Bill of Rights (1) Completeness Test – a law is complete
when it sets forth therein the policy to be
The Bill of Rights is only applicable to
against the State or those acting under the
color of its authority. It does not include
private matters except in cases where in the
State in any of its manifestations or actions
have been found entwined or involved in the
wrongful private conduct.
Police Power
The exercise of police power is founded
upon necessity or salus populi suprema lex.
Justice Malcolm notes police power is the
“most essential, insistent, and least limitable
of powers, extending as it does to all the
great public needs.”
In People v. Fajardo (1958), eminent
domain was distinguished from police power
by stating that “an ordinance is
unreasonable and oppressive in that it
operates to permanently deprive appellants
of the right to use their own property; hence,
it oversteps the bounds of police power and
amounts to taking of appellant’s property
without just compensation.”
Presumption of Constitutionality – a law
is presumed constitutional unless factual
foundation finds otherwise.
It can only be overcome by proof beyond
reasonable doubt.
Police power enjoys presumption of
constitutionality for being the “least
limitable” of the three powers. The Due
Process and Equal Protection Clause are
the most effective tools to challenge an
arbitrary use of police power.
Delegation of Police Power
Police power is inherently vested to the
national legislature but it can be delegated
by the same to the President, administrative
bodies, and lawmaking bodies of municipal
corporations.
A valid delegation of police power may arise
from express delegation or, for the case of
municipal corporations, be inferred by mere
fact of creation of the municipal corporation.
Valid delegation has two tests:
executed, carried out, or implemented
by the delegate.1
Thus, the law must be complete in all its
essential terms and conditions.
Thus, the power to promulgate
temporary rules and regulations is
invalid delegation if it can be executed
for any cause.2
(2) Sufficient Standard Test – there must
be limits of which are sufficiently
determinate or determinable. There
must be a limit for which to determine if
the delegate has acted beyond the
scope of his authority.
Local Governments and Police Power
Taxation Power
Eminent Domain
Section 1. No person shall be deprived of
life, liberty, or property without due
process of law nor shall any person be
denied the equal protection of the laws.
Life, Liberty, and Property
The Due Process and Equal Protection
clauses protect all person, be they citizens
or aliens3, natural or corporate4.
Liberty – includes the following but not
limited to: the freedom to do right and never
wrong; The right of the citizen to be free to
use his faculties in all lawful ways; right to
contract; right to choose one’s employment;
right to labour; and right to locomotion.
Property – includes perfected mining claim,
perfected homestead, final judgement, right
1
Pelaez v. Auditor General (1965)
2
United States v. Ang Tang Ho
3
Though, there are exceptions to the political rights
of aliens.
4
Santiago observes that in City of Manila v. Laguio
(2005), the protection covered by the due process
clause to artificial persons is insofar as their property
is concerned but Bernas, while acknowledhinh that
corporations are regarded as persons insofar as their
property is concerned, observes that there is no
significant Philippine jurisprudence on the inherent
differences between natural and artificial persons in
the context of due process.
to work, right to earn a living; One’s
employment, profession, trade, or calling;
Public office is not property; Nor is a license
to operate a cockpit. A license is merely a
privilege. The privilege of a holder of an
export quota who has been enjoying it for so
long that the business provides employment
to thousands.
Life – not only right against physical harm,
but right to a good life.
Hierarchy of Rights – Human rights are
superior to property rights.
Right to property is subordinate to the right
to life and liberty. As the standard for an
incursion on property rights can be justified
if the “law is neither arbitrary nor
discriminatory nor oppressive,” while a valid
infringement of human rights [right to life
and liberty] requires the “existence of a
grave and immediate danger of a
substantial evil which the State has the right
to prevent.”
Yet, the right of property is still a basic right
and deserves protection of the due process
clause because it is intimately connected to
the enjoyment of the right to life and liberty,
as what Shylock says “You take my life,
when you do take the means whereby I
live.” The poor suffer precisely because they
have little.
Due Process is used primarily for
arbitrariness while Equal Protection is used
for undue partiality of laws.
Due Process
The Due Process Clause takes the view
that the ends does not justify the means as
far as the execution of the law is concerned.
The purpose of the guaranty is to prevent
governmental encroachment against the
life, liberty, and property of individuals; to
secure the individual from the arbitrary
exercise of powers of the government
unrestrained by established principles of
private rights and distributive justice.
Procedural Due Process – requires the
method by which the law is enforced is fair,
reasonable, and just. The following are
withal minimum standards which must be
met to satisfy the demands of procedural
due process.5
(1) Right to be informed of the nature
and cause of any accusation against
him;
(2) Right to answer charges against them,
with the assistance of counsel if desired;
(3) Right to be informed of the evidence
against them;
(4) Right to adduce evidence in own
behalf;
(5) Evidence must be duly considered by
the investigating committee, or official
designated to hear and decide the case;
Proportionate Penalty – Moreover, the
penalty must be proportionate to the offense
committed.
Opportunity to be heard – the essence of
procedural due process is the reasonable
opportunity to be heard and to submit any
evidence one may have in support of one’s
defence. It is embodied in the statement
“the law must hear before it condemns.”
The Due Process Clause prohibits the
absolute lack of opportunity to be heard. If
the opportunity is not availed of, it is
deemed waived or forfeited.
Absence of previous notice is not itself a
substantial defect. .
Adduce Evidence – the right of the
defendant to present evidence to support
his stand cannot be abridged. It is one of
the two essences of due process.6
In Banco Filipino v. Palanca7, the Court
stated that the requirement of due process
in judicial proceeding is as follows:
(1) Impartial Legitimate Court – there
must be an impartial court or tribunal
clothed with judicial power to hear and
determine the matter before it;
(2) Lawful Jurisdiction – jurisdiction must
be lawfully acquired over the person of
the defendant and over the property
5
Non v. Dames (1990); Guzman v. National
University (1986)
6
Abiera v. NLRC (1992)
7
(37 Phil. 921)
 which is subject matter of the
proceeding.
(3) Opportunity to be heard – The
defendant must be given an opportunity
to be heard; and
(4) Judgement and Hearing – Judgement
must be given upon lawful hearing.
The requirements of due process in
administrative proceedings can be found in
the Ang Tibay v. Court of Industrial
Relations case.
Substantive Due Process – requires the
law itself is fair, reasonable, and just. The
due process clause must be understood to
guarantee not just forms of procedure but
also the very substance of life, liberty, and
property.
It asks not if a law is enforced in accordance
with procedural formalities but whether the
said law is a proper exercise of legislative
power.
In practice, substantive due process as
protest against arbitrariness of legislation is
seldom successful.8
However when there is no law, order, or
regulation authorizing executive officers to
do certain tasks, then there is a violation of
due process. An example is Villavicencio v.
Lukban (1919) wherein the Mayor of Manila
and Chief of Police the Court rounded up
prostitutes and sent them to Davao; The
Court ordered the return of deportees
stating “shall the judiciary permit a
government of men instead of a government
of laws to be set up in the Philippine
Islands?’
In J.M. Tuazon & Co., Inc. v. Land Tenure
Administration, [substantive] due process
has been characterised as “the antithesis of
any governmental act that smacks of whim
or caprice. It negates state power to act in
an oppressive manner. It is, as had been
stressed so often, the embodiment of the
sporting idea of fair plat. In that sense, it
stands as a guaranty of justice. That is the
standard that must be met by any
governmental agency in the exercise of
8 9
US v. Toribio (1910); Rubi v. Provincial Board of
Mindoro (1919)
whatever competence is entrusted to it. As
was so emphatically stressed by the then-
Chief Justice, ‘acts of Congress, as well as
those of the Executive, can deny due
process only under pain of nullity…”9
Void-for-Vagueness Doctrine – a law
affecting free speech is deemed void and
unconstitutional if it is vague such that
“men of common intelligence must
necessarily guess at its meaning and
differ in its application.” Those who mount
this doctrine as an offense must necessarily
show that every interpretation of the law is
vague.
Overbreadth Doctrine – involves free
speech; “a governmental purpose may not
be achieved by means which sweep
unnecessarily broadly and thereby invade
the area of protected freedoms”; Violation of
which pertains to free speech laws.
Equal Protection
Equal protection simply means that persons
that are similarly situated should be treated
alike as to both rights conferred and
obligations imposed.
Equal protection applies to undue partiality
by the State or those acting under the color
of its authority.
In People v. Cayat, reasonable
classification: (1) must rest on substantial
distinctions; (2) must be germane to the
purpose of law; (3) must not be limited to
existing condition; and (4) must apply
equally to all members of the same class.
This is known as the Cayat quadruple test.
(1) Substantial Distinction – there must
be real and substantial differences to the
classes treated differently.
(2) Germane to Purpose of Law – even if
distinctions are substantial, if it is
irrelevant to the purpose of law then it is
unreasonable classification. An example
is a distinction be of imported luxury
cars versus local cars. A classification
would be unreasonable if luxury cars are
Melchor v. Moya (1983) citing J.M Tuazon & Co.,
Inc. v. Land Tenure Administration (1970)
 distinguished from local cars for traffic
regulations.
(3) Not Limited to Existing Conditions –
the classification must be enforced not
only for the present but as long as the
problem sought to be corrected
continues to exist.
(4) Apply Equally to All Members – all
members of the same class must be
treated similarly, both as to the rights
conferred and obligations imposed.
Relative Constitutionality Doctrine –
under the condition that reasonable
classification “must not be limited to existing
conditions”, a law valid at one time may be
rendered invalid by subsequent
10
developments. In this case, a law
removing limits on employees of
governmental financial institutions caused
the nullity of Section 15(c), Article II of the
Central Bank Law on grounds it is invidious
discrimination on the rank-and-file
employees of the Bangko Sentral.11
Strict Scrutiny – requires the government
to show that the challenged classification
serves a compelling state interest and the
classification is necessary to serve that
interest.
Applies to: content of speech, race,
nationality, religion, alienage, suffrage,
interstate migration, access to courts, and
other fundamental rights.
A judge can strike down a law unless the
government can demonstrate in court a law
or regulation:
(1) Is necessary to a compelling state
interest.
(2) That the law is narrowly tailored to
achieving this compelling purpose.
(3) And that the law uses the least
restrictive means to achieve the
purpose.
Intermediate Scrutiny – requires the
government to show the challenged
classification serves an important state
interest and the classification is atleast
substantially related to serving that interest.
10
Central Bank Employees v. Bangko Sentral (2004)
11
So, it is also related to the condition that “it must
apply equally to all members of the same class.”
Applies to: restraint on incidental aspects of
speech, gender and illegitimacy
Rational Basis - requires the government
to show the challenged classification is
rationally related to serving a legitimate
state interest.
Applies to: everything else
To defeat a rational basis test, the person
challenging a law must refute all possible
rational bases for the different treatment
such that the constitutionality of the law
must be sustained, whether or not the
legislature has cited those bases or even if
the bases is “fairly debatable.”
Application of Equal Protection
In People v. Vera (1937), national laws
requiring national application should not be
applied differently in the local setting.
It should be noted that while the power of
local governments to enact local laws
necessarily results in the absence of
national uniformity of laws, the local laws
themselves must equally apply to all those
coming within their jurisdiction.
In J.M Tuason & Co. v. Land Tenure
Administration (1970), it was held that to
“compel the government to take “all or
none” would be practically to strip the
government of the power of eminent
domain.”
In Olaguer v. Military Commission (1987),
the Court had declared that “military
tribunals had no jurisdiction over civilians
even during martial law,” but this decision
shall be applied only to “future cases and
cases still ongoing or not yet final when [the]
decision was promulgated.”
In Quinco v. Comelec (2010), the Court
upheld election law providing the following:
“any person holding a public appointive
office or position shall be considered ipso
facto resigned from his office upon the filing
of his certificate of candidacy”
Equal Protection as Positive Action
Philippine jurisprudence holds that the equal
protection clause commands the State to
take positive measures to eradicate
inequalities even if they have arisen not
necessarily thru its action.
Section 2. The right of the people to be
secure in their persons, houses, papers,
and effects against unreasonable and
seizures of whatever nature and for
whatever purpose shall be inviolable,
and no search warrant or warrant of
arrest shall issue except upon probable
cause to be determined personally by
the judge after examination under oath
or affirmation of the complainant and the
witnesses he may produce, and
particularly describing the place to be
searched and the persons or things to be
seized.
The search-and-seizure clause is one of
protections recognized by the Constitutions
on the person’s right to privacy.
Section 4. No law shall be passed
abridging the freedom of speech, of
expression, or of the press, or the right
of the people peaceably to assemble and
petition the government for redress and
grievances.
Right to Free Speech
In Newsounds Broadcasting Network, Inc. v.
Dy (2009), the Court declared that the
Constitution has a systematic bias towards
free speech. The individual discomforts to
particular people or enterprises engendered
by the exercise of the right, for which at
times remedies may be due, do not diminish
the indispensable nature of free expression
to the democratic way of life.
In Chaves v. Gonzales (2008), the Court
held that freedom of expression has gained
recognition as a fundamental principle of
every democratic government, and given a
preferred right that stands on a higher level
than substantive economic freedom or other
liberties.
In Ayer Productions v. Capulong (1988), the
Court ruled that freedom of speech and of
expression includes the freedom to film and
produce motion pictures and to exhibit such
motion pictures in theaters or to broadcast
them on television, without distinction to
locally-owned or foreign-owned motion
picture companies.
Furthermore, the circumstance that the
production of motion picture films is a
commercial activity expected to yield
monetary profit is not a disqualification for
availing of freedom of speech and of
expression.
It is only when people have unbridled
access to information and the press that
they will be capable of rendering
enlightened judgements. In the words of
Thomas Jefferson, “we cannot both be free
and ignorant.”
A person cannot be punished nor
prosecuted for libel, sedition, contempt and
the like if there was prior restraint.
Freedom of the Press
The Press is the chief source of information
on current affairs. It is the most pervasive
and perhaps most powerful vehicle of
opinion on public questions.12
In Chaves v. Gonzales (2008), the Court
held that the contribution of freedom of the
press to public weal makes it deserving of
extra protection.
William Blackstone notes that:
“to subject the press to the (1)
restrictive power of the licenser, as
was formerly done, both before and
since the Revolution, is to subject all
freedom of sentiment to the
prejudices of one man, and make
him the arbitrary and infallible judge
of all controverted points in learning,
religion, and government. But to (2)
punish as the law does at present
any dangerous and offensive writing,
which, when published, shall on a
fair and impartial trial be adjudged
for a pernicious tendency, is
necessary for the preservation of
peace and good order, of
government and religion, the only
solid foundations of civil liberty.”
12
Defensor-Santiao, Constitutional Law II Annotated,
p. 288
[Read In the Matter of the Allegations
Contained in the Columns of Mr. Amador P.
Macasaet (2008); William Blackstone’s twin
aspects of press freedom]
Print Media v. Broadcast Media
Jurisprudence does not distinguish between
print media and broadcast media whether
the clear-and-present danger rule applies in
case of content-based restrictions.
Though, the clear-and-present danger rule
must take the particular circumstances of
broadcast media into account.13
Free Speech versus Privacy Rights
In Lagunzad v. Vda. De Gonzales (1979),
recognized the right to privacy in a context
which included a claim of freedom of
speech and of expression. The Court ruled
that being a public figures does not
automatically destroy a person’s right to
privacy.
The case involved the right of privacy by the
respondent and the right to freedom of
speech by petitioner, the Court ruled “the
limits of freedom of expression are reached
when expression touches upon matters of
essentially private concern.”
In Ayer Productions v. Capulong (1988)
however, the Court rejected private
respondent’s, Juan Ponce Enrile, contention
that a film about the EDSA Revolution
amounted to an invasion of his right to
privacy. Since the EDSA Revolution was of
public interest and passed to public domain,
right to privacy cannot be applied. The
Court cautioned though, films must not
recklessly or knowingly disregard the truth
in depicting the participation of private
respondent and certainly no revelation
should be made of intimate or embarrassing
personal facts.
Cases
Election surveys
In ABS-CBN v. COMELEC (2000), the
Court ruled that holding the exit polls and
the dissemination of their results through
mass media constitute an essential part of
13
Chaves v. Gonzales (2008)
the freedom of speech and of the press.
Hence, the COMELEC cannot ban them
totally in the guise of promoting clean,
honest, orderly, and credible elections.
In SWS v. COMELEC (2001), Republic Act
9006, or the Fair Election Act, Section 5.4
prohibiting the publication of surveys
affecting national candidates 15 days before
an election, and of surveys affecting local
candidates seven days before an election,
was declared unconstitutional by the Court
for laying a prior restraint on freedom of
speech, expression, and the press.
The O’Brien14 test finds application, since
the challenged provision is content-neutral,
in determining the constitutional validity of
Section 5.4: A governmental regulation is
sufficiently justified if: (1) it is within the
constitutional power of Government; (2) it
furthers an important or substantial
government interest; (3) the governmental
interest is unrelated to the suppression of
free expression; and (4) the incidental
restriction on alleged freedoms of speech,
expression, and the press is no greater than
is essential to the furtherance of that
interest.
Section 5.4 was struck down for failing to
meet the 3rd criteria.
Posting decals and stickers on mobile
places
In Adiong v. COMELEC (1992), the Court
ruled the COMELEC’s restriction as to
where the decals and stickers should be
posted is so broad that it even
encompasses even the citizen’s private
property. It violated the Overbreadth
Doctrine of the Due Process Clause. The
prohibition unduly infringed on the citizen’s
fundamental right of free speech. There was
no public interest substantial enough to
warrant the kind of restriction involved.
Judicial processes
In Re: Request Radio-TV Coverage of the
Trial in the Sandiganbayan of the Plunder
Cases Against Former President E. Estrada
(2001), the constitutional guarantees of
freedom of the press, and the right to public
14
U.S v. O’Brien, 391 U.S 367 (1968)
information, on one hand, and the
fundamental rights of the accused along
with the constitutional power of the court to
control its proceedings, on the other hand,
was made to face each other.
The Supreme Court held that when these
rights race against one another,
jurisprudence dictates that the right of the
accused must be preferred to win. The
Court thus denied the petition for the live
radio and TV coverage of the Estrada
plunder trial.
With the possibility of losing not only
precious liberty but also the very life of the
accused, it behoves all to make absolutely
certain that an accused receives a verdict
solely on the basis of a just and
dispassionate judgement.
Unsolicited Commercial Ads
In Disini v. Secretary of Justice (2014),
unsolicited advertisement are legitimate
forms of expression.
Prior Restraint
In Chavez v. Gonzales (2008), the Court
declared that Philippine jurisprudence has
recognized four aspects of the freedom of
the press:
(1) freedom from prior restraint;
(2) freedom from punishment subsequent to
publication;
(3) freedom of access to information; and
(4) freedom of circulation;
Any act that restrains speech is hobbled by
the presumption of invalidity and should be
greeted with furrowed brows.
The determination in every case of whether
there is an impermissible restraint on the
freedom of speech has always been based
on the circumstances of each case,
including the nature of the case.
Freedom from prior restraint is largely
freedom from government censorship of
publications, whatever the form of
censorship, and regardless of whether it is
wielded by the executive, legislative, or
judicial branch of government.
Valid Content-Neutral Restraint of
Speech
Content-neutral regulations – refer to
those merely concerned with the incidents
of the speech, or one that merely controls
the time, place, or manner, under well-
defined standards.
Application of intermediate scrutiny for free
speech, i.e the O’Brien test.
A content-neutral restraint is valid if:
(1) If it is within the constitutional power of
Government;
(2) If it furthers an important or substantial
government interest;
(3) If the governmental interest is unrelated
to the suppression of free expression;
and
(4) If the incidental restriction on alleged
freedoms of speech, expression, and
the press is no greater than is essential
to the furtherance of that interest.
Valid Content-Neutral Restraint of
Speech
Content-based regulations – or otherwise
known as censorship refer to those
restrictions based on the subject matter of
the utterance or free speech.
Application of strict scrutiny or the
compelling interest test is appropriate.
Clear-and-Present danger must be
overcome to meet the compelling state
interest. Thus, the government must show
the type of harm the speech sought to be
restrained would bring about – especially
the gravity and the imminence of the
threatened harm – otherwise prior restraint
will be invalid.
Prior restraint on speech based on its
content cannot be justified by hypothetical
fears, “but only by showing a substantive
and imminent evil that has taken the life of a
reality already on ground.”
Cases
Computer Data
In Disini v. Secretary of Justice (2014),
Section 19 of the Cybercrime Prevention
Act of 2012 or R.A. No. 10175, which
empowers the Department of Justice to
restrict or block access to computer data
when such data is “prima facie found to be
in violation of the provisions” of the Act, was
declared unconstitutional for being prior
restraint on speech since computer data
constituted as speech.
Limits on Free Speech
Restraints on free speech are generally
evaluated on one of or a combination of
three tests: (1) the dangerous tendency
doctrine; (2) the balancing of interests
test; and (3) the clear and present danger
rule
Jurisprudence all over the world have
developed different tests as to specific types
or categories of speech in concrete
situations: subversive, obscene, broadcast,
print, libellous, symbolic, and others.
Clear and Present Danger Test
Espoused by Justice Holmes in Schenck v.
U.S (1919), it rests on the premise that
speech may be restrained because there is
substantial danger that the speech will likely
lead to an evil the government has the right
to prevent.
Under the doctrine, freedom of speech and
of the press is susceptible to restriction
when and only when necessary to prevent
grave and immediate danger to interests
which the government may lawfully protect.
There is proximity and degree.
In Chavez v. Gonzales (2008), it was ruled
prevention of a violation of law “cannot per
se trump the exercise of free speech and
free press, a preferred right whose breach
can lead to greater evils.
Balancing of Interests Test
In Soriano v. Laguardia (2009), the Court
noted that the clear and present danger
doctrine is not the only test which has been
applied by the courts.
The Balancing of Interests Test rests upon
the theory that “it is the court’s function in a
case before it when it finds public interests
served by legislation, on the one hand, and
the free expression clause affected by it, on
the other hand, to balance one against the
other.15
A wide range of factors are necessarily
relevant in ascertaining the point or line of
equilibrium. Among these are:
(a) The social value and importance of the
specific aspect of the particular freedom
restricted by legislation;
(b) The specific thrust of the restriction, i.e
whether the restriction is direct or
indirect, whether or not the persons
affected are few;
(c) The value and importance of public
interest sought to be secured by the
legislation – the reference here is to the
nature and gravity of evil which
Congress seeks to prevent;
(d) Whether the specific restriction decreed
by Congress is reasonably appropriate
and necessary for the protection of such
public interest; and
(e) Whether the necessary safeguarding of
the public interest involved may be
achieved by some other measure less
restrictive of the protected freedom.
Thus in Soriano v. Laguardia (2009), the
Court ruled that petitioner’s offensive and
obscene language uttered in television
broadcast, without doubt, was easily
accessible to children. His statements could
have exposed children to a language that is
unacceptable in everyday use. As such, the
welfare of children and the State’s mandate
to protect and care for them, as parens
patriae, constitute a substantial and
compelling interest in regulating petitioner’s
utterances in TV broadcast, as provided in
P.D. No. 1986.
In Lagunzad v. Vda. De Gonzales (1979),
the limits of the freedom of expression are
reached when the expression touches upon
matters of essentially private concern.
Unprotected Speech
Unprotected speech is an utterance that
have “no essential part of any exposition of
ideas, and are of such slight social value as
a step of truth that any benefit that may be
15
Defensor-Santiago, Constitition II, p.326
derived from them is clearly outweighed by
the social interest in order and morality.”16
Unprotected speech or low-value
expression refers to libellous statements,
obscenity, or pornography, false or
misleading advertisement, insulting or
“fighting words”, i.e., those which by their
very utterance inflict injury or tend to incite
an immediate breach of peace and
expression endangering national security.
[A] Obscenity
In Pita v. Court of Appeals (1989), the Court
laid down a test in determining the
existence of obscenity, as follows: “whether
the tendency of the matter charged as
obscene, is to deprave or corrupt those
whose minds are open to such immoral
influences and into whose hands a
publication and other article charged as
being obscene may fall…”
Also Cited in Pita was the case of Miller v.
California17, the Court concluded that a
patently offensive utterance would come
within the pale of the term obscenity should
it appeal to the prurient interest of an
average listener applying contemporary
standards.
In Soriano v. Laguardia (2009), the Court
ruled what may be just indecent for average
adults may be obscene for average
children.
[B] Libel
In Vasquez v. Court of Appeals (1999), the
following are elements of libel:
(1) Allegation of a discreditable act or
condition concerning another;
a) An allegation is considered
defamatory if it ascribes to a person:
(1) the commission of a crime; (2)
the possession of a vice or defect,
real or imaginary; (3) any act,
omission, condition, status, or
circumstance (3a)which tends to
dishonour or discredit or put him in
16
Defensor-Santiago, Constitution II, p. 328
17
See Defensor-Santiago, Constitution II, p. 329 for
full list of conditions
contempt;(3b)which tends to blacken
the memory of one who is dead.
(2) Publication of the charge;
a) Publication exists if the material is
communicated to a third person. It is
immaterial that the person defamed
has read or heard about the libellous
remark.
(3) Identity of the person defamed;
a) Identifiability is satisfied if atleast
one third person or one stranger was
able to identify the person defamed
(4) Malice exists;
a) RPC, Art. 354. Every defamatory
imputation is presumed to be
malicious, even if it be true, if no
good intention and justifiable motive
for making it is shown, except in the
following cases: xxx
b) Types of Malice
i) Actual Malice or Malice in Fact
– applies to public officials.
when the offender makes the
defamatory statement with the
knowledge that is false or with
reckless disregard of whether it
was false or not. There is a high
degree of awareness of probable
falsity. There must be sufficient
evidence to permit the
conclusion that the accused in
fact entertained serious doubts
to the truth of the statement he
published. Gross or even
extreme negligence is not
sufficient to establish actual
malice.
The prosecution [offended] bears
the burden of proving actual
malice to establish guilt.
An offender can use the defense
of absence of actual malice
when the offended is a public
officer or person18
Public officials and persons
suffer a standard of malice to be
convicted since society’s interest
and maintenance of good
18
Japan Air Lines v. Simangan (2008)
 government demand a
discussion of public affairs.
Criticism of official conduct
[Summary of Malice for Public
Persons]
Honest criticism on the conduct
of public officials and public
persons are insulated from libel
judgements. Public officials and
persons are prohibited from
recovering damages for a
defamatory falsehood relating to
his official conduct unless he
proves that the statement was
made with actual malice, with
knowledge that is false, or with
reckless disregard of whether it
was false or not.19
Reckless Disregard Test –
success for the prosecution
[offended] means proving there
was actual malice on the part of
the public official or perso, i.e
there was awareness that the
knowledge was false, or reckless
disregard of whether said
knowledge is false or not.
In Tulfo v. People (2008), Miriam
Defensor Santiago noted
“journalists still bear the burden
of writing responsibly when
practicing their profession even
when writing about public figures
or matters of public interest20”
lest they be accused of libel.
Tulfo’s statements did not even
fall within the purview of qualified
privileged communication.
ii) Presumed Malice or Malice in
Law – applies to private
individuals; prosecution
[offended] need not to prove the
presence of malice.
The defense must show he [the
offender] has justifiable reason
19
Defensor-Santiago, Constitution II, p. 341
20
Defensor-Santiago, Constitution II, p. 343
full for the defamatory statement
even if it was true.
RPC, Art. 361 recognizes truth
as a defense under the condition
that the accused [offender] has
been prompted in making the
statement by good motive and
for justifiable ends except when
the act or omission imputed is
not a crime unless when the
imputation is made against
government employees
[offended is a public official] in
facts related to the discharge of
their duty. Thus, proof of the
truth of an alleged libellous
utterance about civil matters by
accused private individual is not
admissible while it is admissible
when the accused is a public
officer and it pertains to the
discharge of his duties.
Thus, an offended public official or person
needs to prove that there was actual malice
to win the case while the offender needs to
defend himself with the defense of truth
even if it pertains to civil (and criminal)
matters while an offended private person
need not to prove actual malice, the
offender needs to defend himself, i.e the
defense of truth if it pertains to criminal
cases lodged against offended.
Aiding or abetting online liber (Cybercrime
Law)
In Disinini v. Secretary of Justice (2014), the
Court struck down Section 5 of the
Cybercrime Law for overbreadth.
Privileged Communication (RPC, Art 354)
Types:
(1) Absolutely Privileged Communication
– presidential and legislative immunity.21
(2) Qualified Privileged Communication –
defamatory imputations contained in the
same is not actionable unless found to
have been made without good intention
or justifiable motive.
a) Private communication
21
CONSTITUTION, Art 6. Sec. 11.
 b) Fair and true report without any
comments or remarks
c) Fair commentaries on matter of
public interest22 – is a valid defense
in an action for libel and slander.
The United Nations remarked that the
current definition of libel in Philippine law
[Revised Penal Code] is inconsistent with
the International Covenant on Civil and
Political Rights.23
[C] Criticism against Judges
Harmful and irresponsible attacks against
the judiciary are not protected. These
potentially devastating attacks and unjust
criticism can threaten the independence of
the judiciary.24
Section 5. No law shall be made
respecting an establishment of religion,
or prohibiting the free exercise thereof.
The free exercise and enjoyment of
religious profession and worship,
without discrimination or preference,
shall forever be allowed. No religious
test shall be required for the exercise of
civil or political rights.
Religious freedom is a fundamental rights
which is entitled to the highest priority and
the amplest protection among human rights,
for involves the relationship of man to his
Creator.
Benevolent Neutrality
Philippine jurisprudence adheres to the
benevolent neutrality principle. The Courts
must give mandatory accommodation if the
compelling state interest test is defeated by
the claimant.
Mandatory accommodation is appropriate
because it serves the equally minority and
majority religions. Permissive
22
Japan Air Lines v. Simangan (2008)
23
It can be noted that since the Philippines ratified
24
In Re: Letter of the U.P Law Faculty entitled
“Restoring Integrity: A Statement by the Faculty of
the University of the Philippines College of Law on
the Allegations of Plagiarism and Misrepresentation
in the Supreme Court” 644 SCRA 543
accommodation may favour religious sects
with influence in the political arena.25
Non-Establishment Clause
The non-establishment clause does the
following:
1. It restricts what the government
can do with religion.
In Ang Ladlad LGBT Party v.
COMELEC (2010), the Court ruled
that it was a grave violation for the
Commission on Elections to utilize
sacred texts to justify its refusal to
accredit the petitioner as a party-list
organization. Government must act
for secular purposes and in ways
that have primarily secular effects.26
In Taruc v. Bishop (2005), it was
ruled that courts do not have
jurisdiction to hear a case involving
the expulsion or excommunication of
members of a religious institution.
In Fonacier v. Court of Appeals
(1955), the Court enunciated the
doctrine that in disputes involving
religious institutions or
organizations, there is one area
which the Court should not touch:
doctrinal and disciplinary
differences.
In Islamic Da’Wah Council v. Office
of the Executive Secretary (2003), it
was ruled that by giving the Office of
Muslim Affairs (OMA) the exclusive
authority to issue halal certifications,
the State was in effect forced
Muslims to accept its own
interpretation of the Qur’an and
Sunnah on h alal foods.
2. It limits what religious sects can
or cannot do with the government.
25
Defensor-Santiago, Constitition II, p.375
26
Defensor-Santiago notes in her Constitutional Law
II Annotated Book p. 370, the Government is not
precluded from pursuing valid objective secular in
character even if the incidental result would be
favourable to a religion or sect.

In Imbong v. Executive Secretary
(2014), it was ruled that it was not
within the province of the Courts to
determine whether the use of
contraceptives or one’s participation
in the support of modern
reproductive health measures is
moral from a religious standpoint or
whether the same is right or wrong
according to one’s dogma or belief.
Conscientious Objection
The appropriate test to a conscientious
objector’s claim to religious freedom and
exemption is the compelling state interest
test or strict scrutiny.
In case of conflict between religious beliefs
and moral convictions of individuals, on one
hand, and the interests of the State, on the
other, the religious freedom of persons
should be accorded primacy because if he
would be compelled to act contrary to his
religious belief and conviction, it would be
violative of “the principle of non-coercion”
enshrined in the constitutional right of free
exercise of religion.
An exception to the primacy of religious
freedom is when the protection of life is
concerned. Generally, healthcare providers
cannot be forced to render reproductive
health care procedures if doing it would
contravene their religious belief except
when life-threatening cases, such as when
the life of a mother is threatened, that
require the healthcare provider to perform
emergency procedures, even if the said
procedures is against the religious
sentiments because said procedures may
endanger the life of the child. Whatever
burden imposed upon a medical practitioner
in this case would have been more than
justified considering the life he would be
able to save.
Right to disseminate religious
information
Free Exercise Clause
The free exercise of religion is a
fundamental right that enjoys a preferred
position in the hierarchy of rights – “the
most inalienable and sacred of human
rights,” in the words of Thomas Jefferson.
Compelling State Interest Test (Strict
Scrutiny) – A claimant of religious
freedom may be given an exemption to a
law of general application if the following are
met:
(1) The law burdens free exercise of
religion – burden of proof is on the
claimant; If proven in conjunction with
second condition, burden of proof shifts to
government. The Court does not inquire into
the truth of the belief.
(2) Sincerity of belief on the part of
the claimant to the exemption
(3) Lack of compelling State interest
– in this case, the burden of proof is lodged
against the state wherein it should establish
that its purpose is legitimate and
compelling. It should also precisely show
how and to what extent objectives
involving compelling state interest shall be
undermined if exemption is granted. (Read
Ebralinag, et al v. Div. Supt. of Schools of
Cebu)
It is not enough to contend that the State’s
interest is important, because our
Constitution itself holds the right to religious
freedom as sacred. The State must
articulate in specific terms the state interest
involved in preventing the exemption, which
must be compelling, for only the gravest
abuses, endangering paramount interest
can limit the fundamental right to religious
freedom.
Thus, in Estrada v. Escritor (2006), the
Court in answering the Solicitor-General’s
contention that the exercise of religion, thru
declaration of pledging faithfulness, by
respondent should not be recognized
because it “reduces to a mockery these
[institutions of marriage and the family]
legally exalted and socially significant
institutions which in their purity demand
respect and dignity,” has said it failed to
show how and to what extent said
objectives would be undermined if
exemption was granted.
Furthermore, if state interest was indeed detrimental effect on the adherents of one
compelling, the State should have done a or more religion.
criminal investigation, which it did not.
The State has authority under the exercise
State interest sought to be upheld must be of its police power to determine whether or
so compelling that its violation will erode the not there shall be restrictions on soliciting by
very fabric of the State that [protects free unscrupulous persons or for unworthy or for
exercise in the first place.] In the absence of fraudulent purposes.
a showing that such state interest exists,
man must be allowed to subscribe to the As such, solicitation for religious purposes
Infinite. may be subject to proper regulation by the
State in the exercise of police power.
(4) The means used is more than least
intrusive option – if compelling state
interest is established, exemption can
nevertheless be granted if the means used
is more than necessary or not the least
intrusive means to attain such objectives.
The government must prove it used the
least intrusive option, otherwise exemption
can be granted.

If the following is fulfilled, exemption based

on free exercise of religion shall be granted.

Ecclesiastical v. Secular Affairs

Generally, the State cannot interfere who is

worthy or not worthy of membership in a
religious sect.

In Austria v. NLRC (1999), the petitioner, a

minister of private respondent Central
Philippine Union Mission Corporation of the
Seventh Day Adventist (SDA), filed an
illegal dismissal case against SDA and its
officer. One of the issues was the
termination of the services of the petitioner
was an ecclesiastical affair.

The Court ruled it was not an ecclesiastical

affair because the relationship between the
petitioner and the private respondent was a
relationship between an employee and an
employer by implicit admission of the private
respondent, that is furnishing a letter of
termination with the NLRC enumerating
causes which were the just causes for
dismissal under the Labour Code.

Solicitation for Religious Purposes

A law advancing legitimate governmental

interest is not necessarily invalid as one
interfering with the “free exercise” of religion
merely because it also incidentally has a