer, the arresting officer was able to determine his
identity through the credit card receipt payment that the accused
Now, as to “personal knowledge of facts indicating that the paid. His identity was also determined based on the car
person to be arrested has committed,” that is where most of the registration and therefore based on their investigation, there is a
discussion are also had. This is because the question would be reasonable conclusion that the identity of the accused was not
whose knowledge is supposed to be considered? Is it the merely provided to them by the witness but they were also able
knowledge of the witnesses as relayed to the arresting officer? to personally determine by their investigation that that is the
The rule is quite clear that it must be the personal knowledge of identity of the person to be arrested.
the person making the arrest.
ROLITO GO VS. COURT OF APPEALS
But when the person making the arrest was not there when the
On July 2, 1991, Eldon Maguan was allegedly shot to death by
offense is committed, it is hardly expected that all the knowledge accused Rolito Go due to a traffic altercation when petitioner’s car
or perspective of the witnesses would be based on their own and the victim’s car nearly bumped each other. The security guard
perceptions. of the Cravings Bake Shop saw the whole incident and pointed
herein petitioner as the gunman, which he positively identified
when questioned by the authorities.
There are some which will come from the testimony or
information of eyewitness. But what is important is that these Being convinced of the suspect’s identity, the police launched a
information or testimony coming from the witnesses must have manhunt operation that caused petitioner to present himself before
been coupled with the evidence they have found in the scene of the San Juan Police Station to verify the said issue; he was then
detained by the police.
the crime and therefore their perception would become personal
to them, making this as knowledge personal through them.
If the information as to the identity is based mainly on what the Issue: Whether or not the warrantless arrest of herein petitioner
was lawful
informant or witnesses have relayed to them and it is not coupled
with what they have discovered personally in the scene of the Held
crime, then there is no satisfaction of the requirement. They must No. The reliance of both petitioner and the Solicitor General upon
Umil vs. Ramos is, in the circumstances of this case, misplaced.

COLLEGE
OF LAW
In Umil vs. Ramos, there was a valid warrantless arrest because

the offense (subversion) constituted a “continuing crimes.” Here,
the offense was murder, not a continuing crime.
The warrantless “arrest” does not fall within the terms of Section 5
of Rule 113 of the 1985 Rules on Criminal Procedure.
Go’s “arrest” took place 6 days after the shooting. The “arresting”
officers obviously were not present at the time petitioner allegedly
shot Maguan.
Neither could the “arrest” effected 6 days after be reasonably

regarded as effected “when the shooting had in fact just been
committed.”
Plus, none of the “arresting” officers had any “personal knowledge”

of facts indicating that Go was the gunman. The police merely
relied on the statements of an alleged eyewitness.

STRICT ENFORCEMENT of the rule is the general rule for

warrantless arrests because this is really a violation of one’s
personal privacy.
Meaning, there must have to be adherence to the determination

of probable cause if there is a warrant for the arrest or, if there is
no warrant, they must have to follow strictly within the 6 allowable
instances.
TAKE NOTE: The exception to that would be arrest without

warrant in relation to the Comprehensive Dangerous Drugs
Law as well as the Illegal possession of firearms,
ammunitions and explosives.
The reason for that based on the SC decision is that there is
difficulty in effecting arrest for people engaged by reason of
secrecy attending the same. There is no such thing as business
of selling drugs and firearms and the like as opposed to those
ordinary goods or business.
That is why there is a little leeway granted to state authorities if

the warrants of arrest involve these.
CARCEDO, HARVEY
LADEZA, ROEL
PAGUICAN, JOSHUA
PELONIO, AM

COLLEGE
OF LAW
August 8, 2012 2. Any evidence obtained in violation of

this or the preceding section shall be
Rendition normally is not allowed under our Constitutional set-up inadmissible for any purpose in any
because warrants of arrest are supposed to be issued only after proceeding.
the determination of probable cause in relation to the criminal
offense. We have said earlier that in case of the president, in the
exercise of his powers over foreign relations, he has the authority This privacy of communications is just one of those provisions in
to issue a warrant for the arrest of an undesirable alien for his the Constitution which relates to one’s right to privacy. One’s right
immediate deportation. That is a form of an administrative arrest. to privacy, though not expressed in the Constitution is a known
It is a long established exception to the rule that warrants of constitutional right. The provisions respecting unreasonable
arrest can only be issued by the courts. searches and seizures, or the provision on unreasonable arrest
are examples of provisions in the Constitution that guarantees
Now the other form of administrative arrest would be the one’s right to privacy or the right to be left or let alone. So the
issuance of warrants of arrest on account of a refusal or State in the exercise of its powers cannot affect a right to privacy
disobedience to a subpoena. If it is issued by a court in relation unless of course it is consistent with the general requirement of
to a court case, there might not be a difficulty of understanding due process among others for a valid exercise of its police power.
that such warrant may be issued for disobeying the subpoena
because that would constitute contempt of court. Nonetheless, in The right to privacy is something new as discussed in Philippine
our system there are certain non-judicial bodies which have the jurisprudence because again there is a dearth in the Constitution
power to issue subpoena where the refusal or disobedience as to the expressed provision respecting one’s right to privacy.
would also result into a contemptuous act resulting into that body Nonetheless, there are several provisions in our Constitution
to issue a warrant for the arrest. That is also a form of an which would pertain to one’s right to privacy. They are referred to
administrative arrest. So for example, Congress has the power to as zones of privacy. Several provisions on the matter in the Civil
issue subpoena and while it is not based on any positive rule or Code, like Article 26:
express provision of law, but by reason of its mission that the
National Legislature should have all the necessary authority to Article 26. Every person shall respect the
ensure that all its processes are made effective (just like the dignity, personality, privacy and peace of
courts, in relation to its legislative functions specifically in its mind of his neighbors and other persons. The
legislative investigations, its can issue warrants of arrest directing following and similar acts, though they may
the arrest of persons for refusal to obey or follow the subpoena not constitute a criminal offense, shall
and that contempt power of the national legislature need not be produce a cause of action for damages,
exercised by the courts). That is again a form of an administrative prevention and other relief:
arrest. (1) Prying into the privacy of another's
residence;
The next item in your outline is (2) Meddling with or disturbing the
private life or family relations of another;
PRIVACY OF COMMUNICATIONS (3) Intriguing to cause another to be
alienated from his friends;
We have made mention already that this privacy of (4) Vexing or humiliating another on
communications or privacy or the right to privacy is not actually a account of his religious beliefs, lowly
--- there is no direct provision in the constitution with respect to station in life, place of birth, physical
one’s right to privacy, at most is this Section 3, Article III – defect, or other personal condition.
Privacy of Communications:
and this may be a cause of action for damages if there is a
Section 3. violation. Also there is an act punishable (for torts) on account of
1. The privacy of communication and persons meddling or prying into the privacy of another that is
correspondence shall be inviolable under the same article 26; and Article 32 holds any public officer
except upon lawful order of the court, or or employee or any private individual for damages for any
when public safety or order requires violation of the rights and liberties of other persons. Under Article
otherwise, as prescribed by law. 723, which is a mirror of Article III, Sec. 3, the privacy of letters

COLLEGE
OF LAW
and other private communications are also covered. “Miss, condom Miss”. Lady: “Saiz lagi Sir”, Man: “Small Miss”,
Lady: “Tag Saiz Pisos Sir ba, Sa-iz”.  By the way, do they come
The Revised Penal Code has also several provisions with in sizes? I’ve heard they come in different flavors? 
respect to rights to privacy under Art. 229 (violation of secrets),
Art. 290-292 (revelation of trade and industrial secrets, trespass This also led to the controversial decision in that American
to dwelling). Invasion of privacy is also an offense under special decision in Roe vs. Wade. Abortion or the right to have an
law, R.A. 4200 the Anti-Wire Tapping Act. Also included are the abortion has long been decided by the US Supreme Court in this
old laws, R.A. 425 (the Secrecy of Bank Deposits) and R.A. 8293 case where in the first trimester it is allowed and there is no
(the Intellectual Property Code). limitation or regulation allowed by the State. In the second
trimester, there is a little regulation; in the third trimester, State
The Rules of Court also recognize privilege communications and has the right to regulate abortion except for medical reasons. So
also pertain to privacy of certain information under the Rules on that is something which is not an issue about anything else but
Evidence. There are information or matters which cannot be more on the right of the mother to be let and left alone in her
elicited in the ordinary course of testimony because they are decision whether she would want to have a child. Again this is in
considered privileged communication. relation to her right to privacy, to be left her the decision whether
she would want a child.
The right to privacy is not new in American Jurisprudence
because it has long been established. The right to privacy has Now, in the Constitution, this right to privacy under Sec. 3, Article
been discussed in a lot of regulations which would include (it may III was included for the first time in the 1935 Constitution and the
be discussed today because of the RH Bill in the understanding prevailing rule from which this was copied from (American rule)
that because of the information that the government is supposed was that the right to privacy is extended only to tangible objects
to make available to the public so that they can make intelligent (Tangibles Only Rule) and there must be a trespass. Now in the
choices in terms of their reproductive health. The use of privacy of communication and correspondence, if there is no
contraceptives is an issue which has long been decided in the trespass, there is no applicability of the right (to privacy in relation
US. In relation to the use of contraceptives amongst spouses, it to the search and seizure clause). That’s why it has to be
has long been decided that this has been considered a situation extended. The search and seizure clause in the American
to one’s privacy because the use of contraceptives in the experience at the time this provision was included in 1935
bedroom is beyond the authority or powers of the court to inquire. Constitution was that for the search and seizure clause to apply,
What happens in the bedroom supposedly would be left to the there must have to be an actual trespass and what is sought to
discretion of these people which the State has no right to be seized are tangible items. Now letters of communication are
intervene. So in that old case involving the use of contraceptives not tangible if they are electronically transmitted and normally if
which would prevent the use of contraceptives in certain there is such electronic seizure of this communication, there is no
situations, the court said it could not be allowed as a regulatory actual trespass. So to extend that to communications and
measure because that involves one’s right to privacy.) correspondence they can include this provision in ’35, which was
copied until the present Constitution.
In another case, there was a case involving a regulation on the
availability of contraceptives to minors – meaning below 18. The The term communications here is used in its general sense. But
age ranges from 16 to 18, meaning these people are already what is actually covered by this privacy of communications is
capable of reproduction or reproducing children. The law in the communications between a government official and a private
US has disallowed to make these contraceptives available to citizen, and the communications between private citizens which
minors. SC also struck down the provision of that law because cannot be violated by the State. So the question is, what about
the use of contraceptives is actually in relation to one’s right to the communications between government officials? Are these
privacy. You don’t actually announce it publicly… you have heard communications covered by this prohibition? Because again the
of the joke that there was this man, because of the unavailability general concept is that the Bill of rights is a limitation to State
of these kinds of information or education in Philippine society, authority. So it is a clash between the right of the State to
Filipinos would normally have a hard time dealing with these exercise its powers and the right of its citizens to claim their
things, words or phrases. So there was this one man who was to rights and privileges. But what if the communications are
buy a condom and so he told the pharmacist, the sales lady in between public officers like the Hello Garci scandal? President
the pharmacy: “Miss, condom Miss” in a very low tone and voice talking to the Commissioner of the Comelec, can that
as if… and the sales lady said “Saiz Sir” and then he said again communication be intercepted and recorded with the use of
COLLEGE
OF LAW
government facility? That has not been answered but if you try to constitutional injunction declaring “the privacy of communication
look at this provision in relation to the general concept of the Bill and correspondence [to be] inviolable” is no less applicable simply
because it is the wife (who thinks herself aggrieved by her
of rights, only communications between the individuals or husband’s infidelity) who is the party against whom the
government officials and individuals are generally covered by this constitutional provision is to be enforced. The only exception to the
provision. Please don’t forget the case of ZULUETA vs. CA prohibition in the Constitution is if there is a “lawful order [from a]
because that’s a peculiar decision. Peculiar in the sense that they court or when public safety or order requires otherwise, as
prescribed by law.” Any violation of this provision renders the
have applied this provision when the claim is between private evidence obtained inadmissible “for any purpose in any
individuals. That is no encroachment or alleged violation coming proceeding.”
from the State. It is a case between husband and the wife over
the supposed letters which were sent by the paramour to the The intimacies between husband and wife do not justify any one of
them in breaking the drawers and cabinets of the other and in
husband and which were unlawfully taken from the private office ransacking them for any telltale evidence of marital infidelity. A
of the husband and introduced as evidence in the same case. So person, by contracting marriage, does not shed his/her integrity or
the SC in that case applied this provision saying that generally his right to privacy as an individual and the constitutional protection
when two persons contract marriage they do not actually is ever available to him or to her.
surrender all the rights to privacy. That is a limitation of what is The law insures absolute freedom of communication between the
being surrendered. For obvious reasons the most common of spouses by making it privileged. Neither husband nor wife may
what is to be surrendered are known to you, all the rest… and so testify for or against the other without the consent of the affected
when the wife unlawfully entered the private office of the husband spouse while the marriage subsists. Neither may be examined
without the consent of the other as to any communication received
and unlawfully or forcibly opened the cabinet where these letters, in confidence by one from the other during the marriage, save for
documents and pictures were found, the SC said they are specified exceptions. But one thing is freedom of communication;
inadmissible under the second paragraph of this Sec. 3. And it quite another is a compulsion for each one to share what one
has not been applied since then probably because there has knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
been no case filed with the same set of facts or husbands had
become, since they have already known the decision, had Hence, the petition for review is DENIED.
become more….. Okay.
ZULUETA vs. CA The usual law in point with respect to privacy of communications
G.R. No. 107383 ; Feb. 20, 1996
violation is R.A. 4200, the Anti-Wire Tapping Act. Now that law
Facts: basically allows wiretapping for reporting purposes for
Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982, presentation as evidence thereafter, provided, there is
Zulueta entered the clinic of her husband, a doctor of medicine, compliance with the requirements for getting the warrant. The
and in the presence of her mother, a driver and Martin’s secretary,
forcibly opened the drawers and cabinet in her husband’s clinic warrant application is just like the search warrant application only
and took 157 documents consisting of private correspondence that what is sought to be seized here is the communication
between Dr. Martin and his alleged paramours, greetings cards, between two private individuals, which may be used by the state
cancelled checks, diaries, Dr. Martin’s passport, and photographs. for filing a case against them. This law however has been out-
The documents and papers were seized for use in evidence in a
case for legal separation and for disqualification from the practice dated so to speak because at the time this law was enacted, the
of medicine which Zulueta had filed against her husband. Dr. usual modes of communication, though covered by RA 4200, did
Martin brought the action for recovery of the documents and not anticipate the forms of communication today. The age of
papers and for damages against Zulueta with the RTC. After trial, technology where mobile phones are already here or the so
the trial court rendered judgment for Martin. It (1) declared that the
documents and papers are properties of Dr. Martin, (2) ordered called equipment which can be used for surveillance and
Zulueta to return them and (3) enjoined her from using them in eventual recording by intercepting the electronic messages have
evidence. On appeal, the Court of Appeals affirmed the decision of not also been envisioned in the Anti-Wire Tapping Act. The law as
the Regional Trial Court. Hence, Zulueta filed this petition for the title suggests would require that there is an actual cutting of
review with the Supreme Court.
the line, i.e. tapping it and tapping it for listening AND recording
Issue: because if it is only for listening, there is no violation. Violation
Whether or not the constitutional injunction declaring that “the eventually would have to result from the recorded communication
privacy of communication and correspondence to be inviolable” which is eventually presented to the court where there was no
apply even to the spouse of the aggrieved party.
warrant previously secured.
Held:
The documents and papers are inadmissible in evidence. The This is supposed to have been amended on account of the
COLLEGE
OF LAW
Committee Report hearing of the Hello Garci scandal. But you safety requirement would be your SC Resolution on the Writ of
know, Congress(men) are only good at that during investigations Habeas Data. The Writ of Habeas Data refers to one’s right to
because of the free media publicity that they get. And they don’t privacy in life, liberty and security. So that would include your
push with the recommendations of the Committee that there right to privacy and it may relate to privacy of communications.
should be an amendment to RA 4200 to cover present day The writ is applicable if there is a violation or threatened violation
situation. of such right to privacy by unlawful act or omission of any person
or entity engaged in the gathering, collecting or storing of data or
Just like in your law on libel... Is libel in the internet, do the information regarding the person, family, home and
defamatory statements or comments in the internet constitute correspondence of the aggrieved party.
libel? That has been questioned always because if you try to look
at the law on libel, the publication is supposed to be in any of The objective of the writ is to enjoin the act or order the deletion,
those modes or means. And when this law was enacted in the destruction, rectification of the erroneous data of information.
1930’s or 50’s, internet was never imagined yet. The latest case This writ is normally addressed to those or properly addressed to
which has been dismissed I think was that.... I don’t know... here those who are tasked with gathering these information. There are
in Davao there was a case that’s been filed against Aportadera, two things that may be the object of this writ:
which the prosecutor found probable cause. [EDITOR’S NOTE: 1. If the information gathered is violative of your right to
Congress has recently passed RA 10175 or the Cybercrime privacy, life, liberty or security; or
Prevention Law. This lecture was delivered prior to the passage 2. If there is a need to update the facts taken of you then
of said Act. See for example Sec. 4(c) (4): xxx Libel. — The the data, they can be ordered corrected.
unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a FREEDOM OF EXPRESSION
computer system or any other similar means which may be
devised in the future.] The theory under freedom of expression is that it is only through
a free speech that ultimately government is to be hold. When
In libel there are several aspects to consider like there is a competition of ideas in the free market of ideas where
1. Where was the publication made; everybody could freely speak and compete therein that
2. Where was the publication first made or where was it government is ultimately ran by __ of public opinion. The entire
first read; idea is that based on philosophical basis of it, desired ultimate
3. The person defamed is a public officer or private good is better reached if people are free to speak against the ills
person, there are considerations for purposes of of government because if people are not free to speak, abuses in
jurisdiction the government or in the administration may not be made public
and therefore not corrected.
When you post a defamatory statement on Facebook, is that
particular medium included in the definition of libel where the Scope of Freedom of Expression
defamatory statement is supposed to be found? Ok.
The scope of freedom of expression is only available in
Now the intrusion as allowed will only be upon lawful order of the discussion of matters affecting public interest. Purely private
court based on the Constitution. And even without lawful order of matters are not covered and are not supposed to be guaranteed
the court, if public order or safety requires there can be an under free speech. The two components or elements are:
intrusion into one’s right to privacy of communications. Now the 1. Prior restraint
intrusion must have to be issued by an Executive Order. So if it is 2. Freedom from subsequent punishment
a Court order, no problem. If there is no court order, it can be by
executive order, provided, there is still public order or safety Prior restraint is normally in the form of censorship. There is an
requirement. So for example, the public order or safety is at stake injunction for the expression prior to them being made. There are
where human lives, property, and liberty are at stake then the some government regulations which must have to be complied
executive can order intrusion into one’s right to privacy of before the activity involving the freedom can be exercised. And
communications. sometimes they are confused to be in the form of censorship just
like the requirement of permits and fees. If, say ABS-CBN, a
In relation to this privacy of communications by executive order media facility, is required to secure a franchise first before it could
where there can be proper intrusion provided public order or exercise an activity involving free speech or freedom of the press

COLLEGE
OF LAW
or media and/or required thereafter to secure business permit, radio than in TV that’s why in radio there is more regulation that
that is not censorship because it is not a non-content based TV Motion pictures as against TV shows... there is more
regulation. They are imposed as a matter of constitution with regulation in TV than in motion pictures because sometimes the
respect to franchise because to engage in mass media is not a prohibitive cause of viewing a motion picture in public theatres
right but a privilege. The privilege there is made as a matter of would limit or prevent a lot more to view the motion picture.
course because the government has the right to control them in
certain situations not as to their content but as to their coverage Going back to the new forms of mass media today like the
as the need arises. The most common of which is when the internet, is that regulated? Do you know of a law which has
government as part of the franchise, conditions the grant by regulated the use of the internet as a form of mass media? I think
requiring these media facilities to give them free government there is no law, as far as I know. I have not come across a law
time. You have seen these on TV: “the public service is brought which has dealt directly with the use of the internet. There are
to you by blah blah...” Those are normally part of the conditions some... there is a law regarding recording and uploading of sex
of the franchise. scandal videos [Anti-Voyeurism Act]. There is a law on that. It is
violative of the right of those people on the video. But it’s just
The other form of regulation, which the State has imposed and one, but you go to other forms, what about selling on Facebook?
which the SC has refused also to consider as censorship, is the
imposition of the ratings and classifications by the MTRCB. In There may be allowable regulation when it comes to these
several cases that had been brought to the SC, all of them turned normal forms (like TV, motion pictures...). Between radio and
out to have been ruled in favour of the MTRCB because this is printed mass media, there is less regulation in printed form
just a ratings and classifications board. If a movie, motion picture because its form makes it not available to everybody. If the
or a television show has been rated as X or XX or XXX, they printed publication is not available to certain localities,
cannot be shown in theatres other that those which have been automatically those will never go to targeted individuals. And
established and allowed for business to publicly show X, XX or since it is printed, it has to be read. Those who cannot read will
many X rated motion pictures. We don’t have those kinds. That’s necessarily be excepted of that target group unless those would
why it cannot be publicly displayed or shown. But in reality, if refer to pictures.
there are theatres established for that purpose, they can actually
be exhibited publicly just like in the other countries. Again, there Subsequent punishment
is none yet established here and none yet allowed for that
purpose. But if there is such, they can be publicly shown. That is Subsequent punishment... the second component... the
basically the common reasoning why the classification and rating restrictions come in the form of punishments. There are two
are not actually a form of censorship because they can be shown considerations when a regulation in a form of subsequent
in appropriate theatres but, again, we don’t have one yet. punishment is tested:
1. It has to be determined whether it is a content-based
In prior restraints, the usual course of the SC’s decision on the restriction or a content neutral restriction
validity of the prior restraint regulation is to declare against its
constitutionality or validity. The presumption is that, the prior In content-based restriction, the usual tests would be:
restraint is not valid or unconstitutional. Again this is only for a. Dangerous Tendency Test
purely censorship provisions of law or laws providing for b. Clear-and-Present Danger Test
censorship, but if it is rating or classification, it has long been c. Balancing of Interest Test
established that the MTRCB has the power.
Those are the three most common tests. There are two tests
There’s special mention with respect to movies, television and mentioned also in your outline:
radio programs that they can be classified and rated for public d. Direct Incitement
exhibition not (as forms of censorship) but because there is a e. Grave but Improbable Danger
need to protect the intended viewers or listeners of these
programs or motion pictures. The rule of thumb is that, the They are cited there because they have been quoted in some
greater access of the public to this form of mass media, the cases though they may not have been applied.
greater there is allowance for state regulation. If there is less
access of this form of mass media by the public, there is less The Dangerous Tendency Test: when there is a state interest
state regulation. Radio and television... there is more access on which has to be protected from the evils to be brought about by

COLLEGE
OF LAW
the speech or expression and there is a dangerous tendency that MAGABILEN, DARLENE
the speech or expression will bring about that evil, then the State
has the right to prevent it from happening. This test is normally
used if the speech or regulation has something to do with It is not enough to take steps which may
national security interest. When the very existence of an some day lead to a goal; each step must be
organized government is at stake, the State will not wait that itself a goal and a step likewise.
there is a clear-and-present danger. The mere tendency that ~Johann Wolfgang von Goethe
these utterances claimed under free speech will bring about the
evil which will generally affect the very existence of an organized
You got a dream... You gotta protect it. People
government is sufficient for the State to regulate that particular
can't do somethin' themselves, they wanna tell
form of expression.
you you can't do it. If you want somethin', go
In Clear-and-Present Danger Test, there are two operative get it. Period.
phrases there. Clear meaning there is a causal relation between ~ Will Smith, The Pursuit of Happyness
the expression or the exercise of the right and the evil sought to
be avoided. Present that it is inevitable that the evil sought to be
avoided will happen because of the subject expression. Now in
this test, it is not only the words which are supposed to be tested,
it is also to consider the circumstances that these utterances are
made. Usual example is when you shout the word “fire” in an
open field. Though fire or the existence of fire or expressing that
there is a fire will bring about some form of distraction but if it is
uttered in the open field it cannot bring about such distraction.
But if it is uttered in a movie house, then that will bring about
stampede, distraction, injury or death to the movie theatre goers.
So the circumstances are also considered in determining whether
or not the evil sought to be avoided will inevitably happen if the
expression is not regulated.
The Balancing of Interest Test is normally used when there are

clashes of rights or claims of rights. Remember when we
mentioned about the hierarchy of rights? The Constitution has
preferred rights in accordance with their importance or value in
our system of existence. And when there are several of these
rights clashing with each other, then the court will have to
exercise its discretion with the use of this Balancing of Interest
test. Which of these interests should be upheld in this particular
situation? Again, while there is a hierarchy of these rights not
because one occupies a higher level than the other (that
automatically this right in the higher level will prevail over that
which pertains to a lower right in the hierarchy), it is to be
decided or resolved based on the circumstances of the case and
which of these rights will prevail using the Balancing of Interest
test. Let’s continue tomorrow.

TRINIDAD, CHE
COLLEGE
OF LAW
August 9, 2012 2. Freedom from subsequent punishment

which are actually the two main components of free speech
FREEDOM OF EXPRESSION 3. Freedom to access for information under Article
3,Section 7
Now we are still with content neutral restrictions and we have 4. Freedom of circulation (CHAVEZ vs GONZALES)
discussed the various tests generally used in determining
G.R. No. 168338 February 15, 2008
whether the regulation under subsequent punishment is FRANCISCO CHAVEZ vs. RAUL M. GONZALES
supposed to be valid based on the applicable tests. Now in
various situations as applied, to restate, in print media, we have THIS CASE IS ABOUT THE GARCI SCANDAL
mentioned that there is lesser latitude as compared to the other
forms of mass media based on the extent of the reach of Generally, restraints on freedom of speech and expression are
coverage of said form of mass media. In print media itself, there evaluated by either or a combination of three tests, i.e., (a) the
is also a distinction to be made if it were to be a news item or a dangerous tendency doctrine which permits limitations on
feature story. When the item subject of the regulation is an action speech once a rational connection has been established between
the speech restrained and the danger contemplated; (b) the
for libel or damages, for example, is based on a news story, the balancing of interests tests, used as a standard when courts
SC has given a wider latitude for freedom of expression of media need to balance conflicting social values and individual interests,
in deference of the fact that in news items there is a daily and requires a conscious and detailed consideration of the
deadline to meet so that if there are in accuracies in the interplay of interests observable in a given situation of type of
situation; and (c) the clear and present danger rule which rests
statements, provided there is no malice intended then the on the premise that speech may be restrained because there is
expression would be upheld over the regulation. However, if it substantial danger that the speech will likely lead to an evil the
were to be a feature story, there is supposed to be a lesser government has a right to prevent. This rule requires that the evil
latitude as compared to that of the news item because in a consequences sought to be prevented must be substantive,
"extremely serious and the degree of imminence extremely high."
feature story there is a reasonable amount of time to verify the
sources and to verify the veracity or falsity of a fact which is
As articulated in our jurisprudence, we have applied either the
subject of a feature story. In one case, an old case, SC said that dangerous tendency doctrine or clear and present danger test
care is to be taken that in publication, there is avoidance of to resolve free speech challenges. More recently, we have
affirming of what is not true or reckless disregard to take concluded that we have generally adhered to the clear and
necessary steps in ascertaining its truth or falsity. That is why in present danger test.XXX
news items, where there is another person or entity involved,
they would always have a statement that they had taken steps to Anatomy of Restrictions: Prior Restraint, Content-Neutral and
Content-Based Regulations
secure the comment of the persons subject of the item before
they have published the item in deference to or in response to
their obligation that they must have acted diligently or prudently Philippine jurisprudence, even as early as the period under the
1935 Constitution, has recognized four aspects of freedom of the
to ascertain the truth or falsity of the item before it seize the libel press. These are (1) freedom from prior restraint; (2) freedom from
thing in print media because if the reason for the failure to seek punishment subsequent to publication; (3) freedom of access to
or verify its truth or falsity is careless disregard for the truth or information; and (4) freedom of circulation.
there is really a willful assertion of what is false then they could
not be protected under the freedom of speech, media or Considering that petitioner has argued that respondents’ press
expression. Now in broadcast media, we mentioned yesterday statement constitutes a form of impermissible prior restraint, a
closer scrutiny of this principle is in order, as well as its sub-specie
that there is stringent regulatory powers on the part of the of content-based (as distinguished from content-neutral)
government due to its nature and its accessibility. As between TV regulations.
and radio, there is more government regulation in radio based on
the nature of radio coverage and the reach of audiences which is At this point, it should be noted that respondents in this case deny
not similar to that of TV. that their acts constitute prior restraints. This presents a unique
tinge to the present challenge, considering that the cases in our
jurisdiction involving prior restrictions on speech never had any
Now in freedom of the press there are four aspects to it that was issue of whether the governmental act or issuance actually
discussed in the cases of News Sound Broadcasting vs Dy and constituted prior restraint. Rather, the determinations were always
Soriano vs Laguardia. The four aspects are as follows: about whether the restraint was justified by the Constitution.
1. Freedom from prior restraint
COLLEGE
OF LAW
Be that as it may, the determination in every case of whether there A governmental regulation is sufficiently justified if it is within the
is an impermissible restraint on the freedom of speech has always constitutional power of the Government, if it furthers an important
been based on the circumstances of each case, including the or substantial governmental interest; if the governmental interest is
nature of the restraint. And in its application in our jurisdiction, unrelated to the suppression of free expression; and if the incident
the parameters of this principle have been etched on a case- restriction on alleged [freedom of speech & expression] is no
to-case basis, always tested by scrutinizing the governmental greater than is essential to the furtherance of that interest.
issuance or act against the circumstances in which they
operate, and then determining the appropriate test with which
On the other hand, a governmental action that restricts freedom of
to evaluate.
speech or of the press based on content is given the strictest
scrutiny in light of its inherent and invasive impact. Only when the
Prior restraint refers to official governmental restrictions on the challenged act has overcome the clear and present danger rule
press or other forms of expression in advance of actual publication will it pass constitutional muster, with the government having the
or dissemination. Freedom from prior restraint is largely freedom burden of overcoming the presumed unconstitutionality.
from government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the
Unless the government can overthrow this presumption, the
executive, legislative or judicial branch of the government. Thus, it
content-based restraint will be struck down.
precludes governmental acts that required approval of a proposal
to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; With respect to content-based restrictions, the government must
and even injunctions against publication. Even the closure of the also show the type of harm the speech sought to be restrained
business and printing offices of certain newspapers, resulting in would bring about— especially the gravity and the imminence of
the discontinuation of their printing and publication, are deemed as the threatened harm – otherwise the prior restraint will be invalid.
previous restraint or censorship. Any law or official that requires Prior restraint on speech based on its content cannot be justified
some form of permission to be had before publication can be by hypothetical fears, "but only by showing a substantive and
made, commits an infringement of the constitutional right, and imminent evil that has taken the life of a reality already on ground."
remedy can be had at the courts As formulated, "the question in every case is whether the words
used are used in such circumstances and are of such a nature as
to create a clear and present danger that they will bring about the
Given that deeply ensconced in our fundamental law is the hostility
substantive evils that Congress has a right to prevent. It is a
against all prior restraints on speech, and any act that restrains
question of proximity and degree."
speech is presumed invalid, and "any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted
with furrowed brows," it is important to stress not all prior restraints The regulation which restricts the speech content must also serve
on speech are invalid. Certain previous restraints may be an important or substantial government interest, which is unrelated
permitted by the Constitution, but determined only upon a to the suppression of free expression.
careful evaluation of the challenged act as against the appropriate
test by which it should be measured against.
Also, the incidental restriction on speech must be no greater than
what is essential to the furtherance of that interest. A restriction
Hence, it is not enough to determine whether the challenged act that is so broad that it encompasses more than what is required to
constitutes some form of restraint on freedom of speech. A satisfy the governmental interest will be invalidated. The
distinction has to be made whether the restraint is (1) a content- regulation, therefore, must be reasonable and narrowly drawn to fit
neutral regulation, i.e., merely concerned with the incidents of the the regulatory purpose, with the least restrictive means
speech, or one that merely controls the time, place or manner, and undertaken.
under well defined standards; or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the
Thus, when the prior restraint partakes of a content-neutral
utterance or speech. The cast of the restriction determines the test
regulation, it is subjected to an intermediate review. A content-
by which the challenged act is assayed with.
based regulation, however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The
When the speech restraints take the form of a content-neutral latter will pass constitutional muster only if justified by a compelling
regulation, only a substantial governmental interest is required for reason, and the restrictions imposed are neither overbroad nor
its validity. Because regulations of this type are not designed to vague.
suppress any particular message, they are not subject to the
strictest form of judicial scrutiny but an intermediate approach—
Applying the foregoing, it is clear that the challenged acts in the
somewhere between the mere rationality that is required of any
case at bar need to be subjected to the clear and present danger
other law and the compelling interest standard applied to content-
rule, as they are content-based restrictions. The acts of
based restrictions. The test is called intermediate because the
respondents focused solely on but one object—a specific content
Court will not merely rubberstamp the validity of a law but also
— fixed as these were on the alleged taped conversations
require that the restrictions be narrowly-tailored to promote an
between the President and a COMELEC official. Undoubtedly
important or significant governmental interest that is unrelated to
these did not merely provide regulations as to the time, place or
the suppression of expression. The intermediate approach has
manner of the dissemination of speech or expression.
been formulated in this manner:

COLLEGE
OF LAW
So these are the four aspects generally followed under freedom publication of that letter because that would erase the fact that
of press. The usual form and which is still a good law today as a there is no malice in fact. Or if there are comments on official
form of subsequent punishment which has not been declared as proceedings this is not a fair and true report, malice in fact may
unconstitutional as yet is our law on libel whether it be a case for be considered as present.
libel arising from a statement which is claimed to be defamatory
either in its criminal form or as a form of claim for civil damages. Now, the absolutely privilege statements that may not be
This has been the usual form of subsequent punishment imposed subjected to any cause of action, the most common could be
after the expression has been made. We all know that the law on under speech and debate clause of members of congress. They
libel is still a good law although in the news paper you may have shall not be held liable in any other place for any speech or
read that Sen. Honasan has introduced a bill in the senate which debate made in congress or in any committee thereof while
will decriminalize libel. They would want libel to be decriminalized congress is in session, so absolutely privilege statements. Also,
so it’s free for everybody to defame anybody else. So libel is any statements in pleadings which are material to the cause or case
public and malicious imputation of a crime, vice, or defect, real or under consideration are also considered as absolutely privilege
imaginary of an act, status, condition, commission or omission or statements. So that if the statements in the pleadings are not
circumstance tending to cause dishonor, discredit or contempt of material to the cause or the case under consideration they may
person or blacken the memory of the dead. In several cases, it not fall under the relatively privilege statements. So statements
has also been said that praise undeserved is libel in disguise. like, in the answer “the allegations in paragraph 16 of the
complaint is denied, the claims of the plaintiff being absolutely
Several matters with respect to libel, as you very well know, there false and the plaintiff is an absolute liar”. That statement cannot
is no need to particularly name a person as the person defamed be subjected to a criminal case or civil case for libel because it is
to constitute a violation and therefore be criminally liable for libel material to the case because there is a denial of the claim.
for so long as from the statement it can be ascertained by the
readers, if it is in print media or by the mass who have heard it if Now the other matter with respect to libel would be your truth or
it is orally made, that the person defamed is identifiable. Of proof as a defense so that question is: can you prove that truth of
course, it is not based solely on the fact that the person defamed the statement to avoid liability? “Burikat mana siya!  She is a
could identity itself, it must have to be that the readers or the prostitute! “. If you can prove that she is a prostitute, can you
listeners could identify the person defamed although not named. avoid liability for libel? OK, so the general rule is that if the
That is why the most common, even the broad sheet of the Phil statement is true provided that it is established for good motive
Inquirer, would make these blind items and give clues as to who and for justifiable ends, proof of truth is a defense. The problem
these particular persons are but necessarily giving up the identity is what is so called “justifiable” about claiming that the person is
of that person from the printed item to avoid any liability for libel “burikat”.
be it criminal or civil.
If the defamatory statement is not a crime, it is only accepted as
Now in libel, malice is also presumed, so that when the statement a defense for pubic officers in relation to discharge of official
is defamatory it is presumed in law that it is maliciously made. duties. And if it amounts to a crime, it can be used as proof or
However, there are certain situations where malice is not defense if the defamation is against public or private person. So if
presumed though it can be proven or that the presumption of you call a private person a thief if you can prove that he is really
malice can be overcome. So for the following statements: private a thief because he has committed theft or thievery then you can
communication for legal, moral or social duty or fair and true be exempted from liability.
report in good faith without comment of any judicial, legislative or
other official proceedings not confidential in nature or the court or
speech in such proceedings as exercised by public officials are APPLICATION OF TESTS IN VARIOUS CONTEXTS
considered relatively privilege statements that malice in those
statements is not presumed but they can be actually be proven A. FREEDOM OF EXPRESSION AND
as a fact. So that if the statement for example refers to a letter NATIONAL SECURITY
that is made in relation to the call of social, civic or moral duty
addressed to a person of position who could address the The other situation where the matter of free speech is usually
problems sought to be addressed in the said letter, if there is no tested is when there is the question of the free exercise and
unnecessary publication then that may be considered as against or versus our national security interest. As we have said,
relatively privilege. It would be different if there is an unnecessary the dangerous tendency test is the normal test used if the
COLLEGE
OF LAW
utterances or expression is directed against the very existence of public character of that public personality not the private aspects
organized government. When the national security is at stake, of their private lives.
the State will not wait that the evil sought to be avoided in the
expression is not regulated or prevented to happen. So usually, it C. FREEDOM OF EXPRESSION AND THE
is resolved in favor of the State again if there is dangerous ADMINISTRATION OF JUSTICE (CONTEMPT OF
tendency that the speech sought to be avoided, if the speech is COURT)
not regulated, will come true.
The last of these would be the freedom of expression and
administration of justice.
B. FREEDOM OF EXPRESSION AND THE The discussion here is with respect to - the first is criticism to the
RIGHT TO PRIVACY court or of court actions or proceeding or decision. And the
second would be that of concept SUB JUDICE RULE.
In a clash of rights between the freedom of expression and
freedom to be left or let alone or the right to privacy of the In FAIR CRITICISM, the SC had already lain down in TULFO VS.
individuals, there should be a distinction if the depiction of a PEOPLE (2008) that there is allowable criticism to court’s
person in the exercise of freedom of expression, like in the decision provided it is made fairly or this is the FAIR CRITICISM
motion picture or in the TV show, involves a public officer or a RULE, which must comply with the following conditions:
private person. If it is a public officer, generally there is leeway 1. Must be made in good faith;
granted in favor of the freedom expression because of the 2. Must be couched with respectful language;
character of that public personality. If it is a private person there 3. Must be directed at the merits; and
is always a need for some arrangement with respect to the public 4. Must not that grave or ridicule in court or insults its
depiction of a private life of a private person. members.
So you have contracts to that effect then if you produce a movie TULFO VS. PEOPLE
involving Manny Pacquiao when he was not yet a member of
Facts: Atty. Ding So of the Bureau of Customs filed four
congress then there must have to be some sort of agreement to
separateInformations against Erwin Tulfo, Susan Cambri, Rey
that person and the person exercising freedom of expression to Salao, JocelynBarlizo, and Philip Pichay, accusing them of libel in
be able to be allowed to, in a limited sense, invade that person’s connection with the publication of articles in the column “Direct Hit”
right to privacy. But with respect to a public person, there is of the daily tabloid Remate.
somehow much greater leeway given to the exhibition in the form
of motion picture or, say, TV show of the public character of that The column accused So of corruption, and portrayed him as an
public person’s life. Of course, it does not include his private life. extortionist and smuggler. After trial, the RTC found Tulfo, et al.
guilty of libel. The CA affirmed the decision.
For example if he is a government official and the government Issues: W/N the assailed articles are fair commentaries.
officials to be depicted - that his life would be depicted in that art
form is supposed to be important because it involves a public Ruling: NO.
a. Good faith is lacking, as Tulfo failed to substantiate or
incident or public event. For so long as there is no fictionalization even attempt to verify his story before publication. He provided no
to that extent then there is no need for an agreement with respect details on the acts committed by the subject. They are plain and
to that public person’s depiction of public life in that art form. That simple baseless accusations, backed up by the word of one
is to that extent. unnamed source.
b. Not “fair” or “true” because “fair” is defined as “having
the qualities of impartiality and honesty.” “True” is defined as
However, there are situations where the person is not a public “comfortable to fact; correct; exact; actual; genuine; honest.” Tulfo
functionary, strictly speaking, but because of his status in society failed to satisfy these requirements, as he did not do research
there has, somehow, been a conversion of his person as a before making his allegations, and it has been shown that these
allegations were baseless. The articles are not “fair and true
private character to a public personality. reports,” but merely wild accusations.
A lot of the movie actors would fall in this category. So, can their The elements of fair commentary (to be considered
lives or can they be depicted in an art form without their privileged): a. That it is a fair and true report of a judicial,
legislative, or other official proceedings which are not of
permission? The answer is only with their respect, again, to the confidential nature, or of a statement, report, or speech delivered
in said proceedings, or of any other act performed by a public

COLLEGE
OF LAW
officer in the exercise of his functions; b. That it is made in good the jury from any utterances made outside of court which may
faith; c. That it is without any comments or remarks. bring about them to decide the case one way and not the other.
Journalists may be allowed an adequate margin of
In our system where case is decided by a sole presiding judge or
error in the exercise of their profession, but this margin does as differentiated in collegiate courts, the so called sub due dice
not expand to cover every defamatory or injurious statement rule, though applicable, would not really be that prejudicial for
they may make in the furtherance of their profession, nor parties because judges are supposed to have this proven probity
does this margin cover total abandonment of responsibility.
The mere fact that the subject of an article is a public figure or a
and independence that they should be swayed by public’s
matter of public interest does not mean it is a fair commentary persuasions on a pending action.
within the scope of qualified privileged communication, which
would automatically exclude the author from liability. The In fact, if you remember the case of WEBB vs. DE LEON and in
confidentiality of sources and their importance to journalists are
accepted and respected. What cannot be accepted are journalists
the onset of that case, there was a question of whether there is
making no efforts to verify the information given by a source, and violation of the sub due dice rule, the media has kept on covering
using that unverified information to throw wild accusations and the particular case and at that point of having prejudicial
besmirch the name of possibly an innocent person. Journalists coverage of that of case in the media. The SC made an obiter
have a responsibility to report the truth, and in doing so must at
least investigate their stories before publication, and be able to
that the judges are supposed to be insulated from all these media
back up their stories with proof. Journalists are not storytellers or coverage whether it may be prejudicial or not because of the fact
novelists who may just spin tales out of fevered imaginings, and that they are supposed to be deciding cases based on the facts
pass them off as reality. There must be some foundation to their and evidence presented. The so called prejudicial coverage
reports; these reports must be warranted by facts. Freedom of
expression as well as freedom of the press may not be
would only be considered as having unduly influence the judge if
unrestrained, but neither must it be reined in too harshly.*** there is a direct showing that there is a causal relation between
the prejudicial coverage and the decision or the resolution of the
Now this fair criticism rule would relate only to decisions, judge.
resolutions or orders of the court disposing of a case or a petition
pending before the Court. It is not ordinarily allowable in Now, in relation, still, to the fair criticism rule, the SC has
situations where the court is yet to decide or which is actually mentioned two principles affecting one’s right to criticize
hearing still the case or petition pending before it because any of court’s proceedings, namely:
those persons who would make the said criticism will the
subjected to what we know as a violation of sub judice rule and 1. OPEN JUSTICE POLICY; and
may be held liable for contempt of court. 2. PRINCIPLE OF JUDICIAL INDEPENDENCE.
The sub judice rule, strictly speaking, applies to situations where The open justice policy allows a person’s right to criticize the
the utterances or actions or actuations are directed against or to judiciary in order to prevent arbitrariness in the exercise of
courts to sway his decision in favor of one course of action and judicial power and thus, maintaining the public’s confidence in
against another. that system. However in the principle of judicial
independence, in order for the courts to decide cases fair and
To say or state or utter something with respect to a pending case square and not unduly influence by these criticisms, it states that
is not per se violative of the sub judice rule. The expression or the courts should be free from unjust criticisms and the freedom
utterances or actuations or actions must be directed to unduly of the court from these unjust criticisms are in two aspects,
influence the court in coming up its decision. So if the intent and namely:
objective of that utterance, expression, actuation or action is to
sway the decision of the court and duly influence it to be one and 1. The institutional; and
not the other is what is contemplated under the sub judice rule. 2. The individual.
Most often than not, the public or lawyers will refuse to comment
on a pending action for a fear that they will be held liable for Institutional, meaning that the courts in general must be insulated
contempt of court. But then again, if it is not intended to unduly from unfair criticism so that it will not or the judiciary being the
influence the outcome of the case then there is no violation of the non-reactive branch of government and being a non political
sub judice rule. With all the more reason here in the Philippines office, it is supposed to be insulated from the pressures of public
where we do not follow the jury system. The sub judice rule has opinion where it is mostly desired in the executive and legislative
taken its roots from countries where the case is decided under department.
jury system because it would be difficult to insulate the members

COLLEGE
OF LAW
The philosophical basis of the freedom of expression that the

government’s objective is best achieved through the competing
ideas in the free market should not be applied to ordinary court ADIONG VS. COMELEC
decisions because courts must decide cases based on the facts,
evidence and the applicable laws on the particular case. Facts: COMELEC promulgated Resolution No. 2347 which
provides that decals and stickers may be posted only in any of the
Individual because judges are also human beings. They must authorized posting areas, prohibiting posting in "mobile" places,
also be free from unjust criticisms. While public officers are not public or private. Petitioner Blo Umpar Adiong, a senatorial
immune from criticisms, in one old case, the SC made a candidate in the May 11, 1992 elections now assails the
statement that the balm of clean conscience would actually Resolution. In addition, the petitioner believes that with the ban on
radio, television and print political advertisements, he, being a
assuage the wounded feelings brought about by unfair criticisms neophyte in the field of politics stands to suffer grave and
is not only applicable to other public officers but must also be irreparable injury with this prohibition.
applicable to judges. But then again, since judges are, like the
judiciary, are not political officers, they should be insulated from
Issue: Whether or Not the COMELEC’s prohibition
unjust criticisms so that they will be able to maintain their judicial unconstitutional.
independence - that they will decide cases based on what has
been presented to them or before them, with the evidence and
apply it to the applicable laws in that particular case. Held: The prohibition unduly infringes on the citizen's fundamental
right of free speech. The preferred freedom of expression calls all
the more for the utmost respect when what may be curtailed is the
CONTENT NEUTRAL RESTRICTIONS dissemination of information to make more meaningful the equally
vital right of suffrage. The so-called balancing of interests —
Now, CONTENT NEUTRAL RESTRICTIONS, the regulation, as individual freedom on one hand and substantial public interests on
the other — is made even more difficult in election campaign cases
a form of subsequent punishment, may be allowed because it is because the Constitution also gives specific authority to the
on the circumstances when the expression is made and not on Commission on Elections to supervise the conduct of free, honest,
the content of the expression. The normal test used is the and orderly elections. When faced with border line situations where
O’BRIEN TEST taken from the US decision of US vs. O’BRIEN freedom to speak by a candidate or party and freedom to know on
the part of the electorate are invoked against actions intended for
(1968). This was adopted in the case of ADIONG VS. COMELEC maintaining clean and free elections, the police, local officials and
(1992). COMELEC, should lean in favor of freedom. The regulation of
election campaign activity may not pass the test of validity if it is
too general in its terms or not limited in time and scope in its
application, if it restricts one's expression of belief in a candidate or
If you remember this case, this refers to the political exercise one's opinion of his or her qualifications, if it cuts off the flow of
where the COMELEC issued, then, what was referred to media reporting, and if the regulatory measure bears no clear and
COMELEC TIME and COMELEC SPACE -that the public or that reasonable nexus with the constitutionally sanctioned objective.
the election propaganda of any candidate in printed form can
The posting of decals and stickers in mobile places like cars and
only be posted in areas designated as COMELEC SPACES. Now other moving vehicles does not endanger any substantial
this refers to cars, stickers or decals bearing the name of a government interest. There is no clear public interest threatened by
candidate. Now, can the COMELEC penalize or regulate the such activity so as to justify the curtailment of the cherished
posting of these election propaganda in the form of stickers or citizen's right of free speech and expression. Under the clear and
present danger rule not only must the danger be patently clear and
decals to be posted only in COMELEC spaces not to be allowed pressingly present but the evil sought to be avoided must be so
to be posted in anywhere else like a motor vehicle. substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled. The regulation strikes at the freedom of an
So, the SC quoted the case the principle in the case of US vs. individual to express his preference and, by displaying it on his car,
to convince others to agree with him. A sticker may be furnished by
O’BRIEN, the regulation is valid a candidate but once the car owner agrees to have it placed on his
1. if it is within the constitutional powers of government; private vehicle, the expression becomes a statement by the owner,
2. if it furthers an important or substantial government primarily his own and not of anybody else. The restriction as to
interest; where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this case
3. if the governmental interest is unrelated to the is a privately-owned vehicle. In consequence of this prohibition,
suppression of free expression; and another cardinal rule prescribed by the Constitution would be
4. if the incidental restriction on alleged freedom of violated. Section 1, Article III of the Bill of Rights provides that no
expression is greater than is essential to the person shall be deprived of his property without due process of
law.
furtherance of government interest.

COLLEGE
OF LAW
The prohibition on posting of decals and stickers on "mobile" stickers in places other than the COMELEC space was held by
places whether public or private except in the authorized areas the SC as unconstitutional because to stick the decals or stickers
designated by the COMELEC becomes censorship.
in cars or privately owned properties are actually considered as a
form of expression because this is the choice of the person as to
REGULATION OF POLITICAL CAMPAIGN OR
his candidate.
ELECTION ACTIVITY
So, it is not normally expected that the candidate would just be
Now in that election related activity, as discussed also in the case
allowed to stick the sticker in any car without the permission of
of OSMENA VS. PHILIPPINE PRESS INSTITUTE (not found in
the owner because it is the owner’s choice and preference on
the outline).
which candidate sticker will be allowed to be posted or to be
In relation to that O’BRIEN TEST, in the case of ADIONG, the
placed on this motor vehicle. So it goes beyond the supposed
regulation of election related activity:
regulation if it were to cover that situation.
1. must not be too general or limited in time and scope on
That is why even in the FAIR ELECTIONS ACT you may have
its application;
noticed that during election campaign, there are a lot of posters
2. does not restrict one’s the expression or belief or
or streamers which are not compliant that are posted in private
opinion of qualification;
places. Because there is a question, even if you read the Fair
3. does not cut off the flow of media reporting; and
Elections Act, what is covered by the regulation to be posted in
4. must bear clear and reasonable connection with the
COMELEC spaces must have to be compliant is no question. It
sanction and objective of the regulation.
must compliant to the regulated sizes. But what if you would want
it to be placed in your own private place, should your poster or
What was subject of this case of OSMENA whether or not media
sticker be compliant?
practitioners should be regulated in COMELEC time and space if
they would write something about a candidate.
In the past several elections, this 2001 Fair Elections Act had
always maintained that if it is in a private property, you can put
No problem if it were to be a plebiscite because in a plebiscite,
everything there, in whatever size, because it is your expression.
there is no candidate to be elected but the ones to be voted on
If you have a wall by your building, write your name there, put
are issues, so media practitioners to be allowed to defend a
your face there and let the COMELEC bring it down and let us
position on that issue in a plebiscite. But with respect to the
see who shall win because it is your expression. The reason why
election, there seems to be a way of media practitioners in right
they regulate the sizes in the COMELEC Space is to give
to circumvent the regulation on equal access to public office. This
everybody a fair chance. If the regulation is one long bond paper
so called COMELEC time and space before were instituted in
size, why put up a poster size? Your face will be bigger than the
order to equalize the supposed exposure of candidates to have
rest.
the resources and those who have none under the constitutional
concept of equal chances or opportunity to public office. Those
FREEDOM OF ASSEMBLY
rules have been changed substantially by the Fair Elections Act
of 2001. There are more allowable time, there are more allowable
The other allowable or which still continue to be allowed under
exposure in print media but just the same principle should apply -
present day consideration is the Public Assembly Act of 1985
the principle on whether or not the State through the COMELEC
or BP 880. Under BP 880, the law primarily requires a permit to
which is tasked to enforce or implement all elections related laws
be secured first if the public assembly is to be held in a public
would have the power to regulate the exercise of media
place other than those designated as freedom parks. Now, this
practitioners over qualifications or other considerations of a
requirement of permit is content neutral because it has nothing to
candidate during an election campaign. Now, the SC has
do with the utterances or the expression made in that public
resolved this issue in favor of the press people - that for so long
assembly. The reason why permit is required is in-order for the
as it is a legitimate reporting on that qualifications of that
LGU or for the State, for that matter, to allocate from among the
candidate in trying to illicit from the readers an approval or
public using the public facility on who shall be allowed to use this
disapproval of the qualifications or non-qualifications of a
for the efficient use of everybody.
candidate, that should be allowable.
If it is in a private place, BP 880 is not applicable. So you can do
Now, in the O’BRIEN case which was adopted in the case of
your own thing in that private place. The only requirement is that,
ADIONG, the putting up and the sticking of these decals or
COLLEGE
OF LAW
there must have consent from the private place owner. If it is in shall cause the same to immediately be posted at a conspicuous
the freedom park or established to be a freedom park, still no place in the city or municipal building.
requirement of permit because it is supposed to be established
for such purpose. Section 6. Action to be taken on the application –
Now, if you have noticed there was an issue on this permit during (a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless there is clear and
the last SONA because from the vantage point of the applicant, convincing evidence that the public assembly will create a clear
the one who conducted the rally going to Batasang Pambansa and present danger to public order, public safety, public
they said they have made an application and there was no convenience, public morals or public health.(b) The mayor or any
response - either to grant it or to deny it. official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which,
And under the law, which is correct, if under BP 880, if there is no the permit shall be deemed granted. Should for any reason the
word within, I think, 24 or 48 hours from the time the application mayor or any official acting in his behalf refuse to accept the
is made, it is deemed approved. application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be
deemed to have been filed.(c) If the mayor is of the view that there
BATAS PAMBANSA BLG. 880 is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE applicant who must be heard on the matter.
OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION
THE GOVERNMENT FOR OTHER PURPOSES (d) The action on the permit shall be in writing and served on the
application within twenty-four hours.
Section 4. Permit when required and when not required - A written (e) If the mayor or any official acting in his behalf denies the
permit shall be required for any person or persons to organize and application or modifies the terms thereof in his permit, the applicant
hold a public assembly in a public place. However, no permit shall may contest the decision in an appropriate court of law.
be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one (f) In case suit is brought before the Metropolitan Trial Court, the
entitled to its legal possession is required, or in the campus of a Municipal Trial Court, the Municipal Circuit Trial Court, the
government-owned and operated educational institution which Regional Trial Court, or the Intermediate Appellate Court, its
shall be subject to the rules and regulations of said educational decisions may be appealed to the appropriate court within forty-
institution. Political meetings or rallies held during any election eight (48) hours after receipt of the same. No appeal bond and
campaign period as provided for by law are not covered by this record on appeal shall be required. A decision granting such permit
Act. or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
Section 5. Application requirements - All applications for a permit
shall comply with the following guidelines: (g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge
(a) The applications shall be in writing and shall include the names for disposition or, in his absence, to the next in rank.
of the leaders or organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or streets to be used
for the intended activity; and the probable number of persons (h) In all cases, any decision may be appealed to the Supreme
participating, the transport and the public address systems to be Court.
used.
(i) Telegraphic appeals to be followed by formal appeals are
(b) The application shall incorporate the duty and responsibility of hereby allowed.
applicant under Section 8 hereof.
Section 7. Use of public thoroughfare - Should the proposed
(c) The application shall be filed with the office of the mayor of the public assembly involve the use, for an appreciable length of time,
city or municipality in whose jurisdiction the intended activity is to of any public highway, boulevard, avenue, road or street, the
be held, at least five (5) working days before the scheduled public mayor or any official acting in his behalf may, to prevent grave
assembly. public inconvenience, designate the route thereof which is
convenient to the participants or reroute the vehicular traffic to
another direction so that there will be no serious or undue
(d) Upon receipt of the application, which must be duly interference with the free flow of commerce and trade.
acknowledged in writing, the office of the city or municipal mayor

COLLEGE
OF LAW
Section 8. Responsibility of applicant - It shall be the duty and granted based on the terms of the application. So
responsibility of the leaders and organizers of a public assembly to for example, the application is made for a particular
take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in
day, and that the rally particular day at a particular
accordance with the terms of the permit. These shall include but place, it should be granted based on those terms. If the
not be limited to the following:(a) To inform the participants of their LGU chief executive would wish to grant it on different
responsibility under the permit; (b) To police the ranks of the terms from that of the application, the clear and present
demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;(c) To confer
danger test should be used to determine why there
with local government officials concerned and law enforcers to the should be a change in the terms for the application and
end that the public assembly may be held peacefully;(d) To see to that grant of the application would also require hearing
it that the public assembly undertaken shall not go beyond the time for that purpose of determining whether there is clear
stated in the permit; and(e) To take positive steps that
demonstrators do not molest any person or do any act unduly
and present danger for a allowing the LGU to change
interfering with the rights of other persons not participating in the the terms of the application.
public assembly.
Section 9. Non-interference by law enforcement authorities - Law What happened in this case was that the IBP National Office
enforcement agencies shall not interfere with the holding of a applied for a rally permit to conduct a rally at Mendiola Bridge. It
public assembly. However, to adequately ensure public safety, a
law enforcement contingent under the command of a responsible
was granted without any hearing but they were allowed to
police officer may be detailed and stationed in a place at least one conduct that public assembly or rally at Plaza Miranda. The IBP
hundred (100) meter away from the area of activity ready to still proceeded to conduct their rally at the designated time and
maintain peace and order at all times.xxx date per application and also at the place of the application but
not in the place as indicated in the permit. They went to Plaza
Section 15. Freedom parks - Every city and municipality in the Mendiola and they were charge for violation of BP 880, for
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
conducting a rally without a permit. They went to the SC on that
in their respective jurisdictions which, as far as practicable, shall be issue eventually and the SC upheld the position of the IBP
centrally located within the poblacion where demonstrations and because the change of the tenor of the application in the grant of
meetings may be held at any time without the need of any prior the permit as applied for can only be done if there is justifiable
permit. In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
reasons for doing so under the clear and present danger rule and
period of six months from the effectivity of this Act. there is a hearing conducted to determine whether or not indeed
there is a need to alter or change the terms of the application.
OK!
And also, in this case of IBP vs. ATIENZA, a 2010 case, 2
G.R. No. 175241 February 24, 2010
matters are subject of discussion, to wit; INTEGRATED BAR OF THE PHILIPPINES
vs. MAYOR JOSE "LITO" ATIENZA
1. One, the application for a permit under the BP 880
can be denied based on clear and present danger. In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
So, if the rally is to be allowed since a permit is to be Ermita, the Court reiterated:
granted and there is a clear and present danger that
the evil sought to be avoided will happen then the x x x Freedom of assembly connotes the right of the people to
application must have to be denied. However, if it is to meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference
be denied, the applicant must have to be heard. So, and respect. It is not to be limited, much less denied, except on
relating this to the last SONA, if the city government of a showing, as is the case with freedom of expression, of a
QC would have denied it because they thought that it clear and present danger of a substantive evil that the state
will bring about chaos and violence if this rally will be has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary
allowed to get in the Batasan complex when the consequence of our republican institutions and complements the
President will deliver his SONA, then they should have right of free speech. To paraphrase the opinion of Justice
denied the application after hearing the applicant why Rutledge, speaking for the majority of the American Supreme
they would want to have permit. Court in Thomas v. Collins, it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled
in a single guarantee with the rights of the people peaceably to
2. The second is that, still in the case of IBP, the SC said assemble and to petition the government for redress of grievances.
that when the application is made, it should be All these rights, while not identical, are inseparable. In every case,

COLLEGE
OF LAW
therefore, where there is a limitation placed on the exercise of this was slated for a specific public place. It is thus reversible error for
right, the judiciary is called upon to examine the effects of the the appellate court not to have found such grave abuse of
challenged governmental actuation. The sole justification for a discretion and, under specific statutoryprovision, not to have
limitation on the exercise of this right, so fundamental to the modified the permit "in terms satisfactory to the applicant."
maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate Now final items on freedom of expression. Commercial speech.
public interest.14 (emphasis supplied) Now, what is a commercial speech? A commercial speech is a
speech done in behalf of a company or individual for economic or
The Court in Bayan stated that the provisions of the Public financial gains. Common example of it would be your
Assembly Act of 1985 practically codified the 1983 ruling in Reyes advertisements.
v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public
Assembly Act with the pertinent portion of the Reyes case, the
Court elucidated as follows: So for example VIC SOTTO will say something about TIDE ba
yon? The name is BLAH BLAH… Can the government regulate
x x x [The public official concerned shall] appraise whether there that speech because it is not true, that there is no truth to that
may be valid objections to the grant of the permit or to its grant but statement because in reality it is surf which has the
at another public place. It is an indispensable condition to such characteristic?
refusal or modification that the clear and present danger test be
the standard for the decision reached. If he is of the view that there
is such an imminent and grave danger of a substantive evil, the “Iba nga dyan sa commercial ilalagay ko lang walang kuso kuso,
applicants must be heard on the matter. Thereafter, his decision, malilinis na daw. San kaya yang sabon na yan?”
whether favorable or adverse, must be transmitted to them at the Can the government regulate that? OK!
earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority.16 (italics and underscoring supplied)
In the US, there is truth in advertising. That is why, it is common
In modifying the permit outright, respondent gravely abused his in them that if there is brand X, Y, Z, A, B, C as front cover in the
discretion when he did not immediately inform the IBP who should Philippines, there, there is none. It is really by brand name. If I
have been heard first on the matter of his perceived imminent and am selling TIDE and I have a brand SURF here, ARIEL here and
grave danger of a substantive evil that may warrant the changing state that TIDE is the BEST! In the Philippines, it is always X, Y,
of the venue. The opportunity to be heard precedes the action on
the permit, since the applicant may directly go to court after an Z, and that TIDE because they don’t want to be held liable for
unfavorable action on the permit.1avvphi1 those other brands.
Respondent failed to indicate how he had arrived at modifying the Now, can that be regulated - commercial speech? Commercial
terms of the permit against the standard of a clear and present speech meaning those expressions in relation to commercial
danger test which, it bears repeating, is an indispensable condition transactions. They are not protected speech in the same
to such modification. Nothing in the issued permit adverts to an
imminent and grave danger of a substantive evil, which "blank"
category as private speech. OK? So the ordinary expression,
denial or modification would, when granted imprimatur as the say, media practitioners, you as a commentator or member of
appellate court would have it, render illusory any judicial scrutiny non government organizations participating in public assemblies
thereof. for regress and grievances, speeches thereto are protected
speech and they are greatly protected than the commercial
It is true that the licensing official, here respondent Mayor, is not speeches. So, commercial speeches because for they are for
devoid of discretion in determining whether or not a permit would
be granted. It is not, however, unfettered discretion. While
commercial transactions or commercial gains or financial gains,
prudence requires that there be a realistic appraisal not of what they are protected but not the same category as protected
may possibly occur but of what may probably occur, given all the speech.
relevant circumstances, still the assumption – especially so where
the assembly is scheduled for a specific public place – is that the
permit must be for the assembly being held there. The exercise of
Now government speech. Government speech, of course, are
such a right, in the language of Justice Roberts, speaking for government messages. Question is that, are they subject to
the American Supreme Court, is not to be "abridged on the regulation? Well, the common subsequent answer is that, NO
plea that it may be exercised in some other place." (emphasis they are not because they are made by the State anyway. But the
and underscoring supplied)
question here is really, if there is, say, an untruthful statement in
a government speech, can they be held liable for it? Like for
Notably, respondent failed to indicate in his Comment any basis or
explanation for his action. It smacks of whim and caprice for
example, if you, as a media practitioner, has written a news item
respondent to just impose a change of venue for an assembly that or a feature story which turns out to be false, could you be held

COLLEGE
OF LAW
liable for it? YES! Of course you can because that is no longer Some would say that there is no heckler’s veto because of the
protected speech. right of the person to express which may illicit a violent reaction
from the rest should not be curtailed simply because of the
But how about government speech? If PNOY says that the perceived violent reaction because who has the right to express
Philippines GDP last year 6.4 blah blah number one…. If that and whose right of expression should be upheld - the one of the
turns out to be false, could you hold him liable? That is the heckler or one of the reacting group? If there the reacting group
question. has the right to express their selves, why should the heckler be
prevented from expressing his opinion as well on the matter?
Or in, (NAGRING ANG CELL NI CHAM, sir: “HELLO!”) public
advertisements, government advertisements on TV…. Who should be prevented, the heckler or the reactionary group?
“This has been brought to you by Kapisanan ng mga The heckler’s utterances may bring about violence, so who
Broadcasters ng Pilipinas through the help Government should be prevented, the reacting group which will commit
information office, blah blah…” Can those messages regulated, violence or the heckler whose expression would illicit some
that if it turns out to be false or there is an ascertion of falsehood violence from the rest? We shall continue tomorrow.
making it as true, can they be held liable?

And finally, there is a matter of HECKLER’s VETO.
What is a HECKLER’s VETO? MACLA, JAMAIL

ORCULLO, HAZEL BETH
A person who is to deliver a speech which is expected to arouse
violence from the reactionary group, may be called as a heckler.
Can that heckler be vetoed or enjoined from actually making “If you want to make your dreams come
utterances? true, the first thing you have to do is wake
up.”
So for example here is a group of pro RH bill. “When was this
when the catholic church had these? …last Sunday.” that the - J.M. Power
nationwide call for a rally. There is one in manila, there is one in,
I think Nograles, in Davao. Sila lang ata mag-isa, but di ko lang
sure. But I read in the newspapers that Karlo Nograles is anti-RH
bill. So, for example, there is a group of nun and priest, an anti-
RH, and there is this one guy, what is his name? The famous
intramuros guy, (CES BELTRAN) - that guy is pro-RH. In fact he If we are facing in the right direction, all we have to do is
keep on walking.
was one who is charged for some misdemeanor when he went to
~Buddhist Saying
church in Intramuros and shouted statements against the church
leaders for being anti-RH, that same guy. What if he is about to
deliver his piece in front or before this group of religious including
Bishops who were there for an ANTI-RH rally, could he be
prevented from uttering or from making his speech for fear that
there will be a violent reaction from the targeted group which is
the anti-RH bill proponents?
Now, it has not been tested here but in the US, there is a mix
reaction on whether a HECKLER’s veto is allowed. AGAIN, the
HECKLER’S VETO is that act of the state of preventing that
person considered as a heckler from making his speech or
utterance for fear that violence may erupt if he will be allowed to
make his expression.

COLLEGE
OF LAW
force the government to give in to their demands under threat of

August 14, 2012 a work stoppage would it be constitutive of a prohibited act.
What they simply did here was to wear shirts and arm bands
FREEDOM OF ASSOCIATION supposedly to redress their grievances to GSIS management.
They did not actually commit an act of work stoppage because
Section 8. The right of the people, including those employed in they reported to work so the administrative sanctions against
the public and private sectors, to form unions, associations, or them were not justified. So must that be for all other government
societies for purposes not contrary to law, shall not be abridged. employees.
While they may form an association and collectively bargain with
ARTICLE IX B 2(5) the government, they cannot collectively bargain with the
5. The right to self-organization shall not be denied to government as if they were employees from the private sector for
government employees. several reasons.
REASONS WHY GOVERNMENT EMPLOYEES

ARTICLE XIII, Section 3. XXX CANNOT COLLECTIVELY BARGAIN
It shall guarantee the rights of all workers to self-organization, First, would be the nature of the job is public service. It’s not
collective bargaining and negotiations, and peaceful concerted actual employment.
activities, including the right to strike in accordance with law. Second is, government cannot give concessions especially
They shall be entitled to security of tenure, humane conditions of economic demands as ordinary CBA negotiations would have
work, and a living wage. They shall also participate in policy and because this is largely dependent upon items already
decision-making processes affecting their rights and benefits as appropriated for by Congress.
may be provided by law.
Everything with respect to money -------- public treasury requires
Under freedom of association, we have this case of GSIS vs. appropriations made by Congress, they cannot involve
Villariza. themselves into any activity which would force the government to
(disburse public funds?).
GOVERNMENT EMPLOYEES HAVE THE
FREEDOM TO ASSOCIATE, GSIS VS VILLARIZA
HOWEVER, THEY DO NOT HAVE THE RIGHT TO GR 180291
STRIKE
In this case, CSC found that the acts of respondents in going to the
GSIS-IU office wearing red shirts to witness a public hearing do not
We all know that government employees have the right to amount to a concerted activity or mass action proscribed
associate themselves or to exercise their right or freedom to above. CSC even added that their actuations can be deemed an
associate. However, they do not have the right to strike (public exercise of their constitutional right to freedom of expression. The
CA found no cogent reason to deviate therefrom.
sector) considering that the right to strike is mentioned in the
Constitution must have to be exercised in accordance with law. As defined in Section 5 of CSC Resolution No. 02-1316 which
Where there is a law prohibiting strike or work stoppage in the serves to regulate the political rights of those in the government
public sector considering the nature of the service, they may service, the concerted activity or mass action proscribed must be
coupled with the “intent of effecting work stoppage or service
engage in concerted activities to some extent but they can not disruption in order to realize their demands of force concession.”
engage in any activity that is considered a strike or work Wearing similarly colored shirts, attending a public hearing at the
stoppage. GSIS-IU office, bringing with them recording gadgets, clenching
their fists, some even badmouthing the guards and PGM Garcia,
are acts not constitutive of an (i) intent to effect work stoppage or
Now in this case of GSIS vs Villariza, this was a mass action by service disruption and (ii) for the purpose of realizing their
GSIS employees against the GSIS management. They were demands of force concession.
eventually held administratively liable for it. Now the question
here is whether their actions were prohibited under law. What is Precisely, the limitations or qualifications found in Section 5 of
CSC Resolution No. 02-1316 are there to temper and focus the
prohibited under the law is any act with the intent of effecting application of such prohibition. Not all collective activity or mass
work stoppage or service disruption in order to realize their undertaking of government employees is prohibited. Otherwise, we
demands or force concessions, economic or otherwise. Only if would be totally depriving our brothers and sisters in the
the actions would be constitutive of such extent with the intent to government service of their constitutional right to freedom of
expression.

COLLEGE
OF LAW
Government workers, whatever their ranks, have as much right as requirement of the law. Indeed, its only excuse for not disclosing
any person in the land to voice out their protests against what they the source code was that it was not yet available when CenPEG
believe to be a violation of their rights and interests. Civil Service asked for it and, subsequently, that the review had to be done,
does not deprive them of their freedom of expression. It would be apparently for security reason, "under a controlled environment."
unfair to hold that by joining the government service, the members The elections had passed and that reason is already stale.
thereof have renounced or waived this basic liberty. This freedom WHEREFORE, the Court GRANTS the petition for mandamus and
can be reasonably regulated only but can never be taken away. DIRECTS the COMELEC to make the source codes for the AES
technologies it selected for implementation pursuant to R.A. 9369
immediately available to CenPEG and all other interested political
FREEDOM OF INFORMATION parties or groups for independent review.
Section 7. The right of the people to information on matters of ANY MATTER OF PUBLIC INTEREST, NOT
public concern shall be recognized. Access to official records, COVERED BY NATIONAL SECURITY ISSUES
and to documents and papers pertaining to official acts,
transactions, or decisions, as well as to government research Now in the freedom of information we always know that what is
data used as basis for policy development, shall be afforded the supposed to be covered here are any matter of public interest
citizen, subject to such limitations as may be provided by law. which is not covered by national security issues. And even if
there is access supposedly to this kind of information, this
Now this case of CenPEG vs COMELEC involves freedom of information is not to be given out for free or if there is an absence
information refers to the matter of disclosure of the source code of any good intention requiring such information.
of the automated national and local elections of 2010. The source
code is actually as described in this case the readable The freedom of information must have to be related to the so
representation of the instructions on how the machine would called freedom of expression that would include the speech,
work during the elections. In simple terms, the SC even likened it media because only an informed individual can intelligibly
to a blueprint of instructions or a recipe if you would want to be formulate his thoughts to be able to compete in the free market of
more simple about it on how the machine would read and ideas. So if the reason for acquiring a certain information of a
eventually count, canvass and eventually transmit the votes. public office is not based on that good will of intentions, then
denial of that request for absolute information would not be a
Freedom of information-- the petitioner here wanted to examine denial of the right to information simply because again there is no
the source code. The COMELEC, however, failed to make the bona fide, legitimate purpose for securing that particular
source code available until the source code was delivered and information.
deposited with the Banko Sentral ng Pilipinas. It was too late
because the elections have already been conducted. But still in ACADEMIC FREEDOM
this petition for mandamus, the SC granted the petition
compelling the COMELEC to disclose the source code of the Now the other matter in your outline with respect to freedom of
AES technology for the automated elections. Rightfully so expression would be the academic freedom. We have always
because this will be the same source code, perhaps, that we will related this academic freedom with respect to, in relation to
be using in the 2013 elections. freedom of expression. Because of the aspect or ---- affecting
one’s free speech when one enters an institution of higher
G.R. No. 189546 September 21, 2010 learning.
CENTER FOR PEOPLE EMPOWERMENT IN
GOVERNANCE, vs.COMMISSION ON ELECTIONS,
In Garcia v. The Faculty Admission Committee, Loyola School
This case concerns the duty of the Commission on Elections of Theology (68 SCRA 277 [1975]), the Court had occasion to
(COMELEC) to disclose the source code for the Automated note the scope of academic freedom recognized by the
Election System (AES) technologies it used in the 2010 national Constitution as follows:
and local elections.
(I)t is to be noted that the reference is to the 'institutions of higher
The Court finds the petition and this last manifestation meritorious. learning' as the recipients of this boon. It would follow then that the
The pertinent portion of Section 12 of R.A. 9369 is clear in that school or college itself is possessed of such a right. It decides for
"once an AES technology is selected for implementation, the itself its aims and objectives and how best to attain them. It is free
Commission shall promptly make the source code of that from outside coercion or interference save possibly when the
technology available and open to any interested political party or overriding public welfare calls for some restraint. It has a wide
groups which may conduct their own review thereof." The sphere of autonomy certainly extending to the choice of students.
COMELEC has offered no reason not to comply with this This constitutional provision is not to be construed in a niggardly

COLLEGE
OF LAW
manner or in a grudging fashion. That would be to frustrate its ACADEMIC FREEDOM WITH RESPECT TO THE
purpose, nullify its intent. TEACHERS
xxx
"To clarify further the distinction between the freedom of the
university and that of the individual scholar, he says: "The personal The second would be with respect to the teachers, the members
aspect of freedom consists in the right of each university teacher of the faculty because the members of the faculty would have
recognized and effectively guaranteed by society to seek and their academic freedom in relation to the way they teach the
express the truth as he personally sees it, both in his academic
work and in his capacity as a private citizen. Thus the status of the
subject, the way they would want to impart their knowledge to
individual university teacher is at least as important, in considering their students, they way they handle their particular sections or
academic freedom, as the status of the institutions to which they subjects.
belong and through which they disseminate their learning."'
He likewise quoted from the President of the Queen's University in

And in the interest of their higher learning, they are supposed to
Belfast, Sir Eric Ashby: "'The internal conditions for academic be protected also with respect to the results of any studies that
freedom in a university are that the academic staff should have de they may have done in relation to their further studies on account
facto control of the following functions: of their being members of the faculty without fear of retribution
(i) the admission and examination of students;
(ii) the curricula for courses of study;
from the school for any mistake or error that may have been
(iii) the appointment and tenure of office of academic staff; and caused on account of that particular study.
(iv) the allocation of income among the different categories of
expenditure. Of course if results of the research were, for example, or a paper
It would be a poor prospect for academic freedom if universities
based on a research is plagiarised or something done to come
had to rely on the literal interpretation of their constitutions in order up with a false result, then that would not be protected under
to acquire for their academic members control of these four academic freedom
functions, for in one constitution or another most of these functions
are laid on the shoulders of the law governing body .'" XXXX
FREEDOM WITH RESPECT TO THE STUDENTS
It is the business of a university to provide that atmosphere which
is most conducive to speculation, experiment and creation. It is an The third which is mostly related to freedom of expression is that
atmosphere in which there prevail the four essential freedom of a of the students. Because there have been several cases in the
university�to determine for itself on academic grounds who may
teach, what may be taught, how it shall be taught, and who may be
past decided on which should prevail- the right of the students to
admitted to study"' (Emphasis supplied; citing Sinco, Philippine freely express themselves in joining activities in redress of their
Political Law, 491, (1962) and the concurring opinion of Justice grievances or whether the school has the right to discipline them
Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]). according to the reasonable rules of the school.
Academic freedom has practically types or components. Now, it’s a given that when students enter a school or institutions
for higher learning would not divest themselves of their right to
ACADEMIC FREEDOM OF THE INSTITUTION freedom of expression. They would always continue to have the
right to express themselves. But since everything is not absolute,
The first would be academic freedom of the institution. they must be subjected to reasonable rules of the school with
The right of the institution to decide for itself: respect to when they would be able to express their sentiments
1. what subjects to teach, or thoughts on a particular issue.
2. what courses to offer,
3. who to hire as part of the members of the faculty, Again, for so long as these reasonable regulations are imposed
4. who to admit to study in the institution. by the school at least are content neutral restrictions then they
would not be considered to be unreasonable regulations on the
That goes with it the discretion to determine what are the content of the speech.
reasonable rules for engagement of the members of the faculty That is why the school would always require that the students
as well as reasonable rules for admission and continued would have to express their grievances or conduct rallies or
admission of its students. That would also include the right to similar activities in areas of the school were the holding of regular
form its own objectives, mission, what its policies are in relation classes would not be disturbed. Of course these students
to running the institution of higher learning. engaged in these activities would not also be allowed without fear
of penalty to disrupt the holding of regular classes because the
other students who are in their classes would also have the right

COLLEGE
OF LAW
to continue their study in that institution of higher learning. So procedural due process when the school for higher learning will
there would always be that clash in that particular context. impose sanctions upon a student.
Now when the students under the Magna Carta would have the
right to be allowed enrolment in a school and also allowed re ADMU vs Capulong
enrolment until the full completion of the course requirement to G.R. No. 99327 May 27, 1993
earn a degree. These are subject to reasonable rules of Corollary to their contention of denials of due process is their
academics as well as rule on behaviour or rules of discipline in argument that it is Ang Tibay case 25 and not theGuzman case
school. which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process,
the Guzman case is more apropos to the instant case, since the
Everything is supposed to have been given at the time of latter deals specifically with the minimum standards to be satisfied
engagement in the sense that they are admitted to study in the in the imposition of disciplinary sanctions in academic institutions,
institution of higher learning. So that the students cannot later on such as petitioner university herein, thus:
complain that they were proceeded against and penalized
(1) the students must be informed in writing of the nature and
accordingly based on the rules they do not know. cause of any accusation against them; (2) that they shall have the
I think after some time for those who studied here in the Ateneo right to answer the charges against them with the assistance of
undergraduate courses, before the males did not have uniforms. counsel, if desired: (3) they shall be informed of the evidence
But a certain time they have required the freshmen light blue against them (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by
colored upper garment. Everybody now is wearing that, for the the investigating committee or official designated by the school
males at least. And I think students have been made to sign an authorities to hear and decide the case.
acknowledgement, furnished with, read of and understood the
rules respecting the academic rules. It cannot seriously be asserted that the above requirements were
not met. When, in view of the death of Leonardo Villa, petitioner
Cynthia del Castillo, as Dean of the Ateneo Law School, notified
Now in relation to that is the procedural due process in the and required respondent students on February 11, 1991 to submit
institutions of higher learning. When the students supposed to be within twenty-four hours their written statement on the
proceeded against by the school for violations rules whether incident, 27 the records show that instead of filing a reply,
respondent students requested through their counsel, copies of the
academic or rules of discipline. charges. 28While of the students mentioned in the February 11,
1991 notice duly submitted written statements, the others failed to
In academic rules, there’s not much discussion because it’s as do so. Thus, the latter were granted an extension of up to February
simple as you make the grade or you don’t. There’s no such thing 18, 1991 to file their statements.
as the holding of a hearing, investigation you would be made to Indubitably, the nature and cause of the accusation were
explain yourself because you have been heard when you took adequately spelled out in petitioners' notices dated February 14
the exam. That’s the opportunity to be heard already  and and 20, 1991. 30 It is to be noted that the February 20, 1991 letter
during the exam you were supposed to give all the evidence why which quoted Rule No. 3 of its Rules of Discipline as contained in
the Ateneo Law School Catalogue was addressed individually to
you should pass the subject and not fail the subject. So respondent students. Petitioners' notices/letters dated February 11,
everything is given for you to explain or even allowed you to February 14 and 20 clearly show that respondent students were
attach your countervailing evidence if there is. given ample opportunity to adduce evidence in their behalf and to
But for violation of the school’s rules on discipline, you always answer the charges leveled against them.
follow that procedural due process. It has been applied in several The requisite assistance of counsel was met when, from the very
cases already. One of the landmark cases is that of the Ateneo start of the investigations before the Joint Administration Faculty-
involving fraternity Aquila Legis where the SC said that the Student Committee, the law firm of Gonzales Batiler and Bilog and
respondent student must be furnished with the charge in writing, Associates put in its appearance and filed pleadings in behalf of
respondent students.
given the opportunity to present his evidence. There must be a
hearing conducted where the parties be allowed to offer Respondent students may not use the argument that since they
evidence. Although, there is no allowance for cross examination. were not accorded the opportunity to see and examine the written
statements which became the basis of petitioners' February 14,
1991 order, they were denied procedural due process. 31 Granting
The investigating committee must act independently and must that they were denied such opportunity, the same may not be said
also decide the case based on the evidence on record adduced to detract from the observance of due process, for disciplinary
by the parties. These are the minimum requirements for cases involving students need not necessarily include the right to
cross examination. An administrative proceeding conducted to

COLLEGE
OF LAW
investigate students' participation in a hazing activity need not be Roberto Rey San Diego, the private respondent is a graduate of
clothed with the attributes of a judicial proceeding. A closer the University of the East with a degree of Bachelor of Science
examination of the March 2, 1991 hearing which characterized the in Zoology. The petitioner claims that he took the NMAT
rules on the investigation as being summary in nature and that three times and flunked itas many times.
respondent students have no right to examine affiants-neophytes,
reveals that this is but a reiteration of our previous ruling inAlcuaz. ISSUE:
Whether the private respondent who has thrice failed the National
Respondent students' contention that the investigating committee Medical Admission Test (NMAT) is entitled to take it again as it is
failed to consider their evidence is far from the truth because the a requirement for admission to any Medical School in the
February 14, 1992 ordered clearly states that it was reached only Philippines. He invoked of his constitutional rights to academic
after receiving the written statements and hearing the testimonies freedom and quality education, squarely challenging the
of several witnesses. 33 Similarly, the Disciplinary Board's constitutionality of MECS Order No. 12, Series of 1972.
resolution dated March 10, 1991 was preceded by a hearing on
March 2, 1991 wherein respondent students were summoned to HELD:
answer clarificatory questions. The private respondent cannot take the NMAT again and pursue
his medical profession because of the following grounds:
1. For the purpose of gauging at least initially by the admission test
While student again has the right to continue re-enrolment at a and by the three-flunk rule, a student shall not be allowed to take
completion of a degree, but of course, that would be... it would the NMAT again after three successive failures.
always remain as the right of the school under its academic 2. The State ensures that medical profession is not permeated by
freedom to determine who to allow to study based on its incompetents to whom patients may unwarily hand over their lives
and health.
reasonable rules on its academics... 3. It is not enough to simply invoke the right to quality education as
a guarantee of the Constitution, while one has the right to aspire to
THREE-FLUNK RULE be a doctor, he does not have the constitutional right to be a
doctor; one must show that he is entitled to it because of his
preparation and promise.
As to the right of the student to allow enrolment, that has long
been decided and one of the cases is the case of DECS vs. 4. The conflict that the challenged rule violates the equal protection
Sandiego, where the “three-flunk rule” in the examinations for clause is not well-taken. Conformable to Article III, Section 1 of the
admission in a Medical school in the Philippines, has been to test Constitution, a law does not have to operate with equal force on
all person or things.
the argument of the respondent... is that a student has the right
to be admitted to a school of higher learning or a medical school
for that matter. But the SC said, ruling in favor of DECS, that a In an old case, there is this case of Garcia vs. Faculty of
three-flunk rule is reasonable considering that the profession Admission, faculty of admission is the School of Theology of
eventually coming out from the medical school has a close link to Ateneo, there is this woman who would want to be admitted to
a public interest issue which is public health. Stated differently, that school of theology. Per practice or traditions for the Catholic
the closer the link of a profession to a public interest or a public Church, Schools for Theologies are always reserved for
interest matter, the greater there is the state regulation allowable. biologically male persons.  (at least biologically....) if you are
So that if it were to be a different kind of profession, there may biologically female, you may not force yourself into admission for
not be stringent government regulation given for admission in the school of theology, at least for catholic church. OKAY...
school. But if it is a school or a degree which has closer relation
to public interest matter, then there may be greater state Now, this case of Mercado vs. Ama, this case involves AMA
regulation allowable as to who shall be admitted. And also, the members of faculty or teachers who were terminated by the
school itself has the right under its academic freedom to impose school based on non-renewal of the fixed term contracts. The
reasonable rules for admission. argument of the school was that, they have the right under its
academic freedom to engage the services of a teacher for whom
Some would require as to take entrance examinations and there to employ as members of the faculty. But the question is that, is
is the requirement of passing the entrance exam, is ordinarily their claim of academic freedom proper? SC looked into the basis
considered to be reasonable regulations or rule for admission. of the claim of petitioners, the petitioners here won in the NLRC
So, student knows he has a right under academic freedom to and eventually lost in the CA. The SC reversed the CA ruling and
enrol in the institution, he must have to comply with reasonable decided in their favor of the faculty members. Here is the
regulations imposed. question of whether these teachers can be terminated based on
non-renewal of contract or whether they could be terminated
DECS v San Diego (1989) because of non-regularization after the probationary status. We
FACTS: all know that in the teaching profession under the Magna Carta

COLLEGE
OF LAW
for teachers, the probationary period is how long? THREE FACTS:

YEARS... 6 semesters actually... that would be 3 school years. The teachers in this case were on probationary status on fixed
term contracts from the time they were employed and until the
Now these teachers involved were hired for 7 trimesters (AMA expiration of their teaching contracts. Subsequently, before they
follows trimester, 1 trimester is 1/3) almost 2 years and 1/3... were able to complete three consecutive years of service, they
Short for the 3 years. AMA terminated them on two grounds: were informed by the school that with the expiration of their
1. Non-renewal of fixed term contract; and contract to teach, their contract would no longer be renewed.
Hence, they filed a complaint for illegal dismissal.
2. The contracts, they will never be regularized because
they fail to pass the probationary status. The Labor Arbiter ruled that the teachers were illegally dismissed
and stated that Article 281 of the Labor Code on probationary
There was a “test”, they failed to pass the test... the Performance employment applied to the case.
Appraisal System for Teachers (PAST) and other requirements On appeal, the NLRC ruled that the applicable law is Section 92 of
for regularization that the school implements to maintain its high the Manual regulations for Private Schools and not Article 281 of
academic standards. So they were terminated for separate the Labor Code. However, the NLRC affirmed the Labor Arbiters
concerns. The SC said that there may be a problem if the decision since the teachers were terminated on the basis of
standards which were made known to them only near the end of
probationary status period overlapped the fixed term status. We their probationary period.
all know that as way back as the Brent Ruling, a fixed term
contract is allowed, so there is no regularization or expectation of On a petition for certiorari, the Court of Appeals reversed the
regularization after the expiration of the fixed term contract. You decision of the NLRC because the teachers were not actually
dismissed in that their contracts merely expired.
are agreed for a period of 1-year, you’re a temporary faculty
because the regular faculty left for further studies abroad. So RULING:
you’re hired for a fixed term of 1 year. If the period expires, The Supreme Court stated that nothing is illegitimate in defining
automatically you lose your work, and you are therefore not the school-teacher on fixed term basis. The school, however,
cannot forget that its system of fixed-term contract is a system that
considered to be regular or there is no violation of security of operates during the probationary period and for this reason is
tenure. The problem here is that, the person is supposed to have subject to the terms of Article 281 of the Labor Code. Unless this
been hired for a fixed term as provided in their probationary reconciliation is made, the requirements of this Article on
status, like, you’re in contract for 3 years, how would, SC asked, probationary status would be fully negated as the school may
freely choose not to renew contracts simply because their terms
if that 3 year period as fixed in the contract... is that probationary have expired.
also or is it a fixed term?
Given the clear constitutional and statutory intents, the Supreme
SC said that when, the fix term overlaps the probationary status, Court concluded that in a situation where the probationary status
overlaps with a fixed-term contract not specifically used for the
then the probationary status required under Article 281 of the fixed term it offers, Article 281 should assume primacy and the
Labor Code, that an employee must have to be regularized after fixed-period character of the contract must give way.
the probationary status unless,
1. he has been informed of what must be achieved during To highlight what the Supreme Court mean by a fixed-term contract
specifically used for the fixed term it offers, a replacement teacher,
the probationary status otherwise, he will not be for example, may be contracted for a period of one year to
regularized; temporarily take the place of a permanent teacher on a one-year
2. Second, the employees was not able to meet those study leave. The expiration of the replacement teacher's
standards conditioned to be met at that time of service. contracted term, under the circumstances, leads to no probationary
status implications as she was never employed on probationary
basis; her employment is for a specific purpose with particular
So since, the employees here were serviced or both there’s an focus on the term and with every intent to end her teaching
overlapped within the fixed term and the probationary status by relationship with the school upon expiration of this term.
law, then the SC said that it should be treated as probationary
While the Supreme Court can grant that the standards were duly
status. And that the failure of AMA’s duty to inform them of the communicated to the teachers and could be applied beginning the
reasonable requirements to pass the probationary status, would 1st trimester of the school year 2000-2001, glaring and very basic
make their termination or the claim of academic freedom of gaps in the school's evidence still exist.
school or institution of higher learning was not considered as
The exact terms of the standards were never introduced as
valid. evidence; neither does the evidence show how these standards
were applied to the teachers. Without these pieces of evidence the
Supreme Court had nothing to consider and pass upon as valid or
MERCADO VS AMA (2010) invalid for each of the teachers. Inevitably, the non-renewal (or

COLLEGE
OF LAW
effectively, the termination of employment of employees on There can also be no payment of public funds for religious
probationary status) lacks the supporting finding of just cause that services, except for those ministers, preacher who have been
the law requires and, hence, is illegal.
employed in the government penal institutions, orphanage. They
are paid not because they are religious people, but because of
“ln my experience, Nick, lessons not learned in blood
the tasks.
are soon forgotten”
-Clyde Shelton, Law Abiding Citizen
And we have mentioned before, there was a question in the bar,
several years ago. OFWs in Hong Kong who converge in public
FREEDOM OF RELIGION
squares every Sunday, for “tsismis”.  and in order to give in to
their religious needs, the OWWA, decided to engage the services
Section 5. No law shall be made respecting an establishment of
of a Catholic Priest, to deliver mass every Sunday. Can this
religion, or prohibiting the free exercise thereof. The free exercise
religious service be valid? …
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
BELIEF AND ACTION TEST
religious test shall be required for the exercise of civil or political
rights.
Now the scope of the freedom would refer to what is known as
the BELIEF AND ACTION TEST. The first is the BELIEF, the
Religion: any system of belief, worship, conducts, often involving second is the ACTION.
ethics, which includes the freedom not to believe.
The Freedom of religion is found in several provisions in the In BELIEF, whatever is in the realm of the thought that is
constitution. The first is the separation of the Church and the supposed to be absolutely protected. There is no such thing as
State. reasonable regulation allowable if it remains in the realms of
thought.
In ACTION however, to act in accordance to one’s belief, then it
may be subject to reasonable regulation under the Police Power.
SEPARATION OF THE CHURCH AND STATE The right is not absolute.
ARTICLE II, Section 6. The separation of Church and State shall The prohibitions are as follows:
be inviolable. 1.Non-establishment clause
2.Free exercise of Religion
Already understood in its original concept, the separation of the
Church and State, prohibits the State from intruding into religious (School District v. Schempp, 374 US 203)
matters. But it does not work the other way around, there is no
such thing as religion prohibiting from engaging itself into political The non-establishment clause does not depend upon any
showing of direct governmental compulsion. It is violated by the
matters, because by origin the church has always been intruding enactment of laws which establish an official religion whether those
into the realm of politics, as it is today. laws operate directly to coerce non-observing individuals or not.
The test of compliance with the non-establishment clause can be
EXEMPTION FROM REALTY TAXES stated as follows: What are the purposes and primary effect of the
enactment? If either is the advancement or inhibition of religion,
the law violates the non-establishment clause. Thus, in order for a
ARTICLE VI, Section 28. law to comply with the non-establishment clause, two requisites
1. xxx must be met. First, it has a secular legislative purpose. Second,
its primary effect neither advances nor inhibits religion.
2. xxx
3. Charitable institutions, churches and personages or The free exercise of religion clause withdraws from legislative
convents appurtenant thereto, mosques, non-profit cemeteries, power the exertion of any restraint on the free exercise of religion.
and all lands, buildings, and improvements, actually, directly, and In order to show a violation of this clause, the person affected must
show the coercive effect of the legislation as it operates against
exclusively used for religious, charitable, or educational purposes him in the practice of his religion. While the freedom to believe
shall be exempt from taxation. (non-establishment) is absolute, the moment such belief flows over
4. Xxx into action, it becomes subject to government regulation.

COLLEGE
OF LAW
NON-ESTABLISHMENT CLAUSE They must also be based on the religion, where the child
belongs, upon the written request and approval by the
1. Prohibits excessive governmental entanglement with administrators and parents, and there shall be no discrimination.
religious institutions and;
2. Government endorsement or disapproval of religion No problem with private schools, they are not regulated as those
with the public primary and secondary schools. In the Ateneo, we
FREE EXERCISE CLAUSE have religious instructions. In the Law School, we also have
Christian Ethics, at least man lang meron. 
Prohibits the government from inhibiting religious beliefs with The test used normally when the issue pertains to non-
imposition of penalties on (such) religious beliefs. establishment, is the so called benevolent neutrality or
accommodation, again the State is considered to be innocent by-
The concept of freedom of religion with respect to the stander with respect to the exercise of the different religions
participation or the entanglement of the government is that the which is practiced among the different sects. There should be a
government must have to be an innocent by-stander with respect wall of separation between the Churches and the State.
to religion and religious practices.
OPERATION OF SECTARIAN SCHOOLS
Religion can be best achieved by the volunteerism of its
members not because the State has imposed upon them to be ARTICLE XIV, Section 2. The State shall:
religious or from prohibiting them from being religious. Rightfully 1. XXX
so, as you may have seen, the bigger religious groups or sects, 2. Establish and maintain, a system of free public
we have are those who encourage freedom of thought and education in the elementary and high school levels. Without
freedom conscience of its members. limiting the natural rights of parents to rear their children,
elementary education is compulsory for all children of school age;
For those who have these thought and conscience imposed on
them, they may be good in numbers but they are not good in RELIGIOUS INSTRUCTIONS IN PUBLIC
(……) SCHOOLS
The Philippines is how many percent Catholics? (80% according
ARTICLE XIV, Section 3.
to Wikipedia, citing the NSO Census of 2000 as its source.)
1. XXX
2. XXX
Government Neutrality should be summarized as follows:
3. At the option expressed in writing by the parents or
1. Government must not prefer one religion or no-religion
guardians, religion shall be allowed to be taught to their children
over another
or wards in public elementary and high schools within the regular
2. Government funds must not be applied for religious
class hours by instructors designated or approved by the
purposes
religious authorities of the religion to which the children or wards
3. Government action must not aid religion
belong, without additional cost to the Government.
4. Government action must not result into excessive
entanglement with religion.
CIVIL CODE, Article 359. The government promotes the full
growth of the faculties of every child. For this purpose, the
For the non-establishment clause, there are acts permitted and government will establish, whenever possible:
these are called as non-discriminatory concessions (?) and these (1) Schools in every barrio, municipality and city where optional
are the cases mentioned earlier under the Constitutions religious instruction shall be taught as part of the curriculum at
exemptions on realty taxes, public schools (primary and the option of the parent or guardian;
secondary schools) the constitution allows it provided it would
comply with the requirements, that there is no additional PUBLIC AID TO RELIGION
expenditure allowing religious instructions in public schools.
ARTICLE VI, Section 29.
1. XXX

COLLEGE
OF LAW
2. No public money or property shall be appropriated, a. THOSE WHICH THE RELIGIOUS CLAUSES
applied, paid, or employed, directly or indirectly, for the use, PROHIBITS, WHICH IS PROHIBITTED (?)
benefit, or support of any sect, church, denomination, sectarian b. In this, the establishment prevails over potential
institution, or system of religion, or of any priest, preacher, accommodation requests.
minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to When there is an exercise of an act, the State may prohibit such
the armed forces, or to any penal institution, or government exercise depending on these 3 accommodations.
orphanage or leprosarium.
3. XXX
Boy Pick-up: Neneng, Hinding hindi kita sasagutin ng OO.
Aglipay vs. Ruiz (Not Discussed by Atty. Montejo) Neneng B: Bakit?
Boy Pick-up: Kasi, True or False ang tanong mo. Boom!
In Aglipay v. Ruiz, this Court had occasion to state that the
government should not be precluded from pursuing valid objectives

secular in character even if the incidental result would be favorable
to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must
have a secular legislative purpose and a primary effect that neither
ELMAN, JENIKA
advances nor inhibits religion. Assessed by these criteria, Republic
Act No. 3350 cannot be said to violate the constitutional inhibition TRAVILLA, CHERRYL
of the "no-establishment" (of religion) clause of the Constitution. PENDATUN, DATS
DUMAGAN, MENCHIE
Act 4052 contemplates no religious purpose in view. What it gives
the Director of Posts is the discretionary power to determine when
the issuance of special postage stamps would be “advantageous
to the Government.” Of course, the phrase “advantageous to the "What's your road, man?--holyboy road, madman
Government” does not authorize the violation of the Constitution; road, rainbow road, guppy road, any road. It's an
i.e. to appropriate, use or apply of public money or property for the anywhere road for anybody anyhow."
use, benefit or support of a particular sect or church. In the case at
~ Jack Kerouac, On the Road, Part 4, Ch. 1
bar, the issuance of the postage stamps was not inspired by any
sectarian feeling to favor a particular church or religious
denominations. The stamps were not issued and sold for the
benefit of the Roman Catholic Church, nor were money derived The important thing is to strive towards a goal which is
from the sale of the stamps given to that church. The purpose of not immediately visible. That goal is not the concern of
the issuing of the stamps was to take advantage of an event the mind, but of the spirit.
considered of international importance to give publicity to the ~Antoine de Saint-Exupéry,
Philippines and its people and attract more tourists to the country. Flight to Arras, 1942
Thus, instead of showing a Catholic chalice, the stamp contained a
map of the Philippines, the location of the City of Manila, and an
inscription that reads “Seat XXXIII International Eucharistic
Congress, Feb. 3-7, 1937.”
In the Free exercise clause, the government is prohibited from

inhibiting religious beliefs, with imposition of penalties for
religious beliefs and practices.
Three basic accommodations for Free exercise:

1. MANDATORY ACCOMODATION
a. Those which are found to be constitutionally compelled
and required by the free exercise clause.
2. PERMISSIVE ACCOMODATION
a. Those which are discretionary, that is not required by
the free exercise clause, but nonetheless permitted by the
establishment clause.
3. PROHIBITED ACCOMODATION

COLLEGE
OF LAW
Agust 24, 2012 R.A. No. 1265 and Department Order No. 8.
Held: No. Religious freedom is a fundamental right which is

FREEDOM OF RELIGION entitled to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator
So we are still under freedom of religion. Now, the multiple test The sole justification for a prior restraint or limitation on the
exercise of religious freedom is the existence of a grave and
used in the free exercise clause is at least based on the present danger of a character both grave and imminent, of a
decisions of the SC would be: serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty)
1.) Clear and Present Danger - this was applied in discussion to prevent." Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified. (Teehankee).
on flag salute cases. Remember the case of Ebralinag. This is
similarly applied in the discussion on freedom of expression, the The petitioners further contend that while they do not take part in
question in every case is whether the words used in such the compulsory flag ceremony, they do not engage in "external
circumstances and is in such a nature as to create a clear and acts" or behavior that would offend their countrymen who believe in
expressing their love of country through the observance of the flag
present danger that they will make about the serious evil which ceremony. They quietly stand at attention during the flag ceremony
the state has a right to prevent. If you relate this to the case to show the irrespect for the right of those who choose to
Ebralinag v. Division Superintendent of Schools of Cebu, is the participate in the solemn proceedings. Since they do not engage in
regulation on flag salute constitutive of a violation of free exercise disruptive behavior, there is no warrant for their expulsion.
by reason of the penalty imposable? However the claim of The Court is not persuaded that by exempting the Jehovah's
freedom of religion must have to be upheld over that regulation. Witnesses from saluting the flag, singing the national anthem and
To put it differently whether to allow the freedom of religion to reciting the patriotic pledge, this religious group which admittedly
create a situation that will bring about the evil sought to be comprises a "small portion of the school population" will shake up
our part of the globe and suddenly produce a nation "untaught and
avoided. In the old case, the possibility that the citizenry will be uninculcated in and unimbued with reverence for the flag,
composed of un-nationalistic individuals because children were patriotism, love of country and admiration for national heroes"
not compelled to salute the flag. In the Ebralinag case it was .What the petitioners seek only is exemption from the flag
explained that the evil sought to be avoided is presumed happen ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of
will come to pass simply because to be patriotic or nationalist will government, and learn not only the arts, sciences, Philippine
not be achieved by requiring the children to salute the flag among history and culture but also receive training for a vocation of
others. profession and be taught the virtues of "patriotism, respect for
human rights, appreciation for national heroes, the rights and
EBRALINAG v. THE DIVISION SUPERINTENDENT OF duties of citizenship, and moral and spiritual values (Sec. 3[2], Art.
SCHOOLS OF CEBU XIV, 1987 Constitution) as part of the curricula. Expelling or
G.R. No. 95770 March 1, 1993 banning the petitioners from Philippine schools will bring about the
very situation that this Court had feared in Gerona . Forcing a small
Facts: The petitioners in both (consolidated) cases were expelled religious group, through the iron hand of the law, to participate in a
from their classes by the public school authorities in Cebu for ceremony that violates their religious beliefs, will hardly be
refusing to salute the flag, sing the national anthem and recite the conducive to love of country or respect for dully constituted
patriotic pledge as required by Republic Act No. 1265 (An Act authorities.
making flag ceremony compulsory in all educational institutions) of
July 11, 1955 , and by Department Order No. 8 (Rules and Also, the expulsion of members of Jehovah's Witnesses from the
Regulations for Conducting the Flag Ceremony in All Educational schools where they are enrolled violates their right as Philippine
Institutions) dated July 21, 1955 of the Department of Education, citizens, under the 1987 Constitution, to" protect and promote the
Culture and Sports (DECS)making the flag ceremony compulsory right of all citizens to quality education . . . and to make such
in all educational institutions. Jehovah's Witnesses admitted that education accessible to all (Sec. 1, Art. XIV).
they taught their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those
are" acts of worship" or "religious devotion" which they "cannot In the case of Texas vs. Johnson regarding the flag burning issue
conscientiously give to anyone or anything except God". They
consider the flag as an image or idol representing the State. They it has been upheld that such is a valid freedom of expression
think the action of the local authorities in compelling the flag salute provided that the flag that you burn is you own, meaning that it is
and pledge transcends constitutional limitations on the State's your own property and for so long as you burn your own property
power and invades the sphere of the intellect and spirit which the which will not result in burning of another person's property that
Constitution protect against official control.
is sufficiently protected under freedom of expression. So the flag
Issue: Whether or not school children who are members or a is therefore not icon or an object which would be imbued with
religious sect may be expelled from school for disobedience of such interest that it will promote nationalism or patriotism on
COLLEGE
OF LAW
individual. There are a lot of acts which would ordinarily be order to protect the state interest is not the least intrusive, that
shown as disrespect in relation to how flags are tainted in certain regulation cannot be also considered as valid. So there must
national activities. Of course it would be different if it is the flag have to be a determination of the court on whether or not of all
owned by the state which would be subjected to such acts the available means to protect the compelling state interest, this
because that would necessarily show disrespect. is the least intrusive of all these measures.
Even in the Philippines, we still have that law which would In the case of Estrada, the SC clarified that they were charge of
penalize unauthorized use or destruction of Philippine flag which an administrative case, again, it would have been different if they
are ordinarily used in the course or conduct of official business. were charge with a criminal case, say for bigamy or concubinage,
There is a way of disposing a tattered flags which if not followed because the state has the right to protect its citizens from
will subject the person to a criminal liability. commission of offenses. It must remain clear that, it may be
different if they have been charge criminally because then again,
The other case is Estrada vs. Escritor, if you remember this case, the state has always have the right to ensure that the task to
there was an administrative case for gross immorality involving a protect its citizens is done.
Supreme Court employee because of a supposed to be immoral
liaison between two married individuals separated from their ESTRADA v. ESCRITOR
respective spouses. They have claimed that their association or AM No. P‐02‐1651 June 20, 2000
Facts: Escritor is a court interpreter since 1999 in the RTC of Las
union is authorized as part of their religious practices and in fact Pinas City. She has been living with Quilapio, a man who is not her
they were able to show that this practice had long been practiced husband, for more than twenty five years and had a son with him
in their religion and there is a document signed by them, as well. Respondent’s husband died a year before she entered into
supposedly witnessed by their God that their union is a union the judiciary while Quilapio is still legally married to another
woman.
base on their belief. The SC applied the compelling interest test.
We have discussed this already in freedom of expression, that if Complainant Estrada requested the Judge of said RTC to
there is a compelling state interest, the state has the right to investigate respondent. According to complainant, respondent
protect. The state may regulate the expression, in this case should not be allowed to remain employed therein for it will appear
as if the court allows such act.
between the exercise of religion.
Respondent claims that their conjugal arrangement is permitted by
As we have known from our freedom of expression discussion, her religion—the Jehovah’s Witnesses and the Watch Tower and
there must have a compelling interest that must be shown. What the Bible Trace Society. They allegedly have a ‘Declaration of
Pledging Faithfulness’ under the approval of their congregation.
that compelling state interest is not defined or contained in an Such a declaration is effective when legal impediments render it
enumerated list of items that would fall under that. It is merely impossible for a couple to legalize their union.
characterized as something preferred like national security,
preservation of the lives of multiple individuals and not violating Issue: Whether or Not the State could penalize respondent for
such conjugal arrangement.
explicit constitutional protection. So if we go by the extreme of
your religion. Take for example your religion believes of offering a Held: No. The State could not penalize respondent for she is
virgin to your god, we have always said that it may be regulated exercising her right to freedom of religion. The free exercise of
not only because it is difficult to find one now (just kidding ) but religion is specifically articulated as one of the fundamental rights
in our Constitution. As Jefferson put it, it is the most inalienable and
because it would result to something that the state has the right sacred of human rights. The State’s interest in enforcing its
to prevent. Nobody is entitled to kill a person; it is said under the prohibition cannot be merely abstract or symbolic in order to be
Constitution, without due process of law. So even if with the claim sufficiently compelling to outweigh a free exercise claim. In the
case at bar, the State has not evinced any concrete interest in
of religious right, that this is free exercise -- we believed that we enforcing the concubinage or bigamy charges against respondent
can be saved from all of these if we offer a virgin to our god – or her partner. Thus the State’s interest only amounts to the
that may not be allowable because there is a compelling state symbolic preservation of an unenforced prohibition.
interest.
Furthermore, a distinction between public and secular morality and
religious morality should be kept in mind. The jurisdiction of the
Under that compelling state interest in relation to our discussion Court extends only to public and secular morality.
in freedom of expression we also mentioned that there must have
to be showing that the intrusion or regulation of the government The Court further states that our Constitution adheres the
benevolent neutrality approach that gives room for accommodation
is necessary and that It is the least intrusive measure on the free of religious exercises as required by the Free Exercise Clause.
exercise to be an allowable regulation. If the means to regulate in This benevolent neutrality could allow for accommodation of

COLLEGE
OF LAW
morality based on religion, provided it does not offend compelling business. Like a requirement of a business permit. The licensing
state interests. Assuming arguendo that the OSG has proved a requirement there must not be confused with the licensing to
compelling state interest, it has to further demonstrate that the
state has used the least intrusive means possible so that the free propagate in relation to free exercise and the licensing in relation
exercise is not infringed any more than necessary to achieve the to the privilege of conducting business. So, Daugthers of St. Paul
legitimate goal of the state. Thus the conjugal arrangement cannot which sells religious publication as well as religious items, is that
be penalized for it constitutes an exemption to the law based on entity exempt from the payment of license fees or permits? So
her right to freedom of religion.
one must be able to distinguish that.
The other is in the case of Iglesia ni Cristo, the ratings and

Remember the discussion on facial invalidation or void for
classification of television show involving religious programs. The
vagueness, in criminal offenses, that may not be ordinarily
SC has always upheld the power of the MTRCB over motion
allowed, unless it involves free speech. Now religion is closely
pictures and television shows and the law creating the MTRCB
related to expression because freedom of religion is placed under
as well as the powers granted therein have not yet been declared
the category of freedom of thought or conscience. So, while in
as unconstitutional. As mentioned before, the only problem with
the Estrada case administrative liability is observed to be non-
the classification board is that, there are not enough medium or
existent during the exercise of religious right, in criminal cases,
places by which those rated other than the usual can be publicly
there must have to be a greater scrutiny of whether or not the
exhibited or shown. The ratings and classification is not a form of
claim is a valid claim.
censorship yet it can be shown in the appropriate place that is
consistent with the ratings of the firm.
Now, in this compelling state interest there are 3 questions to be
asked:
EXEMPTION FROM UNION SHIP IN RE
FREEDOM TO ASSOCIATE
1.) Is the claim for religious right a sincere claim? –
Apparently, there must be sincerity of the claim of the
It has always been allowed that members of certain religious
exercise of religious right although the court will not
groups who are not allowed to associate themselves other than
look into its truthfulness or validity. Sincerity because it
their own religious groups are not covered by the terms of the
must have to be practiced and the practice have been
union shop clauses. In admission however, they are not
established already, a standard practice of the religion
prohibited from associating by themselves by reason of their
and that person claiming exemption from the coverage
religious beliefs and aspiration. Again in all of these, the sincerity
of the state regulation must have been practicing that
of the claim must have to be established. It cannot be like a rule
religion. The most common is been akin to a joke: They
just promulgated yesterday for the convenience of the members.
say that can I convert my religion from Christianity to
It must be established in the religious dogma or being as
Islam so that I may be allowed to marry more than
practiced in that particular religion.
once. I don’t know why they would want to marry more
than once, having one is difficult enough, they want
DISQUALIFICATION FROM LOCAL ELECTIVE
more difficulty.
OFFICE
2.) Whether there is sufficient compelling interest?
This old case of Pamil vs. Teleron discuss the old provision of the
Revised Administrative Code that there is a disqualification for
3.) Least Intrusive of all means.
priest or religious persons to participate in elections or to be
elected to the public office because of the Constitutional
Those three questions must have to be answered in order that a
principle of the separation of the Church and the state.
valid claim for free exercise may be vested.
PAMIL v. TELERON
FREEDOM TO PROPAGATE RELIGIOUS G.R. No. L-34854 November 20, 1978
DOCTRINES
Facts: Private respondent, Father Margarito R. Gonzaga, was, in
1971, elected to the position of municipal mayor of Alburquerque,
The usual question here in relation to propagation of religious Bohol. Therefore, he was duly proclaimed. A suit for quo warranto
doctrines is the requirement in acquiring permit prior to was then filed by petitioner, himself an aspirant for the office, for
dissemination of religious publication. One must distinguish his disqualification based on this Administrative Code provision: "In
between what is regularly required as part of the conduct of no case shall there be elected or appointed to a municipal office

COLLEGE
OF LAW
ecclesiastics, soldiers in active service, persons receiving salaries

or compensation from provincial or national funds, or contractors Now this has been allowed in some jurisdiction but generally,
for public works of the municipality." The suit did not prosper,
respondent Judge sustaining the right of Father Gonzaga to the again, the claim is supposed to be sincere. If you were to avoid
office of municipal mayor. He ruled that such statutory ineligibility forced drafting into the military because of the religious belief,
was impliedly repealed by the Election Code of 1971. The matter you are a conscientious objector, your freedom of religion would
was then elevated to this Tribunal by petitioner. It is his contention prevent you from joining the service because it against your
that there was no such implied repeal, that it is still in full force and
effect. Thus was the specific question raised. religion. But then again, it is allowed in certain jurisdiction but
certainly not in the state because they can compel you to render
Issue: WON the disqualification of the respondent based on civilian service. Just compulsory service. You must have heard of
Administrative Code provision Constitutional. the National Guard, the National Guard that is used to be kept as
Held: The challenged Administrative Code provision, certainly a reserve force for the purposes of augmenting regular armed
insofar as it declares ineligible ecclesiastics to any elective or forces of the US if there is a local emergency or strike. In need
appointive office, is, on its face, inconsistent with the religious not be a war, if there is a national emergency or there is a need
freedom guaranteed by the Constitution. To so exclude them is to for military personnel to participate in a search and rescue
impose a religious test. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. operations or similar activities. They can call in the National
There is thus an incompatibility between the Administrative Code Guard and these are technically military service.
provision relied upon by petitioner and an express constitutional
mandate. Clay v. United States
403 U.S. 698 June 28, 1971
But since the Revised Administrative Code has been repealed
In 1966, Muhammad Ali (formerly Cassius Clay) was classified as
and we have with respect to local government official the Local 1-A (eligible for service in the U.S. armed forces), two years after
Government Code, the national official in the Constitution there being classified as I-Y (not qualified), due to an amendment in his
seems to be no prohibition now on elective offices that religious mental aptitude test. In response, Ali applied for conscientious
persons cannot run or even elected to office. The only effect is objector status but was turned down by both his local draft board
and the State Appeal Board. According to existing statutes, the
that, for the church policy is that they must have to resign or take matter was then referred to the Justice Department for an advisory
a leave so that there will be no confusion when they are sitting in recommendation and the FBI, in preparation for a hearing on "the
that capacity, that they are there to act as public officers and not character and good faith of the [petitioner's] objections," conducted
as officers of their respective religion. In the Cabinet now we more than 35 interviews with Ali's family, friends, neighbors, and
business and religious associates. The hearing officer at Ali's
have Bro. Armin A. Luistro of the Department of Education. hearing, after listening the testimony of Ali's parents, one of his
Perhaps the president believes that the Jesuits could offer better attorneys and Ali himself (and after reviewing the report generated
policy in the Education or perhaps they believe that if Jesuit by the FBI to which he had access), recommended to the Justice
would end up being the Secretary of Education it will become Department that Ali be granted his conscientious objector status.
more expensive.  However, the Justice Department, in a letter to the Appeal Board,
advised against granting such status. The Board honored this
One matter in freedom of religion is the conscientious objector. request without stating the reasons it was basing its decision.
So what is a consensus objector? This has relation to an According to the U.S. Supreme Court:
individual who has claim the right to refuse to perform military "That denial, for which no reasons were ever given, was,
service on the grounds of freedom of thought, conscience, and/or as we have said, based on a recommendation of the
religion. Perhaps, the most famous of whom is Cassius Clay Department of Justice, overruling its hearing officer and
because he was about to be drafted in Vietnam War, he changed advising the Appeal Board that it 'finds that the
registrant's conscientious-objector claim is not sustained
his religion to Islam and became Muhammad Ali for which the and recommends to your Board that he be not [so]
dodged the drafting and he was penalized accordingly. He was classified.' This finding was contained in a long letter of
made to suffer and penalized and jailed. That, I think has not explanation, from which it is evident that Selective
happened in the Philippines because we have no force drafting in Service officials were led to believe that the Department
had found that the petitioner had failed to satisfy each of
the military. Since the martial law, the military has been the the three basic tests for qualification as a conscientious
blatant source of employment and it has increase in number ever objector."
since, and because the maximum allowable age for service has
been fixed. Despite the retirement of previous ones there are so The three basic tests for conscientious objector status that the
Justice Department letter argued Ali did not meet were:
many more enlisted throughout the year, so there is no need to
forcible draft everybody to perform a military service. 1. an applicant's objection must be against

COLLEGE
OF LAW
participating in war in any form, not just a particular Remember that old case of Marcos vs. Manglapus, the
war (the Justice Department letter indicated that discussion here was on whether or not the right to travel in the
Ali's objection was "limited to military service in the
Armed Forces of the United States"); Constitution includes one’s right to travel back or to enter into the
2. an applicant's objection to service in the country. The liberty of abode means the liberty or your right to
military must be based on religious training and choose where to live and to change the place of your residence
belief (the Justice Department letter stated that Ali's that can only be infringe upon lawful order of the court. The most
"claimed objections to participation in war insofar as
they are based upon the teaching of the Nation of common example we give is Destierro. You have been penalized
Islam rests on grounds which primarily are political as a concubine in concubinage and you are also penalized with
and racial"); and that distierro, you cannot enter within the 200km radius.
3. an applicant's objection must be sincere (the
Justice Department letter stated that Ali "has not
shown overt manifestations sufficient to establish The right to travel is intra-country, within the country, or going
his subjective belief where, as here, his outside of the country. In the US where there are several state,
conscientious-objector claim was not asserted until the right to travel include travel within the state going to another
military service became imminent") state provided it within the entire United States. But the right to
Now, before the Supreme Court, the government conceded that travel back in the case of Manglapus was discussed not as an
Muhammad Ali's objection was based upon the "religious training express provision in the Constitution included in Section 6 of
and belief" of the Nation of Islam after all, and that his reasons for Article III but rather under the principle of Incorporation. In the
doing so were indeed sincere (and the Supreme Court agreed with Doctrine of Incorporation, generally accepted principles of
the government's revised thinking). However, the government
continued to argue that Muhammad Ali was not against all war, but international law are deemed part of the law of the land. The
only wars that were not declared by Allah, which in fact Ali had Universal Declaration of Human Rights among others states that
personally stated many times. However, the Supreme Court found everyone has the right to freedom of movement and residence
that: within the borders of each state and everyone has the right to
"Since the Appeal Board gave no reasons for its denial leave any country including his own and to return to his country.
of the petitioner's claim, there is absolutely no way of That is the generally accepted principle and that deemed
knowing upon which of the three grounds offered in the incorporated as part of the law of the land.
Department's letter it relied. Yet the Government now
acknowledges that two of those grounds were not valid.
Marcos vs. Manglapus
And the Government's concession aside, it is
G.R. No. 88211 Sept. 15, 1989
indisputably clear, for the reasons stated, that the
Department was simply wrong as a matter of law in
Facts: This case involves a petition of mandamus and prohibition
advising that the petitioner's beliefs were not religiously
asking the court to order the respondents Secretary of Foreign
based and were not sincerely held."
Affairs, etc. To issue travel documents to former Pres. Marcos and
the immediate members of his family and to enjoin the
LIBERTY OF ABODE and of Changing the same implementation of the President's decision to bar their return to the
Philippines. Petitioners assert that the right of the Marcoses to
return in the Philippines is guaranteed by the Bill of Rights,
There is not much change there. Liberty of abode and of specifically Sections 1 and 6. They contended that Pres. Aquino is
changing the same can be affected by lawful order of the court. without power to impair the liberty of abode of the Marcoses
because only a court may do so within the limits prescribed by law.
THE RIGHT TO TRAVEL Nor the President impair their right to travel because no law has
authorized her to do so.
The reasons for infringing it would be interest of national security, They further assert that under international law, their right to return
public safety and public health. These are not limitations on the to the Philippines is guaranteed particularly by the Universal
court, the court can actually impose its powers and jurisdiction Declaration of Human Rights and the International Covenant on
Civil and Political Rights, which has been ratified by the
over the person and thereby protect the right of the person to Philippines.
travel even if the constitution says it is only to infringe in the
interest of national security, public safety or public health. Under Issue: Whether or not, in the exercise of the powers granted by the
Rules of Court, the courts have the inherent power to make its constitution, the President (Aquino) may prohibit the Marcoses
from returning to the Philippines.
functions work. If the person is under the jurisdiction of the court,
the court can issue any order to prevent that person from getting Held: "It must be emphasized that the individual right involved is
out of the court’s jurisdiction and outside the effects of the not the right to travel from the Philippines to other countries or
warrant. within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved in this case at bar

COLLEGE
OF LAW
is the right to return to one's country, a distinct right under

international law, independent from although related to the right to 1.) His privilege against self-incrimination which under
travel. Thus, the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights treat the right to Sec. 17 of Art. III now;
freedom of movement and abode within the territory of a state, the 2.) His right to be represented by counsel. Should a
right to leave the country, and the right to enter one's country as person be assisted by counsel when he is under
separate and distinct rights. What the Declaration speaks of is the investigation? And so we came to be what we have
"right to freedom of movement and residence within the borders of
each state". On the other hand, the Covenant guarantees the right now what we know as Miranda Warning.
to liberty of movement and freedom to choose his residence and
the right to be free to leave any country, including his own. Such This was first incorporated in the 1973 Constitution of the
rights may only be restricted by laws protecting the national Philippines, simply because the decision was in 1963, it could not
security, public order, public health or morals or the separate rights
of others. However, right to enter one's country cannot be have been incorporated in 1935. What the ruling simply requires
arbitrarily deprived. It would be therefore inappropriate to construe is that the person must have to be informed of these so called
the limitations to the right to return to ones country in the same Miranda Rights, and that information is what we know as Miranda
context as those pertaining to the liberty of abode and the right to Warning. The Miranda Rights are:
travel.
1.) The right to remain silent;
The Bill of rights treats only the liberty of abode and the right to 2.) The right to be informed that if he would waive his right
travel, but it is a well considered view that the right to return may to remain silent anything that he will provide and say
be considered, as a generally accepted principle of International will be and can be used against him in the court of law.
Law and under our Constitution as part of the law of the land.
3.) He will also be informed that his Miranda Rights include
The court held that President did not act arbitrarily or with grave the right to be represented by counsel; and
abuse of discretion in determining that the return of the Former 4.) If he could not afford the service of a counsel the state
Pres. Marcos and his family poses a serious threat to national will provide a counsel for him.
interest and welfare. President Aquino has determined that the
destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years after the To give the Miranda Warning would require much more than the
Marcos regime. perfunctory presentation of the rights. In the US, there is no such
thing or only some as difficulty in the manner or way that the
The return of the Marcoses poses a serious threat and therefore
prohibiting their return to the Philippines. Miranda Warnings are given but not as much as here because
English is not a first language. So, in the previous decisions of
RIGHT OF PERSONS UNDER CUSTODIAL the Supreme Court on the manner, the SC simply characterizes it
INVESTIGATION that there must be a meaningful transmission of a right.
Meaningful transmission requires that individual differences of
In 1963, the US Supreme Court in the case of Miranda vs. State person to whom these warnings are given and to whom these
of Arizona, the court made a ruling that known as the Miranda rights are afforded must have to be taken into consideration. The
Rule. Ernesto Miranda by his family name Hispanic was arrested SC assumed that the public servant would easily recite these
on account of a complaint for abduction and rape of a female and rights. I would have to pose that it should have been better that
the car plate was taken and it was traced to him. So several days there must have to be a requirement that the police officer giving
later, he was arrested and placed in custody and brought to the these warnings must also be able to give them properly and
police station and after several hours of interrogation he signed a intelligently. The Supreme Court decisions have placed
confession. The court of Arizona convicted him solely on the importance that the person to whom the right pertains have
basis of the extrajudicial confession and on appeal, the US understood the meaning and import of these rights and that
Supreme Court discussed and reversed the decision of the lower would include the meaning and import of any waiver of such
court and remand the case to the lower court for presentation of rights.
other evidence because the extrajudicial confession was
excluded. The trial court nonetheless upon the trial convicted him Constitutionally, it is simply required that there is a meaningful
and imposed a penalty. But in the Supreme Court, it had a transmission of a right and that if there is a waiver, the waiver
discussion of what are the rights of the person if that person is must have to be in writing and must have to be with the
placed under investigation. There are two distinct rights because assistance of counsel. The question is asked today that have the
the Miranda Rule was not yet established which were sought to answers ready because if it were to be asked prior to the 1987
be reviewed as having been violated in the case of Ernesto Constitution, there was this case of People vs. Galit which
Miranda: somehow defined how the rights are to be waived based on the

COLLEGE
OF LAW
decision of March 20, 1985 which have since then been obtained a writ of habeascorpus.
incorporated in the 1987 Constitution. So atleast those problems
Ten days later, on January 30, Escobedo was again arrested,
were answered in the Constitution: handcuffed, and driven to the police station. On the way to the sta
tion, the police allegedly informed Escobedo that a man named
1.) Meaningful transmission of a right; Benedict DiGerlando had said it was Escobedo who had fired the
2.) Meaningful transmission of the consequences of a shots that killed his brother-in-law. The police also allegedly told
Escobedo that the case against him was pretty secure and he
waiver; might as well "come clean" and admit to the killing. At that point,
3.) The waiver must have to be in writing; and Escobedo asked to have his lawyer present before answering any
4.) The waiver must have to be made with the assistance questions.
of counsel.
The police questioned Escobedo for several hours, during which
he continued to ask for his attorney. He was told that he could do
(Distinction) So, while the assistance of counsel during the taking so after the police concluded their interrogation. Escobedo's
of the testimony or during the investigation may be waived the attorney, who was at the police station on another matter,
requirement that the waiver must be in writing with the assistance discovered that Escobedo was in custody. He asked repeatedly to
speak to his client but got the same answer: He could see
of counsel, the assistance of counsel there may not be waived. Escobedo after the questioning.
While interrogating Escobedo, the police told him that they had
The currently question asked is that, why should the so called DiGerlando in custody. They asked Escobedo if he would like to
Miranda Rights be considered as claimable. Constitutionally, it call DiGerlando a liar to his face. Escobedo said he would, and
when the two men met, Escobedo said to DiGerlando: "I didn't
must have to be when a person is taken under investigation. In shoot Manuel-yo4 did." This statement placed Escobedo at the
the ’73 Constitution it was originally placed to require Custodial crime scene for the first time or, at the least, showed that he had
Investigation. The person must have to be placed under custody. knowledge of the crime. As the questioning continued, Escobedo
Meaning they must have been arrested at the very least for a gave other information that incriminated himself, his sister, and
DiGerlando in the murder of his brother-in-law.
substantial restriction of his freedom to go around. It is not
necessary that he is in jail but at least his freedom to move Before his trial, and on appeal, Escobedo asked the court
around or mobility is substantially affected, he is considered to be to suppress all information gathered during the interrogation
theoretically placed under custody. without his attorney. The motion was denied, and Escobedo was
convicted of the murder of his brother-in-law.
In the case of Escobedo vs. Illinois which was the basis for ’87 In February 1963, the Illinois Supreme Court heard Escobedo's
Draft, one need not be under the custody anymore because the appeal, ruled that the information should not have been allowed as
experience in the ’73 Constitution would show that persons evidence, and reversed the decision of the lower court. However,
the state appealed for a rehearing. Saying that Escobedo had
investigated, admissions are taken even if these persons are not given the information voluntarily, the state asked the court to rule in
in custody. So the Escobedo v. Illinois ruling on investigation has favor of the prosecution and admit the evidence. The court
been adopted under the ’87 Constitution. The investigation agreed.
happens when the person is asked or the questions asked Escobedo then petitioned the United States Supreme Court to
review the case.
relating to that persons possible complicity of the crime under
investigation. These would go beyond the general line of Issue: Was the refusal by police to honor Escobedo's request to
questioning on the person or persons whereabouts but is now consult with his lawyer a violation of his Sixth Amendment rights?
pointing to that person as possible suspect. So if that question is
Held: The U. S. Supreme Court, by a vote of 5-4, said that
pointing to that person as a possible suspect then that is already Escobedo's rights had been violated. Overturning the ruling of the
considered investigation regardless of the fact that the person is state supreme court, it declared that the information was not
in custody or not. So as soon as the investigation is or has admissible as evidence because it had been unlawfully obtained.
commenced then the right is now at play.
Writing for the Court, Justice Arthur Goldberg explained the point at
which a police procedure became "accusatory" instead of
'investigatory:"
Escobedo v. Illinois
378 U.S. 478 June 22, 1964 ... [when] the investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a
Facts: Danny Escobedo's brother-in-law was killed on January 19, particular subject, ... the police carry out a process of
1960. At about 2:30 in the morning, Escobedo was arrested interrogation that lends itself to eliciting incriminating
without a warrant and taken to the Chicago police headquarters for statements, the suspect has requested and been denied
questioning. Escobedo made no statement to the police and was an opportunity to consult with his lawyer, and the police
released at approximately 5:00 that afternoon, after his lawyer have not effectively warned him of his absolute
COLLEGE
OF LAW
constitutional right to remain silent, the accused has In order to do away with the said practices the R.A. No. 7438 has
been denied 'the Assistance of Counsel" in violation of responded by requiring them to document the custodial
the Sixth Amendment .... [N]o statement elicited by the
police during the interrogation may be used against him investigation report which must be:
at a criminal trial.
The dissenting justices expressed their serious concerns 1.) In writing;
that this decision would make it much more difficult for 2.) Read and understood by the confessant and
the police to obtain information and for prosecutors to
gain convictions. 3.) Explained to him, if the he does not know how to read
and write;
We say that in the Constitutional context because R.A. No. 7438 4.) In the language that he speaks and understands.
(April 27, 1992) as you all know, it has expanded the applicability
of Miranda Rule because, a person who is arrested detained or Extra-judicial confession have the same requirement before it will
investigated can claim the right, now as we know as Miranda be signed, which are:
Rights. So, before in the Constitutional context, if the person is
not yet arrested, he could not claim Miranda Rights. He need not 1.) It must be in writing;
be informed of his Miranda Rights through a Miranda Warning. 2.) It must be read and understood by the person and
R.A. No. 7438 has expanded it to cover time of arrest already. 3.) It must be explained to him, if the he does not know
how to read and write;
This is also not claimable for statement taken before the ’73 4.) The explanation must be in the language that he
Constitution because there is no Miranda Warning to talk about. speaks and understands;
It is not also considered in situations like police line-up where 5.) It must be signed by him with the assistance of his
there is no questioning technically. When the person is faced or counsel.
identification in a police line-up, that person is not placed under
investigation. That is the in the Constitutional context again, If there is no counsel because there is a valid waiver, the law still
because in R.A. No. 7438, the practice of inviting persons to the requires that it must still have to be signed by that person in the
police station to shed light on the crime being investigated is presence of any of his parents, older brothers and sisters, his
considered covered under R.A. No. 7438. spouse, the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by him.
So if you were, for example, invited to a police station for Otherwise, such extrajudicial confession shall be inadmissible as
purposed of identification. The Police Line-up, if it were to be in evidence in any proceeding.
the construction of the Constitution that is not covered, but if you
were to argue that this is covered by the R.A. No. 7438 then the Remember, when a person is arrested without warrant, the usual
answer should be, that the Miranda Warning should have been proceedings to be conducted by the prosecutor against the
given. person is called inquest proceeding. Then the information is
thereafter filed in court and if the accused wants to avail himself
Now, there are also some other discussion on the Miranda of the provisions of Rule 112 of the Rules of Court on Preliminary
Rights, under R.A. No. 7438. There two documents there Investigation, can he avail of that and what are the conditions?
required:
Well, the ROC requires that he must avail of that in 5 days from
1.) The custodial investigation report; and knowledge that the information has been filed and he must have
2.) Extra-judicial confession. waived his right under Art. 125 of the Revised Penal Code which
is arbitrary detention (ang arbitrary detention kay Art. 124 man,
In the original context of the Constitution of the application of the basi Delay in the delivery of detained persons to the proper
Miranda Warnings and of the Miranda Rights, there was no need judicial authorities, you mean?) R.A. No. 7438 covers Art. 125.
of any written extra-judicial protection. Before the practice of Any waiver of the right under Art. 125 of the RPC must have to
police officers would be one of two things: be in writing and must have to be signed by that person with the
assistance of counsel.
1.) There is a signed confession;
2.) The police investigator would testify in court that the Again, this is in an expansion of the ROC and because this is
accused has admitted to a committing the said crime. substantive law, it shall govern and this is also the law which has
expanded somehow the Constitutional provision, though it did not

COLLEGE
OF LAW
violate the Constitutional provision in the right of the persons 1.) Meaningful transmission of the right;
under investigation. 2.) Meaningful transmission of the consequence of the
waiver;
Other matter in R.A. No. 7438 is assisting of counsel. There are a 3.) That the waiver is in writing;
lot of questions and cases before R.A. No. 7438, on who can be 4.) That the waiver has been given with the assistance of a
an assisting counsel for purposes of waiving his right to remain counsel.
silent or his right to be assisted by counsel under the
Constitutional context. So in one case, I think in Samal where the But with respect to the confession, we still follow the presumption
MTC Judge acted as counsel, there were questions as to that people would always easily confess if they are liable or guilty
whether they could be an assisting counsel and most questions of it. So that if the confessant or the person investigated would
would be if the fact that the assisting counsel has been provided claim otherwise, it is his burden to prove that the confession was
by the police officers did not be a ground for excluding the obtained by reason of vitiated consent, or by force, intimidation,
confession because the assisting counsel is one provided by the torture or the like. There is no presumption of torture or any
investigating officer. The answer is not necessarily because vitiation of consent even if it were true. The presumption is that,
Miranda Rights include the right to be represented by counsel the police officers are performing their regular function and
and if he cannot afford that the State will provide him with one. torture is not part of their regular function.
So for so long as the counsel who assisted the person is there to
protect his rights then that lawyer assisting is fine. Republic Act No. 7438 April 27, 1992
R.A. No. 7438 defines who can be an assisting counsel as any AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED,
lawyer, except those directly affected by the case, those charged DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL
AS THE DUTIES OF THE ARRESTING, DETAINING AND
with conducting preliminary investigation or those charged with INVESTIGATING OFFICERS, AND PROVIDING PENALTIES
the prosecution of crimes cannot be assisting counsel. That FOR VIOLATIONS THEREOF
would be the general rule, then if you are the municipal attorney,
city attorney, provincial legal officer, you cannot be an assisting Be it enacted by the Senate and House of Representatives of the
counsel because you’re interested in the prosecution of offenses. Philippines in Congress assembled::
The exemption probably is when you are a relative of that
person. Section 1. Statement of Policy. – It is the policy of the Senate to
value the dignity of every human being and guarantee full respect
for human rights.
In this right under investigation, the choice of counsel use the
word “preferably” and as we always maintained the word should
Section 2. Rights of Persons Arrested, Detained or Under
be understood liberally if it is claimed by that person that Custodial Investigation; Duties of Public Officers.–
“preferably” means that – if allowed or allowable under the
statute. (a) Any person arrested detained or under custodial
investigation shall at all times be assisted by counsel.
Final item with respect Extra-Judicial Confession would be the
rule on admissibility. There are always two things that would (b) Any public officer or employee, or anyone acting
affect the admissibility of the extra-judicial confession: under his order or his place, who arrests, detains or
investigates any person for the commission of an offense
shall inform the latter, in a language known to and
1.) Question on the validity of the waiver; understood by him, of his rights to remain silent and to
2.) Question on the validity of the confession. have competent and independent counsel, preferably of
his own choice, who shall at all times be allowed to
Whether the waiver is voluntary or involuntary given, and whether confer privately with the person arrested, detained or
under custodial investigation. If such person cannot
the confession is voluntary or involuntary given. Now with respect afford the services of his own counsel, he must be
to the waiver, the burden is always on the State. Because this is provided with a competent and independent counsel by
a Constitutional Right, the presumption of regularity does not the investigating officer.
work in this particular situation. The presumption is that the
waiver is not valid. It is for the State to prove that the waiver was (c) The custodial investigation report shall be reduced to
validly given. So we start with: writing by the investigating officer, provided that before
such report is signed, or thumbmarked if the person
arrested or detained does not know how to read and

COLLEGE
OF LAW
write, it shall be read and adequately explained to him by the suspected person is chargeable with less grave or
his counsel or by the assisting counsel provided by the grave felonies;
investigating officer in the language or dialect known to
such arrested or detained person, otherwise, such
(c) The amount of Three hundred fifty pesos (P350.00) if
investigation report shall be null and void and of no effect
the suspected person is chargeable with a capital
whatsoever.
offense.
(d) Any extrajudicial confession made by a person

The fee for the assisting counsel shall be paid by the city
arrested, detained or under custodial investigation shall
or municipality where the custodial investigation is
be in writing and signed by such person in the presence
conducted, provided that if the municipality of city cannot
of his counsel or in the latter's absence, upon a valid
pay such fee, the province comprising such municipality
waiver, and in the presence of any of the parents, elder
or city shall pay the fee: Provided, That the Municipal or
brothers and sisters, his spouse, the municipal mayor,
City Treasurer must certify that no funds are available to
the municipal judge, district school supervisor, or priest
pay the fees of assisting counsel before the province
or minister of the gospel as chosen by him; otherwise,
pays said fees.
such extrajudicial confession shall be inadmissible as
evidence in any proceeding.
In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
(e) Any waiver by a person arrested or detained under
investigating officer in accordance with the provisions of Article 125
the provisions of Article 125 of the Revised Penal Code,
of the Revised Penal Code.
or under custodial investigation, shall be in writing and
signed by such person in the presence of his counsel;
otherwise the waiver shall be null and void and of no Section 4. Penalty Clause. – (a) Any arresting public officer or
effect. employee, or any investigating officer, who fails to inform any
person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent
(f) Any person arrested or detained or under custodial
counsel preferably of his own choice, shall suffer a fine of Six
investigation shall be allowed visits by or conferences
thousand pesos (P6,000.00) or a penalty of imprisonment of not
with any member of his immediate family, or any medical
less than eight (8) years but not more than ten (10) years, or both.
doctor or priest or religious minister chosen by him or by
The penalty of perpetual absolute disqualification shall also be
any member of his immediate family or by his counsel, or
imposed upon the investigating officer who has been previously
by any national non-governmental organization duly
convicted of a similar offense.
accredited by the Commission on Human Rights of by
any international non-governmental organization duly
accredited by the Office of the President. The person's The same penalties shall be imposed upon a public
"immediate family" shall include his or her spouse, fiancé officer or employee, or anyone acting upon orders of
or fiancée, parent or child, brother or sister, grandparent such investigating officer or in his place, who fails to
or grandchild, uncle or aunt, nephew or niece, and provide a competent and independent counsel to a
guardian or ward. person arrested, detained or under custodial
investigation for the commission of an offense if the latter
cannot afford the services of his own counsel.
As used in this Act, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is investigated in
connection with an offense he is suspected to have committed, (b) Any person who obstructs, prevents or prohibits any
without prejudice to the liability of the "inviting" officer for any lawyer, any member of the immediate family of a person
violation of law. arrested, detained or under custodial investigation, or
any medical doctor or priest or religious minister chosen
by him or by any member of his immediate family or by
Section 3. Assisting Counsel. – Assisting counsel is any lawyer,
his counsel, from visiting and conferring privately with
except those directly affected by the case, those charged with
him, or from examining and treating him, or from
conducting preliminary investigation or those charged with the
ministering to his spiritual needs, at any hour of the day
prosecution of crimes.
or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more
The assisting counsel other than the government lawyers shall be than six (6) years, and a fine of four thousand pesos
entitled to the following fees; (P4,000.00).
(a) The amount of One hundred fifty pesos (P150.00) if The provisions of the above Section notwithstanding, any security
the suspected person is chargeable with light felonies; officer with custodial responsibility over any detainee or prisoner
may undertake such reasonable measures as may be necessary to
(b) The amount of Two hundred fifty pesos (P250.00) if

COLLEGE
OF LAW
secure his safety and prevent his escape.
Section 5. Repealing Clause. – Republic Act No. No. 857, as

amended, is hereby repealed. Other laws, presidential decrees,
executive orders or rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or modified
accordingly.
Section 6. Effectivity. – This Act shall take effect fifteen (15) days
following its publication in the Official Gazette or in any daily
newspapers of general circulation in the Philippines.
Approved: April 27, 1992

PINOON, LOREVILL
The greatest results in life are usually attained by

simple means and the exercise of ordinary
qualities. These may for the most part be summed
in these two: common-sense and perseverance.
~Owen Feltham

COLLEGE
OF LAW
by any person in any proceeding, criminal or administrative,

because the privilege is different.
August 28, 2012
In one of the cases in your outline, the accused there, on the

RIGHT TO BAIL
date the victim died, forcibly took the victim to his vehicle. The
victim jumped out of the vehicle. After the incident the accused
When Right may be Invoked
went directly to the police station to voluntarily give the statement
that the victim jumped out of the motor vehicle. Now, that
Right to bail. It must be understood in relation to Rule 114 of the
statement was taken as part of the evidence of the prosecution
Rules on Criminal Procedure because when the Constitution
and the accused was convicted. It was admissible as it was not
provides when bail is a matter of right or when it is a matter of
taken under custodial interrogation. The Supreme Court
discretion, the basis is when the offense which a person is
rationalize on the ground that the statement was voluntarily
charged would carry with it the penalty of Reclusion Perpetua or
given. It should be treated as one of the exceptions that the
higher, bail is a matter of discretion. However, in the Rules of
rights under Miranda Rule are not claimable because there is no
Court, it provides for certain circumstances which a person in a
questioning on the part of the police officer that may have elicited
criminal case may have bail as a matter of discretion even if the
the extra judicial confession.
penalty is less than Reclusion Perpetua, this is when the penalty
is six years and one day to twenty years and there is showing of
So, if the statement is voluntarily given, it is considered
the following circumstances such as being a recidivist, habitual
admissible. This is commonly observed when persons suspected
delinquent, that the accused has previously escape, there is
of committing a crime are interviewed by media and perhaps
probability of flight a free list or on bail or risk that he would
because of lack of any knowledge of such rights, they would
commit another crime. Rule 114 section 5.
normally give information as to whether they have committed the
crime and those are admissible because they are elicited not by
reason of questioning where they are place under investigation. Sec. 5. Bail, when discretionary. – XXX
If the penalty imposed by the trial court is imprisonment
Now in administrative investigations which ordinarily are not in exceeding six (6) years, the accused shall be denied bail, or his
relation to criminal offense, the Mirada rule is not applicable. But bail shall be cancelled upon a showing by the prosecution, with
they must have the right to be represented by counsel as notice to the accuse, of the following or other similar
required in the fundamental rules of due process. But as to circumstances:
whether they should be given the warning and as to whether they (a) That he is a recidivist, quasi-recidivist, or habitual delinquent,
could be extended to the so called Miranda rights, it’s another or has committed the crime aggravated by the circumstance of
thing. reiteration;
(b) That he has previously escaped from legal confinement,
Example, if an employee is charge administratively by an evaded sentence, or violated the conditions of his bail without
employer for violating a company rule or policy, he is entitled to valid justification;
representation in accordance to the labor code. However, as to (c) That he committed the offense while under probation, parole,
whether he is entitled to be informed of his rights to remain silent, or conditional pardon;
it is not included. It is also not an obligation of the employer to (d) That the circumstances of his case indicate the probability of
provide him a counsel if he can’t afford one, though it is provided flight if released on bail; or
under the Miranda rights. But as to entitlement of counsel and to (e) That there is undue risk that he may commit another crime
be informed on this right it is mandated under the labor code. during the pendency of the appeal.
Same principle would apply in cases of students with XXX
administrative cases in tertiary level, it is mandated that they
should be allowed representation but the school has no If a person is not yet charged, can a person put up bail? If he is
obligation to give Miranda warnings or provide a counsel if they under custody he could. What if the accused is already charged
can’t afford one. This should not be confused with the privilege of in court but not yet arrested? Can he put up bail? I think the
self-incrimination under section 17 because here it is claimable logical thinking would tell us that as soon as the information is
charged, even if no warrant is issued yet, you must be allowed to
COLLEGE
OF LAW
post bail. Nonetheless, remember our discussion on arrest. Okay now, we already know that there is no bail in military courts
When the information is filed in court the rules of court provide for involving military personnel as to the respondent or accused
three things that a judge can do. because of the condition or nature of the proceedings in military
courts, including the offenses are not ordinary as it involves
1. Judge would determine whether or not there is a offenses against the state, such as treason. If they would be
probable cause to proceed with the case. So the judge allowed bail, they could be out there and commit same acts of
can dismiss the case without issuing a warrant. treason.
2. If there is doubt as to the probable cause it can require
Standards for Fixing Bail
the prosecution to present additional evidence to prove
probable cause to proceed. Now when bail is a matter of right, section 9 of rule 114 (standard
3. If there is reason to proceed the judge will determine for fixing bail) may be taken by the court in relation to the request
whether there is a probable cause to issue a warrant. of the prosecution to increase bail or request of the defense to
reduce bail. Now in case where bail is a matter of discretion
Now if the judge can determine the probable cause whether or hearing is mandated. It is a condition precedent, to determine the
not to proceed and thereby dismisses the case, what should presence of those circumstances under section 5 in rule 114
happen then if the accused already posted bail even before he however, if bail is a matter of right, hearing is not normally
was arrested? I don’t know the answer but just a thinking based required. The court would just issue the release after the accused
on the provisions of the Rules of Court. is complied with the undertaking requirements. But again, if there
is a request in increase or reduced bail, then hearing is normally
Now in relation to the court where you have to post bail… when taken to determine it.
bail is a matter of discretion, you cannot file it anywhere but in the
issuing court. If you want bail to be reduced or want to post Sec. 9. Amount of bail; guidelines. – The judge who issued the
another kind of bail other than cash, it must be applied for in the warrant or granted the application shall fix a reasonable amount
issuing court. It is only the issuing court can exercise discretion if of bail considering primarily, but not limited to, the following
there is a need to exercise discretion if there is none then you factors:chanroblesvirtuallawlibrary
could file it in any of those court mentioned under the rules. (a) Financial liability of the accused to give bail;
Section 17, Rule 114. (b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may (d) Character and reputation of the accused;
be filed with the court where the case is pending, or in the (e) Age and health of the accused;
absence or unavailability of the judge thereof, with any regional (f) Weight of the evidence against the accused;
trial judge, metropolitan trial judge, municipal trial judge, or (g) Probability of the accused appearing at the trial;
municipal circuit trial judge in the province, city or municipality. If (h) Forfeiture of other bail;
the accused is arrested in a province, city, or municipality other (i) The fact that the accused was a fugitive from justice when
than where the case is pending, bail may also be filed with any arrested; and
regional trial court of said place, of if no judge thereof is (j) Pendency of other cases where the accused is on bail.
available, with any metropolitan trial judge, municipal trial judge, Excessive bail shall not be required.
or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the Now these standards in section 9 are not the hard and fast rule,
accused seeks to be released on recognizance, the application they are just guidelines that may be used in determining amount
may only be filed in the court where the case is pending, whether of bail the court may use any other reason for granting bail.
on preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may Now, bail is not required when the law does not require any bail
apply for bail with any court in the province, city, or municipality or would allow recognizance. When is recognizance allowed?
where he is held. Ordinarily, if the person is charged with a violation of ordinance or
of a light felony, the bail to be granted there is merely
Bail in Military Courts recognizance. Under R.A. 7636, when the penalty range does
not exceed 6 months or a fine of not more than P2000.00 or both,
recognizance shall be granted. When the accused has been
COLLEGE
OF LAW
incarcerated for a period of at least equal to or more than the reconsideration stating again the reasons for the delay, and this
minimum of the principal penalty, without applying the modifying time raising the ground that based on the Rules of Court, there
circumstances, the accused shall be released on recognizance must have to be a notice to the appellant. The CA is allowed to
even if that case shall have to continue. If the accused has dismiss the appeal motu proprio upon the failure of the appellant
applied for probation and he is not on bail pending the grant of to file the appellant’s brief but with prior notice to the appellant.
the application, the accused may be released on recognizance. The reason for granting the appellant to give the appellant such
Youthful offender under P.D. 603 shall be released on notice is to give the appellant to state the reason for the failure
recognizance. No bail shall be required. And, as we all know and for the court to determine whether the reasons are
recognizance shall be to place the obligation to a responsible satisfactory or justified. Can the CA in this particular case motu
member of the community to ensure that the accused will be proprio dismiss the appeal for failure to file the appellant’s brief
present every time the case is called and the presence of the even without notice to the appellant and if so should this be a
accused is required. violation of his right to due process? The Supreme Court said in
this case, there is no violation of due process. There is even no
Now, in cash, property or surety as bond, it is quite easy to need for notice as may have been required by the rules.
understand that in case of violation of the undertaking of the Ordinarily, it is so required in order to give the accused the
accused, the cash bond shall be forfeited in favor of the reasons for the failure and for the court to appreciate whether
government as well as the property bond and the surety those reasons are satisfactory or justified. But, the facts of the
company will be liable for the entire amount of bail under his case would tell us, according to the SC, that accused’s appellant
guaranty. Now, what should happen if the accused is released on failed to file appellant’s brief despite 4 extensions sought and
recognizance and the accused does not appear as required by granted. He even failed to file the undertaking in the motion for
the court? Will that responsible member of the community be reconsideration filed. Again due process is merely to give an
incarcerated instead until the accused appears? What happens? opportunity to the party to plead his case. The facts of the case
OK. would show that more than sufficient opportunity has been
granted. It also highlights the constitutional discussion on due
RIGHTS DURING TRIAL process which does not include the right to appeal. As we made
mention, the right to appeal is only included in the Rules of Court
Let’s go to rights during trial. Now, the first of these rights during under Rule 115, Section 1(i) with respect to the accused having
trial is your due process in criminal cases. We have said that in this right to appeal. The right to appeal is therefore statutory and
section 14, that is a restatement of the due process right or rule not constitutional with respect to cases or parties where cases
in criminal cases, not because of anything else but because there are filed in our system because the due process is satisfied
is a need to restate that considering that in our system, an substantially when the case is heard even in the first instance
accused is charged an the entire resources of the government is that it is filed, tried and decided.
against him. That’s why there is a need to restate, to put more
emphasis on that due process clause in criminal cases. G.R. No. 183975 September 20, 2010
GREGORIO DIMARUCOT y GARCIA vs. PEOPLE
This case of Dimarucot vs. People involves an accused who has
been convicted in the trial court. The accused appealed to the Petitioner cannot simply harp on the mistakes and negligence of
his lawyer allegedly beset with personal problems and emotional
Court of Appeals and when the lawyer received the notice to file depression. The negligence and mistakes of counsel are binding
the appellant’s brief within 20 days, in relation to Rule 124 of our on the client.18 There are exceptions to this rule, such as when the
Rules of Court, the lawyer failed to file the appellants brief reckless or gross negligence of counsel deprives the client of due
despite 4 extensions sought. The appeal was dismissed on the process of law, or when the application of the general rule results
in the outright deprivation of one’s property or liberty through a
ground of failure to prosecute by the Court of Appeals. The technicality. However, in this case, we find no reason to exempt
accused’s lawyer filed a motion for reconsideration stating, petitioner from the general rule. The admitted inability of his
among others, that the reason for failure to file the brief was his counsel to attend fully and ably to the prosecution of his appeal
own fault considering that he was suffering from some personal and other sorts of excuses should have prompted petitioner to be
more vigilant in protecting his rights and replace said counsel with
problem on account of an ailment and, on the same motion for a more competent lawyer. Instead, petitioner continued to allow his
reconsideration, undertook to file the appellant’s brief within a counsel to represent him on appeal and even up to this Court,
period of 7 days. Despite that, he still failed to file the appellants apparently in the hope of moving this Court with a fervent plea for
brief for which reason the motion for reconsideration was denied. relaxation of the rules for reason of petitioner’s age and medical
condition. Verily, diligence is required not only from lawyers but
Thereafter, the accused filed an omnibus motion for also from their clients.

COLLEGE
OF LAW
Negligence of counsel is not a defense for the failure to file the stolen, you are supposed to be prima facie liable for fencing.
appellant’s brief within the reglementary period. Thus, we Now, that law has not been declared as unconstitutional because
explained in Redeña v. Court of Appeals:
what the law creates is merely a prima facie presumption. It does
not destroy the presumption of innocence because presumption
In seeking exemption from the above rule, petitioner claims that he
will suffer deprivation of property without due process of law on
of innocence is also prima facie in effect because the state can
account of the gross negligence of his previous counsel. To him, prove that you are not innocent of such crime. The same thing
the negligence of his former counsel was so gross that it practically with the procedure on preliminary investigation or examination,
resulted to fraud because he was allegedly placed under the when a complaint is processed in the investigation level, whether
impression that the counsel had prepared and filed his appellant’s
brief. He thus prays the Court reverse the CA and remand the main
it be the prosecutor or any other authorized officer. The
case to the court of origin for new trial. determination of that investigating officer as to the guilt is only
prima facie. Meaning, they find probable cause or a well-founded
Admittedly, this Court has relaxed the rule on the binding effect of belief that the accused has committed the offense and therefore
counsel’s negligence and allowed a litigant another chance to must be held for trial. That does not destroy the presumption
present his case (1) where the reckless or gross negligence of because it’s only a prima facie finding of liability. The state still
counsel deprives the client of due process of law; (2) when
application of the rule will result in outright deprivation of the
has the burden in the first instance to prove that the accused has
client’s liberty or property; or (3) where the interests of justice so committed the act and that the act is constitutive of a crime and
require. None of these exceptions obtains here. that the accused must therefore be held liable.
For a claim of counsel’s gross negligence to prosper, nothing short RIGHT TO BE HEARD PERSONALLY OR BY
of clear abandonment of the client’s cause must be shown. Here, COUNSEL
petitioner’s counsel failed to file the appellant’s brief. While this
omission can plausibly qualify as simple negligence, it does not
amount to gross negligence to justify the annulment of the This simply means the right to present your evidence. I often
proceeding below. (Emphasis supplied.) would relate that to my personal experience with Atty. Gil dela
Banda. When we were still in the legal aid office we have this
The right to appeal is not a natural right and is not part of due accused who was charged with possessing and or pushing
process. It is merely a statutory privilege, and may be exercised marijuana leaves one sack of that. The penalty was death. There
only in accordance with the law. The party who seeks to avail of
was still death penalty before. Since he was my supervising
the same must comply with the requirements of the Rules. Failing
to do so, the right to appeal is lost. lawyer, I was just a new lawyer then. We kept on arguing or
discussing whether or not we should allow the accused to be
Strict compliance with the Rules of Court is indispensable for the heard in person because the accused wanted to say his piece,
orderly and speedy disposition of justice. The Rules must be saying that if he will be allowed to testify, he will be able to
followed, otherwise, they will become meaningless and useless. convince the judge that he did not commit the crime. The usual
thing with the legal aid office before, during our time, when it
comes to drugs or drug related cases, it’s always the
PRESUMPTION OF INNOCENCE inadmissibility of the evidence because we were not there, we
would not know what would have happened and while there may
The next right of the accused is the presumption of innocence. be reason to doubt as to the doing of the police officers, we have
no basis in fact to doubt what they say. So it’s their word against
The presumption of innocence, as the term suggests, is merely a the word of the police. But we had difficulty because there were, I
presumption. It does not create any protection on the part of the think 4 occasions that we interviewed the accused, some in the
accused that the state cannot in any other way prove his guilt. jail, some in the courthouse, switching his story 4 times also. So
The presumption simply gives the state the burden of proving, we said, ok should we present him or not? You know Sir Gil, he’s
first, that the accused has committed the act and that the act a, not that I am not, but he was looking at the moral side of it.
constitutes a crime. When that burden is met, then, the burden of Meaning, if you know that the accused is going to perjure himself,
evidence shifts to the accused. The accused has now the burden would you as an officer of the court participate in that actuation?
of proving his innocence. The state is not even barred from To allow a witness to state a falsehood and be an instrument in
legislating a law which would provide for a prima facie that falsehood. On the other hand, there’s a question of, again,
presumption of guilt like your law on anti-fencing. When you are either legal or moral, what authority do you have as a lawyer to
in possession of a property which was not brought through legal prevent the accused from taking his constitutional right to be
means, which you know or should have known to have been heard in person simply because you have your opinion that he is

COLLEGE
OF LAW
going to tell a lie? So, that’s the moral or legal dilemma. Finally, have already mentioned that the phrase “preferably of his own
we said that we will file a motion for leave to file a motion for a choice” is found which is not found on section 14, the rational
demurrer to evidence and file a demurrer and cross a bridge being that it is already before a court or a judge. The right of the
when there is a bridge. Because, when you file a demurrer there accused during trial is better protected because it is already in
is no defense evidence yet. So we did just that and try to put the court. The judge is not there to convict the accused. The judge is
question to be answered later hoping that the demurrer will be there to see that justice is delivered or administered. So, unlike in
granted. The demurrer was granted, and so, we did not cross the the investigation where the proceeding is out of court, the one
bridge because there was no bridge yet. The short of the long asking the question are the police officers that would be
story is that the accused was killed. You know the Davao Dog witnesses against you, who have been the person who arrested
Squad. you, you must have to be given better protection. That’s why the
choice of counsel is with that phrase “preferably the choice of the
Ok, the question is, if the accused had the right to be heard by person to be prosecuted.
himself personally, again, there’s that moral or legal question, if
you know that he is going to perjure himself would you put him in IMPORTANT: In any case “to be assisted by counsel” must have
the stand? You ask the question, what made you conclude that to be differentiated with the phrase “to be assisted by counsel
he is going to tell a falsehood? Was his first story the correct preferably of his own choice” under Sec. 12. In the rights of the
story? The second, the third, the fourth? You can never know accused during trial to be assisted by counsel, the court has the
because you were never really there as much as the court was obligation to inform him and just like the investigating officer in
not there and also the prosecutors. So it leaves him to tell his investigation under Section 12 that he has the right to be
story. Objectively, we have known in legal ethics, you take the represented by counsel and if he cannot afford one, the
case regardless of your opinion as to the innocence or guilt of the State will provide him with one. But that is the extent of the
person. At least, that’s what the book says. It’s different if you tell similarity between Section 12 and 14.
the person to tell a lie. But, with your set of questions, the
answers have been different in four occasions. While there may In Section 12, we have already mentioned that the phrase
be suspicion that he is not telling the truth, the question is, which “preferably of his own choice” is found which is not found in
truth? Your truth or his truth? Or which of those answers really Section 14. The reason being this is already for the court or the
are true? And which are not? So, that is when he has to claim judge. The rights of the accused during trial is better protected
his right to be heard. because it is already in court. The Judge is not there to convict
the accused, the judge is there to see that justice is delivered or
To be heard by counsel, well, there is that old saying, that a administered. Unlike in an investigation where there is
person may be convicted not because he is guilty but because he proceeding out of court, the one asking the questions are the
does not know how to protect his innocence. Even the most police officer, the same officers that would be witnesses against
learned man in the law, if he is personally involved in litigation, you or may have been the person who arrested you, they must
may not have the test of objectivity in proceeding with the case. have to be given better protection as well as the choice of
He might be too emotional about it. He may be too distracted to counsel and so there is that phrase “preferably of his own
be able to properly try the case. Objections, I watch a portion of choice”.
this civil action in HBO and John Travolta was trying a case
against a seasoned lawyer. The seasoned lawyer is a teacher in What would happen here in reality is the judge will appoint a
remedial law, particularly in evidence so there were clips of him counsel de officio. If the accused appears before the court
teaching. He was telling his student that you object. If you, by without any representation. The usual counsel de officio are
chance, slept during the trial, upon waking up what do you say? those found in court and those new practitioners, so that they will
Objection, your honor! In any case, to be assisted by counsel, is be given experience also.
different from the right to be assisted by counsel preferably of his
own choice under section 12. In the rights of the accused during Supposedly, if you go by the technicality of it, the appointment of
trial, to be assisted by counsel, the court has the obligation to counsel de officio involves 2 matters: one, the competence of the
inform the accused just like the investigating officer in the counsel to represent the accused and second, the competence
investigation under section 12 that he has the right to be on the case, on the complexity or nature of the offense. There is
represented by counsel and if he cannot afford one, the state will a presumption that the lawyer knows the law and the procedure.
provide him with one. But that is the extent of the similarity But the complexity of the case may somehow change – that level
between section 12 and section 14. Because in section 12, we of competence or skill of the lawyer. If the client or accused is
COLLEGE
OF LAW
facing a death penalty case, would a new practitioner be in a time while you are already in court to read. They say, just
better position than one who has the experience of trying these remember the basics in objecting in Evidence.
cases? If that is the question, the Judge would be able to answer
himself so that the counsel de officio would be properly RIGHT TO BE INFORMED OF THE NATURE AND
appointed. Second is that by the rules of court, when you are CAUSE OF ACCUSATION
appointed as counsel de officio, you are supposed to be paid by
the Supreme Court for the services you rendered. The Rules of Now, the right to be informed of the nature and the causes of
Court will not make it difficult for you to seek payment for your accusation is normally satisfied between the period or stay of
services because of the reportorial requirement. The ROC – you arraignment. During arraignment, the accusations is read to the
will be paid so little and the reportorial requirement would require accused and this must be read to him in a language he speaks
you to spend so much. In the case of People vs. Siongco, the and understands because there must be meaningful transmission
regular counsel of the accused here was a lawyer from the Public of what the charges are with respect to the accused. If there is no
Attorneys Office, however, when the PAO lawyer was absent, the prior arraignment, there is no valid proceeding. The arraignment
court appointed a counsel de officio to assist the accused for at must be…personally to the accused and the accused must also
least 6 hearings and the accused later on complained that he personally enter his plea. However, if he refuses to enter a plea
was not my regular counsel. My regular counsel was the PAO after the reading of the information, the court may enter a plea of
lawyer and so my right to be heard by counsel has been violated. not guilty; and he must be there in person. Unlike in the US as
The SC said that there was no violation, there was no denial of we may have seen in some shows or movies…arraignment may
the right to be heard by counsel because you have had legal be dispensed with and the counsel may enter a plea.
representation. The appointment of the counsel de officio does
not follow with that of Section 12 that it is preferably of his own There are 3 reasons why the information must have to be read:
choice.
1.) to furnish the accused of the charge and allow him to
The right to free legal assistance under Section 11 is in relation to prepare for his defense
the right under Section 14. The free legal assistance here is still 2.) for the accused to avail of any conviction or acquittal
on the right to be heard by counsel. I must have mentioned that from any further prosecution, meaning, he will have to
the Supreme Court has promulgated a rule on limited law student or he may be able to claim double jeopardy
practice. If you have finished your 3rd year in law school, you can 3.) to inform the court of a sufficiency of information if it
perform the acts as if you are a lawyer provided you are warrants a conviction because before arraignment, we
supervised by a member of the Philippine bar. This is to give all know that the Prosecution can still amend the
legal representation for those who may not be able to afford legal information whether in form or in substance.
representation or there may have been too many cases already
handled by the PAO where a case of a person may not be But after it is read, it can only be amended when it refers to form
handled well. I would like to believe that new lawyers or law and if substance, there must have to be the exercise of discretion
students have a better grasp of the law or procedure although by the court in order to protect the rights of the rights of the
they may not have the experience; they have a better accused. And normally, this is with respect to his rights against
understanding of the latest jurisprudence or the application of the double jeopardy. So if the information does not charge an
law. It does not follow that if you have been in the practice for so offense, then probably the defense can seek the quashal of the
long that you have better commands. The experience that they information. Again, this is to inform the court as to whether the
may have had may only be with respect to skill on trial but not information is sufficient.
necessarily on the substantive aspect of the law or the correct
interpretation of the Rules of Court which may have decided In the case of People vs. Bartolini, the information did not
recently. At most, old practitioners may have better delivery but it indicate the age of the victim. I think, it is a crime of rape. (Note:
does not follow that when they talk a lot that they know about it. It was a 2010 case, 626 SCRA 527, it was really a rape case and
So, those who have finished their 3 rd year in law school, not 3 the information did not indicate the age of the victim) The
years. In 4th year, there is really nothing much there, its just question is: Is the defect fatal? The SC said: Yes, the defect is
review. In trial practice, what is important is the Rules of fatal because the accused upon reading the information must
Procedure because the substantive law, you can always go back have been informed that he could possibly face the death
to your office and study your case. In procedure, there is too little penalty. Again, age here is an essential element of the offense so
to qualify it and make the penalty death. So, if that was not

COLLEGE
OF LAW
included in the information, as we all know that would never be because she was there…for the dogs of her employer. She was
appreciated to qualify the offense and make death as the testifying in Spanish or Mexican and there was a question on
imposable penalty. whether what the court employee should do, to interpret or to
translate. Because to translate is literally to transpose it from
G.R. No. 179498 August 3, 2010 English to Ilocano or Cebuano and vice-versa, so to translate is
PEOPLE OF THE PHILIPPINES vs. to give your understanding of the question or of the answer and it
RUSTICO BARTOLINI y AMPIS
may give it another meaning. The Judge was saying you should
Similar to (People vs.) Tagud, the qualifying circumstance of not translate, you should interpret. If you have seen those
relationship of BBB to appellant was specifically alleged and proceedings, the stenograhers were using this machines
proven during the trial. Notably absent in the information, however, “attached” to a CPU and the lawyers would automatically read
is a specific averment of the victim’s age at the time the offense
against her was committed. Such an omission committed by the
everything in English. Here, we don’t have those and what’s
prosecutor is fatal in the imposition of the supreme penalty of worse, if you go to trial your English in the transcript of
death against the offender. It must be borne in mind that the stenographic notes would be horrible.
requirement for complete allegations on the particulars of the
indictment is based on the right of the accused to be fully informed
of the nature of the charges against him so that he may adequately
There was one trial and I have this question, “Is it not that your
prepare for his defense pursuant to the constitutional requirement motor vehicle is a Route 10 vehicle?” The case was reckless
on due process, specially so if the case involves the imposition of imprudence, a client’s vehicle has bumped along Ladislawa road.
the death penalty in case the accused is convicted. Thus, even if The thing was my client’s vehicle bumped that PUJ and the PUJ
the victim is below eighteen (18) years of age and the offender is
her parent, but these facts are not alleged in the information, or if
was Route 10, which supposedly should not pass that Buhangin
only one (1) is so alleged such as what happened in the instant Road, it should be within downtown only. And so that PUJ was
case, their proof as such by evidence offered during trial cannot plying that area which he was not supposed to do, he was
sanction the imposition of the death penalty. negligent – that was our defense. So when the driver was
testifying, I asked, “Is it not that your motor vehicle is a Route 10
Ok, I was in a North Cotabato town a couple of weeks ago and vehicle?” Here comes the interpreter: “Tinuod ba nga ang imong
there was an arraignment and reading of the information. One of sakyanan daut-daut?”
the local languages in the town is Ilocano so they were looking
for somebody to interpret the information in Ilocano. Luckily, the
court employee knows how to speak Ilocano and he was able to 
interpret/translate the information in Ilocano because the accused
does not know or cannot understand English as much as he
could speak and understand Ilocano. The problem there is: DUMANDAN, GAB
ILUSTRISIMO, ROGIE
What if that person is not a court employee? Could they just ask TORRES, EGAY
anybody from the public to act as interpreter? By the way, is that
an interpreter or a translator? What do they exactly do, do they
interpret or do they translate?
If you translate, what do you do? – you interpret and when you The difference between a successful person and
interpret, you translate. others is not a lack of strength, not a lack of
knowledge, but rather a lack in will.
You must have read in the internet in the archives of the file of OJ —Vince Lombardi
Simpson – the killing of his spouse and of the lover. That was in
the first time that we were at least in Philippine history being spot
doing court room proceedings or case because the court room
proceedings were televised from start to finish and the Judge
there, a Japanese American allowed that coverage to be done
and so everybody who was interested in law follow those
proceedings. There was a question on interpretation or
translation raised because one the witnesses was a househelp “It’s not whether you get knocked
who was Mexican and apparently saw OJ going in or coming out
down, it’s whether you get up.”
COLLEGE
OF LAW
~Vince Lombardi
The significance of a man is not in what he

attains but in what he longs to attain.
~Kahilil Gibran

COLLEGE
OF LAW
August 29, 2012 applied the balancing of interest test between the right of the
accused to speedy trial and the right of the State to prosecute.
RIGHT OF THE ACCUSED TO A SPEEDY, (IMPORTANT)These four-fold factors in balancing the interest
IMPARTIAL AND PUBLIC TRIAL are as follows:
1.) the delay ,

Speedy Trial 2.) the reason of the delay
3.) the assertion or non-assertion of the right of speedy
This includes the right of the parties to a free and impartial court trial of the accused; and
or tribunal. The impartiality is not only required as a matter of 4.) the prejudice due to the delay or may have been
procedure but the judge must also be impartial for which there is caused by the delay.
a corresponding rule in the Rules of Court for mandatory
disqualification of judges by reason of conflicting interests and There is a BALANCE OF INTEREST… while the accused has
the voluntary grounds for their inhibition. There is no mandatory the right to speedy trial to free himself from the anxiety and
ground if the judge may still be sought to be refused from hearing expense so that this guilt or innocence will be determined to the
the case on the voluntary ground provision (of the Rules) on the most reasonable time possible required to protect both the
assumption that judge can no longer be impartial in this case. interest of the accused as well as the prosecution, the court shall
note that balance using the four-fold factors mentioned.
The most that is asked with respect to the impartiality during the
conduct of the trial is the behavior of Judges in relation to the G.R. No. 173319 December 4, 2009
proceedings. Ideally, though (the one) presiding in the conduct of FEDERICO MIGUEL OLBES vs. HON. DANILO A. BUEMIO
the hearing must have to be an innocent bystander with respect
to the respective claims of the parties, nonetheless, the judge is Petitioner draws attention to the time gap of 105 days from his
not also prohibited from asking clarificatory questions in order arraignment on February 12, 2003 up to the first pre-trial setting on May
that he may be clarified as to certain matters. But the line dividing 28, 2003, and another gap of 148 days from the latter date up to the
what is clarificatory and what is helping the cause of one party is second pre-trial setting on October 23, 2003 or for a total of 253 days - a
very thin; this is where most motions to refuse answer … clear contravention, according to petitioner, of the 80-day time limit from
arraignment to trial.
because of the assumption or the notion that the judge asking
questions are actually helping a party in his cause or defense.
It bears noting, however, that on his arraignment on February 12, 2003,
petitioner interposed no objection to the setting of the pre-trial to May 28,
The right to speedy trial is given to the accused and it is
2003 which was, as earlier stated, later declared a non-working day.
characterized as a trial that is (free) from any capricious/ Inarguably, the cancellation of the scheduled pre-trial on that date was
unauthorized delay. This characterization however is not subject beyond the control of the trial court.
to hard and fast rule. There is no definite set of rules even if the
right to speedy trial act has been incorporated in the Rules of Petitioner argues, however, that the lapse of 253 days (from arraignment
Court. We are aware that there is a law, the right of speedy trial to October 23, 2003) was not justified by any of the excusable delays as
act, and there is an allowable number of days for the time of embodied in the time exclusions 22 specified under Section 3 of Rule 119.
filing, from the time of arraignment and from the time of the The argument is unavailing.
prosecution to present evidence and defense (vice versa)
including the full presentation of respective rebuttal and answer In Solar Team Entertainment, Inc. v. Judge How, the Court stressed that
to rebuttal by the parties. The case is thereafter submitted for the exceptions consisting of the time exclusions provided in the Speedy
decision. The Rules of Court as well as the law itself have been Trial Act of 1998 reflect the fundamentally recognized principle that
interpreted by the court to allow reasonable and justifiable "speedy trial" is a relative term and necessarily involves a degree of
delays. In the case of Olbes vs. Buemio, 607 SCRA 336, there flexibility. This was reiterated in People v. Hernandez, viz:
was a total of 253 days from the time the accused was
arraigned…or a lapse of 105 days and from the first pre-trial to The right of the accused to a speedy trial is guaranteed under Sections
the actual trial conducted there was a lapse of 148 days, a total 14(2) and 16, Article III of the 1987 Constitution. In 1998, Congress
of 253 days delayed. The claim of the accused (was ) that there enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act of
was a violation of the constitutional right to speedy trial, that there 1998." The law provided for time limits in order "to ensure a speedy trial
of all criminal cases before the Sandiganbayan, [RTC], Metropolitan Trial
was a delay from the arraignment to the actual pre trial. The SC

COLLEGE
OF LAW
Court, Municipal Trial Court, and Municipal Circuit Trial Court." On The time limits set by the Speedy Trial Act of 1998 do not thus preclude
August 11, 1998, the Supreme Court issued Circular No. 38-98, the justifiable postponements and delays when so warranted by the
Rules Implementing R.A. No. 8493. The provisions of said circular were situation. To the Court, the reasons for the postponements and delays
adopted in the 2000 Revised Rules of Criminal Procedure. As to the time attendant to the present case reflected above are not unreasonable.
limit within which trial must commence after arraignment, the 2000 While the records indicate that neither petitioner nor his counsel was
Revised Rules of Criminal Procedure states: notified of the resetting of the pre-trial to October 23, 2003, the same
appears to have been occasioned by oversight or simple negligence
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions which, standing alone, does not prove fatal to the prosecution’s case.
of section 1(g), Rule 116 and the preceding section 1, for the first twelve- The faux pas was acknowledged and corrected when the MeTC recalled
calendar-month period following its effectivity on September 15, 1998, the arrest warrant it had issued against petitioner under the mistaken
the time limit with respect to the period from arraignment to trial imposed belief that petitioner had been duly notified of the October 23, 2003 pre-
by said provision shall be one hundred eighty (180) days. For the trial setting.
second twelve-month period, the time limit shall be one hundred twenty
(120) days, and for the third twelve-month period, the time limit shall be Reiterating the Court’s pronouncement in Solar Team Entertainment,
eighty (80) days. Inc. that "speedy trial" is a relative and flexible term, Lumanlaw v.
Peralta, Jr. summons the courts to maintain a delicate balance between
R.A. No. 8493 and its implementing rules and the Revised Rules of the demands of due process and the strictures of speedy trial on the one
Criminal Procedure enumerate certain reasonable delays as exclusions hand, and the right of the State to prosecute crimes and rid society of
in the computation of the prescribed time limits. They also provide that criminals on the other.
"no provision of law on speedy trial and no rule implementing the same
shall be interpreted as a bar to any charge of denial of speedy trial as Applying the balancing test for determining whether an accused has
provided by Article III, Section 14(2), of the 1987 Constitution." Thus, in been denied his constitutional right to a speedy trial, or a speedy
spite of the prescribed time limits, jurisprudence continues to adopt the disposition of his case, taking into account several factors such as the
view that the concept of "speedy trial" is a relative term and must length and reason of the delay, the accused’s assertion or non-assertion
necessarily be a flexible concept. In Corpuz v. Sandiganbayan, we held: of his right, and the prejudice to the accused resulting from the delay, the
Court does not find petitioner to have been unduly and excessively
The right of the accused to a speedy trial and to a speedy disposition of prejudiced by the "delay" in the proceedings, especially given that he
the case against him was designed to prevent the oppression of the had posted bail.
citizen by holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the administration of justice by In the case of Apollo vs. Sandiganbayan, the SC reiterated that
mandating the courts to proceed with reasonable dispatch in the trial of the right of the State to prosecute its case in order to prosecute
criminal cases. Such right to a speedy trial and a speedy disposition of a
criminal offenders is also a protected right. There must have to
case is violated only when the proceeding is attended by vexatious,
capricious and oppressive delays. x x x be also a balancing of interest of claims of the right of the
accused to speedy trial and the right of the state to prosecute the
offenders of the state.
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but Public Trial
deliberate. It is consistent with delays and depends upon circumstances.
It secures rights to the accused, but it does not preclude the rights of The Right to Public Trial is not to be understood to (apply to)
public justice. Also, it must be borne in mind that the rights given to the everybody i.e. the public to observe the conduct of the trial.
accused by the Constitution and the Rules of Court are shields, not Public trial is characterized as granting the person of the accused
weapons; hence, courts are to give meaning to that intent. the right to have an open session and only when there is no
secrecy in the conduct of the proceeding. There are several
A balancing test of applying societal interests and the rights of the exceptions to this: when the nature of testimony is delicate, then
accused necessarily compels the court to approach speedy trial cases the public may be excluded or if the witness is a child witness.
on an ad hoc basis. Also, under the Rule 119, Sec. 21, the accused may ask for the
exclusion of the public for any other reason.
In determining whether the accused has been deprived of his right
to a speedy disposition of the case and to a speedy trial, four Right to Confront Witnesses
factors must be considered: (a) length of delay; (b) the reason for
the delay; (c) the defendant’s assertion of his right; and (d)
The right of the accused to meet the witnesses face to face
prejudice to the defendant.
would include the right to cross-examine them. It has a two-fold
COLLEGE
OF LAW
purpose : 1. to test the credibility of the witness ; 2. to observe most common is one when he resides or is in a place more than
the demeanor of the witness when testifying, this is based on the 100kms. This would apply normally to private citizens and not to
principle that the evidence to be credible must not only be public officials. Because if you are a public official witness, the
credible in itself but must also come from a credible witness. So viatory rule does not apply. You can be compelled to be a witness
in order to test the credibility of the witness the accused must by reason of your position or else you will be held in contempt.
have the right to cross examine. Of course, there are some The viatory rights can also be claimed by an ordinary citizen
exceptions. One, from dying declarations. Also during preliminary witness. Let us say the expenses of his testimony or travel to
investigation stage. We all know that even if there should be a testify is not paid because that is always part of the obligation of
clarificatory hearing required by the investigating officer to be the one requesting the issuance of subpoena to advance and
conducted, the parties do not have the right to cross examine the make his payments needed. Again the right merely includes the
other witness. During preliminary conference/investigation, if issuance of the subpoena. But as to the fees and expenses
there are matters which they wish to ask ot the other party on the relative to the issuance or service of the subpoena would be
matter under investigation, the question must have to be another. That is not included in the right of the accused to a
coursed through a hearing officer or prosecutor. He can’t be compulsory processes.
asked directly because there is no right to cross-examine the
witnesses of the respondent. There is Rule 119, Sec. 14— a part of a right of the accused to
compulsory process. This is applicable to all but this is most
Right to Secure the Attendance of Witnesses applicable to the accused in criminal case to secure the
appearance of a material witness. If a witness is not willing to
This would be in reference to right to compulsory process. There testify, the witness may be arrested and incarcerated if he does
is no question that the accused can seek the issuance of a not post bail until he will testify as he is so requested. The bail
subpoena for the witness to testify in court for his for his defense. will not be discharged until he will testify in accordance to the
That is his constitutional right, among others. No problem with court order. The problem here is if you caused to arrest this
the state because it has all the resources. It can even take care person and incarcerate her/him for refusing to testify, his
of the expenses of all its witnesses, even if the latter are living testimony may no longer be in your favor.
outside the 100km limit of their place of residence or office. But
for the accused, he does not have the same right with that of the TRIAL IN ABSENTIA
State. The problem is while the accused may have the right to
compulsory process that is the extent of his right. Under the rules It is a procedure provided for in the rules as well as in the
to issue subpoena, the party requesting for a witness to a Constitution with respect to the right of the accused to be
subpoena duces tecum requires some fees and expenses. Those present and in relation to he right of the state to prosecute the
are not included in the right of the accused to compulsory criminal .The conduct and proceedings of the trial shall not be
process. The accused may still have to shoulder the expenses made dependent upon the presence of the accused. We all know
for the issuance of the service order of the subpoena as well as that when the accused has not been arraigned, no proceedings
the expense of the intended witnesses for the defense as can be validly made. But after the accused has been arraigned
requested. The rule of subpoena would be applicable only within and in a hearing, the accused has been duly notified and his
100 km ordinary course of travel (rule). Before, we follow the absence is unjustified the state may proceed even in his
50 km radius rule. This was amended and it is now 100 km in the absence . Only when the three conditions are met that there be
ordinary course of travel. If the person intended to be presented trial in absentia. The most important is that there must have to be
by reason of a subpoena resides outside or without (in the place a prior valid arraignment. When the accused is absent in a case
of 100 km in the ordinary course of travel rule), then the for example despite due notice, the court may exercise
subpoena may no longer be effective as to him and he can discretion to hear the case today or transfer it in another day. But
actually refuse to such subpoena. And he will not face any if a case he would want to hear today in absentia that is totally
contempt charges. valid because of the filing of the petition and the absence is not
justified. Nonetheless, if the accused appear in the next schedule
VIATORY RIGHTS hearing, then there is no more trial in absentia as there is the
presence of the accused of course. However, if the accused
Also in relation to subpoena is the so called viatory rights of jumps bail there is the effect on his right to hear the proceedings
witnesses—which refers to the right of a witness to refuse to against him and every time the accused jumps bail or escapes
honor the subpoena for valid and justifiable reason. The from confinement the absence thereafter on account of the

COLLEGE
OF LAW
jumping bail or the escape from confinement his absence is

unjustified and there will be trial in absentia. The Privilege against Self-Incrimination under Section 17 is
based on two considerations: Consideration of Public Policy and
There are several questions ask with respect to rights of the Consideration of Humanity.
accused in the constitution as well as those reflected in the rules
of court on due process. Is the due process is affected? The Public Policy because to compel a person to testify against
answer is no. It will not be affected if the accused jumps bail and himself will place him in the greatest temptation to perjure himself
he will be tried in absentia, the rights of the accused to due because he has no other way out. He will be compelled under the
process will not be affected. Still the duty of the prosecution and circumstances to lie about everything so that he will not be
of the court to ensure that the rights of the due process are placed in jail.
observed and accorded even in his absence.
The second is humanity: to prevent extorting evidence to convict
The presumption of innocence… the presumption is not simply that person by his own testimony, by compulsion or duress. So
destroyed because the accused is tried in absentia. There is also the State must be able to prove its case not because it has
related principle in criminal law that plying is indicative of guilt , compelled somebody to provide evidence, but it must prove its
that the innocent stands while the guilty flees even if no one case based on available evidence.
pursues him , that principle does not automatically destroys the
presumption of innocence of the accused. The prosecution has Now, as we made mention in relation to the discussion of the
the still 1st the burden to prove prima facie evidence of guilt of right of the person under investigation, the privilege against self-
the accused. Just because accused jumps bail or escapes incrimination is claimable by any person who is asked an
confinement does not make the accused guilty beyond incriminating question. An incriminating question is one the
reasonable doubt .Actually THAT IS INDICATIVE OF GUILT BUT answer to which would subject the person to a penal liability. If it
NOT HE IS GUILTY. The right to be heard personally is waived is civil or non-penal liability then that would not be considered as
because he not present and is tried in absencia but the right to a self-incriminating question. If you joke about it, if you ask a
be heard by counsel is not affected, the counsel must still act as woman her age normally they would not tell her age because that
his the counsel until the counsel is discharged. would be self-incriminating. But that is not a self-incriminating
question because being old is not a crime  It would not
3.) The right to be heard personally. Of course that is produce a criminal liability. Only that would subject to a criminal
considered waived because he is no longer present because he liability be considered a self-incriminating question.
is tried in absentia. But the right to be heard by counsel is not
affected. The counsel must still act as his counsel until the Now, traditionally, the privilege against self-incrimination is
counsel is discharged. If the counsel is discharged then the applicable only to those which would be a result of the use of
obligation to the client who is tried in absentia ends. But before physical or moral compulsion to extort communications or verbal
then or until then, the accused’s right to be heard through his confessions or admissions. So if there is use of duress, force, or
counsel will remain. any other acts which may vitiate consent to secure the oral,
verbal confession or admission of a person that is what is usually
4.) Right to speedy discharge in relation to right to counsel covered by the privilege against self-incrimination. So that purely
is the same. It would still remain. mechanical acts or any incriminating evidence which is not a
product of a verbal or oral admission or confession are not
5.) Right to speedy, impartial public trial. That would, with covered.
respect to impartial public trial they would technically not be
affected. With respect to speedy trial, there may be some effects For example, in some old cases a person is required to undergo
though it does not give the State the right or license to delay the medical examination for purposes of determining whether she is
proceedings for the trial. Then they must have to conduct trial pregnant by reason of an extramarital affair or while a woman
consistent with the demands of speedy trial taking into undergoes a physical examination to determine such act of
consideration the fact of course that the accused has jumped bail pregnancy may be invasive. That is not covered by the privilege
or has escaped from prison. because all she has to do would be to lie down there, not say
anything, there is no oral admission or confession extorted by
reason of the examination.
PRIVILIGE AGAINST SELF-INCRIMINATION

COLLEGE
OF LAW
Or in one case where a person was accused of robbery and

during such robbery a shoe was left, a size 10 shoe. So that was So it would go with an act that an accused is required to… by the
one of the exhibits presented by the prosecution during trial and police officers to reenact a crime. In reenactment, if the person is
the accused was asked to fit the shoe. If the shoe fits, convict. If compelled, again there must be compulsion, to reenact a crime
the shoe does not fit, acquit. The claim of self-incrimination was then it may be covered by the privilege because the accused will
not allowed because it is a purely mechanical act to fit the shoe. have the right to refuse to answer the question requiring him to
reenact the commission of the offense. Because if he really did
In the O.J. Simpson case as I mentioned last night, if you were the act or crime, that he would have to recall what he had done
familiar with that, one of the defense evidence was to let O.J. fit with the use of his intelligence or his brain or his mind and it is
the leather glove; one piece of those gloves was left and was not a purely mechanical act.
soaked in blood. So to make the presentation more dramatic, the
defense presented that and asked Mr. OJ Simpson to fit the The problem however with this privilege against self-incrimination
glove. And they used it in the closing argument because the although it is applicable to any person, in any proceedings
glove did not fit. Of course because it was leather, it was soaked regardless of whether it is civil or criminal or administrative,
in blood and kept in the laboratory by the custodian. And if you whether the person is the accused or party defendant maybe or
know when a leather is soaked in a liquid like blood, it will an ordinary witness is that this right is waivable immediately upon
necessarily shrink and at that time OJ’s left hand— I think— just the fact that the question is answered. Unlike in say, rights under
like Michael Jackson’s, was surprisingly bloated on that day. investigation even if you answered right then and there, even if
Conveniently his hand was big enough. It was made bigger. And you said I do not need a lawyer, but if such waiver is not valid in
then in the closing argument, the defense lead counsel said “If law you can still ask for its exclusion when it is presented in
the glove did not fit, you must acquit.” And so they did. What evidence.
would these ordinary laymen know about the leather glove being
soaked in blood? They would never, not that they would never, But in the privilege against self-incrimination, to refuse to answer
they would not necessarily know that. So these are the under a claim of the privilege of an incriminating question, it must
mechanical acts which are not covered by the privilege. have to be raised before the question is answered. Once the
question is answered, it is automatically. You can not say Oopps!
However, today, there is some sort of a change in the strict Mali ako. Can I have it stricken off the record? In fact it can not
application because of development in jurisprudence that to be done because you must have to claim it before it is answered.
which if the matter or the “mechanical act” would require the use
of one’s intelligence, the use of one’s mind or brain, then it does That is why we said the difference between the privilege and the
not become a purely mechanical act. right under Section 12 is that, in Section 12 you can have it
excluded later. And in Section 17 you can not. You must refuse to
The most common example is handwriting. When the issue in the answer by claiming the privilege. Also in section 12, if there is a
criminal case involves handwriting, say falsification, it requires lawyer assisting you, the lawyer may very well that if it is the
the signature, of course, you only falsify a signature. Forgery in investigation is conducted he may very well protect your rights by
our Revised Penal Code refers to bank notes, you make one and preventing you from answering the question because there is a
make it appear as if it were a valid bank notes. You do not forge a lawyer assisting the confessant during an investigation.
signature. But outside of law school “i-forge na bai, i-forge na bai.
Sige i-forge nalang. But it is actually falsification. You make it But in section 17, let us say, as made mention yesterday, if you
appear in Articles 171 and 172 of RPC that the person were to make an investigation in the company level and the
participated in the making of an act when in fact that should not employee was not assisted by a counsel, he may not know of his
have been done. privilege against self-incrimination. He may be answering these
questions subjecting himself not only by answering administrative
So when the issue in the criminal case is falsification whether a liability on account of his employment or by violation of company
signature or a writing and the accused is made to copy certain rules and policy but he may open himself up to a criminal liability.
words and phrases to prove that his handwriting is similar to that
in the questioned document. The Supreme Court has said that is So, for example, a cashier in a private company has been
not a purely mechanical act because to copy a writing with his charged administratively of a violation of a fact that he has taken
own handwriting would require him to use his intelligence or use some money she has received in trust for the company and this
of his brain. was for cashier’s violation of company’s rules and violation

COLLEGE
OF LAW
against taking company property and when it is considering it There are situations wherein the State Witness is discharged
may result to dismissal even if it were committed as a first only and eventually the prosecution may think that they may no
offense based on company’s rules. longer need the testimony of the State Witness. So if it was not
his fault that he was not able to testify, then, the transaction may
Now if the cashier answers that question: “did you take that? Yes. still be valid and the immunity still stands. But if the failure is
Do you admit how much money? Yes. And used it for your own based on his refusal, then, the transaction will be invalidated and
benefit?” The cashier may not only be liable administratively, the the discharge will not be applied.
cashier can be dismissed from employment and he can also be
subjected to a criminal liability. And the claim that he was not NOTE: The USE and FRUITS IMMUNITY, as the term suggests,
afforded his Miranda warnings during that administrative would simply exempt that person investigated, and who has been
investigation will not prevent the filing of the criminal case nor the compelled to give incriminating answers, from the use of his
admission of his testimony during that administrative proceeding testimony and the fruits of his testimony against him. Meaning, if
because he was not actually investigated for a commission of an there are still other evidence which could be used to prove his
offense but for a commission of an act in violation of a company guilt, then, he may still be prosecuted and will not exempt him
rule. from prosecution. The State will use other evidence that are
outside of what he has provided for the fruits of his testimony of
which he has been compelled to provide.
IMMUNITIES
RIGHT TO SPEEDY DISPOSITION OF CASES
The final item would be the so-called immunities. In your outline,
there are two immunities stated. They are USE IMMUNITY and In relation to your periods of deciding cases not only for the
TRANSACTIONAL IMMUNITY. There are situations where a Courts, but as well as for the administrative agencies. Now,
person maybe compelled to testify and by reason of his under the Rules of Court, how long in time is given to the
compulsion to testify, his right against self-incrimination maybe investigating prosecutor to resolve cases filed in the prosecution
violated in order not to put him in jeopardy or be penalized for office and under preliminary investigation. How long? 30 days?
such compulsory admission or confession which he cannot From the time the case is needed for resolution.
escape by reason of being invoked that would always or usually
would grant that person some form of immunity from prosecution In Article 7, Section 18, if the Supreme Court hears a petition for
either under the innocent rule or transactional rule. the questions on the sufficiency of factual basis for the
declaration of Martial Law or for the suspension of the privilege of
The most common of TRANSACTIONAL IMMUNITY is that the writ of habeas corpus. How many days does the Supreme
there is an agreement between that person and the investigating Court have to decide the petition? 30 days from the filing of the
body or person that any testimony will be provided for the crime petition. And not from the time the case is submitted for decision.
under investigation cannot be used against him. So there is an
agreement. The most common of which is when the person of And under Article 8, Section 15, there are several periods for the
the accused is discharged as a state witness. When can an Supreme Court, how long? 24 months. For the lower collegiate
accused be discharged as a state witness under our rules of courts, 12 months. For the Lower courts, 3 months from the time
court? the cases are submitted for resolution or decision.
There are several accused and he (one of them) does not appear We have learned that this period in the Constitution for the Court
to be the most guilty; there is no other direct testimony that may to decide or issue a decision is considered mandatory with
be utilized by the prosecution to prove the guilt of the accused. respect to the judges or the justices to promulgate their decision;
And there is the requirement that the testimony of the State but are considered directory when it refers to the validity of the
Witness can be corroborated by other witness on certain material decision, meaning, decisions rendered outside of these
point. It is also required under the Rules of Court that the state mandatory periods do not make these decisions invalid.
witness must have to execute an affidavit which would contain Nonetheless, they are mandatory against the judges or justices
his testimony for which he must actually testify. If he does not concerned. If they fail to comply with these periods, they shall be
testify on that then it is not. If he refuses to testify based on the subjected to some form of administrative liability, from reprimand
terms of the discharge, the discharge will not be valid; he can still up to fines. You have come across several cases where the
be prosecuted and the transactional immunity cannot be claimed.

COLLEGE
OF LAW
judges are fined for failing to resolve the cases within the said Here, the Court notes the repeated non-observance by petitioner
mandated periods. and his counsel of the reglementary periods for filing motions and
perfecting appeal. While still at the trial stage, petitioner’s motion to
admit and demurrer to evidence was denied as it was not
Now, you will notice in your outline, this case of DIMARUCUT seasonably filed (petitioner was granted fifteen (15) days from
VERSUS PEOPLE OF THE PHILIPPINES. There was an August 8, 2001 within which to file demurrer to evidence but filed
abandonment of an appeal. The court still applied the rule on his motion to dismiss only on September 4, 2001), in accordance
with Section 23, Rule 119 of the Revised Rules of Criminal
speedy disposition of justice even if the appeal had been Procedure, as amended. Before the CA, petitioner and his counsel
abandoned. The court still resolved it, dismissed it, on filed no less than four (4) motions for extension to file brief, which
consideration that there is still this right to speedy disposition of was never filed nor attached in the motion for reconsideration of
cases. the August 29, 2007 Resolution dismissing the appeal. The last
extension given expired on June 6, 2007, without any brief
submitted by petitioner or his counsel. And even when he filed the
DIMARUCOT vs. PEOPLE OF THE PHILIPPINES Omnibus Motion on May 8, 2008, still no appellant’s brief was
630 SCRA 456 attached by petitioner. Neither did petitioner file any petition before
this Court questioning the validity of the August 29, 2007 resolution
Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal and the November 27, 2007 denial of his motion for
Procedure, as amended, provides: reconsideration. The dismissal of his appeal having become final, it
was indeed too late in the day for petitioner to file the Omnibus
Motion on May 8, 2008, which was four (4) months after the finality
SEC. 8. Dismissal of appeal for abandonment or failure to of the resolution dismissing the appeal.
prosecute. – The Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to the appellant in either
case, dismiss the appeal if the appellant fails to file his brief within Having been afforded the opportunity to seek reconsideration and
the time prescribed by this Rule, except where the appellant is setting aside of the motu proprio dismissal by the CA of his appeal
represented by a counsel de oficio. for non-filing of the appeal brief, and with his subsequent inaction
to have his appeal reinstated after the denial of his motion for
reconsideration, petitioner cannot impute error or grave abuse on
It is clear under the foregoing provision that a criminal case may be the CA in upholding the finality of its dismissal order. Non-
dismissed by the CA motu proprio and with notice to the appellant compliance with the requirement of notice or show cause order
if the latter fails to file his brief within the prescribed time. The before the motu proprio dismissal under Section 8, paragraph 1 of
phrase "with notice to the appellant" means that a notice must first Rule 124 had thereby been cured. Under the circumstances, the
be furnished the appellant to show cause why his appeal should petitioner was properly declared to have abandoned his appeal for
not be dismissed.13 failing to diligently prosecute the same.
In the case at bar, there is no showing that petitioner was served

with a notice requiring him to show cause why his appeal should
not be dismissed for failure to file appellant’s brief. The purpose of In this case of ANGELES VERSUS SEMPIO-DIY, the court here
such a notice is to give an appellant the opportunity to state the also asked for several extensions because a Motion for
reasons, if any, why the appeal should not be dismissed because Reconsideration was not resolved within a period of six months.
of such failure, in order that the appellate court may determine
whether or not the reasons, if given, are satisfactory. However, the Supreme Court admonished the judge’s concern
even if there were several extensions sought; the Court said that
Notwithstanding such absence of notice to the appellant, no grave
the judge must still resolve such motion within a reasonable time
abuse of discretion was committed by the CA in considering the limit, 3 months.
appeal abandoned with the failure of petitioner to file his appeal
brief despite four (4) extensions granted to him and non- A.M. No. RTJ-10-2248 September 29, 2010
compliance to date. Dismissal of appeal by the appellate court JUDGE ADORACION G. ANGELES vs.
sans notice to the accused for failure to prosecute by itself is not JUDGE MARIA ELISA SEMPIO DIY
an indication of grave abuse. Thus, although it does not appear
that the appellate court has given the appellant such notice before It appears that respondent has simply forgotten about the pending
dismissing the appeal, if the appellant has filed a motion for motion for reconsideration in Criminal Case Nos. Q-95-61294 and
reconsideration of, or to set aside, the order dismissing the appeal, Q-95-62690 after said cases became inactive due to the failure of
in which he stated the reasons why he failed to file his brief on time the defense to submit its reply. The realization of the blunder came
and the appellate court denied the motion after considering said only during the semi-annual inventory of the court’s cases. This
reasons, the dismissal was held proper. Likewise, where the situation could have been avoided had respondent adopted an
appeal was dismissed without prior notice, but the appellant took effective system of record management and organization of
no steps either by himself or through counsel to have the appeal dockets to monitor the flow of cases for prompt and efficient
reinstated, such an attitude of indifference and inaction amounts to dispatch of the court’s business. Elementary court management
his abandonment and renunciation of the right granted to him by practice requires her to keep her own records or notes of cases
law to prosecute his appeal. pending before her sala, especially those that are pending for more

COLLEGE
OF LAW
than 90 days, so that she can act on them promptly and without The only situation, as you may have noticed in all these cases on
delay. the speedy disposition of the cases you may have read, that will
result in the dismissal of the charges is when it is still on
The case of RAYMUNDO VERSUS ANDOY… the Summary reinvestigation stage.
Rules, BP 22 Case… the case was submitted for decision on
October 19, 2005 and a Motion for Reconsideration was filed on Take for example the old case of TATAD VERSUS
2006. The judge despite two motions to render judgment failed to SANDIGANBAYAN. When Tatad was investigated it took eleven
render a decision or resolution on the motion for reconsideration years for the investigation to be completed. And so when Tatad
after 3 years. The judge here was fined Php 20,000.00. asked for dismissal, the Sandiganbayan refused. However, the
Supreme Court granted the petition, and it caused the dismissal
A.M. No. MTJ-09-1738 October 6, 2010
of the case because there is no justifiable reason why the
(Formerly OCA I.P.I. No. 08-2033-MTJ)
CIRILA S. RAYMUNDO investigation by the investigating officer would determine whether
vs. there is probable cause or well founded belief to charge
JUDGE TERESITO A. ANDOY respondent in court. This is not a full-blown trial on the merits
where the guilt or innocence of the accused is determined.
The Constitution mandates that all cases or matters filed before all
lower courts shall be decided or resolved within 90 days from the So if there is such delay, again, the Supreme Court has used the
time the case is submitted for decision. Judges are enjoined to
dispose of the court’s business promptly and expeditiously and to FOUR FOLD FACTORS: the length of the delay in disposing the
decide cases within the period fixed by law. Failure to comply with case; the reason for such delay in disposing the case; the fact
the mandated period constitutes a serious violation of the that the respondent has claimed or not claimed his right to
constitutional right of the parties to a speedy disposition of their speedy disposition of cases, and the prejudice that is caused by
cases – a lapse that undermines the people’s faith and confidence
in the judiciary, lowers its standards and brings it to disrepute. This the delay on the person of the respondent. The Supreme Court
constitutional policy is reiterated in Rule 3.05, Canon 3 of the Code has applied the FOUR FOLD FACTORS to balance if whether
of Judicial Conduct which requires a judge to dispose of the court’s the State has still the right to prosecute upon finding probable
business promptly and decide cases within the required periods. cause or should the accused be freed from the anxiety of criminal
prosecution despite the lapse and delay in resolving whether or
In the present case, the subject cases had been submitted for not there is probable cause to charge him in court. Again, when
decision since October 12, 2005. As correctly pointed out by the
OCA, while the respondent judge attributed his failure to render a there is already full presentation of evidence, the clam for speedy
decision to the heavy caseload in his sala, he did not ask for an disposition of cases will not be resolved for dismissal. But if there
extension of time to decide the cases. This failure to decide within is yet to be a formal charge or information in court, the delay will
the required period, given that he could have asked for an be or within the stage of the investigation level then the court
extension, is inexcusable; it constitutes neglect of duty as well as
gross inefficiency that collectively warrant administrative sanction. may grant the right to resolve the claim for speedy disposition of
cases which eventually dismiss the case. This must have to be
related to the provisional dismissal of cases, which we shall be
taking up later, based on double jeopardy. The same principle
Unlike speedy trial, if there is a valid claim and the grant is also must still be applied in provisional dismissal. You remember this
valid and justified, it will be put to a stop to the criminal TIME BAR RULE, right? The one year period. Does that change
prosecution. It means that the Court will grant the right of the the substantive law on presentation of offenses? The answer is
accused to speedy trial, will dismiss the case, and the dismissal no. But under the TIME BAR RULE, the principle is that, if there
is always with prejudice. It would be considered as an is failure to prosecute within that one or two years, there is a
adjudication of the merits, and the accused is thereby freed. But disputable presumption that the State could no longer prove this
if all the evidences are in, the trial has already been terminated case and it therefore waived to prosecute the offender. The
and the only reason why there is no disposition yet is because rationale behind the TIME BAR RULE is the same with
the court has failed to resolve the case by failing to render a disposition of cases when the case is still under investigation. If
decision or failing in to render a resolution on the motion for indeed, there is a prima facie case or probable cause and well-
reconsideration on account of a motion for reconsideration filed. founded belief to charge accused in court, why take so long? It
This will not mean that if the right to speedy disposition of cases does not need a full-blown trial on the merits. But the
is claimed that that court will consider the case dismissed. investigating officer has to read and compare the complaint,
counter-affidavits and other pleadings. If there is so much
unjustified delay, then there is that presumption that the State

COLLEGE
OF LAW
waived its right to prosecute; and therefore it dismissed the can’t take their eyes off of you.”
criminal charges, and not the information itself as there is yet to ― Maya Angelou
be one.
G.R. No. 72335-39 March 21, 1988 “...kapag binisita ka ng idea, gana o inspirasyon,
FRANCISCO S. TATAD vs. SANDIGANBAYAN
kailangan mong itigil LAHAT ng ginagawa mo para
We find the long delay in the termination of the preliminary lang di masayang ang pagkakataon. Walang “sandali
investigation by the Tanodbayan in the instant case to be violative lang” o “teka muna”. Dahil pag lumagpas ang
of the constitutional right of the accused to due process. maikling panahong yon, kahit mag-umpog ka ng ulo
Substantial adherence to the requirements of the law governing
the conduct of preliminary investigation, including substantial
sa pader mahihirapan ka nang maghabol.”
compliance with the time limitation prescribed by the law for the ― Bob Ong, Stainless Longganisa
resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law.
Not only under the broad umbrella of the due process clause, but
under the constitutional guarantee of "speedy disposition" of cases
as embodied in Section 16 of the Bill of Rights (both in the 1973
and the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three (3) years
can not be deemed reasonable or justifiable in the light of the
circumstance obtaining in the case at bar. We are not impressed
by the attempt of the Sandiganbayan to sanitize the long delay by
indulging in the speculative assumption that "the delay may be due
to a painstaking and gruelling scrutiny by the Tanodbayan as to
whether the evidence presented during the preliminary
investigation merited prosecution of a former high ranking
government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected.
Secondly, three out of the five charges against the petitioner were
for his alleged failure to file his sworn statement of assets and
liabilities required by Republic Act No. 3019, which certainly did not
involve complicated legal and factual issues necessitating such
"painstaking and gruelling scrutiny" as would justify a delay of
almost three years in terminating the preliminary investigation. The
other two charges relating to alleged bribery and alleged giving of
unwarranted benefits to a relative, while presenting more
substantial legal and factual issues, certainly do not warrant or
justify the period of three years, which it took the Tanodbayan to
resolve the case.

KINTANAR, LOVELY
LIMBO-CABUHAT, VERNA
DINIAY, DONNI
You can only become truly accomplished at something you

love. Don’t make money your goal. Instead pursue the
things you love doing and then do them so well that people

COLLEGE
OF LAW
the check being paid for an outstanding obligation. The fact that
The future belongs to those who believe in the the issuance of check was attended by fraud takes it away from
beauty of their dreams. the protection of non-payment or non-imprisonment for non-
Eleanor Roosevelt payment of civil debts and obligations because that would
substantively change the nature of the violation of a mere civil
obligation to one which would be criminal in character. As have
August 30, 2012 been discussed therein the Supreme Court said that the
gravamen of the offense is the introduction into the economy or
SUBSTANTIVE RIGHTS UNDER THE DUE in circulation checks which are valueless or which would bounce
PROCESS CLAUSE or without which could not have been cashed upon presentment
or when it is presented for payment when it is due and
A. What acts cannot be criminalized demandable. So it is not simply by reason of non-payment of a
debt.
Section 18.
Lozano vs. Martinez (Dec. 18, 1986)
No person shall be detained solely by reason of his political
beliefs and aspirations. Facts: A motion to quash the charge against the petitioners for
violation of the BP 22 was made, contending that no offense was
committed, as the statute is unconstitutional. Such motion was
Mere beliefs and aspirations under Sec. 18 (1)… this is part of denied by the RTC. The petitioners thus elevate the case to the
freedom of political beliefs. This is actually a part of the general Supreme Court for relief. The Solicitor General, commented that it
discussion of due process as well as on the free speech and was premature for the accused to elevate to the Supreme Court
expression. In relation to free speech on the so called freedom of the orders denying their motions to quash. However, the Supreme
Court finds it justifiable to intervene for the review of lower court's
thought or freedom of thoughts, for so long as it remains in the denial of a motion to quash.
realm of thought, no person should be penalized for such mere
beliefs and aspirations. As we all know, once the thoughts are Issue: Whether BP 22 transgresses the constitutional inhibition
converted into overt acts, these overt acts may be subjected to against imprisonment for debt.
reasonable regulations. Held: The offense punished by BP 22 is the act of making and
issuing a worthless check or a check that is dishonored upon its
Non-imprisonment for non-payment of debts and other civil presentation for payment. It is not the non-payment of an obligation
obligations under Sec. 20 which the law punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and
Section 20. No person shall be imprisoned for debt or non- putting them in circulation.
payment of a poll tax.
So is the same reason for the subsidiary imprisonment for non-
This is largely traceable to the age of slavery in the US payment of a fine. Under the Revised Penal Code the judgment
experience because the prohibition is based on coercive imposed of penalizing the accused to pay a fine and if such fine
payment or non-payment of debt, either by cancellation of the may not be paid, subsidiary imprisonment may be imposed. That
debtor or his being taken as a slave for failing to pay an honest is not a violation of this Section 20 because the payment of a fine
debt. It must be remembered however with respect to debts and is not a payment of a contractual debt. It is supposed to be a
civil obligations that the liability to pay the money or debt must be form of a penalty which if not paid can make the accused convict
one arising from contract which must constitute a debt, whether subjected to subsidiary imprisonment.
express or implied. And that payment or the act of compelling
payment must have to be by reason of a valid contract and not Acts which when done were innocent this discusses the
one which may have been entered through fraud or concept of ex post facto laws as well as bill of attainder
misrepresentation. under Section 22.
So this old case of Lozano vs. Martinez with respect to the Section 22. No ex post facto law or bill of attainder shall be
constitutionality of Batas Pambansa Bilang 22 while ostensibly it enacted.
would show that the penalty imposable under the said law was
placed there to compel, to make good the payment of the check,

COLLEGE
OF LAW
A bill of attainder technically involves a law which makes a

person liable for the crime defined therein without the need of a The first there is under Section 18 (2) that would be involuntary
judicial trial. Technically by history it is supposed to impose the servitude. We all understand that involuntary servitude is allowed
capital penalty. If it is less than the capital penalty it is supposed only when it is so provided for in the Constitution or by law. And
to be called bills of pains and penalties not bills of attainder. But these would cover only involuntary servitude based upon a lawful
in our jurisdiction there is not much distinction between the order of the court. The other is when there is involuntary
penalties imposable without need of judicial trial. If there is such servitude in the sense or in the form of compulsory military or civil
a law it will be considered as a bill of attainder. training with respect to defense of the State. When we discussed
the freedom of religion we discussed that matter of conscientious
To distinguish it from the ex post facto law, a bill of attainder is objector, a person by reason of his freedom of conscience or
always ex post facto, meaning it is always applied retroactively thought or religion may object to such form of compulsory military
to cover acts which when done were not supposed to be criminal service because this is disallowed by his religion. But
or punishable. Conversely however, not all ex post facto laws are nonetheless that is a form of an involuntary service that the
considered bill of attainders because the 6 most common listed Constitution would allow.
forms of ex post facto laws are not necessarily bill of attainders
because they do not impose a penalty without a judicial trial. Now similar with non-imprisonment for non-payment of debt, this
involuntary servitude was based on the anti-slavery provision in
The 6 common instances of ex post facto laws are: the American Constitution under its Thirteenth Amendment. The
1. It criminalizes an act which when done was innocent; 13th Amendment of the US Constitution prohibits or punished acts
2. It aggravates a crime; of slavery. This technically ended the slavery period as practiced
3. It changes a penalty of a crime and increases it; in the American jurisdiction. However when as mention if it is by
4. One which alters legal rules of evidence requiring less reason of punishment for a crime upon a lawful order of the court
for conviction; where the accused has been duly convicted there may be a form
5. One which assumes civil rights or remedies but in of involuntary servitude. And when one is under detention to
effect penalizes an innocent man; and serve the sentence this form of forced labor, the chained gangs
6. Deprivation of some lawful protection such as former during the days of slavery have been reaming as rehabilitation.
conviction, acquittal or amnesty. So when prisoners are compelled to perform work, they are not
actually forced to work but are actually rehabilitated. This is part
Now these 6 situations or instances must have to be applied of their rehabilitation in order to make them ready for their future
retroactively. Because if there is prospective application as it is reintegration into the society.
always presumed when there is a criminal statute passed by
Congress, then this is not considered as ex post facto law Now the early cases on domestic service which are the usual
because the covered subjects or persons targeted by the law can form of involuntary servitude are before the enactment of the
avoid being penalized under a new law which is applied Labor Code and its amendment particularly on the rights and
prospectively by refusing to commit the act or by non- benefits or privileges of helpers or house helpers. The common
performance of the act or omission covered by the said new law. practice is that these house helpers if they would still have some
What makes it ex post facto in any of the 6 circumstances is debt from their employers they are made to work continuously
when the law is applied retroactively and therefore there is no until their debts are paid. Under the Labor Code now as
escape from liability from the targeted class of persons or amended in relation to the rights of house helpers that are not
requirements. supposed to be allowable. If the employer still has money claim
against the house helper or employee then the employee cannot
What punishments cannot be imposed? be forced to continue working because that is a form of
involuntary servitude.
INVOLUNTARY SERVITUDE
EXCESSIVE FINES, CRUEL, DEGRADING AND
Section 18. INHUMAN PUNISHMENTS
xxx
No involuntary servitude in any form shall exist except as a Section 19.
punishment for a crime whereof the party shall have been duly 1. Excessive fines shall not be imposed, nor cruel,
convicted. degrading or inhuman punishment inflicted. Neither shall death
COLLEGE
OF LAW
penalty be imposed, unless, for compelling reasons involving the character of form of that penalty or as to how the penalty is
heinous crimes, the Congress hereafter provides for it. Any death implemented may make the penalty cruel, inhuman or degrading.
penalty already imposed shall be reduced to reclusion perpetua. Death now in the Philippines at least per law which has been
suspended will be implemented by lethal injection. In some states
Now the form of punishments to make them excessive, cruel, in the US they still have this death penalty and most are by lethal
degrading or inhuman is not the type, kind of imposable injection. I don’t think in China they have lethal injection, they
punishment which makes it excessive, cruel, degrading or have firing squad. You have to pay for the cost of the bullet that is
inhuman. There are acceptable forms of penalties like death for to be placed at the back of your head. So for them it is not cruel,
example. Death per se is not supposed to be cruel, degrading or degrading or inhuman. And it is largely based on societies and for
inhuman. Or it should refer to a fine just because the fine is of those who probably would not believe in the propriety of the
such amount that it should be considered to be per se as imposition of death penalty, death for them per se is not
excessive. With respect to the imposition of the fine, what makes acceptable, it is cruel, degrading and inhuman. But there is a
it excessive is when the penalty of fine must be flagrantly or debate whether death per se or it is the manner that death
grossly disproportionate to the offense no matter under what penalty is supposed to be imposed.
circumstance the offense may be committed.
In one case the Supreme Court said that if it is supposed to be
Differently stated, if there is no public interest consideration in the considered cruel, degrading and inhuman, it must be one that
imposition of the fine and therefore the imposed fine or the fine involves torture, lingering death or something barbaric or
as imposed by law which may be imposed by the court is so barbarous. It is the severity with respect to the implementation of
grossly disproportionate then the fine maybe excessive. But by the penalty imposed. Imprisonment, we have accepted it that
reason of certain considerations of public interest, more common there are ranges, and there is a range that even what we know
example would be price control laws or for example special as reclusion perpetua. How long is reclusion perpetua? Better
protection for special kinds of people like special protection to than cadena perpetua which we know as marriage. 
children under Republic Act 7610. You may have noticed that in
7610 the imposed penalties of incarceration as well as fines are PROTECTION AGAINST DOUBLE JEOPARDY
so much increased. Even the recommendation for bail, places
7610 under heinous offenses, where the normal Section 21. No person shall be twice put in jeopardy of
recommendations with the Department of Justice is P1,000 for punishment for the same offense. If an act is punished by a law
every year of imprisonment has been provided for by law, in 7610 and an ordinance, conviction or acquittal under either shall
places it under heinous offenses the recommended bail is constitute a bar to another prosecution for the same act.
normally placed at P10,000.00 for every year of service. So for
slapping a child which is supposed to be slight physical injuries There are two basic situations contemplated, the same act and
where there may be no warrant of arrest issued, if it is under the same offense. The same act rule or the same offense rule are
7610 it becomes a minimum of prision mayor. That is a special the two situations contemplated under Section 21. The same act,
law because of the intent of Congress to protect special, in this which is the 2nd sentence actually, when an act is punished by a
case children. So absent any of these special circumstances statute and an ordinance, the prosecution, conviction or acquittal
affecting the imposition of a fine that it will be greatly in one constitutes a bar to another prosecution. This is to prevent
disproportionate and in the language in another case it is from being harassed or punished twice for the same act. It’s easy
“flagrantly and plainly oppressive that shocks the moral senses of to understand, one act is punished by a national law or statute
the community”, then it will be considered as excessive. Again it and the other is by a local ordinance. So that if one is
is not the value as imposed but it should be based on lack of any prosecuted, convicted or acquitted in one, in either the law or the
special consideration for imposing the fine which will make it ordinance, then that person may no longer be charged again for
grossly disproportionate to the offense having been committed the same act in relation to the other. This has been provided as
and to the penalty to be imposed for that particular offense. the second situation contemplated in the double jeopardy rule
because the original context of the double jeopardy protection
The cruel, degrading and inhuman punishment refers to the form only covers the same offense rule. Under the same offense rule,
or character of the penalty or how it is implemented rather than if a person is charged before a statute in an ordinance it could
the severity of the penalty. Acceptable in our jurisdiction would be never fall under the same offense rule because both laws are not
incarceration for certain periods as well as the capital penalty of enacted by the same legislative body. One is by a local council
death. Those per se are acceptable forms of penalties. But as to and the other is by a statue and normally they do not have the
COLLEGE
OF LAW
same elements or one is not necessarily included in the other or the court has no jurisdiction, so the first jeopardy will never
vice versa and therefore there could be no protection from being attach. So, again while ordinarily the penalty range is
prosecuted twice for the same act. Now that has been added on determinative of whether the court has jurisdiction or not, there
again as part of the double jeopardy protection. are special instances by reason of Supreme Court circulars in
relation to existing laws that special courts re designated to
Now with respect to the same offense rule, an act must be handle special kinds of cases.
punished by the same statute or of different statutes but are
considered of the same offense. Of the same statutes or of When is information considered sufficient in form and substance?
different statutes but they are considered to be falling under the If just like in your Criminal Procedure the information is sufficient
term same offense. The reason for this is to prevent from being to convict the accused. Meaning there is at least a prima facie
harassed or punished twice for the same offense not for the recitation of facts in the information which is sufficient to afford a
same act. Now invariably you have come across a lot of cases conviction. So that if conversely the information is totally
involving double jeopardy and the requisites of double jeopardy defective in form and substance even if the accused pleads guilty
would range from 3 to 5 to 6, depending on the decision of the thereto, the accused cannot be convicted of any crime simply
Supreme Court. But to put in simpler terms, the requisites of because the information charges no offense.
double jeopardy are as simple as:
1. The first jeopardy must have attached; and Now, with respect to the case being dismissed without the
2. The accused is charged for the same offense. expressed consent of the accused, that would accept of two
exceptions.
Those are the simplest requisites of when the double jeopardy
protection would be claimable. The first jeopardy has attached The first would be when the accused invokes his right to speedy
and he is charged again for the same offense. But when should trial. Of course when the accused files a motion to dismiss
the first jeopardy attach? This is when the decisions of the invoking his right to speedy trial that is with his consent. But
Supreme Court would put on all those 5 or 6 conditions as nevertheless because we all know that the court grants the
depending on who wrote the decision. So, dismissal because of the valid claim of right to speedy trial, it is
1. there must have to be a court of competent jurisdiction; considered an adjudication on the merits, the accused is
2. that there is a valid information sufficient in form and considered acquitted and first jeopardy will attach.
substance;
3. that the accused must have been validly arraigned; – The second situation is when the accused files a demurrer to
meaning there is a valid entry of plea evidence. We all know that after the presentation of the
4. that the case has been terminated, dismissed or the prosecution’s evidence, the accused may ask within five days
accused have been convicted or acquitted; (and then therefrom motion for leave to review to evidence and file
they put on the next) thereafter within ten days from the grant the demurrer to
5. that the accused is charged for the same offense evidence, simply asking the court that based on the prosecution’s
evidence, the evidence cannot be sufficient to prove his guilt
But if we try to look into when is it considered that the first beyond reasonable doubt. If the court grants it even if the
jeopardy have attached, it simply would require that there is a dismissal is sought by the accused, it is considered an
valid indictment in a court with competent jurisdiction with the adjudication on the merits, the accused considered acquitted and
case has been dismissed without the express consent of the therefore first jeopardy will attach.
accused or that the accused have been convicted or acquitted.
And then the second requisite would be that the accused is When the second offense is filed, when is it considered that it is
charge for the same offense. filed for the same offense?
One, it is literally for the same offense.
When we say that there is a court of competent jurisdiction, The second case is literally the same as that of the first. When
obviously the simplest test there is on the penalty ranges. But the second case is an attempt of the crime subject of the first
because of the Supreme Court circulars on other special courts, case.
there are some cases which would discuss that if this should Third, when the second case is a frustration of the crime subject
have been tried in a special court, even in the same RTC that of the first case.
court which is not designated as a special court where that case Next, when the second offense is necessarily included in the
or information should have been filed would be considered that crime subject of the first offense. So necessarily included,

COLLEGE
OF LAW
meaning all of the elements in the second case constitutes some barred by reason of double jeopardy protection? The answer is it
of the elements of the first case. should be allowed because of the concept or the doctrine of
supervening fact.
Good example would be second case is homicide, first case is
murder. And conversely if the second offense necessarily MELO VS. PEOPLE
includes that of the first case. Some of the elements in the
The rule of identity does not apply when the
second case constitute all of the elements of the first case. second offense was not in existence at the time of the first
prosecution, for the simple reason that in such case, there is no
And under the Rules of Court, when there is a valid plea of possibility for the accused, during the first prosecution, to be
guilty to a lesser offense. Under the present rules now, the plea convicted for an offense that was then inexistent. Thus, where the
accused was charged with physical injuries and after conviction,
of guilt to a lesser offense is subject to two conditions: the injured person dies, the charged for homicide against the same
1. There must have to be the express consent of the accused does not put him twice in jeopardy.
private offended party and of the prosecutor. That of the private
offended party can be dispensed with if that private offended
party fails to appear during the pre-trial but generally, his consent In a later case, the SC, the case of People vs. Yorac, the SC did
must have to be sought also when there is a plea of guilt to a not apply the supervening fact doctrine because the victim was
lesser offense. mauled and he was hit in different parts of his body including his
2. The second requisite which is the more important head but the initial medical examination showed that his injuries
requisite is that the lesser offense must necessarily be connected will heal or there is only a 10-day period for him to heal or to be
or included in the offense charged. Prior to this amendment in the out of his regular confinement(?) for which he was only charged
Rules of Criminal Procedure, you can plead guilty to any lower with slight physical injuries. Not more than 10 days, slight
offense. There is no requirement that the lower offense must be physical injuries. The accused upon arraignment has pleaded
included in the original offense as charged. So you were charged guilty and was sentenced accordingly. However, when the victim
before with say rape, you can plead guilty to the felony of was still in the hospital had undergone another medical
trespass to dwelling or illegal whatever. Now it must necessarily examination. And found that under the second medical
be included in the offense charged. examination that the victim was actually suffering from or has
suffered from severe head concussion which if not attended may
So if you are charged say of murder, can you plead guilty to a result to his death. There was actually a crack which was not
lesser offense of physical injuries? So the question is is physical seen before when he underwent his first medical examination. So
injuries necessarily included in murder? Is it? Pitik nimo ang they filed this time another case for frustrated murder and the SC
mata, naigo, nilakay, naa may lansang, homicide. Okay, for so said that this is not a supervening fact. The injury was there
long as the lesser offense is necessarily included in the original before, however, it was not discovered and so the
offense as charged then you can.
2. Second exception now has been provided for by the
Now the exceptions to the application of the claim of double rules, the facts constituting the graver offense became known or
jeopardy: were discovered only after the filing of the former information.
1. Supervening fact. In the supervening fact, it
presupposes that the graver offense was or has developed as a I think that they put it in a very simple term that there is a filing of
supervening fact after the first jeopardy had attached. Now there a former information. It should have been that after the first
are three cases here in your outline: Melo vs. People, People vs. jeopardy could have attached. Filing an information and there
City Court and People vs. Yorac. must have to be arraignment at least of the accused. At the very
least. Just the same when it could not be a supervening fact, the
In this case of Melo vs. People, it involved the supervening fact fact constituting graver offense was discovered or was made
doctrine. So for example the accused was charged with known to him only after the first information.
attempted homicide, he immediately pleaded guilty but the victim
was not yet discharged from the hospital, even if the accused has 3. When there is an invalid plea of guilt to a lesser
already pleaded guilty and thereafter died of the same injuries he offense.
sustained which was then present when the accused was
charged and was convicted of attempted homicide. Will the case PEOPLE VS. YORAC (1971)
for consummated homicide now be allowable or would it be

COLLEGE
OF LAW
Rodrigo Yorac was prosecuted for frustrated murder arising Office of the Ombudsman for administrative liability as well as
allegedly from having assaulted, attacked, and hit with a piece of criminal liability for unexplained wealth. Now, we all know that the
wood the offended party, for which he had been previously tried
and sentenced for slight physical injuries, his plea being one of Office of the Ombudsman under RA 6770 has two primary
guilt. The later information for frustrated murder was based on a functions with respect to malfeasance, misfeasance,
second medical certificate after the lapse of one week from the nonfeasance or other feasances like other public officers and
former previously given by the same physician who, apparently, employees and administratively, they can hear, try, and impose
was much more thorough the second time, to the effect that the
victim did suffer a greater injury than was at first ascertained. The administrative liabilities and penalties but with respect to criminal
lower court, considering that there was no, supervening fact that liability, they can only conduct preliminary investigation. They
would negate the defense of double jeopardy, sustained the motion could not impose any penalties.
to quash.
Issue: Whether the defendant, who had already been convicted of Side story about a lawyer applying with the Office of the
slight physical injuries before the City Court of Bacolod for injuries Ombudsman and he was asked to decide a criminal case. He
inflicted upon Lam Hock, and had served sentence therefore, may decided guilty. Lesson: The Office of the Ombudsman is not
be prosecuted anew for frustrated murder for the same act empowered to find public officers guilty.
committed against the same person.
Held: If after the first prosecution “a new fact supervenes on which Atty. Montemayor raised basically that question of whether or not
defendant may be held liable, resulting in altering the character of the investigation subjecting him to another investigation with the
the crime and giving rise to a new and distinct offense, “the Office of the Ombudsman violates his right or privilege against or
accused cannot be said to be in second jeopardy if indicted for the
new offense.” his protection against double jeopardy. The SC said no because
the elements of double jeopardy are not present. When he was
We attribute the new finding of fracture, which evidently lengthened charged, found liable in the Office of the President, that was for
the period of healing of the wound, to the very superficial and an administrative liability. Even if he were to be charged again in
inconclusive examination made on December 10, 1956. Had an X-
ray examination been taken at the time, the fracture would have the Office of the Ombudsman administratively, double jeopardy
certainly been disclosed. The wound causing the delay in healing will not apply because double jeopardy protection is only
was already in existence at the time of the first examination, but applicable in criminal prosecutions. With respect to the criminal
said delay was, caused by the very superficial examination then charge in the Office of the Ombudsman where he was made to
made. As we have stated, we find therefore that no supervening
fact had occurred which justifies the application of the rule in the undergo or his case was processed under the power of the
case of Melo vs. People and People vs. Manolong for which Ombudsman to conduct criminal investigation, the SC said still
reason we are constrained to apply the general rule of double double jeopardy does not apply because preliminary investigation
jeopardy.” is not part of trial. Jeopardy attaches when there is a valid
complaint or information in a court of competent jurisdiction
Motions for reconsiderations or appeals. Generally, if there is an sufficient in form and substance in the information and the
acquittal, there is no motion for reconsideration or appeal accused has pleaded guilty and the case has been dismissed,
allowed. Well there is always an exception from that general rule, accused has been acquitted or convicted.
if there is a denial of due process on the part of the State. When
the State is precluded by reason of grave abuse of discretion When the case is subjected or processed to PI in any
from publicly trying the accused in proving his guilt, the trial court investigating body, if the investigator says there is no case, there
supposed to be ousted of its jurisdiction. And the people or is no prima facie case and therefore the case is dismissed,
prosecution may therefore seek a review of the dismissal order or question: can it be filed again? Will double jeopardy apply?
acquittal order by the trial court.
On the first question: can it be filed again? It depends. If there
There is one case here in your outline, the case of Flores vs. are new evidence probably it can be re-filed but if the argument is
Montemayor. This case involves a BIR Regional Director in that it cannot be filed because there is violation of double
Region IV who was charged with the Presidential Anti-Graft jeopardy, that should not apply because PI, the results of the PI
Commission (PAGC) for failing to include in his SALN 3 motor is of the same result as the accused has been acquitted or
vehicles (an Expedition, Land Cruiser and a Galant) and so he convicted or the case is dismissed against him after an
was charged administratively in the PAGC and the PAGC information which is sufficient in form and substance has been
recommended to the Office of the President that he be removed filed in the court of competent jurisdiction. PI is never part of trial.
from service. Before the Office of the President was able to Perhaps if your normal argument with respect to the fact that it
promulgate its decision, another complaint was filed before the could not be re-filed, is that it is now as to the parties the law

COLLEGE
OF LAW
between them. If you have like did not file for a motion for a serving sentence, the proceedings is considered to have become
motion for reconsideration, did not seek further review on appeal, final already. So if he wishes to be relieved from further
then it becomes final. The dismissal becomes final and it may be incarceration because of the beneficial law or decision of the SC
constitutive of res adjudicata between the parties, you can argue he must have to file a petition for habeas corpus as a post-
on that line. But definitely you cannot argue that to re-file it would conviction remedy.
violate your privilege or protection against double jeopardy.
This does not however… there’s this case here of Fletcher vs.
Double jeopardy; elements. Double jeopardy attaches only (1) Director of Bureau, the petitioner here contends that he should
upon a valid indictment, (2) before a competent court, (3) after be released from detention because he has already served the
arraignment, (4) when a valid plea has been entered, and (5) minimum of the indeterminate sentence imposed by law. He said
when the defendant was convicted or acquitted, or the case was that his continued incarceration has no legal basis already.
dismissed or otherwise terminated without the express consent of Remember that under the Indeterminate Sentence Law, while an
the accused. None of these requisites applies where the accused can be released as a parolee, released on parole, there
Ombudsman only conducted a preliminary investigation of the is yet to be a determination to be made whether indeed you are
same criminal offense against the respondent public officer. The eligible for parole. It is not automatic. So that one cannot file a
dismissal of a case during preliminary investigation does not petition for habeas corpus simply because he has supposedly
constitute double jeopardy, preliminary investigation not being serve the minimum sentence under the ISL. There must have to
part of the trial. Hon. Waldo Q. Flores, et al v. Atty. Antonio F. be a determination by the Parole Board whether that person is
Montemayor, G.R. No. 170146, June 8, 2011. eligible or not eligible for parole.
WRIT OF HABEAS CORPUS
Then the final items here in your outline would be the privilege of Fletcher vs. Director of Bureau (2009)
the writ of habeas corpus. The writ of habeas corpus as we have F: Petitioner Martin Gibbs Fletcher seeks his release from prison in
discussed under Section 18 of Article 7 is the appropriate remedy this petition for the issuance of the writ of habeas corpus. He
to inquire into all matter of involuntary restraint and to leave such claims that his prison sentence of 12 to 17 years was commuted by
person therefrom. It is sometimes used as the most efficient and then President Fidel V. Ramos to nine to 12 years. Since he had
already served 14 years, three months and 12 days, including his
effective way and expeditious way to leave a person from any good conduct allowance, his continued imprisonment is illegal.
form of involuntary or unlawful restraint. The principle purpose
here is to set the individual to liberty. Some would ask why not H: Petitioner is not entitled to the issuance of the writ.
file a petition for writ? The problem is in bail petitions, it is usually The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of his
applicable only when the person is based under custody by liberty. However, Section 4, Rule 102 of the Rules of Court
reason of a criminal violation. There are instances where a provides:
person is detained and there is no criminal charge and the most Sec. 4. When writ not allowed or discharge authorized. – If it
effective way to go(?) there is to file a petition for a writ of habeas appears that the person to be restrained of his liberty is in the
custody of an officer under process issued by a court or
corpus. judge; or by virtue of a judgment or order of a court of record,
and that court or judge had jurisdiction to issue the process,
This is also used as a post-conviction remedy where the render the judgment, or make the order, the writ shall not be
incarceration or continued incarceration of the petitioner is allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or
supposed to be without any legal basis either because the defect in the process, judgment, or order. Nor shall anything in
accused has already served his full sentence or that the accused this rule be held to authorize the discharge of a person
should benefit from any reduction of period of incarceration by charged with or convicted of an offense in the Philippines, or of a
reason of a law which is beneficial to him or the decision of the person suffering imprisonment under lawful judgment. (emphasis
supplied)
SC on the same term of imprisonment which is beneficial to him.
As to the excess, there is no more legal justification for the Plainly stated, the writ obtains immediate relief for those who have
continued incarceration of the accused. The accused cannot go been illegally confined or imprisoned without sufficient cause. The
to court, go back to that court which has convicted him because writ, however, should not be issued when the custody over the
person is by virtue of a judicial process or a valid judgment.
once the accused starts to serve sentence, everything is finished,
the court is ousted of jurisdiction. The court cannot entertain
anymore anything because that accused has already started
COLLEGE
OF LAW
Right to bail is not impaired, even the writ is suspended and

under that constitutional suspension of the privilege under Article
7, section 18, simply extends period of detention without charge
but does not actually allow continued detention without any
formal information charged. So the 12, 18 and 36 hours are just
extended to 72 hours because under Art. 7, Sec. 18, the person
arrested must have to be charged in court within 72 hours.

CAÑETE, CHAM
GO, FAITH
“All our dreams can come true – if we have the

courage to pursue them.” - Walt Disney
“Anyone whose goal is 'something higher' must

expect someday to suffer vertigo. What is vertigo?
Fear of falling? No, Vertigo is something other than
fear of falling. It is the voice of the emptiness below
us which tempts and lures us, it is the desire to fall,
against which, terrified, we defend ourselves.”
~Milan Kundera, The Unbearable Lightness of Being

COLLEGE
OF LAW
This case of Manila Electric Company somehow made the

comparison that both these Writ of Amparo and Habeas Data are
anchored on those basic or two situations contemplated: extra-
legal killing and enforced disappearances or threats of them
August 31, 2012 being committed.
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and

Writ of Amparo and Writ of Habeas Data as RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM
distinguished from Writ of Habeas Corpus G.R. No. 184769. October 5, 2010
By respondent’s allegation, petitioners’ unlawful act and omission

IMPORTANT DISTINCTIONS consisting of their continued failure and refusal to provide her with
details or information about the alleged report which MERALCO
In Habeas Corpus, the subject of this petition is any form of purportedly received concerning threats to her safety and security
amount to a violation of her right to privacy in life, liberty and
involuntary restraint or detention. security, correctible by habeas data. Respondent thus prayed for
the issuance of a writ commanding petitioners to file a written
In Writ of Amparo, it involves a violation, or a threatened violation return x x x
of the right to life, liberty or security.
SC: Respondent’s plea that she be spared from complying with
MERALCO’s Memorandum directing her reassignment to the
In Habeas Data, it is a violation, or a threatened violation of the Alabang Sector, under the guise of a quest for information or data
right to privacy, life, liberty or security by those engaged in allegedly in possession of petitioners, does not fall within the
gathering and collecting, or storing data or information. province of a writ of habeas data.
Section 1 of the Rule on the Writ of Habeas Data provides:

The respondent in Habeas Corpus would be any private or public
person, same with Amparo. Section 1. 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 by an unlawful act or omission of
In Habeas Data, private or public person but he must have to be a public official or employee or of a private individual or entity
tasked with gathering, collecting, or storing data or information. engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
In Habeas Corpus, the respondent must show cause to the court correspondence of the aggrieved party.
why the person detained must not be released. There must have The habeas data rule, in general, is designed to protect by means
to be a legal justification for the continued detention. The of judicial complaint the image, privacy, honor, information, and
respondent must show to the court the victim designated in the freedom of information of an individual. It is meant to provide a
writ. forum to enforce one’s right to the truth and to informational
privacy, thus safeguarding the constitutional guarantees of a
person’s right to life, liberty and security against abuse in this age
With respect to the writ of Amparo, the respondent/respondents of information technology.
must show what actions or steps were taken to determine the
name or whereabouts of the aggrieved party, the identity of It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
persons responsible. remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address
While in Habeas Data, the respondents must show what data or violations of or threats to the rights to life, liberty or security as a
information has been gathered or protected by this court, and remedy independently from those provided under prevailing Rules.
what steps or action were taken to ensure the security or
confidentiality of the data or information. Manila Electric Company case does not actually say what are the
matters actually covered, like the Writ of Habeas Data, unlike in
Now, both the Writ of Amparo and the Writ of Habeas Data, as the case of Tapuz vs. del Rosario and this case of Secretary vs.
discussed in this case of Manila Electric Company versus Manalo (568 SCRA 1), the Supreme Court was able to explain
Rosario Gopez Lim, 632 SCRA 195 (2010), are both based on a what the so-called Writ of Amparo should or would lie on.
reaction of the court to so-called extra-legal killing and enforced
disappearances or threats thereof. And by reason of this lack of decision, that lack of discussion as
to what Writ of Habeas Data is, we are left with the definitions as

COLLEGE
OF LAW
provided for in Section 1 of the Supreme Court Circular (A.M. No. Manalo has now passed as they have escaped from captivity and
08-1-16-SC) on what this would actually cover. surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not
"free in every sense of the word” as their "movements continue to
DANIEL MASANGKAY TAPUZ et al. VS. HONORABLE JUDGE be restricted for fear that people they have named in their Judicial
ELMO DEL ROSARIO, et al. Affidavits and testified against (in the case of Raymond) are still at
G.R. No. 182484. June 17, 2008 large and have not been held accountable in any way. These
people are directly connected to the Armed Forces of the
SC: The petition for the issuance of the writ of amparo, on the Philippines and are, thus, in a position to threaten respondents'
other hand, is fatally defective with respect to content and rights to life, liberty and security.” Respondents claim that they are
substance. under threat of being once again abducted, kept captive or even
killed, which constitute a direct violation of their right to security of
The writ of amparo was originally conceived as a response to the person.
extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and In sum, respondents assert that their cause of action consists in
effective remedies to address these extraordinary concerns. It is the threat to their right to life and liberty, and a violation of their
intended to address violations of or threats to the rights to life, right to security.
liberty or security, as an extraordinary and independent remedy
beyond those available under the prevailing Rules, or as a remedy Let us put this right to security under the lens to determine if it has
supplemental to these Rules. What it is not, is a writ to protect indeed been violated as respondents assert. The right to security
concerns that are purely property or commercial. Neither is it a writ or the right to security of person finds a textual hook in Article III,
that we shall issue on amorphous and uncertain grounds. Section 2 of the 1987 Constitution which provides, viz:
Consequently, the Rule on the Writ of Amparo - in line with the
extraordinary character of the writ and the reasonable certainty Sec. 2. The right of the people to be secure in their persons,
that its issuance demands - requires that every petition for the houses, papers and effects against unreasonable searches and
issuance of the Writ must be supported by justifying allegations of seizures of whatever nature and for any purpose shall be
fact, x x x inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
Petitioners' present recourse via the remedy of the writ of amparo judge...
is a mere subterfuge to negate the assailed orders that the
petitioners sought and failed to nullify before the appellate court At the core of this guarantee is the immunity of one's person,
because of the use of an improper remedial measure. We discern including the extensions of his/her person - houses, papers, and
this from the petitioners' misrepresentations pointed out above; effects - against government intrusion. Section 2 not only limits the
from their obvious act of forum shopping; and from the recourse state's power over a person's home and possessions, but more
itself to the extraordinary remedies of the writs of certiorari and importantly, protects the privacy and sanctity of the person himself.
amparo based on grounds that are far from forthright and
sufficiently compelling. To be sure, when recourses in the ordinary In addition, it was likewise ruled that a petition for a writ of amparo
course of law fail because of deficient legal representation or the is confined to instances of extralegal killings and enforced
use of improper remedial measures, neither the writ of certiorari disappearances or to threats thereof.
nor that of amparo - extraordinary though they may be - will suffice
to serve as a curative substitute. The writ of amparo, particularly,
should not issue when applied for as a substitute for the appeal or In the case of Manalo, the Supreme Court mentioned that the
certiorari process, or when it will inordinately interfere with these rights which fall within the protected mantle of the Writ of Amparo
processes - the situation obtaining in the present case. are:
1. right to life;
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES vs. RAYMOND
2. right to liberty;
MANALO and REYNALDO MANALO 3. right to security.
G.R. No. 180906. October 07, 2008
Right to Life. What is included in the right to life? It is
(First petition for a writ of amparo filed before Supreme Court. Writ
of Amparo took effect on October 24, 2007.)
mentioned, essentially the right to be alive and the security of,
and a secure quality of life, live not in fear that this person may
Brothers Raymond and Reynaldo Manalo were abducted by be unreasonably violated by a powerful ruler, but a life lived with
several armed soldiers wearing white shirts, fatigue pants and the assurance that the Government he established and
army boots. They were detained and tortured for 18 months,
thereafter they escaped.
consented to will protect the security of this person.
SC: We now come to the right of the respondents to the privilege And it goes to tell that it includes therefore the right to be
of the writ of amparo. There is no quarrel that the enforced protected or secure in your whole person and in your limbs and in
disappearance of both respondents Raymond and Reynaldo
your parts of your body there will be nothing that should harm,
COLLEGE
OF LAW
much more that will cause your death, because again it is a Right to security. It includes guarantee of bodily and
reaction against extra-legal killings. psychological integrity, freedom from fear, freedom from threat
and the guarantee of protection of one’s rights by the
Right to liberty. According to the Supreme Court, citing the government.
case of City of Manila vs. Honorable Judge Laguio, includes the
right to live and the right to be free from arbitrary restraint or For which reason, the basic distinction between Writ of Habeas
servitude, not limited to freedom from physical restraint of a Corpus and the Writ of Amparo is that, while in the Writ of
person or citizen, but is deemed to embrace the right to Habeas Corpus, the respondents who are supposed to have
command and the right to enjoy the liberties in which he has taken into custody a person can, has detained that person (sic).
been endowed by his creator, subject only to such restraint as
may be necessary for common welfare. For him to defeat the Writ of Habeas Corpus, they can simply
reason with the court that the person supposedly detained is not
Again, in reaction to supposed forced extra-legal disappearances detained by them.
so one, the Writ of Amparo covers that right to liberty.
It has happened a lot, in a lot of circumstances, that when, say,
for example, PNP personnel or the Armed Forces are made
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the respondents for a petition for a Writ of Habeas Corpus for an
City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as annullable warrantless arrest, the subsequent detention or
Vice-Mayor of the City of Manila and Presiding Officer of the
City Council, et al. vs. HON. PERFECTO A.S. LAGUIO, JR., as
charge, they can easily the defeat the Writ of Habeas Corpus by
Presiding Judge, RTC, Manila and MALATE TOURIST reasoning out with the court that “they are not in our custody.”
DEVELOPMENT CORPORATION
G.R. No. 118127. April 12, 2005 In the Writ of Amparo, it goes right beyond that because the right
The issue in this Petition under Rule 45 seeking the reversal of the
of security includes a guarantee that the State will protect you.
Decision of the RTC of Manila is the validity of Ordinance No. 7783 The Writ of Amparo requires the respondent not simply to show
of the City of Manila. reason why the writ is defeated or it to be dismissed, but to show
to the courts what steps or actions were taken by the, to
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
ascertain what happened to this person, what is the fate of this
clubs, discotheques, cabarets, dance halls, motels and inns in the person supposedly subject of the Writ of Amparo.
Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months from It is not enough for them to just to state that these persons are
the date of approval of the Ordinance within which “to wind up
business operations or to transfer to any place outside the Ermita-
not in their custody, or they were not responsible for their arrest
Malate area or convert said businesses to other kinds of business but there must have been steps taken by them once the report or
allowable within the area.” Further, it states in Section 4 that in demand be made by those who filed the petition for the persons
cases of subsequent violations of the provisions of the Ordinance, who disappeared to show to the court what actions or steps were
the “premises of the erring establishment shall be closed and
padlocked permanently.”
taken by them to ascertain the whereabouts and fate.
It is readily apparent that the means employed by the Ordinance It goes beyond the usual coverage or command or directive of
for the achievement of its purposes, the governmental interference Habeas Corpus.
itself, infringes on the constitutional guarantees of a person’s
fundamental right to liberty and property.
Now, if you relate this to Writ of Habeas Data based on the
Liberty as guaranteed by the Constitution was defined by Justice Manila Electric Company case, it seems that those are based on
Malcolm to include “the right to exist and the right to be free from so-called extra-legal killings and enforced disappearances.
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities But with respect to Habeas Data, it is quite clear that it refers to
with which he has been endowed by his Creator, subject only to the right of privacy over one’s right to life, liberty, or security, that
such restraint as are necessary for the common welfare.” In the data stored or data gathered, collected and stored would
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
somehow affect the right of a person’s privacy with respect to his
earn his livelihood by any lawful calling; and to pursue any right of liberty or security.
avocation are all deemed embraced in the concept of liberty.
Now what exactly is that?

COLLEGE
OF LAW
shanty actually, would you expect that the suspect would fight it
In real terms or common experience, the enforced out with the police officers?
disappearances or extra-legal killings has somehow been the
result of actions of State agents by or over those persons who So this is part of, perhaps, with by reason of the practices of
are supposedly believed to be enemies of the State. these state agents and where information is gathered, stored and
collected and thereafter stored on some individuals which will
And the reason why these persons are considered enemies of meet the definition of the state, that you have a right, this is the
the State, so to speak, is because the Government has collected ruling in the case of Manila
information or data against them through prolonged surveillance. Electric Company, the Supreme Court said this is the sign to
And normally this will result into the, what is commonly known as protect by means of judicial complaint, the image, privacy, honor,
dossier, where there is a recording of data or information of this information and freedom of information of an individual. It is
particular person that this person is considered “the enemy of the meant to provide a forum to enforce one’s right to the truth and to
State” and thereafter, that person could disappear and eventually informational privacy.
some would turn up dead and some would turn up, would turn
out not to be found at all. Thus safeguarding the constitutional guarantee of a person’s
right to life, regarding liberty and security against abuse in this
Now if you relate this to the Writ of Habeas Data based on the age of information or technology.
Manila Electric Company case, it seems that both are based on In the Writ of Habeas Data Rule, if a complaint is filed, and the
the so called “extra-legal killings and enforced disappearances”. court finds the petition to be sufficient and duly proven in the
But with respect to Habeas Data, it is quite clear that it refers to course of time, the court can direct these persons who are
the right of privacy over ones right to life, liberty or security. responsible for collecting, storing and gathering and storing these
That the data gathered, collected and stored would somehow data to:
affect the right of a person’s privacy with respect to his right
to liberty and security. Now what exactly is that? 1. Erase the data if it is not correct, or to
2. Correct it if it is not accurate.
In real terms or common experience, the enforced
disappearances and extra-legal killings, have somehow been the The court can do that. But who are the persons tasked with
result of actions of state agents over those persons who are gathering, collecting or storing data? Nobody would admit that.
supposed to be or believed as enemies of the state. And the We have filed a case here, involving some lawyers who were
reason why these persons are considered as enemies of the supposed to have been in the list of, in the order of battle(?) of
state, so to speak, is because the government has collected the military. The problem is nobody would admit that there is
information or data against them through prolonged surveillance. such a order of battle.The military officers simply argued before
And normally this would result into what is commonly known as the court, “No we don’t have any recording”. Do you store or
dossier where there is a recording of data or information on this gather data, “No we don’t”. So what is there to erase or what is
particular person that this person is considered “an enemy of the there to correct? So that petition was dismissed. We filed a
state” and thereafter that person would disappear and eventually, review by certiorari to the Supreme Court. It still has to be acted
some would turn up dead, some would turn up, well not to be on. The practice may be known but the practice is not part of the
found at all. standard operating procedure. This is like your spy; no one would
actually admit they have done it.
Just like yesterday, there was this supposed suspect in the killing
of that gym instructor. And supposedly that suspect fought it out I don’t know if you are familiar with Republic Act 9595 the Anti-
with the police, that is why he died. Common sense would dictate photo and Voyeurism Act of 2009. This republic act penalizes
that that is not easily acceptable, if you only knew where that the act of taking a photograph or video recording of, well the
killing happened. It was in that Panganiban St. if you’re familiar law says, naked body, female breasts, private parts, private area,
with that. It’s that small alley, it’s a road actually, perpendicular to (Sir M: “I don’t know what that is”.) and the violation of ones
both Torres and Mapa, where only one vehicle can pass at a time right to privacy or expectation, reasonable expectation to
or if two, they must have to be very careful so that their side- privacy. So that probably means that if you were in a room and
mirrors would not hit each other. And with the number of polices you were doing a private act, whatever that private act is, and
officers which supposedly had to shoot down, it’s a house or a you take the photograph or a video of your partner without his or
her consent, that would be punishable under this law. And the

COLLEGE
OF LAW
subsequent copying and distribution of these would also be person’s right to life, liberty and security against abuse in this age
punishable. Now I raise the matter because, if you were the of information technology.
object of that sex photograph or “sex video scandal” can you file It bears reiteration that like the writ of amparo, habeas data was
a petition to the court for a Writ of Habeas Data? That your conceived as a response, given the lack of effective and available
partner, a private person, has collected gathered and stored remedies, to address the extraordinary rise in the number of
information against you which would violate your right to privacy killings and enforced disappearances. Its intent is to address
violations of or threats to the rights to life, liberty or security as a
of life, because your limbs were shown, or perhaps of security. remedy independently from those provided under prevailing Rules.
Can you do that?
Castillo v. Cruzunderscores the emphasis laid down in Tapuz v. del
This Manila Electric Company case involves an employee who Rosario that the writs of amparo and habeas data will NOT issue to
protect purely property or commercial concerns nor when the
has supposed to have been subject of a transfer order because grounds invoked in support of the petitions therefor are vague or
of a complaint. He filed a petition for a Writ of Habeas Data, doubtful.[16] Employment constitutes a property right under the
wanting to get a copy of that complaint. The Manila Electric context of the due process clause of the Constitution.
Company refused him. And so this case reached the court
because the court granted it. The Supreme Court said that just That should end our discussion. 
like the Writ of Amparo, this covers what is supposed to be within
the ambit of right to life, right to liberty and right to security. It 
does not include purely, or those which involve property rights or
those filed for commercial, amorphous or uncertain grounds. CALIZO, RUBY
Since employment is a property right, the Wirt of Habeas Data is LINOG, HANNAH
not applicable when it pertains to the employee. The data
collected, gathered and stored must have to be in relation to your
right to privacy in life, liberty and security.
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and

RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM, (G.R. No.
184769, October 5, 2010)
ISSUE: May an employee invoke the remedies available under

such writ where an employer decides to transfer her workplace on
the basis of copies of an anonymous letter posted therein ─
imputing to her disloyalty to the company and calling for her to
leave, which imputation it investigated but fails to inform her of the
details thereof?
HELD: No. Respondent’s plea that she be spared from complying

with MERALCO’s Memorandum directing her reassignment to the
Alabang Sector, under the guise of a quest for information or data
allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.
“Nalaman kong hindi pala exam na may
Section 1 of the Rule on the Writ of Habeas Data provides: passing rate ang buhay. Hindi ito multiple
Section 1. Habeas Data. – The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or choice, identification, true or false,
security is violated or threatened by an unlawful act or omission of enumeration, o fill-in-the-blanks na
a public official or employee or of a private individual or entity sinasagutan, kundi essay na isinusulat
engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and araw-araw. Huhusgahan ito hindi base sa
correspondence of the aggrieved party. kung tama o mali ang sagot, kundi base sa
The habeas data rule, in general, is designed to protect by means
of judicial complaint the image, privacy, honor, information, and
kung may kabuluhan ang mga naisulat o
freedom of information of an individual. It is meant to provide a wala. Allowed ang erasures.” 
forum to enforce one’s right to the truth and to informational
privacy, thus safeguarding the constitutional guarantees of a
― Bob Ong, ABNKKBSNPLAKo?!

COLLEGE
OF LAW


Consti2review 1

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Consti2review 1

Uploaded by

Copyright:

Available Formats

CONSTITUTIONAL LAW REVIEW ATENEO DE

THE MONTEJO LECTURES DAVAO

2 Transcribed by: IV-MANRESA, 2012-2013©

HELD: Yes, in the exercise of the sovereign power of eminent

3 Transcribed by: IV-MANRESA, 2012-2013©

serve the same purpose? The SC said you cannot because

Power of Taxation and paragraph 4 of the same article,

limited sense, it can considered state action they can be limited

5 Transcribed by: IV-MANRESA, 2012-2013©

to the common good. The constitutional injunction declaring “the privacy of

7 Transcribed by: IV-MANRESA, 2012-2013©

8 Transcribed by: IV-MANRESA, 2012-2013©

10 Transcribed by: IV-MANRESA, 2012-2013©

related activities. It is also extended to religious freedom and

12 Transcribed by: IV-MANRESA, 2012-2013©

i. Offender commits an act punishable under

15 Transcribed by: IV-MANRESA, 2012-2013©

are income tax brackets where individuals may have different

17 Transcribed by: IV-MANRESA, 2012-2013©

“Always remember, your focus

18 Transcribed by: IV-MANRESA, 2012-2013©

equal protection of the laws, through whatever agency or whatever

21 Transcribed by: IV-MANRESA, 2012-2013©

22 Transcribed by: IV-MANRESA, 2012-2013©

Jurisprudence dictates that probable cause, as a condition for the

23 Transcribed by: IV-MANRESA, 2012-2013©

25 Transcribed by: IV-MANRESA, 2012-2013©

DOE Circular No. 2000-06-010 which provided penalties on a per

27 Transcribed by: IV-MANRESA, 2012-2013©

Subsequently, Petitioners filed a complaint for P50 million in

Sec. 8. Search of house, room, or premises to be Rulings

According to the Del Rosarios, the allegations in their complaint

28 Transcribed by: IV-MANRESA, 2012-2013©

As to Search Warrants That alias warrant will be

31 Transcribed by: IV-MANRESA, 2012-2013©

32 Transcribed by: IV-MANRESA, 2012-2013©

33 Transcribed by: IV-MANRESA, 2012-2013©

Is the evidence of illegality just by looking at money immediately

34 Transcribed by: IV-MANRESA, 2012-2013©

items taken consisting of sachets which turn out to be MET

Rule 113 of the Revised Rules of Criminal Procedure provides for

35 Transcribed by: IV-MANRESA, 2012-2013©

37 Transcribed by: IV-MANRESA, 2012-2013©

39 Transcribed by: IV-MANRESA, 2012-2013©

In People v. Solayao, we also found justifiable reason to “stop-and-

40 Transcribed by: IV-MANRESA, 2012-2013©

41 Transcribed by: IV-MANRESA, 2012-2013©

42 Transcribed by: IV-MANRESA, 2012-2013©

43 Transcribed by: IV-MANRESA, 2012-2013©

44 Transcribed by: IV-MANRESA, 2012-2013©

45 Transcribed by: IV-MANRESA, 2012-2013©

In Umil vs. Ramos, there was a valid warrantless arrest because

Neither could the “arrest” effected 6 days after be reasonably

Plus, none of the “arresting” officers had any “personal knowledge”

STRICT ENFORCEMENT of the rule is the general rule for

Meaning, there must have to be adherence to the determination

TAKE NOTE: The exception to that would be arrest without

That is why there is a little leeway granted to state authorities if

46 Transcribed by: IV-MANRESA, 2012-2013©

August 8, 2012 2. Any evidence obtained in violation of

47 Transcribed by: IV-MANRESA, 2012-2013©

50 Transcribed by: IV-MANRESA, 2012-2013©

51 Transcribed by: IV-MANRESA, 2012-2013©