RIGHT TO INFORMATION
When we say one has the Right to Access Info of public concern,
Right to Access Information is inherent in Right to Speech and
Press
 That’s why the Constitution provides for information as a
right
 Any individual has such right without necessity of
showing an injury to a right
 Since Right to Information is a public right, you can
assert it for and behalf of the whole citizenry
 Right to Information is necessary so that you can fully
exercise you Right to Speech and Right to Free Press
 Value of Information -> in Speech & Press, it is a valued
right because of its role in the democratic system -> it is
our way of holding our delegates accountable.
o We want our delegates to give us the
information
o We can demand from the State to be informed
so that we can make them accountable based
on the trust we gave to them
o And in that sense, we talk of public office is a
public trust.
o Hence, what are the things we can demand
information on?
 Matters of public concern
 Matters which are of interest to the
public
 Right to Info would be the Right to
Access Info in relation to the public
trust. because we want to make sure
that those to whom power has been
delegated, are actually performing
their tasks pursuant to the delegation
of that power. WE WANT TO HOLD
THEM ACCOUNTABLE.
o And that is also in accord to the theory of
speech. Why is it important that we protect
speech and freedom of the press?
 Because it is the way that we can hold
people accountable
 Speech- the way we can tell delegates
what we want
 Press- using media as a way to make
the 3 branches of the gov’t
accountable for the trust we have
reposed upon them–the power we had
delegated.
 Peaceably Assemble- to make sure
that the delegates will listen; as one,
we will demand accountability for
those to whom we had delegated
power
 Right to Info is not just a right, there is also a correlative
duty
 In Art 3 we see the right -> matters of public concern
subject to limitations as may be provided by law
 On the other hand, there is a duty on the part of the
gov’t.
o Duty: to disclose
 Right to Info -> not only something that we have to
demand but it is also a positive duty on the part of the
gov’t
o Province of North Cotabato- gov’t shall actively
inform and consult with the people on matters
that will directly affect them.
 Right to Info is like a coin
o One side -> RIGHT
o The other -> DUTY
 Two components: SPEECH & PUBLIC TRUST
o Speech- Info is essential for us to speak; our
speech shall be based on the facts and how do
we get the facts? thru our Right to Info
o At the same time, it is also our way of making
sure that our delegates are true to the public
trust
GALLARDO - LAGMAN - SAN MIGUEL
we know that when it is of public concern, it is in relation to the
public trust.
 It is not only limited to the mandate but also to the
conduct of the official to make sure that he lives up
to the standard of the trust
 BUT, does that mean that the holder of the info
loses his privacy completely? NO
o There is still that reasonable expectation of
privacy to those things that are private and
does not relate to public trust
o BUT THEN THERE ARE EXCEPTIONS UNDER
THE LAW
o What are those not covered?
 National Security including
Diplomatic Relations
 Trade matters
 Criminal matters
 Other confidential matters
–such as: communications part of
the deliberative process -> ex:
Discussions bet and among the
members of the Cabinet. Before
there is a decision, this will be
considered confidential. WHY?
Bec. necessarily, there must be an
incentive for the free flow of ideas.
When you will require everything
to be divulged, you are not
encouraging everyone to give the
craziest idea.
***DO NOT MISTAKE EXEC PRIVILEGE WITH THOSE WHICH ARE
COVERED OR NOT COVERED WITH THE RIGHT TO INFO
o REMEMBER: Privilege is ascertained in relation to the
coercive power of Congress
What are the limitations that may be established by the State?
 Limitation as to the SUBSTANCE -> only the 4
EXCEPTIONS
 Can there be other limitations? YES.
o TIME, PLACE, & MANNER -> CONTENT-NEUTRAL
 YOU CAN DEMAND INFO OF PUBLIC CONERN EXCEPT THE
4 EXCEPTIONS & THE STATE MAY PROVIDE OTHER
LIMITATIONS BUT ONLY AS TO THE TIME, PLACE, &
MANNER
What are covered by the State’s DUTY TO DISCLOSE INFO?
o Official Records
o Docs relating to oficial acts
o Transactions and decisions
o Research data that willl lead to decisions of the gov’t
At what point will the info be covered by the State’s duty to
disclose? WE WILL SEE THAT IN THE CASE OF MARCOS &
AKBAYAN
Legaspi v. Civil Service Commission, 150 SCRA 530 (1987)
These constitutional provisions are self-executing.
They supply the rules by means of which the right to
information may be enjoyed (Cooley, A Treatise on the
Constitutional Limitations 167 [1927]) by guaranteeing
the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right
therein recognized may be asserted by the people upon
the ratification of the constitution without need for any
ancillary act of the Legislature. (Id. at, p. 165) What may
be provided for by the Legislature are reasonable
conditions and limitations upon the access to be afforded
which must, of necessity, be consistent with the declared
State policy of full public disclosure of all transactions
involving public interest (Constitution, Art. II, Sec. 28).
However, it cannot be overemphasized that whatever
limitation may be prescribed by the Legislature, the right
and the duty under Art. III, Sec. 7 have become operative
CONSTI 2 [FINALS 2019] Atty. Muyot 1
and enforceable by virtue of the adoption of the New
Charter. Therefore, the right may be properly invoked in a
Mandamus proceeding such as this one.
ln the case before Us, the respondent takes issue on
the personality of the petitioner to bring this suit. It is
asserted that, the instant Petition is bereft of any
allegation of Legaspi's actual interest in the civil service
eligibilities of Julian Sibonghanoy and Mariano Agas. At
most there is a vague reference to an unnamed client in
whose behalf he had allegedly acted when he made
inquiries on the subject (Petition, Rollo,p. 3). But what is
clear upon the face of the Petition is that the petitioner
has firmly anchored his case upon the right of the people
to information on matters of public concern, which, by its
very nature, is a public right. It has been held that: * * *
when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public
duty, the people are regarded as the real party in interest
and the relator at whose instigation the proceedings are
instituted need not show that he has any legal or special
interest in the result, it being sufficient to show that he is
a citizen and as such interested in the execution of the
laws * * * (Tanada et. al. vs. Tuvera, et. al, G.R. No. L-
63915, April 24, 1985, 136 SCRA 27, 36). From the
foregoing, it becomes apparent that when a Mandamus
proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere
fact that the petitioner is a citizen, and therefore, part of
the general "public" which possesses the right.
The authority to regulate the manner of examining
public records does not carry with it the power to prohibit.
A distinction has to be made between the discretion to
refuse outright the disclosure of or access to a particular
information and the authority to regulate the manner in
which the access is to be afforded. The first is a limitation
upon the availability of access to the information sought,
which only the Legislature may impose (Art. III, Sec. 6,
1987 Constitution). The second pertains to the
government agency charged with the custody of public
records. Its authority to regulate access is to be exercised
solely to the end that damage to, or loss of, public records
may be avoided, undue interference with the duties of
said agencies may be prevented, and more importantly,
that the exercise of the same constitutional right by other
persons shall be assured (Subido vs. Ozaeta, supra). Thus,
while the manner of examining public records may be
subject to reasonable regulation by the government
agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to
public records cannot be discretionary on the part of said
agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may
be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being
discretionary, its performance may be compelled by a writ
of Mandamus in a proper case.
The constitutional guarantee to information on
matters of public concern is not absolute. It does not open
every door to any and all information. Under the
Constitution, access to official records, papers, etc., are
"subject to limitations as may be provided by law" (Art. III,
Sec. 7, second sentence). The law may therefore exempt
certain types of information from public scrutiny, such as
those affecting national security (Journal No. 90,
September 23, 1986, p. 10; and Journal No. 91, September
24, 1986, p. 32, 1986 Constitutional Commission). It
follows that, in every case, the availability of access to a
particular public record must be circumscribed by the
nature of the information sought, i.e., (a) being of public
concern or one that involves public interest, and, (b) not
being exempted by law from the operation of the
constitutional guarantee. The threshold question is,
therefore, whether or not the information sought is of
public interest or public concern.
In determining whether or not a particular
information is of public concern there is no rigid test
GALLARDO - LAGMAN - SAN MIGUEL
which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public
may want to know, either because these directly affect
their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final
analysis, it is for the courts to determine in a case by case
basis whether the matter at issue is of interest or
importance, as it relates to or affects the public. The
information sought by the petitioner in this case is the
truth of the claim of certain government employees that
they are civil service eligibles for the positions to which
they were appointed. Public office being a public trust,
[Const., Art. XI, Sec. 1] it is the legitimate concern of
citizens to ensure that government positions requiring
civil service eligibility are occupied only by persons who
are eligibles. Public officers are at all times accountable to
the people even as to their eligibilities for their respective
positions. But then, it is not enough that the information
sought is of public interest. For Mandamus to lie in a
given case, the information must not be among the
species exempted by law from the operation of the
constitutional guarantee. In the instant, case while
refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil
Service Law which would limit the petitioner's right to
know who are, and who are not, civil service eligibles.
o Legaspi wanted to know the civil service eligibility of two
persons who were appointed because he wanted to
challenge the qualifications of those appointed -> QUO
WARRANTO
o What is the personal interest of Legaspi? NO PERSONAL
INTEREST.
 Right to Info = public right
 He does not need to show or allege any injury
 He is representing the whole citizenry in asserting
that public right
Civil Service: NO, YOU CANNOT ACCESS because NO PERSONAL
INTEREST
o But that is easily answered (or rebutted) by the nature of
the Rigjt to Infor which is a PUBLIC RIGHT
o And because it is a public right, Legaspi does not have to
allege any specific injury or damage to himself
o He is actually representing the whole citizenry
o BUT then the csc said that the info is confidential bec it
has to do with the person who was appointed hence
outside the coverege of right to info. Is the CSC correct?
 SC: Info = not confidential because the CSC
publishes the list of passers similar to list of bar
exam passers.
 Anyone has the access
o The info regarding w/n the two appointees are eligible is
of public concern because it is part of the public trust.
 You want to find out if these two people are
qualified.
 Since public office is a public trust, you want people
to be qualified
Valmonte v. Belmonte, 170 SCRA 256 (1989)
The right to information is an essential premise of a
meaningful right to speech and expression. But this is not
to say that the right to information is merely an adjunct of
and therefore restricted in application by the exercise of
the freedoms of speech and of the press. Far from it. The
right to information goes hand-in-hand with the
constitutional policies of full public disclosure and
honesty in the public service. It is meant to enhance the
widening role of the citizenry in governmental decision-
making as well as in checking abuse in government.
Yet, likely all the constitutional guarantees, the right
to information is not absolute. As stated in Legaspi, the
people’s right to information is limited to “matters of
public concern”, and is further “subject to such limitations
CONSTI 2 [FINALS 2019] Atty. Muyot 2
as may be provided by law.” Similarly, the State’s policy
of full disclosure is limited to “transactions involving
public interest”, and is “subject to reasonable conditions
prescribed by law.” Hence, before mandamus may issue,
it must be clear that the information sought is of “public
interest” or “public concern”, and is not exempted by law
from the operation of the constitutional guarantee
[Legaspi v. Civil Service Commission, supra, at p. 542.]
The information sought by petitioners in this case is
the truth of reports that certain Members of the Batasang
Pambansa belonging to the opposition were able to
secure “clean” loans from the GSIS immediately before
the February 7, 1986 election through the intercession of
the former First Lady, Mrs. Imelda R. Marcos. The GSIS is
a trustee of contributions from the government and its
employees and the administrator of various insurance
programs for the benefit of the latter. Undeniably, its
funds assume a public character. More particularly, Secs.
5(b) and 46 of P.D. 1146, as amended (the Revised
Government Service Insurance Act of 1977), provide for
annual appropriations to pay the contributions, premiums,
interest and other amounts payable to GSIS by the
government, as well as the obligations which the Republic
of the Philippines assumes or guarantees to pay.
Considering the nature of its funds, the GSIS is expected
to manage its resources with utmost prudence and in
strict compliance with the pertinent laws or rules and
regulations. Thus, one of the reasons that prompted the
revision of the old GSIS law (CA. No. 186, as amended)
was the necessity “to preserve at all times the actuarial
solvency of the funds administered by the System”
[Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS “is not supposed to
grant ‘clean loans’.” [Comment, p. 8.] It is therefore the
ligitimate concern of the public to ensure that these funds
are managed properly with the end in view of maximizing
the benefits that accrue to the insured government
employees. Moreover, the supposed borrowers were
Members of the defunct Batasang Pambansa who
themselves appropriated funds for the GSIS and were
therefore expected to be the first to see to it that the
GSIS performed its tasks with the greatest degree of
fidelity and that all its transactions were above board. In
sum, the public nature of the loanable funds of the GSIS
and the public office held by the alleged borrowers make
the information sought clearly a matter of public interest
and concern.
When the information requested from the
government intrudes into the privacy of a citizen, a
potential conflict between the rights to information and to
privacy may arise. However, the competing interests of
these rights need not be resolved in this case. Apparent
from the above-quoted statement of the Court in Morfe is
that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental
agencies like the GSIS. Moreover, the right cannot be
invoked by juridical entities like the GSIS. As held in the
case of Vassar College v. Loose Wills Biscuit Co. [197 F.
982 (1912)], a corporation has no right of privacy in its
name since the entire basis of the right to privacy is an
injury to the feelings and sensibilities of the party and a
corporation would have no such ground for relief.
Neither can the GSIS through its General Manager,
the respondent, invoke the right to privacy of its
borrowers. The right is purely personal in nature, and
hence may be invoked only by the person whose privacy is
claimed to be violated.
Respondent next asserts that the documents
evidencing the loan transactions of the GSIS are private in
nature and hence, are not covered by the Constitutional
right to information on matters of public concern which
guarantees “(a)ccess to official records, and to
documents, and papers pertaining to official acts,
transactions, or decisions” only, xxx First of all, the
“constituent—ministrant” dichotomy characterizing
government function has long been repudiated. In ACCFA
v. Confederation of Unions and Government Corporations
GALLARDO - LAGMAN - SAN MIGUEL
and Offices [G.R. Nos. L-21484 and L-23605, November 29,
1969, 30 SCRA 644], the Court said that the government,
whether carrying out its sovereign attributes or running
some business, discharges the same function of service to
the people, consequently, that the GSIS, in granting the
loans, was exercising a proprietary function would not
justify the exclusion of the transactions from the coverage
and scope of the right to information.
Although citizens are afforded the right to
information and, pursuant thereto, are entitled to “access
to official records,” the Constitution does not accord them
a right to compel custodians of official records to prepare
lists, abstracts, summaries and the like in their desire to
acquire information on matters of public concern. It must
be stressed that it is essential for a writ of mandamus to
issue that the applicant has a well-defined, clear and
certain legal right to the thing demanded and that it is the
imperative duty of defendant to perform the act required.
The corresponding duty of the respondent to perform the
required act must be clear and specific [Lemi v. Valencia,
G.R. No. L-20768, November 29, 1968, 126 SCRA 203;
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72
SCRA 443.] The request of the petitioners fails to meet
this standard, there being no duty on the part of
respondent to prepare the list requested.
o Valmonte is a lawyer & newspaper man -> represents
media
o He wanted the list of the opposition who were granted
loans without colateral by the GSIS
o SC: HE CANNOT COMPEL GSIS TO GIVE HIM THE LIST
o Valmonte may access info about the loans
 He will be the one producing the list
 & GSIS is going to GIVE ACCESS to the loan
documents
 It is not GSIS that will make the list.
 WHAT CAN BE DEMANDED IS THAT GSIS ALLOW HIM
TO ACCESS THE LOAN DOCUMENTS
 Which loan docs? ALL 3M BORROWERS? NO, ONLY
THOSE THAT HE HAD LISTED IN HIS LIST
 Is that a violation of Right to Privacy of the people in
the list? NO BECAUSE THEY ARE PUBLIC OFFICERS.
 Public officers do not have expectation of privacy in
relation to matters of public concern
 In fact, GSIS may not assert the Right to Privacy of
the public officers bec. such right is personal
 Will it violate the bank secrecy law? NO bec. the
amounts involve are public funds and such law
covers only private funds
o On the other hand, GSIS may impose reasonable rules on
the TIME, PLACE, & MANNER
 Time- during office hours
 Place- only in GSIS
 Manner- photocopy, not the original & GSIS may
charge fees for the photocopy
o What about the cost of having a staff supervise
Valmonte’s access to the docs? He can also be charged
aside from the cost of photocopy
Chavez v. PCGG, 299 SCRA 744 (1998)
Access to public documents and records is a public
right, and the real parties in interest are the people
themselves.
In Tañada v. Tuvera, the Court asserted that when
the issue concerns a public right and the object of
mandamus is to obtain the enforcement of a public duty,
the people are regarded as the real parties in interest;
and because it is sufficient that petitioner is a citizen and
as such is interested in the execution of the laws, he need
not show that he has any legal or special interest in the
result of the action. In the aforesaid case, the petitioners
sought to enforce their right to be informed on matters of
public concern, a right then recognized in Section 6,
Article IV of the 1973 Constitution, in connection with the
rule that laws in order to be valid and enforceable must
CONSTI 2 [FINALS 2019] Atty. Muyot 3
be published in the Official Gazette or otherwise
effectively promulgated. In ruling for the petitioners’ legal
standing, the Court declared that the right they sought to
be enforced “is a public right recognized by no less than
the fundamental law of the land.”
The instant petition is anchored on the right of the
people to information and access to official records,
documents and papers—a right guaranteed under Section
7, Article III of the 1987 Constitution. Petitioner, a former
solicitor general, is a Filipino citizen. Because of the
satisfaction of the two basic requisites laid down by
decisional law to sustain petitioner’s legal
standing, i.e. (1) the enforcement of a public right (2)
espoused by a Filipino citizen, we rule that the petition at
bar should be allowed.
o Chavez filed a case against PCGG because he wanted to
have access to the docs in relation to the proposals of
the agreement between PCGG and the Marcoses
o No agreement yet because any agrement must first be
approved by the court for it to be binding because there
is a case for the forfeiture of the ill-gotten wealth so they
were negotiating on an agreement
o Argument of PCGG: NO AGREEMENT YET. In fact, not yet
submitted to the Court
o Does Chavez have a cause of action? Can he access
info? YES.
o How can he be given access when there is no agreement
yet?
 Verba Legis -> Sec 7 Art 3: “access to info on
transactions”
 Proposals and Counter-proposals = transactions &
they are not prohibited by law
 Not required that these proposals are completed
 Since no requirement, just apply the provision as it
is
 All that is required ist that there be some document
with regard that transaction
 Ratio Legis -> from the records of the proceedings
 In the discussion of the Constitutional Commission,
sponsor explained that this will cover matters which
are still under negotiation
Akbayan v. Aquino, G.R. No. 170516, July 16, 2008
To be covered by the right to information, the
information sought must meet the threshold requirement
that it be a matter of public concern. In determining
whether or not a particular information is of public
concern there is no rigid test which can be applied. ‘Public
concern’ like ‘public interest’ is a term that eludes exact
definition. Both terms embrace a broad spectrum of
subjects which the public may want to know, either
because these directly affect their lives, or simply because
such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to
determine on a case by case basis whether the matter at
issue is of interest or importance, as it relates to or
affects the public. From the nature of the JPEPA as an
international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the
negotiations towards its execution are matters of public
concern. This, respondents do not dispute. They only
claim that diplomatic negotiations are covered by the
doctrine of executive privilege, thus constituting an
exception to the right to information and the policy of full
public disclosure.
The privileged character of diplomatic negotiations
has been recognized in this jurisdiction. In discussing
valid limitations on the right to information, the Court
in Chavez v. PCGG, 299 SCRA 744 (1998), held that
“information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be
subject to reasonable safeguards for the sake of national
interest.”
GALLARDO - LAGMAN - SAN MIGUEL
Applying the principles adopted in PMPF v.
Manglapus, it is clear that while the final text of the JPEPA
may not be kept perpetually confidential—since there
should be “ample opportunity for discussion before [a
treaty] is approved”—the offers exchanged by the parties
during the negotiations continue to be privileged even
after the JPEPA is published. It is reasonable to conclude
that the Japanese representatives submitted their offers
with the understanding that “historic confidentiality”
would govern the same. Disclosing these offers could
impair the ability of the Philippines to deal not only with
Japan but with other foreign governments in future
negotiations. A ruling that Philippine offers in treaty
negotiations should now be open to public scrutiny would
discourage future Philippine representatives from frankly
expressing their views during negotiations. While, on first
impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for
that matter, normally involve a process of quid pro quo,
and oftentimes negotiators have to be willing to grant
concessions in an area of lesser importance in order to
obtain more favorable terms in an area of greater national
interest.
Diplomatic negotiations, therefore, are recognized as
privileged in this jurisdiction, the JPEPA negotiations
constituting no exception. It bears emphasis, however,
that such privilege is only presumptive. For as Senate v.
Ermita (488 SCRA 1 [2006]) holds, recognizing a type of
information as privileged does not mean that it will be
considered privileged in all instances. Only after a
consideration of the context in which the claim is made
may it be determined if there is a public interest that calls
for the disclosure of the desired information, strong
enough to overcome its traditionally privileged status.
o Negotiations between Japan & Phil
 Not allowed to be accessed
o Is the negotiation about trade & tariffs of public concern?
YES
 But it is one of the EXCEPTIONS
 Under the first category -> national security &
diplomatic relations
o What is the practical reasoning behind the exceptions?
 If we allow access -> practical consequence –
countries will no longer negotiate with the PH
because they know we cannot maintain
confidentiality
 Actually, in the end the PH will lose bec no country
would want to negotiate with the PH
o How do you address the transparancy? Are we saying
that there is no transparancy?
 The agreement will be submitted to the Senate
 It will still be subject to public hearings so that the
Senate will determine w/n it requires ratification and
if does, w/n it will ratify or reject
o Does AKBAYAN have the personality to compel the DFA
to give access to the docs? NO. AKABYAN = no legal
standing
 Because as a party-list belongs to the House of
Representatives hence the HOR has no interest
 Under our system, they do not have a role to play in
the process of ratification. It is the Senate!
o Next argument: but it is pursuant to the investigatioN.
May AKBAYAN compel DFA?
 NO
 AKBAYAN is no longer asserting the Right to Info
 It is asserting the power of the Congress to
investigate
 AKBYAN -> No longer asserting a right. It now
asserts its power
 Can they do that? ACTUALLY, THEY MAY DO THAT
but DFA is not bound to give the info because DFA
may now raise executive privilege
 Is exec privilege appropriately raised? NO. It was
only partially raised. They did not comply with the
CONSTI 2 [FINALS 2019] Atty. Muyot 4
 format but the Court said even if they did not
comply they cannot be expected to comply since
the format came later when the Court decided the
case of Neri
 So at the time that the case was filed, was Neri
decision already promulgated? NOT YET. So the
Court said there is no way the DFA could know the
proper process. Hence, Court said it was partially
raised
 But in the end, no cause of action! Already moot and
academic because the DFA released the draft of the
JPEPA
o Right to Information and power of the Congress to
investigate are two separate things
Province of North Cotabato v. Government, G.R. No.
183591, Oct. 14, 2008
o Why did the Court say that there was a violation of the
Right to Info of the people? Isn’t the Right to Info is
something that people shall assert as a public right?
 In this case, no one asserted the right in the course
of the negotiation. No one tried to access the
documents
 BUT why did the court say that there was a
violation?
 There was already a law -> EO 3: That in the peace
process there should be a continuing consultation
with the people. The people should be part of the
peace process
 The Constitution says that the PEOPLE HAVE A
RIGHT TO INFO and that there is a DUTY TO
DISCLOSE ON THE PART OF THE GOV’T
 But when the LAW itself says that the gov’t must
proactively inform and seek the opinion of the
people who will be affected, it becomes a requisite
and if there is a failure to comply with that, there
would necessarily be a violation of the people’s
Right to Info.
 In other words, it puts an additional burden on the
State but that is soemthing that gov’’t itself dictated
 Distinguish this case from Chavez,Valmonte,
AKBAYAN, Legaspi where the petitioners are
asserting the right
 In this case, the LAW (EO 3) itself provided that the
gov’t should no longer wait for anyone to assert a
right. Gov’t should be the one to go to the people to
inform them and get their opinions.
 This is a very revolutionary formulation of the Right
to Info because it emphasizes not only the right but
also the duty. And it requires that the gov’t itself
proactively inform & consult the people
FREEDOM OF RELIGION
Religion
 belief or absence of belief in a supreme being.
 It is not only believing, but also not believing
 What is a supreme being?
o Something that is undefined
o Depends on the religion
 Preamble: Aid of Almighty God
o Are we really invoking God?
o Actually, NO.
o What is the purpose for invoking God?
 God = conscience
 If you have God, there is someone that
instills fear
 Fear in the sense that you bind
yourself and you hold yourself
accountable to someone higher and
that is what makes you keep your
commitment
 That’s why the last line in oaths “so
help me God” = basically what are you
asking God or your conscience? To
GALLARDO - LAGMAN - SAN MIGUEL
always make sure that you live up to
what you have committed
 Oath of the President: “So help be
God” -> Because of that fear of God
(which is really his conscience), it
ensures that the president will comply
with everything
 “So help me God” -> not establishing a religion
otherwise it will be a violation of the Constitution
 We need to believe in something higher
o Why?
o We need a higher being not only to strike fear
in our hearts but also to hold on to when we
don’t know what to do
o That’s why it is faith
o Since it is a matter of faith, is it something that
the State may not intrude
 Whatever you believe in, that is something that cannot
be questioned
 The only problem is when the belief translates into
action
o Belief = State may not intervene
 It is part of your liberty
 You have the liberty to believe what
you want to believe
 As long as it is in the realm of belief,
the State cannot intervene
o Belief -> Action = State may intervene
 Art 2, Sec 6: Separation of Church & State
o The separation of Church and State shall be
inviolable
o Is that needed?
o Is that even true? Actually, NO. Bernas said NOT
TRUE
o Why? Because in the Constitution itself -> NO
COMPLETE SEPARATION
o Not needed but just to assure everyone, it has
been included
o Why is there a need for assurance? Because of
the FEAR based on history.
 Art 3, Sec 5
o No law shall be made respecting an
establishment of religion, or prohibiting the free
exercise thereof.
o The free exercise and enjoyment of religious
profession and worship, without discrimination
or preference, shall forever be allowed.
 State shall not favor one religion over
the other
o No religious test shall be required for the
exercise of civil or political rights.
 If you want to be in public service,
religion will not be a basis for
appointment
 Art 6, Sec 28 (3): Tax exemption
o (3) Charitable institutions, churches and
parsonages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly,
and exclusively used for religious, charitable, or
educational purposes shall be exempt from
taxation.
 Art 6, Sec 29 (2): No funds for church etc.
o (2) No public money or property shall be
appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or
support of any sect, church, denomination,
sectarian institution, or system of religion, or of
any priest, preacher, minister, or other religious
teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is
assigned to the armed forces, or to any penal
institution, or government orphanage or
leprosarium.
CONSTI 2 [FINALS 2019] Atty. Muyot 5
 o Exception -> priest, preacher, minister, or
dignitary -> performing public service
 Art 14, Sec 3 (3): Religion shall be allowed to be taught
in school
o (3) At the option expressed in writing by the
parents or guardians, religion shall be allowed
to be taught to their children or wards in public
elementary and high schools within the regular
class hours by instructors designated or
approved by the religious authorities of the
religion to which the children or wards belong,
without additional cost to the Government.
o Subject to conditions: 1) Consent of the parents
2) without additional cost to the government
 No strict separation of the church & state
o Constitution itself allows for some engagement
of the church & religion
Ebralinag v. Division Superintendent of Schools, 219 SCRA
256 (1993)
Religious freedom is a fundamental right which is
entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of
man to his Creator.
The right to religious profession and worship has a
two-fold aspect, vis., freedom to believe and freedom to
act on one's belief. The first is absolute as long as the
belief is confined within the realm of thought. The second
is subject to regulation where the belief is translated into
external acts that affect the public welfare”.
“The sole justification for a prior restraint or
limitation on the exercise of religious is the existence of a
grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals,
public health or any other legitimate public interest', that
the State has a right (and duty) to prevent." Absent such
a threat to public safety, the expulsion of the petitioners
from the schools is not justified.
The idea that one may be compelled to salute the
flag, sing the national anthem, and recite the patriotic
pledge, during a flag ceremony on pain of being dismissed
from one's job or of being expelled from school, is alien to
the conscience of the present generation of Filipinos who
cut their teeth on the Bill of Rights which guarantees their
rights to free speech and the free exercise of religious
profession and worship (Sec. 5, Article III, 1987
Constitution; Article IV, Section 8, 1973 Constitution;
Article III, Section 1[7], 1935 Constitution).
Exemption may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag
ceremony out of respect for their religious beliefs,
however "bizarre" those beliefs may seem to others.
Nevertheless, their right not to participate in the flag
ceremony does not give them a right to disrupt such
patriotic exercises. Paraphrasing the warning cited by this
Court in Non vs. Dames II, 185 SCRA 523, 535, while the
highest regard must be afforded their right to the free
exercise of their religion, "this should not be taken to
mean that school authorities are powerless to discipline
them" if they should commit breaches of the peace by
actions that offend the sensibilities, both religious and
patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates
and teachers salute the flag, sing the national anthem and
recite the patriotic pledge, we do not see how such
conduct may possibly disturb the peace, or pose "a grave
and present danger of a serious evil to public safety,
public morals, public health or any other legitimate public
interest that the State has a right.
Moreover, the expulsion of members of Jehovah's
Witnesses from the schools where they are enrolled will
violate their right as Philippine citizens, under the 1987
Constitution, to receive free education, for it is the duty of
the State to "protect and promote the right of all citizens
GALLARDO - LAGMAN - SAN MIGUEL
to quality education x x x and to make such education
accessible to all" (Sec. 1, Art. XIV).
Expelling or banning the petitioners from Philippine
schools will bring about the very situation that this Court
had feared in Gerona. Forcing a small religious group,
through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly
be conducive to love of country or respect for duly
constituted authorities.
o Issue in this case has been previously decided in the
case of Gerona -> Students may be expelled if they
refuse to stand and salute the flag during the flag
ceremony
o Gerona case
 Why did the court say that it does not violate
the freedom of religion?
 Court is balancing the right & duty
 Clear & present danger test was used but in
reality it was the balancing interest test
 Interest of the State to protect religion &
interest of the State to exact a duty from its
citizens
 Court -> said between free exercise of religion
& patriotism -> patriotism is more weighty
 How did the Court justify such balancing? The
Court looked at the Jehova’s witnesses not
saluting the flag -> not as belief but as action
o Ebralinag case
 The Court looked at such as an action but
under a different paradigm
 Clear & present danger test was used ->
applied not in the belief, but in the action
 Still applied in the action just like in Gerona BUT
the Court, in this case, really applied the clear &
present danger test
 IN FACT, the Court said that the danger has not
come to pass which means the feared lack of
patriotism did not happen
 If the Jehovah’s witnesses are expelled from
school = violates right to education & they will
be harboring a resentment towards the State,
hence you cannot expect them to be patriotic
o Gerona & Ebralinag -> the Court did not inquire into the
belief because the Court cannot inquire into the validity
of the belief.
o Why? Under the Constitution, it is ABSOLUTELY
PROTECTED
o The Court can only look into the gov’t regulation in
relation to the action to find out if it is something which
is reasonable
o In this case, if the State will defeat religion, the State
shall show:
 there is a compelling state interest
 the means chosen by the State is the least
restrictive
 it will not unduly burden the exercise of the
right
o Freedom of Religion = protected (situated together with
speech and press in the hierarchy) unless through the
State can justify a restriction and show that there is a
compelling state interest, the means chosen by the State
is the least restrictive & it will not unduly burden the
exercise of the right
o If ever there can be limitation on the ACTION, how will
the Court examine the validity of the limitations? Using
the CLEAR & PRESENT DANGER TEST
o Can you apply such test to the BELIEF itself? NO because
it is not yet translated into action.
Estrada v. Escritor, 408 SCRA 1 (2003)
The Free Exercise Clause accords absolute protection
to individual religious convictions and beliefs and
proscribes government from questioning a person’s
beliefs or imposing penalties or disabilities based solely
CONSTI 2 [FINALS 2019] Atty. Muyot 6
on those beliefs. The Clause extends protection to both
beliefs and unbelief. The protection also allows courts to
look into the good faith of a person in his belief, but
prohibits inquiry into the truth of a person’s religious
beliefs.
Next to belief which enjoys virtually absolute
protection, religious speech and expressive religious
conduct are accorded the highest degree of protection.
The least protected under the Free Exercise Clause is
religious conduct, usually in the form of unconventional
religious practices. Protection in this realm depends on
the character of the action and the government rationale
for regulating the action.
It is certain that not every conscience can be
accommodated by all the laws of the land; but when
general laws conflict with scruples of conscience,
exemptions ought to be granted unless some ‘compelling
state interest’ intervenes.
Benevolent neutrality is congruent with the
sociological proposition that religion serves a function
essential to the survival of society itself, thus there is no
human society without one or more ways of performing
the essential function of religion. Although for some
individuals there may be no felt need for religion and thus
it is optional or even dispensable, for society it is not,
which is why there is no human society without one or
more ways of performing the essential function of
religion.
Accommodation is distinguished from strict
neutrality in that the latter holds that government should
base public policy solely on secular considerations,
without regard to the religious consequences of its
actions. The debate between accommodation and strict
neutrality is at base a question of means: “Is the freedom
of religion best achieved when the government is
conscious of the effects of its action on the various
religious practices of its people, and seeks to minimize
interferences with those practices? Or is it best advanced
through a policy of ‘religious blindness’—keeping
government aloof from religious practices and issues?” An
accommodationist holds that it is good public policy, and
sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with
religious freedom. On the other hand, the strict neutrality
adherent believes that it is good public policy, and also
constitutionally required, for the government to avoid
religion-specific policy even at the cost of inhibiting
religious exercise.
There are strong and compelling reasons, however,
to take the accommodationist position rather than the
strict neutrality position. First, the accommodationist
interpretation is most consistent with the language of the
First Amendment. The religion clauses contain two
parallel provisions, both specifically directed at “religion.”
The government may not “establish” religion and neither
may government “prohibit” it. Taken together, the
religion clauses can be read most plausibly as warding off
two equal and opposite threats to religious freedom—
government action that promotes the (political)
majority’s, favored brand of religion and government
action that impedes religious practices not favored by the
majority. The substantive end in view is the preservation
of the autonomy of religious life and not just the formal
process value of ensuring that government does not act
on the basis of religious bias. On the other hand, strict
neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as
long as it does the same to or for comparable secular
entities. Thus, for example, if government prohibits all
alcoholic consumption by minors, it can prohibit minors
from taking part in communion. Paradoxically, this view
would make the religion clauses violate the religion
clauses, so to speak, since the religion clauses single out
religion by name for special protection.
We now subject the respondent’s claim of religious
freedom to the “compelling state interest” test from a
benevolent neutrality stance—i.e. entertaining the
GALLARDO - LAGMAN - SAN MIGUEL
possibility that respondent’s claim to religious freedom
would warrant carving out an exception from the Civil
Service Law; necessarily, her defense of religious freedom
will be unavailing should the government succeed in
demonstrating a more compelling state interest.
In applying the test, the first inquiry is whether
respondent’s right to religious freedom has been
burdened. There is no doubt that choosing between
keeping her employment and abandoning her religious
belief and practice and family on the one hand, and giving
up her employment and keeping her religious practice and
family on the other hand, puts a burden on her free
exercise of religion. The burden on respondent in the case
at bar is even greater as the price she has to pay for her
employment is not only her religious precept but also her
family which, by the Declaration Pledging Faithfulness,
stands “honorable before God and men.”
The second step is to ascertain respondent’s
sincerity in her religious belief. Respondent appears to be
sincere in her religious belief and practice and is not
merely using the “Declaration of Pledging Faithfulness” to
avoid punishment for immorality. She did not secure the
Declaration only after entering the judiciary where the
moral standards are strict and defined, much less only
after an administrative case for immorality was filed
against her.
o ISSUE: W/N freedom of religion can be invoked as a
defense to the administrative charge of immorality
o What was the basic premise of J. Puno in rejecting the
outright application of the rules on administrative
discipline under Civil Service laws?
 The State will burden her right
 J. Puno was looking at in the context of the
burden that is placed on the exercise of religion
o We start with the RIGHT!
 Belief became the core of the instructions to the
Court Administrator
 CA -> must start with belief
 Instructions -> establish:
1. Sincerity
2. Compelling State Interest -> Sol Gen
must establish CSI
3. State must establish that there is no
other least intrusive way that will not
unduly burden with right
o It is very important the you start with the RIGHT ->
BELIEF
 You start with belief
 WHY? It will be very difficult for number 2 & 3 to
be established
 What is the belief? According to the Pledge of
Faithfulness, it is not immoral
 Jehovah’s withness -> not about marriage
contract or marriage. It is about FAITFULNESS
o Action -> cohabit for 10 yrs even before Escritor became
an employee of the court
 Court can interfere
 BUT the Court shall show that there is a CLEAR
& PRESENT DANGER so there must be a
COMPELLING STATE INTEREST in order to limit
the action
 1st: Determine if she’s sincere -> by the fact
that they were living together for so long as
acting members of Jehovah’s witness -> no
question as to the sincerity -> there is a
presumption in their favor which must be
overcome by the Sol Gen by showing
compelling state interest
 2nd: CSI ->integrity of the Civil Service.
 3rd: Is dismissal the least intrusive way? NO
o J. Carpio: you are deciding on an issue of religious
morality
 How did J. Puno show that the Court is not
looking into religious morality?
CONSTI 2 [FINALS 2019] Atty. Muyot 7
  J. Puno: Actually, we cannot decide on religious
morality. We can only decide on public and
secular morality
 What is that characteristic of public & secular
morality that gives the Court the flexibility?
Contemporaneous nature of public & secular
morality
 In the case of religion when you are looking at
morality, it is doctrinal, not contemporaneous
 Public & Secular -> contemporaneous -> what
is considered to be immoral is not the religious
immorality based on catholic teaching but
rather the immorality which is
contemporaneously interpreted in the context
of PH society
 Contemporaneous PH society -> Escritor and
her partner -> not immoral
Imbong v. Ochoa, G.R. No. 204819, April 8, 2014
The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987
Constitution, viz.: Section 6. The separation of Church and
State shall be inviolable. Verily, the principle of
separation of Church and State is based on mutual
respect. Generally, the State cannot meddle in the
internal affairs of the church, much less question its faith
and dogmas or dictate upon it. It cannot favor one religion
and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the
State and the rest of the citizenry. It cannot demand that
the nation follow its beliefs, even if it sincerely believes
that they are good for the country. Consistent with the
principle that not any one religion should ever be
preferred over another, the Constitution in the above-
cited provision utilizes the term “church” in its generic
sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a
religious organization. Thus, the “Church” means the
religious congregations collectively.
In short, the constitutional assurance of religious
freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause. The establishment
clause“principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions.
It mandates a strict neutrality in affairs among religious
groups.” Essentially, it prohibits the establishment of a
state religion and the use of public resources for the
support or prohibition of a religion. On the other hand, the
basis of the free exercise clause is the respect for the
inviolability of the human conscience. Under this part of
religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of
one’s belief and faith.
In case of conflict between the free exercise clause
and the State, the Court adheres to the doctrine of
benevolent neutrality. This has been clearly decided by
the Court in Estrada v. Escritor, where it was stated “that
benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution.” In the
same case, it was further explained that: The benevolent
neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be
allowed, not to promote the government’s favored form of
religion, but to allow individuals and groups to exercise
their religion without hindrance. “The purpose
of accommodation is to remove a burden on, or facilitate
the exercise of, a person’s or institution’s religion.”
“What is sought under the theory of accommodation is
not a declaration of unconstitutionality of a facially
neutral law, but an exemption from its application or its
‘burdensome effect,’ whether by the legislature or the
courts.” In ascertaining the limits of the exercise of
religious freedom, the compelling state interest test is
proper. Underlying the compelling state interest test is
GALLARDO - LAGMAN - SAN MIGUEL
the notion that free exercise is a fundamental right and
that laws burdening it should be subject to strict scrutiny.
In the case at bench, it is not within the province of
the Court 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. For the Court has
declared that matters dealing with “faith, practice,
doctrine, form of worship, ecclesiastical law, custom and
rule of a church...are unquestionably ecclesiastical
matters which are outside the province of the civil
courts.” The jurisdiction of the Court extends only to
public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood
only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to
rule on ecclesiastical matters, as vanguard of the
Constitution, it does have authority to determine whether
the RH Law contravenes the guarantee of religious
freedom.
Indeed, the State is not precluded to pursue its
legitimate secular objectives without being dictated upon
by the policies of any one religion. One cannot refuse to
pay his taxes simply because it will cloud his conscience.
The demarcation line between Church and State demands
that one render unto Caesar the things that are Caesar’s
and unto God the things that are God’s.
In a situation where the free exercise of religion is
allegedly burdened by government legislation or practice,
the compelling state interest test in line with the Court’s
espousal of the Doctrine of Benevolent Neutrality in
Escritor, finds application.
The Court finds no compelling state interest which
would limit the free exercise clause of the conscientious
objectors, however few in number. Only the prevention of
an immediate and grave danger to the security and
welfare of the community can justify the infringement of
religious freedom. If the government fails to show the
seriousness and immediacy of the threat, State intrusion
is constitutionally unacceptable. Freedom of religion
means more than just the freedom to believe. It also
means the freedom to act or not to act according to what
one believes. And this freedom is violated when one is
compelled to act against one’s belief or is prevented from
acting according to one’s belief.
o Provision: if they want to refuse, they can refuse
o SC: despite such provision, it still violates the freedom of
religion of doctors
o WHY? Because they are required to refer and it compels
them to act which is contrary to their beliefs
o It is not simply “hindi po catholic ako at humanap na
lang po kayo ng iba”
o BUT when they are compelled to write a referral to
another doctor -> also action in contrary to their belief
RECAP:
 Belief -> State cannot intervene
 You can believe in anything
 When translated into action which may affect the rights
of the people -> State may intervene
 BUT intervention must not be such that will unduly
restrict the exercise of the right
Aglipay v. Ruiz, 64 Phils. 201 (1937)
What is guaranteed by our Constitution is religious
liberty, not mere religious toleration. Religious freedom,
however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of
faith to an active power that binds and elevates man to
his Creator is recognized. And, in so far as it instills into
the minds the purest principles of morality, its influence is
deeply felt and highly appreciated.
CONSTI 2 [FINALS 2019] Atty. Muyot 8
 o What was the contention of Aglipay?
 Issuance of postage stamps = promotes Roman
Catholic religion in violation of the Constitution
 Logo = chalice
o What is the test in determining w/n there is a violation of
the non-establishment clause
 Determine the primary purpose -> to promote
the Manila, Philippines as a venue of an
international event
o The benefit to the Catholic Church is only incidental
o What is the rule in the PH? Do we follow strict
separation?
 ACTUALLY, NO
 In the PH -> BENEVOLENT NEUTRALITY
 Benevolent Neutrality -> the State may enegage
or allow activities as long as it is not intended to
promote a certain religion
 As long as it has secular purpose
 No matter what the incidental benefit to a
particular religion
Re Letter of Valenciano, A.M. No. 10-4-19-SC, March 7,
2017
The State still recognizes the inherent right of the
people to have some form of belief system, whether such
may be belief in a Supreme Being, a certain way of life, or
even an outright rejection of religion.
Freedom of religion was accorded preferred status
by the framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware
that it is “designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he
believes he ought to live, consistent with the liberty of
others and with the common good.” “The right to
religious profession and worship has a two-fold aspect —
freedom to believe and freedom to act on one’s beliefs.
The first is absolute as long as the belief is confined
within the realm of thought. The second is subject to
regulation where the belief is translated into external acts
that affect the public welfare.”
Religious freedom, however, is not absolute. It
cannot have its way if there is a compelling state interest.
To successfully invoke compelling state interest, it must
be demonstrated that the masses in the QC Hall of Justice
unduly disrupt the delivery of public services or affect the
judges and employees in the performance of their official
functions.
In order to give life to the constitutional right of
freedom of religion, the State adopts a policy of
accommodation. Accommodation is a recognition of the
reality that some governmental measures may not be
imposed on a certain portion of the population for the
reason that these measures are contrary to their religious
beliefs. As long as it can be shown that the exercise of the
right does not impair the public welfare, the attempt of
the State to regulate or prohibit such right would be an
unconstitutional encroachment.
On the opposite side of the spectrum is the
constitutional mandate that “no law shall be made
respecting an establishment of religion,” otherwise known
as the non-establishment clause. Indeed, there is a thin
line between accommodation and establishment, which
makes it even more imperative to understand each of
these concepts by placing them in the Filipino society’s
perspective. The non-establishment clause reinforces the
wall of separation between Church and State. It simply
means that the State cannot set up a Church; nor pass
laws which aid one religion, aid all religion, or prefer one
religion over another nor force nor influence a person to
go to or remain away from church against his will or force
him to profess a belief or disbelief in any religion; that the
state cannot punish a person for entertaining or
professing religious beliefs or disbeliefs, for church
attendance or nonattendance; that no tax in any amount,
large or small, can be levied to support any religious
GALLARDO - LAGMAN - SAN MIGUEL
activity or institution whatever they may be called or
whatever form they may adopt or teach or practice
religion; that the state cannot openly or secretly
participate in the affairs of any religious organization or
group and vice versa. Its minimal sense is that the state
cannot establish or sponsor an official religion.
It is our considered view that the holding of Catholic
masses at the basement of the QC Hall of Justice is not a
case of establishment, but merely accommodation. First,
there is no law, ordinance or circular issued by any duly
constitutive authorities expressly mandating that
judiciary employees attend the Catholic masses at the
basement. Second, when judiciary employees attend the
masses to profess their faith, it is at their own initiative
as they are there on their own free will and volition,
without any coercion from the judges or administrative
officers. Third, no government funds are being spent
because the lightings and air-conditioning continue to be
operational even if there are no religious rituals
there. Fourth, the basement has neither been converted
into a Roman Catholic chapel nor has it been permanently
appropriated for the exclusive use of its faithful. Fifth, the
allowance of the masses has not prejudiced other
religions.
The Constitution is to be interpreted as a whole. As
such, the foregoing interpretation finds support in the
Establishment Clause, which is as clear as daylight in
stating that what is proscribed is the passage of any law
which tends to establish a religion, not merely to
accommodate the free exercise thereof.
o Valenciano: you cannot allow Friday masses in the QC
Hall of Justice
o ISSUE: W/N the holding of first Friday masses is violative
of the non-establishment clause
o In the case of Virgin of Casaysay -> the vigil will cause
an interruption, since it is continuous even during office
hours
 SC: not allowed because if it will be allowed,
gov’t time will be used in order to promote Virgin
of Casaysay
 Employees of SC, etc will go to the vigil
o In this case, there is NO violation of the non-
establishment clause
 Valenciano: held inside the hall and uses
electricity for lights and ventilation -> gov’t
resources = using to promote a religion
 Why is there no violation? It is just an
accommodation
 The place was not primarily used for Catholic
masses
 In fact, other groups could even use that
common area upon prior notification (ping-pong
game = allowed as long as you ask permission)
 It is just a common area
 With regard to the electricity, there would still be
lighting and ventilation even if there is no mass,
since there are people waiting in the common
area
o The court was saying in this case that actually it was just
a pure accommodation
 If not the Catholics on a Friday, you can even
have the Born Again on another day
 Or any other activity which is non-religious
 PURE ACCOMMODATION
o Test: determine PRIMARY PURPOSE
 In this case it is the primary use
 If you are going to devote it just for the benefit of
one religion -> NOT ALLOWED = violation of the
non-establishment clause
 EX: 1 room in the Court of Justice reserved as
Catholic chapel
o EX: Inside the courtroom, there is a mini altar or display
of religious articles
 Yes in violation of the Constitution (hindi ko
marinig ung sagot ni Shiela. Pero I think “yes”
yung sagot)
CONSTI 2 [FINALS 2019] Atty. Muyot 9
  In the oath when witness will testify -> last line:
“so help me God”
 Sir: oh ayan si God (haha)
 BUT when you say “So help me God” -> you are
not being compelled bby the judge to pray
 Invocation of God is only to bind you to the
truthfulness of what you are saying
o In fact, that is one of the problems in the classrooms in
public schools. Teachers would put religious symbols and
would even have a small altar, will that violate the non-
establishment clause? YES it will because you are now
promoting a particular religion.
o But when the judge will just keep the religious articles in
her chambers -> will NOT violate because then it is
really personal
o In courtroom which is public and where the judge exerts
authority, that will be a form of establishment
o In the US, the rules are very strict.
 You cannot provide for “let’s now have a
moment of prayer” -> promotes several religions
that involves prayers
 You can say “a moment of silence”
 You cannot say “can we have a moment of
silence so we can pray to God”
o In the PH, we always do that.
 In fact, in many of our programs, we also have a
pray.
 Since we like singing we have this famous song
“The Prayer”
 In AUF, can we be required to have a prayer
before classes start, ACTUALLY YES because it is
a catholic institution.
Islamic Da’wah Council of the Philippines v. Office of the
Executive Secretary, G.R. No. 153888, July 9, 2003
Only the prevention of an immediate and grave
danger to the security and welfare of the community can
justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy
of the threat, State intrusion is constitutionally
unacceptable. In a society with a democratic framework
like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to
exercise reasonable freedom of personal and religious
activity.
o The OMA issues an EO
 Argument: we are only certifying as to the
quality of the product
o Halal Certification
 Certification with regard to the processing of the
food product in accordance with Islamic rituals
 Since we are talking of Islamic rituals, the State
cannot intervene otherwise there is a violation of
the Constitution
 State will be performing = religious function, not
secular function
o As to the quality -> Food and Drug Administration
o Halal is not about the quality but about the observance
of a certain prescribed religious ritual
In UP Diliman there is a catholic church.
o The one with the dome -> work of 4 national artists
 Architectural work- Locsin
 Artworks- Manansala
 Cross & Altar- Abueva
 Floor design- Luz
o Across the street you have a protestant chapel
o Nature of the land in UP = Public land
o DOES THAT VIOLATE THE NON-ESTABLISHMENT CLAUSE?
o Context: Atty was asked by the chancellor to prepare a
legal brief because the Muslim students were asking that
they be given land where they can build a mosque. They
wanted the land at the back of Asian center (?) where
you now a (?) have auditorium... And then you also have
GALLARDO - LAGMAN - SAN MIGUEL
Victory and other born again churches who also wanted
land because Victory has a wide membership with UP.
 Chancellor: did we violate the Constitution when
we gave the land on a 1/sq unit lease to the
Catholics & Protestants so they can build their
churches?
o UP did not build the church but they provided the land
 Would that violate the Constitution?
 What about the other churches? Can you UP
give space to the other churches?
o Can gov’t propery be used, as in this case, for a church
of a particular religion?
LIBERTY OF ABODE; RIGHT TO TRAVEL
Top of the hierarchy: speech, expression, press & religion ->
framework is based on who discharges the burden.
 STRICT SCRUTINY: Burden -> State
 RATIONAL BASIS TEST -> bottom of the hierarcy
o Look at the connection between purpose & means
o Burden -> Petitioner
Where will we situate abode, travel & return?
 Middle
o Why? Not absolute
o Constitution provides limitations
 Abode– setting up your residence
o There could be reasonable limitation as may be
provided for by law & court order
 Destierro–form of excile
- banishment or only a prohibition from
residing within the radius of 25 kilometers
from the actual residence of the accused for
a specified length of time. It is not
imprisonment (from the Net)
- radius: 25-200 kilometers
- Consequence: change residence
 Anti-VAWC
- Court issues a protection order which
includes you being exiled
- You cannot go within some certain kilometers
near the women and children
- Effect: cannot live with wife and child
 Travel
o Not absolute
o Can be subject to limitations
 National Security
 Public safety
 Public order
o Can there be court intervention? YES
 Return
o Not in the Constitution
o Is there a right to return under the Constitution?
YES under general principles of int law which
part of the process of incorporation.
Villavicencio v. Lukban, 39 Phil. 778 (1919)
No law, order, or regulation authorized the Mayor of
the city of Manila or the chief of the police of that city to
force citizens of the Philippine Islands to change their
domicile from Manila to another locality. 
o Issue: W/N the forcible relocation of the women
(protistutes) to Davao is a violation of their liberty of
abode
o Not valid exercise of police power
 Purpose: public morals – lawful
 Means: not lawful -> only thru a court order,
cannot be ordered by the mayor
o 1st requirement: there must be a LAW
 RPC does not provide for destierro for
prostitutes, only for Art 247
 You cannot exile the prostitutions
 You can only close down the bars
CONSTI 2 [FINALS 2019] Atty. Muyot 10
 o The court, when issuing the order, must also be acting
on the basis of the law
o If the law does not provide for destierro as a penalty,
then that is something that the court cannot lawfully
ordain.
Silverio v. CA, 195 SCRA 760 (1991)
Article III, Section 6 of the 1987 Constitution should
be interpreted to mean that while the liberty of travel may
be impaired even without Court Order, the appropriate
executive officers or administrative authorities are not
armed with arbitrary discretion to impose limitations.
They can impose limits only on the basis of “national
security, public safety, or public health” and “as may be
provided by law,” a limitive phrase which did not appear
in the 1973 text. Apparently, the phraseology in the 1987
Constitution was a reaction to the ban on international
travel imposed under the previous regime when there was
a Travel Processing Center, which issued certificates of
eligibility to travel upon application of an interested
party.
Petitioner is facing a criminal charge. He has posted
bail but has violated the conditions thereof by failing to
appear before the Court when required. Warrants for his
arrest have been issued. Those orders and processes
would be rendered nugatory if an accused were to be
allowed to leave or to remain, at his pleasure, outside the
territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing
his departure from the Philippines must be considered as
a valid restriction on his right to travel so that he may be
dealt with in accordance with law. The offended party in
any criminal proceeding is the People of the Philippines. It
is to their best interest that criminal prosecutions should
run their course and proceed to finality without undue
delay, with an accused holding himself amenable at all
times to Court Orders and processes.
o ISSUE: W/N the court can issue an order disallowing the
petitioner from travelling
o Constitution -> not mentioned that there should be a
court order
o No showing that Silverio is a threat to public safety or
suffering from contagious disease
o How can the court possibly order that he not be allowed
to go out of the country?
 Violation? No
 The court was just exercising its criminal
jurisdiction over the person of Silverio to
ensure that Silverio attends the hearing set by
the court
 It starts with the warrant of arrest so that the
court will acquire jurisdiction over the person.
 The primary purpose was not to restrict his
right to travel -> ONLY INCIDENTAL to the
court’s compelling him to attend hearing and
that is the only way the court can compel him
by not allowing him to leave the country
 If the primary purpose is to curtail his right to
travel, it can only be for: (as may be provided
for by law):
 National security
 Public safety
 Public health
Marcos v. Manglapus, 177 SCRA 668 (1989)
The right to return to one’s country is not among the
rights specifically guaranteed in the Bill of Rights, which
treats only of the liberty of abode and the right to travel,
but it is our wellconsidered view that the right to return
may be considered, as a generally accepted principle of
international law and, under our Constitution, is part of
the law of the land [Art. II, Sec. 2 of the Constitution].
However, it is distinct and separate from the right to
GALLARDO - LAGMAN - SAN MIGUEL
travel and enjoys a different protection under the
International Covenant of Civil and Political Rights,
i.e.,against being “arbitrarily deprived” thereof [Art. 12
(4)].
The resolution of the problem is made difficult
because the persons who seek to return to the country
are the deposed dictator and his family at whose door the
travails of the country are laid and from whom billions of
dollars believed to be ill-gotten wealth are sought to be
recovered. The constitutional guarantees they invoke are
neither absolute nor inflexible. For the exercise of even
the preferred freedoms of speech and of expression,
although couched in absolute terms, admits of limits and
must be adjusted to the requirements of equally
important public interests [Zaldivar v. Sandiganbayan,
G.R. Nos. 79690-707, October 7, 1988].
That the President has the power under the
Constitution to bar the Marcoses from returning has been
recognized by members of the Legislature, and is
manifested by the Resolution proposed in the House of
Representatives and signed by 103 of its members urging
the President to allow Mr. Marcos to return to the
Philippines “as a genuine unselfish gesture for true
national reconciliation and as irrevocable proof of our
collective adherence to uncompromising respect for
human rights under the Constitution and our laws.”
[House Resolution No. 1342, Rollo, p. 321.] The Resolution
does not question the President’s power to bar the
Marcoses from returning to the Philippines, rather, it
appeals to the President’s sense of compassion to allow a
man to come home to die in his country. What we are
saying in effect is that the request or demand of the
Marcoses to be allowed to return to the Philippines cannot
be considered in the light solely of the constitutional
provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which
clearly never contemplated situations even remotely
similar to the present one. It must be treated as a matter
that is appropriately addressed to those residual unstated
powers of the President which are implicit in and
correlative to the paramount duty residing in that office to
safeguard and protect general welfare. In that context,
such request or demand should submit to the exercise of a
broader discretion on the part of the President to
determine whether it must be granted or denied.
We find that from the pleadings filed by the parties,
from their oral arguments, and the facts revealed during
the briefing in chambers by the Chief of Staff of the Armed
Forces of the Philippines and the National Security
Adviser, wherein petitioners and respondents were
represented, there exist factual basis for the President’s
decision. The Court cannot close its eyes to present
realities and pretend that the country is not besieged
from within by a wellorganized communist insurgency, a
separatist movement in Mindanao, rightist conspiracies to
grab power, urban terrorism, the murder with impunity of
military men, police officers and civilian officials, to
mention only a few. The documented history of the efforts
of the Marcoses and their followers to destabilize the
country, as earlier narrated in thisponenciabolsters the
conclusion that the return of the Marcoses at this time
would only exacerbate and intensify the violence directed
against the State and instigate more chaos. As divergent
and discordant forces, the enemies of the State may be
contained. The military establishment has given
assurances that it could handle the threats posed by
particular groups. But it is the catalytic effect of the
return of the Marcoses that may prove to be the
proverbial final straw that would break the camel’s back.
With these before her, the President cannot be said to
have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a
serious threat to the national interest and welfare and in
prohibiting their return.
o Right to Return
 Not in the Constitution but deemed incorporated
CONSTI 2 [FINALS 2019] Atty. Muyot 11
  What are the standards in determining whether
there is valid (? Di ko magets sinabi ni sir?)?
- Arbitrariness
 W/N the Pres acted arbitrarily
- When would it be deemed arbitrarily? When
no factual basis
- What are the factual bases? That is when the
court referred to the Int Covenant on Civil
and Political Rights
1. National sec
2. Public order
3. Public health
4. Public morals
Philippine Association of Service Exporters v. Drilon, 163
SCRA 386 (1988)
The consequence the deployment ban has on the right
to travel does not impair the right. The right to travel is
subject, among other things, to the requirements of
"public safety, "as may be provided by law." The
petitioner assumes that it is unreasonable simply because
of its impact on the right to travel, but as we have stated,
the right itself is not absolute. The disputed Order is a
valid qualification thereto
o Who issued the order? Sec of Labor
o Justification: safety of the Filipino domestic workers
going to HK -> rampant physical and sexual absue
o Within the powers of the State -> valid exercise of police
power
Genuino v. De Lima, G.R. No. 197930, April 17, 2018
The right to travel is part of the "liberty" of which a
citizen cannot be deprived without due process of law. 75 It
is part and parcel of the guarantee of freedom of
movement that the Constitution affords its citizen.
Pertinently, Section 6, Article III of the Constitution
provides: Section 6. The liberty of abode and of changing
the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither
shall the right to travel be impaired except in the interest
of national security, public safety or public health, as
maybe provided by law.
It is apparent, however, that the right to travel is not
absolute. There are constitutional, statutory and inherent
limitations regulating the right to travel. Section 6 itself
provides that the right to travel may be impaired only in
the interest of national security, public safety or public
health, as may be provided by law.
Clearly, under the provision, there are only three
considerations that may permit a restriction on the right
to travel: national security, public safety or public health.
As a further requirement, there must be an explicit
provision of statutory law or the Rules of Court 80 providing
for the impairment. The requirement for a legislative
enactment was purposely added to prevent inordinate
restraints on the person's right to travel by administrative
officials who may be tempted to wield authority under the
guise of national security, public safety or public health.
This is in keeping with the principle that ours is a
government of laws and not of men and also with the
canon that provisions of law limiting the enjoyment of
liberty should be construed against the government and
in favor of the individual. The necessity of a law before a
curtailment in the freedom of movement may be
permitted is apparent in the deliberations of the members
of the Constitutional Commission.
The liberty of abode may only be impaired by a lawful
order of the court and, on the one hand, the right to travel
may only be impaired by a law that concerns national
security, public safety or public health. Therefore, when
the exigencies of times call for a limitation on the right to
travel, the Congress must respond to the need by
explicitly providing for the restriction in a law. This is in
deference to the primacy of the right to travel, being a
GALLARDO - LAGMAN - SAN MIGUEL
constitutionally-protected right and not simply a statutory
right, that it can only be curtailed by a legislative
enactment.
Some of these statutory limitations [to the right to
travel] are the following:
1] The Human Security Act of 2010 or (R.A.] No.
9372. The law restricts the right to travel of an individual
charged with the crime of terrorism even though such
person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No.
8239. Pursuant to said law, the Secretary of Foreign
Affairs or his authorized consular officer may refuse the
issuance of, restrict the use of, or withdraw, a passport of
a Filipino citizen.
3] The "Anti- Trafficking in Persons Act of
2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the [BI], in order to manage migration and curb
trafficking in persons, issued Memorandum Order Radir
No. 2011-011, allowing its Travel Control and Enforcement
Unit to "offload passengers with fraudulent travel
documents, doubtful purpose of travel, including possible
victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of
1995 or R. A. No. 8042, as amended by R.A. No. 10022. In
enforcement of said law, the Philippine Overseas
Employment Administration (POEA) may refuse to issue
deployment permit to a specific country that effectively
prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or
R.A. No. 9262. The law restricts movement of an individual
against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No.
8043. Pursuant thereto, the Inter-Country Adoption Board
may issue rules restrictive of an adoptee's right to travel
"to protect the Filipino child from abuse, exploitation,
trafficking and/or sale or any other practice in connection
with adoption which is harmful, detrimental, or prejudicial
to the child."
In any case, when there is a dilemma between an
individual claiming the exercise of a constitutional right
vis-à-vis the state's assertion of authority to restrict the
same, any doubt must, at all times, be resolved in favor of
the free exercise of the right, absent any explicit
provision of law to the contrary.
The point is that in the conduct of a preliminary
investigation, the presence of the accused is not
necessary for the prosecutor to discharge his
investigatory duties. If the accused chooses to waive his
presence or fails to submit countervailing evidence, that
is his own lookout. Ultimately, he shall be bound by the
determination of the prosecutor on the presence of
probable cause and he cannot claim denial of due process.
The DOJ therefore cannot justify the restraint in the
liberty of movement imposed by DOJ Circular No. 41 on
the ground that it is necessary to ensure presence and
attendance in the preliminary investigation of the
complaints. There is also no authority of law granting it
the power to compel the attendance of the subjects of a
preliminary investigation, pursuant to its investigatory
powers under E.O. No. 292. Its investigatory power is
simply inquisitorial and, unfortunately, not broad enough
to embrace the imposition of restraint on the liberty of
movement. That there is a risk of flight does not authorize
the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the
Philippine jurisdiction so that he may not be able to evade
criminal prosecution and consequent liability. It is an
arrogation of power it does not have; it is a usurpation of
function that properly belongs to the legislature.
In any case, the exercise of police power, to be valid,
must be reasonable and not repugnant to the
Constitution.116 It must never be utilized to espouse
actions that violate the Constitution. Any act, however
noble its intentions, is void if it violates the
Constitution.117 In the clear language of the Constitution,
it is only in the interest of national security, public safety
and public health that the right to travel may be impaired.
CONSTI 2 [FINALS 2019] Atty. Muyot 12
None one of the mentioned circumstances was invoked by
the DOJ as its premise for the promulgation of DOJ Circular
No. 41.
o What was the problem faced by DOJ? Petitioners who are
under prelim investigation are suddenly not attending
because they have gone to other countries
o Hence, dept-circular order was issued which provides
 Watchlist oder directed to the Immigration
- Sec of Justice not given the power to issue
hold departure order which the courts can do
 Allow departure order -> if sec of justice said
they can go, they can go even if in the watchlist
 EFFECT: Courts said the same. It is as if they
issued a hold departure order which can only be
lifted by the Secretary
o Issue: w/n the DOJ SEC has the power to issue circular 41
 Sec cannot do that because under the
Constitution “as provided by law”
 There was no law
 SC: remedy is for a law
o Sec of Justice: look at the Administrative code, it is part
of the power to investigate
 SC: power to investigate does not include the
power to detain or restrict the movement of the
person
 Limited only to determining if the allegation
make out a prima facie case for filing to the
court
 Investigation can, in fact, proceed without
respondent because the determination is not
with regard to the guilt but with regard to the
allegation of the complaint -> w/n there is basis
to file a case
 Respondent not there, prosec can proceed and
file a case
o What the court did is to provide a rule on hold departure
orders that would allow the DOJ to apply to the court and
the COURT be the one to issue upon the application of
DOJ.
 Since no law
 Problem temporarily solved
 J. Leonen dissented to that SC rule on HDO ->
VIOLATES right to travel
o Why was there a violation of the Right to Travel?
 Does not involve, national sec, pub safety or pub
health
 If ever the court will issue an order, not because
of restricting RT but because of assumption of
jurisdiction.
FREEDOM OF ASSOCIATION
The provision talks about two things:
 Right to Association
o For the purpose of promoting shared values
o It includes the right to form, join and not to join
 Right to Form Unions
o For the purpose of collective bargaining ->
negotiation between the union and the
employer
 Compensation
o The only way that the employees negotiate
regarding compensation is to organize as one
bargaining unit hwere employees can address
not just individual concerns but also the
concerns of the whole unit -> there is strength
in numbers
o Mechanism to compel employer to give in to
your (employee) demands: STRIKE which is
allowed by law
o On the other hand, employer can, under the
law, lock-out, meaning seize operating
GALLARDO - LAGMAN - SAN MIGUEL
o Department of Labor Conciliation and Mediation
Board will now intervene to help employer and
employees resolve their issue
o Bottomline: your strength comes when you
organize as one unit instead of each one going
to the boss and then asking for better benefis,
etc.
o Boss will just ignore or laugh at you if
individually
 NO EQUALITY BETWEEN LABOR & CAPITAL
o That’s why the Constitution protects labor to
organize unions in order to atleast level the
playing fields by allowing them to bargain as
one
o That is something in our Constitution because it
is a social justice Constitution unlike in laissez-
faire Constitution -> law & supply demand
o How to address the equality? By providing in
the Constitution for the protection of labor
unions to ensure… (di ko maintindihan si sir )
 In the case of pure association (case of Gonzales), we
see the interrelationship between speech, association &
assembly.
Gonzales v. Comelec, 27 SCRA 835 (1969)
The Bill of Rights prohibits abridgment by law of
freedom of speech or of the press. It likewise extends the
same protection to the right of the people peaceably to
assemble. As emphatically put In the leading case of
United States vs, Cruikshank (92 U.S. 542), “the very idea
of a government, republican in form, implies a right on the
part of its citizens to meet peaceably for consultation in
respect to public affairs and to petition for redress of
grievances.” As in the case of freedom of expression, this
right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive
evil that Congress has a right to prevent.
The stress on the freedom of association should be
on its political significance. If such a right were non-
existent, the likelihood of a one-party government is more
than a possibility. Authoritarianism may become
unavoidable. Political opposition will simply cease to
exist; minority groups may be outlawed, constitutional
democracy as intended by the Constitution may well
become a thing of the past.
Political parties which, as is ordinarily the case,
assume the role alternately of being in the majority or in
the minority as the will of the electorate dictates, will lose
their constitutional protection. It is undeniable, therefore,
that the utmost scope should be afforded this freedom of
association.
It is indispensable not only for its enhancing the
respect that should be accorded a human personality but
equally so for its assurance that the wishes of any group
to oppose whatever for the moment is the party in power
and with the help of the ‘electorate to set up its own
program of government would not be nullified or
frustrated.
The Constitution limits this particular freedom in the
sense that there could be an abridgment of the right to
form associations or societies when their purposes are
“contrary to law”. How should the limitation “for
purposes not contrary to law” be interpreted? It is
submitted that it is another way of expressing the clear
and present danger rule for unless an association or
society could be shown to create an imminent danger to
public safety, there is no justification for abridging the
right to form associations or societies. (Cf.
Thomas vs. Collins, 323 U.S. 516) As was so aptly stated:
“There is no other course consistent with the Free Society
envisioned by the First Amendment. For the views a
citizen entertains, the beliefs he harbors, the utterances
he makes, the ideology he embraces, and the people he
associates with are no concern to government—until and
unless he moves into action. That article of faith marks
CONSTI 2 [FINALS 2019] Atty. Muyot 13
indeed the main difference between the Free Society
which we espouse and the dictatorships both on the left
and on the right.” (Douglas, op. cit., p. 1376).
The case at bar raised the validity of the prohibition
in Republic Act No. 4880 of the too early nomination of
candidates and limitation found therein on the period of
election campaign or partisan political activity alleged by
petitioners to offend against the rights of free speech,
free press, freedom of assembly and freedom of
association. The prohibition of too early nomination of
candidates presents a question that is not too formidable
in character. According to the act: “It shall be unlawful for
any political party, political committee, or political group
to nominate candidates for any elective public office voted
for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other
elective public office earlier than ninety days immediately
preceding an election.” The right of association is
affected. Political parties have less freedom as to the time
during which they may nominate candidates; the
curtailment is not such, however, as to render
meaningless such a basic right. Their scope of legitimate
activities, save this one, is not unduly narrowed. Neither
is there an infringement of their freedom to assemble.
They can do so, but not for such purpose.
 Party politics
o How will they start?
o Hold parties, conventions or party assemblies
 Prohibitionn -> RA 4880 which took effect on June 17,
1967, prohibiting the too early nomination of candidates
and limiting the period of election campaign or partisan
political activity was challenged on constitutional
grounds. (exerpt from digest)
o In violation of speech, expression, assembly
and association
o WHY?
o What was the justification of Senator Tañada
(amicu curae)?
 Too much politicking
 Early politicking leads to violence
 Election-related violence
o VALID?
o Use STRICT SCRUTINY TEST since speech, assembly &
associotiation
o Do the provisions restrict speech based on its content?
NO. Time, place & manner -> content-neutral
 That being the case, all you have to establish:
- Reasonable
- Least restrictive means
- Will not unduly burden the right
o Why are the provisions unconstitutional even if they
seem to regulate only time, place & manner?
o How did Fernando elevate content-neutral to content-
base?
 If they were restricted only to the campaign
period, what happens now to the political party
as an association?
 What happens to their existence during
campaign period? NONE
 They will be discriminated against when
compared to others who are not parties
 Basically strikes at the right to associate
 Being association prevents them from
exercising their freedom of speech during the
time that is not yet the campaign period
 What about assembly? Is there violation? YES
 HOW?
 They cannot hold conventions and assemblies
 If you are going to wait until campaign period,
probably too late
 Build network by holding these assemblies
where you get adherence
 5 months before election -> not enough
o All the reasons posed by Tañada are all valid and what
the Court was saying: YES, they should be addressed
GALLARDO - LAGMAN - SAN MIGUEL
BUT can they be addressed at the expense of curtailing
preferred rights ->speech & expression and collateral
rights -> association & assembly
o Despite the VALID purpose, means violative of protective
rights
o In the sense also overbroad because without clear
definition of the prohibition resulting to political parties
being dormant for fear of being not registered as
political party
In re Edillon, 84 SCRA 554 (1978)
The first objection posed by the respondent is that
the Court is without power to compel him to become a
member of the Integrated Bar of the Philippines, hence,
Section 1 of the Court Rule is unconstitutional for it
impinges on his constitutional right of freedom to
associate (and not to associate). Our answer is: To compel
a lawyer to be a member of the Integrated Bar is no
violative of his constitution freedom to associate.
Integration does not make a lawyer a member of any
group of which he is not already a member. He became a
member of the Bar when he passed the Bar examinations.
All that integration actually does is to provide an official
national organization for the well-defined but unorganized
and incohesive group of which every lawyer is already a
member. Bar Integration does not compel the lawyer to
associate with anyone. He is free to attend or not attend
the meetings of his Integrated Bar Chapter or vote or
refuse to vote in its elections as he chooses. The only
compulsion to which he is subjected is the payment of
annual dues. The Supreme Court, in order to further the
State’s legitimate interest in elevating the quality of
professional legal services, may require that the cost of
improving the professional in his fashion be shared by the
subjects and beneficiaries of the regulatory program—the
lawyers. Assuming that the questioned provision does in a
sense compel a lawyer to be member of the Integrated
Bar, such compulsion is justified as an exercise of the
police power of the State.
The second issue posed by the respondent is that
the provision of the Court Rule repairing payment of a
membership fee is void. We see nothing in the
Constitution that prohibits the Court, under its
constitutional power and duty to promulgate rules
concerning the admission to the practice of law and the
integration of the Philippine Bar (Article X, Section 5 of
the 1973 Constitution)—which power the respondent
acknowledges—from requiring members of a privileged
class, such as lawyers are, to pay a reasonable fee toward
defraying the expenses of regulation of the profession to
which they belong. It is quite apparent that the fee is
indeed imposed as a regulatory measure, designed to
raise funds for carrying out the objectives and purposes of
integration.
 Edillon: I don’t want to pay IBP membership dues
because that violates my freedom to association ->
argument NOT valid
o IBP association of lawyers
o IBP not just association
o It is a regulatory mechanism of SC
 Fees -> cover the cost of regulation
 What is that regulatory function?
 Compulsory legal aid thru IBP legal aid
offices
 Receives & investigates complaints
 Mandatory Continuing Legal Educ ->
all IBP chapters are supposed to
provide MCLE
 IBP not just an association
 Paying fees = contributing funds for
regulation
 REMEMBER: YOU WILL NEVER WIN AGAINST THE SC! SC
is not always right but it is never wrong! (hmf)
CONSTI 2 [FINALS 2019] Atty. Muyot 14

SSS Employees Association v. CA, 175 SCRA 686 (1989)
The 1987 Constitution, in the Article on Social Justice
and Human Rights, provides that the State “shall
guarantee the rights of all workers to self-organization,
collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in
accordance with law.”
By itself, this provision would seem to recognize the
right of all workers and employees, including those in the
public sector, to strike. But the Constitution itself fails to
expressly confirm this impression, for in the Sub-Article
on the Civil Service Commission, it provides, after defining
the scope of the civil service as “all branches,
subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled
corporations with original charters,” that “[t]he right to
self-organization shall not be denied to government
employees” [Art. IX(B), Sec. 2(1) and (5)]. Parenthetically,
the Bill of Rights also provides that “[t]he right of the
people, including those employed in the public and private
sectors, to form unions, associations, or societies for
purposes not contrary to law shall not abridged” [Art. III,
Sec. 8]. Thus, while there is no question that the
Constitution recognizes the right of government
employees to organize, it is silent as to whether such
recognition also includes the right to strike.
Resort to the intent of the framers of the organic law
becomes helpful in understanding the meaning of these
provisions. A reading of the proceedings of the
Constitutional Commission that drafted the 1987
Constitution would show that in recognizing the right of
government employees to organize, the commissioners
intended to limit the right to the formation of unions or
associations only, without including the right to strike.
It will be recalled that the Industrial Peace Act (R.A.
No. 875), which was repealed by the Labor Code (P.D.
442) in 1974, expressly banned strikes by employees in
the Government, including instrumentalities exercising
governmental functions, but excluding entities entrusted
with proprietary functions.
No similar provision is found in the Labor Code,
although at one time it recognized the right of employees
of government corporations established under the
Corporation Code to organize and bargain collectively and
those in the civil service to “form organizations for
purposes not contrary to law” [Art. 224, before its
amendment by B.P. Blg. 70 in 1980], in the same breath it
provided that “[t]he terms and conditions of employment
of all government employees, including employees of
government owned and controlled corporations, shall be
governed by the Civil Service Law, rules and regulations.”
On June 1, 1987, to implement the constitutional
guarantee of the right of government employees to
organize, the President issued E.O. No. 180 which
provides guidelines for the exercise of the right to
organize of government employees. In Section 14 thereof,
it is provided that “[t]he Civil Service law and rules
governing concerted activities and strikes in the
government service shall be observed, subject to any
legislation that may be enacted by Congress.” The
President was apparently referring to Memorandum
Circular No. 6, s. 1987 of the Civil Service Commission
under date April 21, 1987 which, “prior to the enactment
by Congress of applicable laws concerning strike by
government employees. . . enjoins under pain of
administrative sanctions, all government officers and
employees from staging strikes, demonstrations, mass
leaves, walk-outs and other forms of mass action which
will result in temporary stoppage or disruption of public
service.” The air was thus cleared of the confusion. At
present, in the absence of any legislation allowing
government employees to strike, recognizing their right to
do so, or regulating the exercise of the right, they are
prohibited from striking, by express provision of
GALLARDO - LAGMAN - SAN MIGUEL
Memorandum Circular No. 6 and as implied in E.O. No.
180.
The Court is of the considered view that they are.
Considering that under the 1987 Constitution “[t]he civil
service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government,
including government-owned or controlled corporations
with original charters” [Art. IX (B), Sec. 2(1); see also Sec.
1 of E.O. No. 180 where the employees in the civil service
are denominated as “government employees”] and that
the SSS is one such government-controlled corporation
with an original charter, having been created under R.A.
No. 1161, its employees are part of the civil service
[NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,
1988] and are covered by the Civil Service Commission’s
memorandum prohibiting strikes. This being the case, the
strike staged by the employees of the SSS was illegal.
The general rule in the past and up to the present is
that “the terms and conditions of employment in the
Government, including any political subdivision or
instrumentality thereof are governed by law” (Section 11,
the Industrial Peace Act, R.A. No. 875, as amended and
Article 277, the Labor Code, P.D. No. 442, as
amended). Since the terms and conditions of government
employment are fixed by law, government workers cannot
use the same weapons employed by workers in the
private sector to secure concessions from their
employers. The principle behind labor unionism in private
industry is that industrial peace cannot be secured
through compulsion by law. Relations between private
employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of
wage laws and other labor and welfare legislation, the
terms and conditions of employment in the unionized
private sector are settled through the process of
collective bargaining. In government employment,
however, it is the legislature and, where properly given
delegated power, the administrative heads of government
which fix the terms and conditions of employment. And
this is effected through statutes or administrative
circulars, rules, and regulations, not through collective
bargaining agreements.
Government employees may, therefore, through
their unions or associations, either petition the Congress
for the betterment of the terms and conditions of
employment which are within the ambit of legislation or
negotiate with the appropriate government agencies for
the improvement of those which are not fixed by law. If
there be any unresolved grievances, the dispute may be
referred to the Public Sector Labor-Management Council
for appropriate action. But employees in the civil service
may not resort to strikes, walkouts and other temporary
work stoppages, like workers in the private sector, to
pressure the Government to accede to their demands. As
now provided under Sec. 4, Rule III of the Rules and
Regulations to Govern the Exercise of the Right of
Government-Employees to Self-Organization, which took
effect after the instant dispute arose, “[t]he terms and
conditions of employment in the government, including
any political subdivision or intrumentality thereof and
government-owned and controlled corporations with
original charters are governed by law and employees
therein shall not strike for the purpose of securing
changes thereof.”
 Issue: W/N the employees of SSS has the right to srike
o Is the right to strike an independent right? NO!
o It is something that flows out of the right to
organize a union
o SSS employees may organize a union because
they may collectively bargain on matters
relating to terms & conditions, benefits, etc.
EXCEPT those provided for by law
 Salaries, SSL, performance bonuses,
CS standards
CONSTI 2 [FINALS 2019] Atty. Muyot 15
  But they can bargain on many things
-> additional leaves (ex: bday leaves,
etc), employees shuttle bus, flexible
hrs.
o The only way you can get the management
agree with you is thru compulsion -> STRIKE
o Can you strike in order to force the
management to agree? NO
 SSS- gov’t employees
 Does it make sense, you have right to
organize but you cannot use
compulsion?
 Gov’t services will be disrupted
 Remember, PUBLIC OFFICE IS A PUBLIC
TRUST
 EMPLOYEES OF GOV’T CANNOT STRIKE
 What can they do? YOU CAN EXERCISE
YOUR RIGHT TO PEACEABLY ASSEMBLE
(meaning: you cannot strike but every
lunch break you can rally ->within you
right & does not disrupt gov’t service
OR get other people to rally for you)
 If strike will lead to disruption of gov’t
service -> NOT ALLOWED
Contracts:
Under the Constitution contracts are protected
The law says:
Article III, Section 10: No law impairing the
obligations of contracts shall be passed.
Why is that so?
This is actually came from the U.S. – in capitalist
system, contracts are very important because they
constitute the law between the parties.
What is the basic presumption involving the law of
contracts as the binding law between the parties?
2 things:
(1) The ability to give consent;
(2) There is a binding power – when they negotiate
for contracts, they proceed in a position of parity
and inequality

Boy Scouts of America v. Dale, 530 U.S. 640 (2000) But we know very well in the Philippines, such is not
necessarily the case. There is a big imbalance in the
 WHY DO YOU ASSOCIATE? To promote values
 Right to Associate applies to BOTH individuals and
power.
associations themselves
 Issue: W/N the right of Boy Scouts of America will be That’s why contracts, while it’s the law between the
violated if they will be compelled to retain Dale parties, it’s oftentimes tempered by the external
o W/N the BSA’s act of expelling Dale for being an
legal environment.
advocate of gay rights violates the Constitution
 It has something to do with the action of the association
and whether the association can be compelled to reverse Whereas in the U.S. they follow the system of laissez
the action faire, where everyone can negotiate on its own. It’s
 How will you overcome the public accommodation laws? a matter of free will.
o 1st determine if it is really a restriction on the
right to association -> ACTUALLY IT’S NOT
 What is public accommodation law? In the Philippines, our Constitution, is founded on the
o Law that prohibits discrimination in services, doctrine of social justice. Premise on the equality of
transpo, accommodation, food, etc persons and hence, indeed for the State through law
o Ist that applicable here? No to address the inequality. Those who have less in life
o Nature of BSA -> not rending public service in
the context of public accommodation.
could have more in law.
o Constitution -> APPLICABLE, not the pub assoc
law That’s problematic for us. In the sense that in the
o Would the BSA be in violative of the Constitution, it’s explicitly stated that no law shall be
Constitution for expelling Dale? NO passed abridging the obligations of contracts.
o WHY?
 Purpose of association -> promote We are supposed to honor contracts.
certain values
 Such being the case, the association What we make now of provisions in a contracts and
may not be compelled to accept or how do we look at intervention by State.
retain those who do not share those
values
 Hence, we now have to find out if Dale We start by using as example the case of Ortigas.
and BSA share the same values
 What are they promoting? Protype ->
heterosexual male
 Can they be compelled to promote
homosexuality among men? THAT
CANNOT BE DONE
 Retaing Dale will force BSA to dilute
their values that they are promoting
 Advocacy of Dale and BSA =
inconsistent
 Can they validly tell Date not to promote gay rights
within the BSA? YES
 Can they tell Dale if you advocate gay rights, please
don’t tell people that you are a scout master? YES

Non-impairment of Contracts

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 16

Ortigas & Co. v. CA, 346 SCRA 748 (2000)
A later law which enlarges, abridges, or in any manner
changes the intent of the parties to the contract
necessarily impairs the contract itself and cannot be given
retroactive effect without violating the constitutional
prohibition against impairment of contracts.
A law enacted in the exercise of police power to regulate
or govern certain activities or transactions could be given
retroactive effect and may reasonably impair vested
rights or contracts—police power legislation is applicable
not only to future contracts, but equally to those already
in existence
Restrictions in a contract of sale limiting all constructions
on the subject lot to single-family residential buildings
deemed extinguished by the retroactive operation of a
zoning ordinance reclassifying the area as a commercial
zone
What is the contract?
- A contract of sale.
What does the contract provide?
- With deed of restrictions – it restricts the use of property
What does the contract says?
- Property be used for residential purposes only
The contract of sale provided that the lot:
1. be used exclusively . . . for residential purposes only, and
not more than one single-family residential building will be
constructed thereon, . . .
xxx
6. The BUYER shall not erect. . . any sign or billboard on the
roof . . . for advertising purposes . . .
xxx
11. No single-family residential building shall be erected . . .
until the building plans, specification . . . have been approved
by the SELLER . . .
xxx
14. . . . restrictions shall run with the land and shall be
construed as real covenants until December 31, 2025 when
they shall cease and terminate . . .1
That makes sense because at the time the property is being
divided, it was residential in nature-
Ortigas property which became the Greenhills
Greenhills @ San Juan, Mandaluyong
Ortigas estate is so big it stretches from the Pasig river in
Mandaluyong all the way down to the Greenhills area
When this was subdivided,
What was the biggest attraction in that area?
- Golf course. Wack wack golf course (occupies several
hectares of land)
Greenhills shopping area in late 60s-early 70s only
Before, there were only the subdivisions golf course and
schools.
Who were the ones in the area? Filipino-Chinese (Xavier)
Ideal township for the rich. 
But if you have been to that area, Ortigas connects EDSA to
QC
What used to be just purely residential, very important
passage way to going to the northern side of Metro Manila
What is brought about by the vehicular and pedestrian traffic?
Commercial activity.
Everyone starts to put these shops along Ortigas avenue.
GALLARDO - LAGMAN - SAN MIGUEL
Here comes the person who sees the opportunity. 
Ideal place for commercial building.
What did he find out when he bought the property?
- He applies to build, Ortigas & Co. opposed the construction
of the commercial building.
May Ortigas & Co. can do so?
- Yes. That’s the law between the parties. And the original
buyer and all the successors and interests of the original
buyer. That’s the law between the parties
Under the Civil Code
- contracts bind the parties thereto.
Under the Constitution
- the State to supposed to respect contracts.
Does Ortigas & Co. has basis to oppose the construction for
commercial building?
- Yes. Because that is the law between Ortigas and buyer and
successors and interests of the buyer.
Will a parties to a contract create their own law? And is that
valid?
- Yes, it is valid.
But here is the problem of the buyer, does it make sense for
the buyer to just use it as residential?
- No, because all of the neighbors are now commercial.
He has to find a way wherein despite the provision in the
Deed of Restrictions, he can go on and build a commercial
building.
Because if you will just go by the contract, the Ortigas & Co.
stop here from constructing. Yes, because that is what’s
provided in the contract.
But as we pointed out, although that is the law between the
parties, that will still be considered in the context of the larger
legal environment.
For instance, this is the contract that would have to be
considered in the context of a larger legal environment.
Can we now look at the contract in isolation?
That’s the theory of Ortigas and Co.
-Let’s keep ourselves what is in the contract because that is
what the Civil Code says
May the buyer go beyond the contract? Why?
- Yes.
What is the legal basis for going beyond the contract?
Who may invoke police power?
- State
What did the buyer do?
- It transformed the conflict between the parties to the
contract to a conflict between the State and Ortigas & Co.
But how do you bring it out from a contract?
- By transforming the dispute/ conflict between the individual
corporation and State
And how do you do that? (where there’s a provision in the
Constitution where it says you cannot abridge obligations of
contracts)
- Is there anything in the Constitution that police power
defeats contracts? None
How can you now get the police power to defeat the
obligations and contracts?
How can you put police power in the picture?
CONSTI 2 [FINALS 2019] Atty. Muyot 17

Does it have to be stated in the Constitution?
- No. It is an inherent power of the State.
- Theory of Social Contract. Why do you even contract in the
first place?
- Even if there’s a contract between 2 parties, there’s a larger
contract between and among the body
We have to recategorize the right that is being ascertained
In this case, whose right is being ascertained?
- Ortigas & Co’s
- Property right
If it’s a property right, where in the hierarchy?
- Down
So when the State exercises police power thru the enactment
of an ordinance that re-zones the area, what happens to the
right ascertained by the Ortigas?
- None
Under the rational basis test, establish lawful purpose and
means
- Lawful purpose for the ordinance: economic development
- Lawful means: reclassification
Lawful because within the power of the local government
Is there a rational connection between means and purpose?
- Yes. End of story.
The buyer only benefits from the clash between the assertion
of right, that’s why it’s prohibiting the buyer from
constructing and the exercise of police power which is
brought in by the buyer.
- In that assertion of police power by the State, ultimately
benefits the buyer.
Can you still insist that the area would be residential?
- No
- If that is - by a local government - as a growth area, it will
really open up to commercial activity
What is another benefit of the local government when
reclassified as commercial?
- Taxes
- Higher rate of real property taxes
Can the owner say, let’s stop the hand of time and keep it as
residential?
- No
- Because you have to think for the greatest good for the
greatest number
- What is the greatest good for the greatest number? To keep
it as an end play for the rich or promote it as a commercial
activity?
- In fact, who benefited from the reclassification? It was also
the rich who sold the properties to those who wanted to set
up the businesses
- All they have to do is buy a townhouse in BGC. Move to
Ortigas. Buy a house in Dasmariñas Village/ Forbes Park
Contract cannot be used for such purpose- property right
(legal framework of analysis the property right being low in
the hierarchy) - exercise of police power by State
When is something considered as a contract?
- Oposa Case
GALLARDO - LAGMAN - SAN MIGUEL
Oposa v. Factoran, G.R.101083, July 30, 1993
A timber license is not a contract, property or a property
right protected by the due process clause of the
Constitution.
The granting of license does not create irrevocable rights,
neither is it property or property rights.
Timber licenses are not contracts, the non-impairment
clause cannot be invoked.
The non-impairment clause must yield to the police power
of the state
What is the argument of the Secretary of DENR?
- No cause of action because it will violate the Constitution if
Oposa asks to revoke the agreements
Why?
- Constitution says non-impairment of obligations of contracts
So what are contracts?
Is a Timber License Agreement a contract?
- No
Why is it not a contract?
But it is still an agreement, signed by 2 parties and payment
of license fee
- How is it not considered a contract?
- What must be the object of an agreement?
- Was it something within the commerce of men?
- No. Those trees are resources
- And all that can be done, is forestry to allow the privilege of
exploiting the resources
Who owns these resources?
- People. State.
Are these resources for sale?
- No
- But privilege can be given to exploit and harvest these
resources
On what premise?
- That their income can be generated, they can be plowed
back for services to the people.
That’s why there’s a big debate on this.
What is the greater benefit for the people? Is it the income or
is it the preservation of resources?
For instance, Kaliwa Dam. That is also in the nature of
exploitation of resources – given to the operator of the dam
- Would generate income whether in the form of government,
corporation/ private-corporation.
- But it is a privilege.
Such being the case, can it be revoked by the State?
- Yes.
- That’s why the Secretary was correct in saying we are
already bound by this. Hence, there’s nothing we can do.
Hence, there’s no cause of action.
Court: It’s a privilege and any time it can be revoke by the
State.
If the State suddenly declares no more logging will be allowed
because of the damage to the environment. Because it affects
also the climate change. More floods, no watersheds.
Can the State suddenly do that? Yes.
CONSTI 2 [FINALS 2019] Atty. Muyot 18
May the TLA holders go to Court and say that’s a breach of
contract. No.
We have a justice system.
Because at the very start, they are not considered as
We have to understand that this works through courts.
contracts.
Hence, the entry point is being able to access the courts.
-end-
What does the Constitution says?
- Article III, Section 11: Free access to the
courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any
person by reason of poverty.

Access to Courts

Acar v. Rosal, G.R. No. L-21707, March 18, 1967

The Constitution should be interpreted with a view to

realizing its fundamental objective of protecting and
enhancing the people’s interest, as a nation collectively
and as persons individually.

The right to sue in forma pauperis should be broadly

interpreted. An applicant for leave to litigate in forma
pauperis need not be literally a pauper. The fact that he is
able-bodied and may earn the necessary money is no
answer to his statement that he has no sufficient means
to prosecute the action or to secure the costs. It suffices
that the plaintiff is indigent, though not a public charge.

Indigent persons are those who have no property or

source of income sufficient for their support aside from
their own labor, though self-supporting when able to work
and in employment. The term “pauper” refers to this
sense of being indigent, when it refers to suits in forma
pauperis. A pauper is a person so poor that he must be
supported at public expense; also a suitor who, on
account of poverty, is allowed to or defend without being
chargeable with costs.

Here is a group of farmers, they go to Court and file a case

because they have a monetary claim and the Court will not
docket their complaint because they did not pay their filing
fees.

What is the reason for the court not docketing their

complaint?
- Because they are not considered as pauper litigants

Who are paupers?

- They are wards of the State. They have to be completely
dependent on the State.

Are the farmers here ward of the State?

- Obviously they are not

Who are wards of the State?

- Example: people in DSWD centers who are directly
supported by State

Are the squatters wards of the State?

- No. In the absence of housing program for them, they are
not considered wards of the State

Are the farmers here wards of the State?

- They are not. Hence, the Court said: pay the filing fees!

How much is the filing fee?

- P14,500

Trial court says: but you are 9,000

So, the filing fees will be P1.60/ person

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 19

- Of course, impossible to recollect the filing fees - It will just be charged against the Court
Because the cost of getting the share for each one is actually
more than P1.60 per person. This case is very very important because it changed the
system because based on US system – pauper litigants
But that was just a strict interpretation of the Rules of Court
So no one effectively will be deprived of access of courts
How did the Court resolved the apparent conflict between the
Rules of Court and the Constitution? How do you prove indigency?
- Certificate that you don’t have any income/ property
Consti – they have the right to access
ROC – they have to pay the filing fees Where do you get the certificate?
- From the Barangay/ Municipal Treasurer
SC – apply the indigency test, not the pauper test.
-end-
What does indigency means?
- Those who have no income/ property

But if they win, what happens to the filing fees?

We now go to the stages in the criminal cases. investigation where the suspect is given the opportunity to
We are going to consider the usual cases. submit his own counter-affidavits and of those of his
Even if in ROC it says that there should be warrant of witnesses
arrests, in reality, most arrests are without a warrant. - But it became a habit of police already.
- Under the law, who is liable in case the filed is not within
1. Arrest without a warrant 12-18-36 hours? The police, not the prosecutor.
- What are the instances where there can be an arrest - if enough evidence -> prosecutor files the case
without a warrant?
(1) in his presence 4. Filing the information (optional)
(2) crimes has been committed by person has personal - Can a private complainant file? No.
knowledge of such - Because filed in the name of the State: People
(3) escapee from prison facility. - Crime against public order/ interest. That’s why it’s filed
Why? Because you have already been lawfully put in that in behalf of the people
facility. So there’s no more question as to the legality of - Optional because in most cases, the arrest has already
your detention been done without a warrant. The person is already in
detention.
2. Custodial investigation
- Police questions the suspect and gets his statement
- Suspect to confess that he indeed committed a crime
- Side not: To a large extent, cases filed in Philippines are
not based on evidence other than the extra judicial
confession of the suspect. Of course, what happens when
that extra judicial confession is inadmissible? No more
evidence. That’s the problem faced by the police. Cases
dismissed either evidences are fruit of poison tree, hence
inadmissible or those vitiated consent in the submission of
confession.
- On the assumption that evidences are gathered 
inquest

3. Inquest (or preliminary investigation)

- Who does the inquest? The prosecutor
- What does the prosecutor do during the inquest?
- What is the legal output of the inquest/preliminary
investigation?
- The fiscal must not determine if he has committed the
crime, that’s for the court.
- Only determines if based on the evidence presented by
the police, there is: prima facie case
- From the custodial investigation, we make out the
elements of the crime – no crime, can’t proceed anymore
- (1) from the evidence gathered, existence of crime
- (2) identity of the perpetrator, because you have to
charge someone. Because the court has to assume
jurisdiction over someone.
- What is the period of inquest to complete that
determination? Under Art 125 – 12, 18, 36 hours
- Humanly possible? Well, not all the time.
- That’s why what does the police do? It asks the suspect
to sign a waiver in case they conduct a preliminary

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 20

5. Application for bail
- What is bail? Security to ensure the appearance of the
person
- What is the best way to ensure that you attend the
hearing? Put him in jail.
- Under our Constitution, it’s a matter of right. Except in
cases where the punishment for the crime is higher, and
the prosecutor was able to show the evidence of guilt
- Security to take the place of your detention to ensure
attendance in the hearing.
- It takes a long time… for arraignment ->
6. Arraignment
- What does the Court do in arraignment?
- Read the complaint
- Inform the accused of charges against him
- He is asked to enter his plea
3 kinds of pleas:
(1) guilty
(2) not guilty
(3) silence
- If you say nothing, the Court will enter your plea. What
will the Court enter as your plea? Not guilty. Presumed to
be innocent.
- Oftentimes, does the accused enter a plea? No.
- Why will the accuse want to enter a plea of guilty? It’s a
mitigating circumstance (voluntary surrender)
- Sometimes, the accused will also want to plea bargain
(lesser offense e.g. murder enter a plea for homicide)
7. Trial
- Who presents evidence? It’s always the prosecutor who
presents evidence first
- E.g. case of Junjun Binay in Sandiganbayan and Jinggoy
Estrada’s case – After the prosecutor presented evidence,
they asked the Court to file a demurer of evidence
because they think the evidence was insufficient
- No need to present evidence for the defense
- Demurer of evidence discussed in civil procedure
- Accused will present evidence, then the case will be
submitted ->
8. Case submitted
9. Judgment
Under the law, how many days does the Court need to
decide? Constitution- Art VIII, Sec 15
(1) All cases or matters filed after the effectivity of
this Constitution must be decided or resolved
within twenty-four months from date of submission
for the Supreme Court, and, unless reduced by the
Supreme Court, twelve-months for all lower
collegiate courts, and three months for all other
lower courts.
- Trial Court: judgment rendered within 90 days from time
submitted for decision (3 months)
GALLARDO - LAGMAN - SAN MIGUEL
Custodial Investigation
- Rights of the accused during custodial investigation? (11)
- Mahinay + Rights under Anti-torture law
People v. Mahinay, 302 SCRA 544 (1999)
Miranda Rights; Procedure, Guidelines and duties to be
done and observed by the arresting, detaining, inviting, or
investigating officer or his companions at the time of
making an arrest, at and during custodial interrogation.
Considering the heavy penalty of death and in order to
ensure that the evidence against an accused were
obtained through lawful means, the Court, as guardian of
the rights of the people lays down the procedure,
guidelines and duties which the arresting, detaining,
inviting, or investigating officer or his companions must
do and observe at the time of making an arrest and again
at and during the time of the custodial interrogation in
accordance with the Constitution, jurisprudence and
Republic Act No. 7438: It is high-time to educate our law-
enforcement agencies who neglect either by ignorance or
indifference the so-called Miranda rights which had
become insufficient and which the Court must update in
the light of new legal developments: (11 enumerated )
- Rights of the accused during custodial investigation:
1. Right to be informed why you are being arrested
2. Right to remain silent
3. Right to counsel
4. He must be informed that if he has no lawyer or
cannot afford the services of a lawyer, one will be
provided for him
5. That whether or not the person arrested has a
lawyer, he must be informed that no custodial
investigation in any form shall be conducted
except in the presence of his counsel or after a
valid waiver has been made
6. The person arrested must be informed that, at any
time, he has the right to communicate or confer
by the most expedient means
7. Can waive rights but must be in writing and
assistance by counsel
8. If you waive rights, must be in assistance of the
lawyer
9. Even if you have waived right, can you choose to
exercise rights again? Yes.
10. The person arrested must be informed that his
initial waiver of his right to remain silent, the right
to counsel or any of his rights does not bar him
from invoking it at any time during the process,
regardless of whether he may have answered
some questions or volunteered some statements;
11. He must also be informed that any statement or
evidence, as the case may be, obtained in
violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part,
shall be inadmissible in evidence.
12. Anti-Torture Law: Right not to be tortured; Right to
ask for medical examination and later compel the
doctor to testify
CONSTI 2 [FINALS 2019] Atty. Muyot 21
 (From the case)
1. The person arrested, detained, invited or under
custodial investigation must be informed in a
language known to and understood by him of the
reason for the arrest and he must be shown the
warrant of arrest, if any. Every other warnings,
information or communication must be in a
language known to and understood by said
person.
2. He must e warned that he has a right to remain
silent and that any statement he makes may be
used as evidence against him.
3. He must be informed that he has the right to be
assisted at all times and have the presence of an
independent and competent lawyer, preferably
of his own choice;
4. He must be informed that if he has no lawyer or
cannot afford the services of a lawyer, one will
be provided for him; and that a lawyer may also
be engaged by any person in his behalf, or may
be appointed by the court upon petition of the
person arrested or one acting in his behalf;
5. That whether or not the person arrested has a
lawyer, he must be informed that no custodial
investigation in any form shall be conducted
except in the presence of his counsel or after a
valid waiver has been made
6. The person arrested must be informed that, at any
time, he has the right to communicate or confer
by the most expedient means—telephone, radio,
letter or messenger—with his lawyer (either
retained or appointed), any member of his
immediate family, or any medical doctor, priest
or minister chosen by him or by any one from his
immediate family or by his counsel, or be visited
Republic Act No. 7438             April 27, 1992
AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED,
DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS
THE DUTIES OF THE ARRESTING, DETAINING AND
INVESTIGATING OFFICERS, AND PROVIDING PENALTIES FOR
VIOLATIONS THEREOF
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled::
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.
Section 2. Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers.–
(a) Any person arrested detained or under custodial
investigation shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting 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 understood by him, of his
rights to remain silent and to have competent and
independent counsel, preferably of his own choice, who shall
at all times be allowed to confer privately with the person
arrested, detained or under custodial investigation. If such
person cannot afford the services of his own counsel, he
must be provided with a competent and independent counsel
by the investigating officer.lawphi1Ÿ
(c) The custodial investigation report shall be reduced to
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 write, it shall be
read and adequately explained to him by his counsel or by
GALLARDO - LAGMAN - SAN MIGUEL
by/confer with duly accredited national or
international non-government organization. It
shall be the responsibility of the officer to ensure
that this is accomplished
7. He must be informed that he has the right to
waive any of said rights provided it is made
voluntarily, knowingly and intelligently and
ensure that he understood the same;
8. In addition, if the person arrested waives his right
to a lawyer, he must be informed that it must be
done in writing and in the presence of counsel,
otherwise, he must be warned that the waiver is
void even if he insist on his waiver and chooses
to speak;
9. That the person arrested must be informed that he
may indicate in any manner at any time or stage
of the process that he does not wish to be
questioned with warning that once he makes
such indication, the police may not interrogate
him if the same had not yet commenced, or the
interrogation must cease if it has already begun;
10. The person arrested must be informed that his
initial waiver of his right to remain silent, the
right to counsel or any of his rights does not bar
him from invoking it at any time during the
process, regardless of whether he may have
answered some questions or volunteered some
statements;
11. He must also be informed that any statement or
evidence, as the case may be, obtained in
violation of any of the foregoing, whether
inculpatory or exculpatory, in whole or in part,
shall be inadmissible in evidence.
the assisting counsel provided by the investigating officer in
the language or dialect known to such arrested or detained
person, otherwise, such investigation report shall be null and
void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing
and signed by such person in the presence of his counsel or
in the latter's absence, upon a valid waiver, and in the
presence of any of the parents, elder brothers and sisters,
his spouse, the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel as
chosen by him; otherwise, such extrajudicial confession shall
be inadmissible as evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the
provisions of Article 125 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 effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences with
any member of his immediate family, or any medical doctor
or priest or religious minister chosen by him or by any
member of his immediate family or by his counsel, or by any
national non-governmental organization duly 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 "immediate family" shall
include his or her spouse, fiancé or fiancée, parent or child,
brother or sister, grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.
As used in this Act, "custodial investigation" shall include the practice
of issuing an "invitation" to a person who is investigated in connection
CONSTI 2 [FINALS 2019] Atty. Muyot 22
with an offense he is suspected to have committed, without prejudice
to the liability of the "inviting" officer for any violation of law.
Section 3. Assisting Counsel. – Assisting counsel is any lawyer,
except those directly affected by the case, those charged with
conducting preliminary investigation or those charged with the
prosecution of crimes.
The assisting counsel other than the government lawyers shall be
entitled to the following fees;
(a) The amount of One hundred fifty pesos (P150.00) if the
suspected person is chargeable with light
felonies;lawphi1©alf
(b) The amount of Two hundred fifty pesos (P250.00) if the
suspected person is chargeable with less grave or grave
felonies;
(c) The amount of Three hundred fifty pesos (P350.00) if the
suspected person is chargeable with a capital offense.
The fee for the assisting counsel shall be paid by the city or
municipality where the custodial investigation is conducted,
provided that if the municipality of city cannot pay such fee,
the province comprising such municipality or city shall pay
the fee: Provided, That the Municipal or City Treasurer must
certify that no funds are available to pay the fees of assisting
counsel before the province pays said fees.
In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article 125 of
the Revised Penal Code.
Section 4. Penalty Clause. – (a) Any arresting public officer or
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 counsel
preferably of his own choice, shall suffer a fine of Six thousand pesos
(P6,000.00) or a penalty of imprisonment of not less than eight (8)
years but not more than ten (10) years, or both. The penalty of
perpetual absolute disqualification shall also be imposed upon the
investigating officer who has been previously convicted of a similar
offense.
The same penalties shall be imposed upon a public officer or
employee, or anyone acting upon orders of such
investigating officer or in his place, who fails to provide a
competent and independent counsel to a person arrested,
detained or under custodial investigation for the commission
of an offense if the latter cannot afford the services of his
own counsel.
(b) Any person who obstructs, prevents or prohibits any
lawyer, any member of the immediate family of a person
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 his counsel,
from visiting and conferring privately with him, or from
examining and treating him, or from ministering to his
spiritual needs, at any hour of the day or, in urgent cases, of
the night shall suffer the penalty of imprisonment of not less
than four (4) years nor more than six (6) years, and a fine of
four thousand pesos (P4,000.00).lawphi1©
Right to Bail
- Bail is a security that is posted by the accused AFTER
THE COURT has acquired jurisdiction over his/her person.
- Purpose of ensuring attendance in the hearing of the
court
Paderanga v. CA, 247 SCRA 741 (1995)
Section 1 of Rule 114, as amended, defines bail as the
security given for the release of a person in custody of the
GALLARDO - LAGMAN - SAN MIGUEL
The provisions of the above Section notwithstanding, any security
officer with custodial responsibility over any detainee or prisoner may
undertake such reasonable measures as may be necessary to 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.lawphi1Ÿ
People v. Del Rosario, G.R. No. 131036, June 20, 2001
A confession to be admissible must be:
(1) express and categorical;
(2) given voluntarily, and intelligently where the accused realizes
the legal significance of his act;
(3) with assistance of competent and independent counsel;
(4) in writing, and in the language known to and understood by
the confessant; and
(5) signed, or if the confessant does not know how to read and
write, thumbmarked by him.
As an officer of the court, a lawyer has in his favor the
presumption of regularity in the performance of his sworn duties
and responsibilities.
What were their allegations?
- He was claiming that his extra-judicial confession during
the custodial investigation is inadmissible because it was
thru torture
- Why is it difficult to establish the claim of torture? (even
with the Anti-torture law)
- Who has the burden of establishing the torture? The
accused
- And where was the accused during this time? He’s
detained.
- Although he has the right to ask for medical examination,
who is he going to ask?
- But what was the legal difficulty that’s why torture was
not shown in this case? The Court said he has not
overcome the presumption of regularity in the
performance of official functions.
- There’s already the presumption, not only he has to
prove torture, but also to overcome the presumption of
regularity in the performance of function
- The Court said he was not able to prove because in his
extra judicial confession, what did he say? That he asked
to be brought to the police station because he was
stricken with his conscience (of course which is not true).
- What is the normal reaction of someone who has
committed a crime even though stricken with conscience?
To flee.
law, furnished by him or a bondsman, conditioned upon
his appearing before any court as required under the
conditions specified in said Rule. Its main purpose, then,
is to relieve an accused from the rigors of imprisonment
until his conviction and yet secure his appearance at the
trial. As bail is intended to obtain or secure one’s
provisional liberty, the same cannot be posted before
custody over him has been acquired by the judicial
authorities, either by his lawful arrest or voluntary
surrender. As this Court has put it in a case, “it would be
incongruous to grant bail to one who is free.”
CONSTI 2 [FINALS 2019] Atty. Muyot 23

The rationale for the rule is that it discourages and
prevents resort to the former pernicious practice whereby
an accused could just send another in his stead to post his
bail, without recognizing the jurisdiction of the court by
his personal appearance therein and compliance with the
requirements therefor.
On the other hand, a person is considered to be in the
custody of the law:
(a) when he is arrested either by virtue of a warrant of
arrest issued pursuant to Section 6, Rule 112, or by
warrantless arrest under Section 5, Rule 113 in relation to
Section 7, Rule 112 of the revised Rules on Criminal
Procedure, or
(b) when he has voluntarily submitted himself to the
jurisdiction of the court by surrendering to the proper
authorities.
Section 13, Article III of the Constitution lays down the
rule that before conviction, all indictees shall be allowed
bail, except only those charged with offenses punishable
by reclusion perpetua when the evidence of guilt is
strong. In pursuance thereof, Section 4 of Rule 114, as
amended, now provides that all persons in custody shall,
before conviction by a regional trial court of an offense
not punishable by death, reclusion perpetua or life
imprisonment, be admitted to bail as a matter of right.
The right to bail, which may be waived considering its
personal nature and which, to repeat, arises from the time
one is placed in the custody of the law, springs from the
presumption of innocence accorded every accused upon
whom should not be inflicted incarceration at the outset
since after trial he would be entitled to acquittal, unless
his guilt be established beyond reasonable doubt.
But why in this case he was allowed by Court?
- Why did the Court consider his putting himself under the
custody of IBP as constructive custody?
- Why is that material?
- Because they are officers of the court. Lawyers are officers
of the court.
- Hence, when he put himself under the custody of the
national organization of lawyers, basically it would mean
under custody of officers of court
TC: Refused him to allow post bail.
- Can only post bail if you are deprived of liberty because
either warrant has been served upon you or voluntarily
presented himself
- Constructive custody – when you put yourself under the
custody of someone/ some institution that is deemed to be an
extension
- Because of the case of Paderanga, it became basis for whole
new genre of kinds of detention
- GMA’s famous hospital arrest @ Veterans- govt hospital
- ERAP’s rest house arrest @ own rest house- Tanay, Rizal
Why was that allowed by court? (ERAP) Under 24 hr
surveillance
Other kinds of detention:
- Confined to quarters
Padaranga - Significant case because somehow defines the
very logic behind bail and detention.
Side note: Famous Enrile’s case because of humanitarian
reasons

When does the court acquire the jurisdiction over the person
of the accused? (Paderanga vs CA case)
(1) When he is arrested by virtue of warrant of arrest, or
(2) When he is not arrested yet when the warrant of arrest is
already issued and he is apprehended

When he is already arrested, when does the Court acquire

jurisdiction over his person?
- This is important to determine when to post bail (Paderanga
case)
- When he is charged of a crime.
Before that he is detained because of the arrest without a
warrant
But once he is charged with a crime, the court can now
acquire jurisdiction over his person.

The court was faced with the problem before, even before
they are arrested they already send their lawyers to post bail.
Court has consistently disallowed that.

Why was it in the case of Paderanga, the Court allowed the

bail even if Mayor Paderanga had not been apprehended, not
served with warrant, nor he voluntarily presented himself to
the Court?
- Court held there was constructive custody
- Nature of hospital: is it public/ private?
- Cagayan Capitol College General Hospital – government
hospital?

Why was he allowed by Court to post bail even if the warrant

has not been served upon him nor he voluntarily surrender
himself in court?
- why was he in the hospital? Acute costochondritis
- what is costochondritis? Chest pain
- Acute; only a symptom
- Court held that you cannot post bail in anticipation of a
warrant of arrest

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 24

People v. Donato, 198 SCRA 130 (1991)
We agree with the respondent court that bail cannot be
denied to the private respondent for he is charged with
the crime of rebellion as defined in Article 134 of the
Revised Penal Code to which is attached the penalty
of prision mayor and a fine not exceeding P20,000.00. It
is, therefore, a bailable offense under Section 13 of Article
III of the 1987 Constitution.
Before conviction bail is either a matter of right or of
discretion; When a matter of right and a matter of
discretion. It is a matter of right when the offense charged
is punishable by any penalty lower than reclusion
perpetua. To that extent the right is absolute. Upon the
other hand, if the offense charged is punishable
by reclusion perpetuabail becomes a matter of discretion.
It shall be denied if the evidence of guilt is strong. The
court’s discretion is limited to determining whether or not
evidence of guilt is strong. But once it is determined that
the evidence of guilt is not strong, bail also becomes a
matter of right.
Right to bail shall not be impaired even when the privilege
of the writ of habeas corpus is suspended.
Rights of the Accused
- Rights of the accused:
1. Presumed innocent until proven guilty with proof
beyond reasonable doubt
- When does the presumption ends? Does that end when
there’s a final judgment?
2. Right to be informed
- Information must allege the crime under the law (specific
crime)
3. Right to have a competent counsel
4. Right to present evidence and compel witnesses to
testify
5. Right to cross-examine
6. Right against self-incrimination (note: next meeting 3
parts of process where you can apply the right)
- right to remain silent; right not to attend hearing; right to
invoke it when the question is asked

Prosecution does not have the right to present evidence
for the denial of bail in the instances where bail is a
matter of right, such is required only where the grant of
bail is discretionary.
The guidelines for the fixing of the amount of bail
provided for in Section 10 of Rule 114 of the Rules of
Court are not matters left entirely to the discretion of the
court; Guidelines in the fixing of a bailbond
What happens when there’s a change in law?
Judge Donato
- Accused was charged with Rebellion
- When the case was filed, the penalty for rebellion was:
reclusion perpetua
But, why was he granted bail?
- Because of EO 187 (lower penalty)
- During Martial Law, the penalty was high. After ML, the
penalty went low. After that, it went high again.
- He was charged when the penalty was high.
Art III, Section 14:
(1) No person shall be held to answer for a criminal
offense without due process of law.
(2) In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy,
impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to
secure the attendance of witnesses and the
production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the
absence of the accused: Provided, that he has been
duly notified and his failure to appear is
unjustifiable.

What was the general rule?

- Bail should be fixed at the time of commission of the
crime.
- Rule in criminal law

Why were they allowed to post bail even if at the time

they committed the crime, the penalty was high?
- RPC provides for the retroactive application of the laws
- When there’s a change in the law that benefits the
accused, what happens? Can be applied retroactively.

In this case, the retroactive application resulted in their

being allowed to post bail.

Example: Robin Padilla case

Revilla Sr passed amendment for Firearms to lower
penalty.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 25

People v. Calma, 295 SCRA 629 (1998)
The law presumes that an accused is innocent and this
presumption stands until it is overturned by competent
and credible proof.
Surmises and conjectures have no place in a judicial
inquiry and are especially anathema in a criminal
prosecution; A reasonable doubt is that state of the case
which, after the entire comparison and consideration of all
the evidence leaves the mind of the judge in that
condition that he cannot say that he feels an abiding
conviction to a moral certainty of the truth of the charge.
A reasonable doubt is not such a doubt as any man
may start by questioning for the sake of a doubt; nor a
doubt suggested or surmised without foundation in facts
or testimony, for it is possible always to question any
conclusion derived from testimony, but such questioning
is not what is reasonable doubt. Rather, it is that state of
the case which, after the entire comparison and
consideration of all the evidence leaves the mind of the
judge in that condition that he cannot say that he feels an
abiding conviction to a moral certainty of the truth of the
charge. Absolute certainty is not demanded by the law to
convict of any criminal charge but moral certainty is
required, and this certainty must attend every proposition
of proof requisite to constitute the offense. Absolute,
mathematical, or metaphysical certainty is not essential,
and besides, in judicial investigation, it is wholly
unattainable. Moral certainty is all that can be required.
The presence or absence of spermatozoa in the vagina is
not determinative of the commission of rape because a
sperm test is not a sine qua non for the successful
prosecution of a rape case—the important element in rape
is penetration of the pudenda and not emission of seminal
fluid.
Full penetration of the vagina is not necessary to
constitute the consummated crime of rape—the mere
entry of the penis into the labia majora of the female
organ, even without rupture of the hymen, suffices to
warrant a conviction of rape.
In this case, there is not even any inconsistency or
discrepancy to speak of. Accused-appellant denied
criminal liability by simply insisting that his daughters,
with coaching from their mother, lied on the witness
stand. But during cross-examination, they never flinched
in their testimony. They spoke in simple, direct words
customary of children of their ages, and they maintained
their testimony amidst warnings by the court and the
defense counsel that their father may be meted out the
death penalty if found guilty of the crimes that they were
charging him with. Significantly, their testimony was
corroborated by the medical findings of vaginal
lacerations on all three victims and their non-virgin state
- Father who raped his 2 daughters
- Contention of father: There was no proof beyond
reasonable doubt
Here, court explained what was meant with proof beyond
reasonable doubt
Why did Calma say that proof beyond reasonable doubt
has not been established?
- What was he telling the Court?
2 things:
1st claim: Evidence not enough in the absence of
conclusive medical evidence
(1) no finding of laceration
GALLARDO - LAGMAN - SAN MIGUEL
(2) no finding of spermatozoa
2nd claim: Testimonies of the children have been
contradicted by the testimonies of the mother
First: medical evidence
- Court: there’s no need of evidence for semen; even if
there’s no ejaculation, the Court held that as long as
slightest penetration
- Lacerations – they are children, and heal very quickly.
When was the medico-legal exam done? 2 months after.
- Is it required that the hymen be broken? No. Slightest
penetration is sufficient to constitute the consummation of
sexual intercourse.
Second: testimonies
- What is the moral certainty is the court looking for?
- Was that present in this case? Yes.
- When can you say there’s moral certainty? When you
have no doubt.
- Does it have to be 100% sure? No.
- But once you harbor any doubt, is there moral certainty?
No. If such is the case, is there proof beyond reasonable
doubt? No.
But why in this case, proof beyond reasonable doubt has
been established despite the medical evidences and
testimonies of daughters being contradicted by mother?
- How did the trial court find moral certainty?
- The contradictions were not sufficient
- Why were they not sufficient to question the credibility/
destroy the credibility of daughters?
- Why did the Court held nevertheless there was moral
certainty?
- The Court found that their testimonies were
spontaneous.
On the other hand, how did the mother testify?
- As a witness for the father
Moreover, during the cross-examination, daughters still
stuck with the same testimonies.
Even if the mother said: Even after the alleged rape
happen, they are still very loving to their father; doing well
in school – but what was evidence presented? – cut from
school and crying in school because of trauma
Did they still remain close to their father? According to the
2 girls, No. no evidence of closeness with father.
Court held: That’s enough. TC morally convinced that
there was some certainty. There’s no need for a 100%
proof. What is important is only there’s no any doubt.
-end-
CONSTI 2 [FINALS 2019] Atty. Muyot 26
Information
What is an Information?
- In every case that you are reading in criminal law, the
court starts with the Information
- Does the prosecutor needs to enumerate all the facts in
the Information? No.
- Flores case
- What should be in the body of the information? Ultimate
facts that make up the elements of the particular crime
- Elements as defined in RPC, that makes up the dolo/
culpa
- Information should always say: wilfully, feloniously, and
maliciously
- Must establish there was dolo.
People v. Flores, 394 SCRA 325 (2002)
It is at once apparent, from a reading of the above-quoted
complaints, that accused-appellant was denied the
constitutional right to be informed of the nature and
cause of the accusation against him. This right has the
following objectives:
1. To furnish the accused with such a description of the
charge against him as will enable him to make the
defense;
2. To avail himself of his conviction or acquittal for
protection against further prosecution for the same cause;
3. To inform the court of the facts alleged, so that it may
decide whether they are sufficient in law to support a
conviction if one should be had.
The right cannot be waived for reasons of public policy.
Hence, it is imperative that the complaint or information
filed against the accused be complete to meet its
objectives. As such, an indictment must fully state the
elements of the specific offense alleged to have been
committed. For an accused cannot be convicted of an
offense, even if duly proven, unless it is alleged or
necessarily included in the complaint or information.
What characterizes the charge is the actual recital of facts
in the complaint or information; The complaint must
contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged
GALLARDO - LAGMAN - SAN MIGUEL
Why was the information in Flores defective?
- Title of information was: rape
What are the elements of rape?
- There must be sexual intercourse between a man and a
woman and grave abuse of strength…
What prevails? The title or substance of information?
- Substance of information
Why is the information defective?
What did the court find?
- It did not allege the elements of any particular crime.
- In fact the court did the survey, what are the possibilities:
rape; acts of lasciviousness; violation of child abuse law
- Did it allege the elements of rape? No.
- Did it allege the elements of acts of lasciviousness? What
are the elements of acts of lasciviousness? Elements of rape
without act of sexual intercourse.
- Why can’t it be an information for child abuse? RA 7610
refers to child prostitution
When the information says did then and there sexually
abused the victim – what crime was committed? Is there a
crime of sexual abuse? None.
Does it even allege a crime under RA 9262 (VAWC)? No.
Based on existence of (1) relationship; (2) form of abuse/
violence
Court:
Acts of crime even if they know the father probably raped his
daughter, can the court convict him? No.
Because to convict him on the basis of information that does
not allege any crime, is a violation of right to be informed in
the Constitution.
Solution?
(1) Old option before was NPA 
(2) New option riding in tandem 
CONSTI 2 [FINALS 2019] Atty. Muyot 27
People v. Murillo, 434 SCRA 342 (2004)
It is well established that the due process requirement is
part of a person’s basic rights and is not a mere formality
that may be dispensed with or performed perfunctorily.
An accused needs the aid of counsel lest he be the victim
of overzealous prosecutors, of the law’s complexity or of
his own ignorance and bewilderment. Indeed, the right to
counsel springs from the fundamental principle of due
process. The right to counsel, however, means more than
just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The
right to counsel means that the accused is sufficiently
accorded legal assistance extended by a counsel who
commits himself to the cause for the defense and acts
accordingly. This right necessitates an active involvement
by the lawyer in the proceedings, particularly at the trial
of the case, his bearing constantly in mind of the basic
rights of the accused, his being well-versed on the case
and his knowing the fundamental procedures, essential
laws and existing jurisprudence. Indeed, the right of an
accused to counsel finds meaning only in the performance
by the lawyer of his sworn duty of fidelity to his client and
an efficient and truly decisive legal assistance which is not
just a simple perfunctory representation.

- Arraignment
- Murillo is charged with murder
- famous case of Ang Babae sa Septic Tank
- Body parts in septic tank and thrown on road
- Only evidence against Murillo: his extra judicial confession

When he appealed in Court, assisted by Atty Garin, what did

he do?
- Pleaded guilty

The Court said wait a minute.

- Murillo was mentally challenged (development way below
his chronological age) – perfect suspect for police, someone
who will say yes to everything 

What did his counsel (Atty Garin) do during the arraignment?

- As Murillo was being arraigned - ask questions to his client
- He asked to his client:

ATTY. GARIN:
  Your Honor please the accused already pleaded guilty to the offense charged
and the only reason we have to the motion of presenting evidence is that the
guilt of the accused must be proven by the prosecution notwithstanding the
plea of guilty entered into during his arraignment. This representation your
Honor finds it necessary to inform the accused of his constitutional rights.
And with the Court’s permission, before he will testify as hostile witness, I
would like to inform the accused for the record.
Q Mr. Freddie Murillo, ikaw ang akusado dito sa kasong ito. Ang proseso natin
. ay kung sino man ang nagbibintang ay siyang dapat magpatunay ng
kasalanang ibinibintang. Sa sitwasyong ito, ikaw ay pinagbibintangan ng
kasong murder. At ang ebidensiyang gagamitin ay dapat manggagaling sa
kung sino man ang nagbibintang sa iyo na ikaw ay nakapatay ng tao.
Ngayon ikaw ay uupo ngayon sa silyang iyan para magsalita tungkol doon
sa pangyayari. Meron kang karapatan na hindi pumayag na magsalita ng
ano’ng bagay na maaaring ikapahamak mo. Maaari mong hindi sagutin
iyong tanong, maaring hindi ka umupo riyan, nasa sa iyo ang desisyon.
Naiintindihan mo ba?
A Opo.
.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 28

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 29
 Q Ngayong naipaliwanag ko na sa iyo ikaw ba ay handang magsalita tungkol
. sa kasong ito?
A Opo.
.
  That’s all for the witness, your Honor. 29

- Side note: ginawang hostile witness

- What did Atty Garin asked to Murillo?
- Even if it’s in English, if you are a pedicab driver like Murillo,
will you even understand it?
The Court said, is it Garin’s duty to ask those questions?
Who should be asking the questions? The judge.
The judge who should be asking questions to find out whether
the accused really knows what he got into before he enters
any plea.
Kaya nagalit ung court dito.

- Questions regarding what the judge should be asking.

To determine WON an improvidently of guilt
Is it enough that the accused pleads guilty? No. The Court
said no.
Judge must determine for himself.
How is the judge going to do that?
In People vs. Pastor, the Court explained that while 5. Inquire if the accused knows the crime with which
there is no definite and concrete rule as to how a trial he is charged and fully explain to him the
judge must conduct a “searching inquiry,” the following elements of the crime which is the basis of his
guidelines should nevertheless be observed: indictment. Failure of the court to do so would
1. Ascertain from the accused himself: (a) how he constitute a violation of his fundamental right to
was brought into the custody of the law; (b) be informed of the precise nature of the
whether he had the assistance of a competent accusation against him and a denial of his right
counsel during the custodial and preliminary to due process.
investigations; and (c) under what conditions he
was detained and interrogated during the 6. All questions posed to the accused should be in a
investigations. This is intended to rule out the language known and understood by the latter
possibility that the accused has been coerced or
placed under a state of duress either by actual 7. The trial judge must satisfy himself that the
threats of physical harm coming from malevolent accused in pleading guilty, is truly guilty. The
quarters or simply because of the judge’s accused must be required to narrate the tragedy
intimidating robes. or reenact the crime or furnish its missing
details.
2. Ask the defense counsel a series of questions as to
whether he had conferred with, and completely
explained to, the accused the meaning and
consequences of a plea of guilty.

3. Elicit information about the personality profile of

the accused, such as his age, socio-economic
status, and educational background, which may
serve as a trustworthy index of his capacity to
give a free and informed plea of guilty.

4. Inform the accused the exact length of

imprisonment or nature of the penalty under the
law and the certainty that he will serve such
sentence. For not infrequently, an accused
pleads guilty in the hope of a lenient treatment
or upon bad advice or because of promises of the
authorities or parties of a lighter penalty should
he admit guilt or express remorse. It is the duty
of the judge to ensure that the accused does not
labor under these mistaken impressions because
a plea of guilty carries with it not only the
admission of authorship of the crime proper but
also of the aggravating circumstances attending
it, that increase punishment.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 30

In this case, was the Court convinced that Murillo understood
what he was asked to do during arraignment?
- No
According to Court, what to do:
- Remand the case. And start from proper arraignment.
Even if the accused pleads guilty, the Court still needs to
satisfy itself that the accused really understood what he had
gotten himself into.
It’s not enough that he says he is guilty.
In fact, may the lawyer enter a plea for the accused?
- No. It has to be done by the accused himself.
People v. Rivera, 362 SCRA 153 (2001)
Procedural due process simply means that a person must
be heard before he is condemned. The due process
requirement is a part of a person’s basic rights, not a
mere formality that may be dispensed with or performed
perfunctorily. Considering both the evidence and the law
applicable to this case, we hold that accused-appellant
has been accorded his right to due process.
Right of Confrontation - The right of a party to cross-
examine a witness is embodied in Art. III, §14(2) of the
Constitution which provides that the accused shall have
the right to meet the witnesses face to face and in Rule
115, §l(f) of the Revised Rules of Criminal Procedure which
states that, in all criminal prosecutions, the accused shall
have the right to confront and cross-examine the
witnesses against him. The cross-examination of a witness
is essential to test his or her credibility, expose
falsehoods or half-truths, uncover the truth which
rehearsed direct examination testimonies may
successfully suppress, and demonstrate inconsistencies in
substantial matters which create reasonable doubt as to
the guilt of the accused and thus give substance to the
constitutional right of the accused to confront the
witnesses against him.
The right of the accused to cross-examine a witness is,
however, not without limits but is subject to the rules on
the admissibility and relevance of evidence.
Right to Counsel - While the Constitution recognizes the
accused’s right to competent and independent counsel of
his own choice, his option to secure the services of a
private counsel is not absolute. For considering the
State’s and the offended party’s right to speedy and
adequate justice, the court may restrict the accused’s
option to retain a private counsel if the accused insists on
an attorney he cannot afford, or if the chosen counsel is
not a member of the bar, or if the attorney declines to
represent the accused for a valid reason.
GALLARDO - LAGMAN - SAN MIGUEL
If he does not want to answer, who will enter the plea?
- Only the Court. And the plea will be not guilty.
What happens if indeed there was a valid plea of guilt, is that
the end of the story?
- Not yet
- The prosecutor still needs to present its evidence.
- For what purpose? If it was really the accused who
committed the crime.
- Moreover, for instance, may the accused present evidence?
Yes, but only as to mitigating/ other circumstances. Because
the Court still needs to fix the penalty that will be imposed on
the accused.
But the public was hungry 
Police has to find someone – that was Murillo 
In re: Request for Coverage of the Trial in the Sandiganbayan
of the Plunder Case Against Former Pres. Joseph
Estrada, 360 SCRA 248 (2001)
Right to Information - The propriety of granting or
denying the instant petition involve the weighing out of
the constitutional guarantees of freedom of the press and
the right to public information, on the one hand, and the
fundamental rights of the accused, on the other hand,
along with the constitutional power of a court to control
its proceedings in ensuring a fair and impartial trial. When
these rights race against one another, jurisprudence tells
us that the right of the accused must be preferred to win.
Due process guarantees the accused a presumption of
innocence until the contrary is proved in a trial that is not
lifted above its individual settings nor made an object of
public’s attention and where the conclusions reached are
induced not by any outside force or influence but only by
evidence and argument given in open court, where fitting
dignity and calm ambiance is demanded/
It must also be conceded that “television can work
profound changes in the behavior of the people it focuses
on.”
Right to Public Trial; An accused has a right to a public
trial but it is a right that belongs to him, more than
anyone else, where his life or liberty can be held critically
in balance.
A public trial aims to ensure that he is fairly dealt with
and would not be unjustly condemned and that his rights
are not compromised in secrete conclaves of long ago. A
public trial is not synonymous with publicized trial; it only
implies that the court doors must be open to those who
wish to come, sit in the available seats, conduct
themselves with decorum and observe the trial process. In
the constitutional sense, a courtroom should have enough
facilities for a reasonable number of the public to observe
the proceedings, not too small as to render the openness
negligible and not too large as to distract the trial
participants from their proper functions, who shall then
be totally free to report what they have observed during
the proceedings.
- Of course, Erap rejected to it.
- Can the court allow the Live TV coverage of the trial?
- No.
Why not? Is it not a matter of public interest?
And is it not he is a public figure, hence, would they have
expectation of privacy?
- In this case, was the Court’s concern on Erap? No. But the
administration of justice
Why did the court say, no, we won’t allow this?
- What will be the injury caused to the administration of justice?
- Not only pressure on judges, but will be playing on the
television; even the witnesses
- TV coverage will result in a pre-judgment by the public on the
guilt of the accused
CONSTI 2 [FINALS 2019] Atty. Muyot 31
 Writs of Habeas Corpus
Imagine if you are being tried on TV, does it make a difference if What is a writ of habeas corpus?
you are guilty/ not? No. In the minds of the public, ah siguro guilty
- Bring the person
to…

What about the judge? How does it affect the judge?
- He will be pressured to come up with a guilty verdict, because if
he comes up with an acquittal, he might be the one ditched by
the crowd
- He might also be playing to the TV camera. In what sense?
Instead of really just performing his task, he might be acting.
- If the trial is at 8:30, what do the female justice in SB wake up-
wake up @ 4 because have to do hair and make up
- What about male justices? New suits… to look handsome on TVs
 (2) Violent insanity – can be ordered by court to be
- Too conscious on their actual look on TV than the actual case
- Other justices usually sleep; but if in TV, it’s a challenge for
them to not to sleep
- Side note: OA only audio published haha
What is the purpose of writ of habeas corpus?
- To justify the detention of a person.
- Asking the respondent to justify, what is the legal basis
for detention
What are the legal bases under the law?
When can there be a valid detention?
(1) Commission of a crime
confined in an institution
(3) Contagious disease
(4) Commitment ordered by court – e.g. the commitment
of children who are exploited, neglected/ abandoned to a
child institution; Rules issued pursuant to Dangerous
Drugs Act, court may also order confinement to the DOH
of a drug dependent)

What is most important here, with the exception of the

contagious disease, DOH secretary order quarantine, all of
the rest have to be done by the court. It will be the Court.

Rule says: 12-18-36 hours

May the writ of habeas corpus be suspended?

- Yes.
(1) In case of invasion/ rebellion
(2) Public safety requires

Does the declaration of martial law automatically

suspends the writ? No.

Are civil rights suspended when the writ of habeas corpus

suspended? Only allows for detention not more than 3
days before the case is filed.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 32

Ilusorio v. Bildner, 322 SCRA 169 (2000)
A writ of habeas corpus extends to all cases of illegal
confinement or detention, or by which the rightful custody
of a person is withheld from the one entitled thereto—it is
devised as a speedy and effectual remedy to relieve
persons from unlawful restraint, as the best and only
sufficient defense of personal freedom.
The essential object and purpose of the writ of habeas
corpus is to inquire into all manner of involuntary
restraint, and to relieve a person therefrom if such
restraint is illegal.
In case the husband refuses to see his wife for private
reasons, he is at liberty to do so without threat of any
penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a
husband to live with his wife; Coverture cannot be
enforced by compulsion of a writ of habeas corpus carried
out by sheriffs or by any other mesne process.
- Here comes to wife, I want my husband back.
- Wife goes all the way to SC to ask SC order the husband
to go back to her
- Where was the husband?
- Is it about the husband? No. It’s about the money.
- What will happen if the husband goes back to wife? He
will have him declare incompetent so that the wife will be
declared the guardian.
In re: the Writ of Habeas Corpus for Reynaldo de Villa,
G.R. No. 158802, Nov. 7, 2004
The extraordinary writ of habeas corpus has long been a
haven of relief from those seeking liberty from any
unwarranted denial of freedom of movement.
The review of findings of fact long passed upon with
finality is far outside the scope of habeas corpus
proceedings—a record must remain extant, and cannot be
revised, modified, altered or amended by the simple
expedient of resort to habeas corpus proceedings.
Mere errors of fact or law, which did not have the effect of
depriving the trial court of its jurisdiction over the case
and the person of the defendant, are not correctible in a
petition for the issuance of the writ of habeas corpus.
Although the DNA evidence was undoubtedly discovered
after trial, it does not meet the criteria for “newly-
discovered evidence” that would merit a new trial—such
evidence disproving paternity could have been discovered
and produced at trial with the exercise of reasonable
diligence.
Lack of knowledge of the existence of DNA testing speaks
of negligence, either on the part of the client, or on the
part of his counsel; A client is bound by the acts of his
counsel, including the latter’s mistakes and negligence.
What was the argument of De Villa?
- HC should be issued because he is illegally detained
To his mind, why was he illegally detained?
- He was illegally detained because of rape when the
evidence showed he was not the one who had sexual
intercourse with the victim. (argument)
Writ of Amparo
What is the constitutional basis for writ of amparo?
- amparo from Spanish word
It’s not in the Constitution unlike the writ of Habeas Corpus,
there’s no mention of writ of amparo in the Constitution
GALLARDO - LAGMAN - SAN MIGUEL
- Guardian over the person/ guardian over the property
- Which ones is more important, the person/ property?
Property (haha)
Have you gone to Baguio?
Country Club/ Camp John Hay
- Potenciano Ilusorio – President of Baguio Country Club for
a very long time
- He was very very rich. But the allegation is that he was
crony of Marcoses, and some properties from Marcoses
Now fighting: wife and children
Can the Court order Ilusorio to go back to his wife?
- No.
Shouldn’t be the husbands living with wife?
Why would habeas corpus not be the appropriate remedy?
- The person must be deprived of liberty
- In this case, has he been deprived of liberty? No.
Secondly, is there an action to require the husband to go
back to his wife?
- No. Even if they are married, there’s nothing in Civil
Code.
- No such action to compel/ to live with your wife.
Valid argument?
- No.
Why not?
- Why would HC not appropriate?
- Because he has been legally detained pursuant to a final
judgment, not pursuant to a case filed before him
In fact, what was he really wanted? Was it habeas corpus
according to the court? No.
- He was asking for a new trial
Is habeas corpus an alternative for a petition for new trial?
- No.
- HC is for illegal detention; here there’s no illegal detention.
Even if he was considered in illegal detention
- can the new trial be granted? No
When does a petition for new trial be granted?
(1) When there’s newly discovered evidence
(2) There’s a fraud committed by Court itself
In this case, there’s no fraud.
But was there a newly discovered evidence?
- DNA evidence not considered as newly discovered evidence;
because he could have presented the evidence but he did
not.
- Second, even if it is shown that the child is not his, is it
material for a conviction for rape? No. because that only
establishes paternity, but does not rebut his criminal liability
Court held that even if the girl is having sexual intercourse
with her boyfriend, who might be the husband of the father,
as alleged by de villa, does it negate that de villa had sex with
the girl? No.
How can the SC promulgate its rule on the basis of what
already exist in the constitution?
- Power to promulgate rules and regulations
- Not only to promulgate rules (Rules of court) and even rules
to seek protect the Constitutional rights
CONSTI 2 [FINALS 2019] Atty. Muyot 33

Quasi-legislative in nature.
From the broad constitutional rights (Art III, Sec 1- due
process clause), the SC can now come up with rules that
provide for remedies for these rights – and writ of amparo is
one such remedy
What are the other examples for such remedies in order to
enforce constitutional rights?
- writ of habeas data- enforces right to privacy
- writ of kalikasan- enforces right to healthful ecology
This is something that which CJ Puno really emphasized
during his tenure as Chief Justice – realizing the vast power
given to it by the Court, this now seeks to address rights
which may not be specifically developed through legislation
but at the same time pressing need for remedies in order to
enforce these rights.
In some cases, you will see the argument that the rights
provided for in the Constitution are not self-executory
because there is no law.
But what did the Supreme Court say?
- In the Consti is actually executory, but to make it fully
executory, you need to have remedies
- Remedies that they avail of when they file the appropriate
case in Court.
The SC already has vast powers under the certiorari clause of
the Consti (Art VIII, Sec 1) – SC has the power to determine
WON any branch, instrumentality acted in grave abuse of
discretion amounting to lack/ excess of jurisdiction
- Isn’t that enough?
- Why do you still need the writ of amparo?
Extra judicial killings and enforced disappearances – scope of
problem to be addressed in amparo
But the SC already has vast powers under the certiorari
prohibition.
Why is still necessary for SC to promulgate rule on writ of
amparo?
Why is it certiorari, mandamus not sufficient and need a writ
of amparo?
- These are all WRITS (certiorari, prohibition, mandamus,
habeas corpus, amparo)
- Even in Martial Law - can strike down declaration of ML;
power given under the commander in chief clause to the
court
- Isn’t the writ of certiorari, curative? Wouldn’t be a writ of
prohibition, preventive?
- Is a writ of amparo penal in nature? No.
- Injunction- derivative of prohibition
Fundamental reason behind this:
- Rights and powers
- What does certiorari jurisdiction of court apply to? Exercise
of power to the branch, instrumentality/ agency of
government. It only resolve the issue of power. Will it address
the protection of right? No.
That’s why there has to be a companion – addresses the
concern of individual especially if it’s about liberty/ personal
security.
For instance, in writ of certiorari
- Can the court order the military to do all of those things? No.
It can only say that the act went beyond the powers provided
for it under the Constitution, and that’s it
- Certiorari is a check on the exercise of power
- But what about those who suffered the injury?
GALLARDO - LAGMAN - SAN MIGUEL
- That’s why CJ Puno thought that there would have to be
writs that address not so much that were already covered by
certiorari power of court but instead to cover what cannot be
covered – that is the protection of individual.
As it relates to the specific circumstances of that individual.
Logic once you examined the 4 reliefs that may be granted
under the writ of amparo.
What is the purpose of a writ of amparo?
- (1) Enforced disappearances
- (2) Extrajudicial killings
Why is it the writ of habeas corpus not enough?
- Isn’t writ of HC not more expansive? Because it can cover
acts of state and even acts of private individuals.
- Can’t you not also use HC for enforced habeas corpus?
Actually, you can.
Purpose of writ of amparo—
- Why is there a need for writ of amparo and other writs not
enough (which were based on grave abuse theory)
- why need of amparo if there’s habeas corpus?
Purpose of petition for writ of habeas corpus
- legality of detention
Purpose of writ of amparo –
- protect the person from threats to his life/ liberty (to
protect him from the threat of being killed/ threat of
being forcibly disappear)
Relief granted to HC: set the person free
Reliefs granted to writ of amparo:
1. protection order – from killing/ abducting the person
2. inspection order – inspection of place where he was
detained, for what purpose? To find out what exactly
happened; and who responsible for what happened
3. production order – production of documents, medical
records used as evidence so that those who are responsible
can be held accountable.
4. witness protection – witnesses will also not be killed/
possibly disappear
- Those beyond protection provided for habeas corpus
To whom does writ of amparo apply?
- against the state/ agents of state
- even if these are private individuals acting for on/in
behalf of state
In the case of writ of habeas corpus to whom does it
apply?
- petition against those stated private individuals
Secretary of National Defense v. Manalo, G.R. No.
180906, Oct. 7, 2008
Extralegal Killings” and “Enforced Disappearances,”
Defined; The promulgation of the Amparo Rule was an
exercise for the first time of the Supreme Court’s
expanded power to promulgate rules to protect our
people’s constitutional rights, which made its maiden
appearance in the 1987 Constitution in response to the
Filipino experience of the martial law regime; The Amparo
Rule was intended to address the intractable problem of
“extralegal killings” and “enforced disappearances”;
“Extralegal killings” are “killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings,” while enforced disappearances” are
“attended by the following characteristics: an arrest,
detention or abduction of a person by a government
official or organized groups or private individuals acting
CONSTI 2 [FINALS 2019] Atty. Muyot 34
with the direct or indirect acquiescence of the
government; the refusal of the State to disclose the fate
or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such
persons outside the protection of law.”
The writ of Amparo originated in Mexico and “Amparo”
literally means “protection” in Spanish.—The writ
of Amparo originated in Mexico. “Amparo” literally means
“protection” in Spanish.
In Latin American countries, except Cuba, the writ of
Amparo has been constitutionally adopted to protect
against human rights abuses especially committed in
countries under military juntas.
While constitutional rights can be protected under the
Grave Abuse Clause through remedies of injunction or
prohibition under Rule 65 of the Rules of Court and a
petition for habeas corpus under Rule 102, these remedies
may not be adequate to address the pestering problem of
extralegal killings and enforced disappearances—the
swiftness required to resolve a petition for a writ of
amparo through summary proceedings and the availability
of appropriate interim and permanent reliefs under the
Amparo Rule offers a better remedy to extralegal killings
and enforced disappearances and threats thereof; The
writ of amparo serves both preventive and curative roles
in addressing the problem of extralegal killings and
enforced disappearances—preventive in that it breaks the
expectation of impunity in the commission of these
offenses, and, curative in that it facilitates the subsequent
punishment of perpetrators as it will inevitably yield leads
to subsequent investigation and action.
In blatant violation of our hard-won guarantees to life,
liberty and security, these rights are snuffed out from
victims of extralegal killings and enforced
disappearances. The writ of amparo is a tool that gives
voice to preys of silent guns and prisoners behind secret
walls.
GALLARDO - LAGMAN - SAN MIGUEL
- Manalo brothers: were they really members of NPA?
- The brother was the NPA Commander from San Miguel
Bulacan
What was the problem of the military?
- They cannot catch the brother
So what did they do?
- They abducted his sibling to force him to surface
Were the 2 Manalo brothers members of the NPA? No. They
were not.
The approach here is similar to what happened in Sulu – when
Abu Sayaff hostage a person, the military abduct relatives of
Abu Sayaff and hold them in hostage to release persons in
their custody.
Something which has been practiced for a long time.
What was their purpose? To get the older brother to surface.
But the military says, the Manalo brothers are no longer in the
custody of the military, and there is no more cause of action
for a writ of amparo
- Not correct
- Because what is the purpose of writ of amparo? Is it to have
them released? No, that is writ of HC
- But to protect them from the threat from being killed/
abducted
Amparo is not the same as habeas corpus
- And unlike certiorari, it does not focus on their power on
whether they can do it or not. Because in the case at bar,
obviously, they cannot. (beyond powers of military)
- But on the protection of victims
Of course, even that has limitations.
- UP students. Even if their mothers had filed cases and have
been waiting for a long time, can’t find whether they are still
alive/ dead.
Writ of amparo is actually effective only if you know what
happened to the victims
But if no one really knows what happened to them, whether
it’s a writ of HC/ amparo – it’s basically ineffective
- But when should it be effective? See next 3 cases
CONSTI 2 [FINALS 2019] Atty. Muyot 35
Lozada v. Macapagal-Arroyo, G.R. No. 184379, April 24,
2012
The writ of amparo is an independent and summary
remedy that provides rapid judicial relief to protect the
people’s right to life, liberty and security; It is preventive
in that it breaks the expectation of impunity in
the commission of these offenses, and it is curative in that
it facilitates the subsequent punishment of perpetrators
by inevitably leading to subsequent investigation and
action.
The writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to
threats thereof.
In amparo actions, petitioners must establish their claims
by substantial evidence, and they cannot merely rely on
the supposed failure of respondents to prove either their
d fenses or their exercise of extraordinary diligence.
- Lozada – he was the one who provided testimony about the
NBN-ZTE Scandal
- NBN-ZTE Scandal – about the former president contracting with
the Chinese company
- They were invited by Chinese company to play golf in china with
1st husband
Testimony – contract was overpriced and commissions given to
the former president thru middleman- Abalos (COMELEC
Chairperson)
-COMELEC should be an independent body- what does he have to
do with the NBN-ZTE contract? None. But he was the middleman!
COMELEC is seemed to be involved in more than just an election.
This was an information given by Lozada.
He fled to London and back to Hong Kong and on to the
Philippines
He applied for writ of amparo. Why?
- Threat to his life.
Is a writ of amparo appropriate remedy in this case?
- No.
Why not? Shouldn’t he be worried for his life? But why is writ of
amparo not appropriate in this case?
- What is missing here?
- Is there real threat coming from the State/ agents of the State?
- None.
Yes, he had a fear because of the magnitude of corruption he had
exposed.
But was there any evidence of any act attributable to the state/
agents?
Must justify the issuance of writ
According to the Court, there was none.
Even those he thought were threats, were not clear threats
according to the court
E.g. cameras along Ortigas avenue
- he said these were surveillance cameras to find out if he goes
out of country
- in reality, those cameras are for traffic.
Supposed surveillance
- Was that established to be a threat? No.
Is there anything illegal about surveillance?
- No.
The only thing to find out, what the information the State was
able to get based on surveillance – under writ of habeas data
Surveillance per se is not unlawful.
GALLARDO - LAGMAN - SAN MIGUEL
Navia v. Pardico, G.R. No. 184467, June 19, 2012
A.M. No. 07-9-12-SC or The Rule on the Writ
of Amparo was promulgated to arrest the rampant
extralegal killings and enforced disappearances in the
country. Its purpose is to provide an expeditious and
effective relief “to any person whose right to life, liberty
and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee,
or of a private individual or entity.”
Section 3(g) of R.A. No. 9851 defines enforced
or involuntary disappearances as follows: “Enforced or
involuntary disappearance of persons” means the arrest,
detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a
political organization followed by a refusal to
acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons,
with the intention of removing from the protection of the
law for a prolonged period of time.
From the statutory definition of enforced disappearance,
thus, we can derive the following elements that constitute
it:
(a) that there be an arrest, detention, abduction or any
form of deprivation of liberty;
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization;
(c) that it be followed by the State or political
organization’s refusal to acknowledge or give information
on the fate or whereabouts of the person subject of
the amparo petition; and,
(d) that the intention for such refusal is to remove subject
person from the protection of the law for a prolonged
period of time.
The petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable
element of government participation. In an amparo
petition, proof of disappearance alone is not enough. It is
likewise essential to establish that such disappearance
was carried out with the direct or indirect authorization,
support or acquiescence of the government.
- Security guards
- What happened to the victim? He was not found.
Tamang-tama ung writ of amparo because he could have
been killed.
Yes.
Why can’t the writ of amparo be issued by the court?
- Were they even security guards of the real estate
developer? No. They’re security guards of an agency
contracted by the real estate developer. Why can’t the writ be
issued here?
- There’s nothing that would indicate State participation either
directly/ indirectly
But the police did nothing
- It did not show that the police actually intervene.
If a case should be filed, what case should be filed?
- Habeas corpus against security guards and their agency;
directly also to the employer
If they killed him, what would be the appropriate case?
- Murder
Or if they killed him after he had kidnapped him?
- Kidnapping with murder; Special complex crime
CONSTI 2 [FINALS 2019] Atty. Muyot 36
But writ of amparo will not be appropriate in this case
because the intention is really to protect the person from the
State and its agents.
GALLARDO - LAGMAN - SAN MIGUEL
Caram v. Segui, G.R. No. 193652, August 6, 2014
Section 1 of the Rule on the Writ of Amparo provides as
follows: SECTION 1. Petition.—The petition for a writ of
amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official
or employee, or of a private individual or entity. The writ
shall cover extralegal killings and enforced
disappearances or threats thereof. In the landmark case
of Secretary of National Defense, et al. v. Manalo, et
al., 568 SCRA 1 (2008), this Court held: [T]he Amparo Rule
was intended to address the intractable problem of
“extralegal killings” and “enforced disappearances,” its
coverage, in its present form, is confined to these two
instances or to threats thereof. “Extralegal killings” are
“killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings.” On the
other hand, “enforced disappearances” are “attended by
the following characteristics: an arrest, detention or
abduction of a person by a government official or
organized groups or private individuals acting with the
direct or indirect acquiescence of the government; the
refusal of the State to disclose the fate or whereabouts of
the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside
the protection of law.
Since it is extant from the pleadings filed that what is
involved is the issue of child custody and the exercise of
parental rights over a child, who, for all intents and
purposes, has been legally considered a ward of the State,
the Amparo rule cannot be properly applied.
CONSTI 2 [FINALS 2019] Atty. Muyot 37
Why is the writ of amparo not appropriate here?
- But the mother was not allowed to see her child?
- So why is the writ of amparo not appropriate?
Can you file that against the new parents (adoptive parents)?
No.
Why is the writ of amparo not available?
- Not the proper remedy for the mother
What is the proper remedy for the mother?
- Annulment of the adoption and custody of child. (Special
proceeding)
Writ of amparo, like in the case of de villa for HC, cannot be
used as a substitute for a remedy that is available under the
law
In the case of de villa, writ of HC was sought to be use as a
petition for new trial. The court said, No.
In this case, Caram wants to use the writ of amparo as a
substitute for the petition for annulment of the adoption for
the custody of the child. That cannot be done.
Because the purpose here is very very specific. It is intended
to address only 2 things (1) extra judicial killings and (2)
enforced disappearances
Speedy Disposition of Cases
Why is there a right to speedy disposition of cases?
What are the consequences/ effects? At least 3 or 4:
What is the effect in the administration of justice in
general when there are delays?
- Why is it bad for the system?
- Purpose: To see that justice is done
Why would delays be bad for system in general?
- Retribution is about individual
(1) Create backlogs
(2) As far as people in general in concern, people will lose
their trust in the system
So what’s the better thing to do?
- Take justice in their own motorcycles (haha)
Point of view of Congress, motorcycles are now a weapon.
- new law: must have license plates on both ends of motor
cycles which can be clearly seen in a distance of 15
meters.
- walk na lang: like npa sparrow units just walk – they just
co-mingle with crowd
Loss of trust on the criminal justice system
What about injuries caused to the respondent/ the
accused?
- Even if not detained, what is the injury caused to him?
Employment
- Not only destructs his life but also work and relationships
What about witnesses?
- Passage of time will make them forget
What about the prosecution?
- Greater injury: evidence may no longer be present/
relevant even if present
GALLARDO - LAGMAN - SAN MIGUEL
A person was apprehended by the joint meeting of PNP and
AFP – suspected member of NPA
What petition should be filed?
- Writ of habeas corpus
But what is the downside of writ of HC
Once you filed it, what could the military/ police do?
- They can just easily make it moot by filing a case in court.
Remember the consultants who in the past weeks had been
arrested 1 by 1.
- Arrested for illegal possession of firearms
- Why would they be arrested?
- If not pursuant to a warrant, why would they be arrested?
- What could the police do? File case for illegal possession of
firearms.
- There’s a suspicion that the same firearms/ grenades that
has been confiscated in earlier arrests
- Leading to the conclusion that evidences were planted
- Anyway, they would be released once peace talks are
resumed.
Here, in the case of Remulla, the court said: balancing
between interest of individual (rights) and interest of State
(to see that justice is done)
- Guilty are prosecuted and convicted
Do we know what the different factors are? Yes.
Factors:
(1) length of delay
(2) reason for delay
(3) conduct of the parties – how they acted, that includes
whether they assert it or not
(4) injury that may be caused – injury caused to the
individual
What is preferred here?
What is the basic thinking?
That the individual (respondent in PI/ accused in criminal
case) is overpowered by the omnipotent State
- Omnibus powers
- The only way to protect is to lessen the intimidation and
for the shortest time possible.
Since there’s no harden fast rule, should be applied on a
case to case basis, looking at the particular
circumstances.
As pointed by Remulla, there seems to be 2 directions in
the decisions of the court
(1) Burden is on the respondent/ accused
(2) Clearly with the prosecution
- Tilendo cases
- Remulla asserts that the Tilendo cases actually puts the
burden on the respondent/ accused to move for the
speedy disposition of cases (earlier resolution of cases) or
to follow up
On the other hand, we have the Coscolluela cases – the
Court held that there’s no such duty on the part of
respondent/ accused
Is there any conflict between these 2 sets of cases?
CONSTI 2 [FINALS 2019] Atty. Muyot 38
- Court held, none.
- The Tilendo cases: was the non-assertion of rights, really
the basis for court in saying that there is no denial of right
to speedy disposition of cases?
- Basically, it is the reason.
- The Court find in the Tilendo cases: were their valid
reasons for the delay? Yes.
- In the Tilendo cases, did the SC say that the burden was
really on the respondent/ accused? No.
- It said that actually, no violation on right to speedy
disposition of case because the reasons for the delay were
completely beyond the control of the parties and it cannot
be attributed to anyone.
- What were the reasons for the delay in Tilendo cases?
There were missing transcripts and hence the new justice
who took over cannot possibly decide the case in the
absence of these very important documents
- Why is the TSN very important? Evidence of the
testimonies.
- Basis for WON the accused is guilty
- And were those within the control of the accused? No.
- Within the control of petitioner? No.
- It was not because of non-assertion.
- Because even if, for instance, the accused in both cases
had filed for early disposition of cases, is there anything
the Sandiganbayan can do in the absence of the TSN?
None.
On the other hand, in the Coscolluela cases:
- According to the court, clearly, what was the reason why
there’s a violation of the right on the speedy disposition of
cases?
- what is common to all of these cases? – it is the duty of
the prosecution – that caused the delay
What rule can now we derive? When can there be a
violation on the right to speedy disposition of cases?
- When there’s a vexatious, capricious, oppressive delay
caused by the State with the prosecution/ perhaps the
court- But it is attributable to the State
GALLARDO - LAGMAN - SAN MIGUEL
Mendoza-Ong v. Sandiganbayan, G.R. No. 146368, Oct.
18, 2004
Right to Speedy Trial —The right to speedy
disposition of cases, like the right to speedy trial, is
violated only when the proceedings are attended by
vexatious, capricious and oppressive delays. In the
determination of whether said right has been violated,
particular regard must be taken of the facts and
circumstances peculiar to each case. The conduct of both
the prosecution and the defendant, the length of the
delay, the reasons for such delay, the assertion or failure
to assert such right by the accused, and the prejudice
caused by the delay are the factors to consider and
balance. A mere mathematical reckoning of time involved
would not be sufficient.
Neither could the delay be said to have been prejudicial to
her considering that she herself is guilty of delay. The
Court has held that if the long delay in the termination of
the preliminary investigation was not solely the
prosecution’s fault, but was also due to incidents
attributable to the accused and his counsel, the right of
the accused to speedy disposition of cases is not violated.
Petitioner cannot now seek the protection of the law to
benefit from what she now considers the adverse effects
of her own conduct in this case.
- Case of Mayor: Mendoza
- In this case, was there a violation of speedy disposition of
cases? None
- Why not? 3 years – time before the case was actually filed
- What is the usual number of days allowed by law? For the
prosecutor/ ombudsman/ tanod bayan/ equivalent to file the
case? 60 days
- In this case, it was also attributable to the accused herself,
because her lawyer filed its pleadings in order to get the
ombudsman to review
- it was part of the process but it’s not something that is
attributable to the prosecution.
- The initiative actually came from the lawyer of the accused.
And of course, anything that the lawyer does, is attributed to
the client.
CONSTI 2 [FINALS 2019] Atty. Muyot 39
Cervantes v. Sandiganbayan, 307 SCRA 149 (1999) Remulla v. Sandiganbayan, G.R. No. 218040, April 17,
We find petitioner’s contention meritorious. He was 2017
deprived of his right to a speedy disposition of the case, a
right guaranteed by the Constitution. It took the Special
The Ombudsman failed to justify the delay in the
Prosecutor (succeeding the Tanodbayan) six (6) years
proceedings.
from the filing of the initiatory complaint before he
Based on the foregoing, the explanation provided by the
decided to file an information for the offense with the
OSP falls short of the reasonable justification to authorize
Sandiganbayan. The letter-complaint was filed with the
delay in the proceedings. It was downright unnecessary to
Tanodbayan on March 6, 1986. The affidavit of the
prolong the proceedings for a period of nine (9) years. To
petitioner was filed therein on October 16, 1986. The
summarize, the initial delay began when the Ombudsman
Special Prosecutor resolved the case on May 18, 1992. In
did not act with dispatch on the approval or disapproval of
their comment to the petition at bar,the Sandiganbayan
the proposed resolution and decision in the Remulla. Due
and the Special Prosecutor try to justify the inordinate
to its delay, the Deputy Ombudsman for Luzon was able to
delay in the resolution of the complaint by stating that
send a memorandum for consolidation with the PCSO
“no political motivation appears to have tainted the
case. The mere routing or transfer of the memorandum to
prosecution of the case” in apparent reference to the case
the Ombudsman incurred eight (8) months of delay. Then,
of Tatad vs. Sandiganbayan, (footnote: 159 SCRA 70, 81-
when the memorandum was approved, it took ten (10)
82.) where the Court ruled that the “long delay (three
months before the records could be transferred from the
years) in the termination of the preliminary investigation
Deputy Ombudsman for Luzon to the Ombudsman. Finally,
by the Tanodbayan” was violative of the Constitutional
for a period of four (4) years, the consolidated cases sat
right of “speedy disposition” of cases because “political
at the Ombudsman. As the OSP did not submit an
motivations played a vital role in activating and propelling
explanation as to the status of the case in that 4-year
the prosecutorial process in this case.”
period, the Court can only conduct guesswork on the
cause of its delay.
It is the duty of the prosecutor to speedily resolve the
complaint, as mandated by the Constitution, regardless of
Had the Ombudsman immediately approved or
whether the petitioner did not object to the delay or that
disapproved the proposed resolution and decision
the delay was with his acquiescence provided that it was
submitted to its office on January 9, 2007, then the case
not due to causes directly attributable to him.
would have been promptly acted upon. If filed before the
Sandiganbayan, the prosecution and the defense could
Sandiganbayan gravely abused its discretion in not
have timely presented their case. Instead, the
quashing the information for violation of petitioner’s
Ombudsman chose inaction which led to a chain of delays
Constitutional right to the speedy disposition of the case.
lasting until July 8, 2014. After the lapse of nine (9) years
of being kept in the dark, Maliksi could not have had the
- Why was there undue delay? opportunity to timely present, his case in court due to the
- 6 years delay extensive delay in the preliminary investigation. Certainly,
- NO valid reason for the prosecution not to wrap up its this protracted period of uncertainty over his criminal
investigation and file the case. case caused him prejudice, living under a cloud of anxiety,
suspicion and even, hostility.

The Sandiganbayan, after properly taking into

consideration all the relevant factors in the balancing test
and gave different weight on each factor based on the
particular circumstances of this case, came to a
conclusion that the Ombudsman committed inordinate
delay. The case underwent the intricate and difficult
balancing test before Maliksi's right to a speedy
disposition of his case was sustained. Thus, the Court
rules that the Sandiganbayan did not commit a grave
abuse of discretion in dismissing the criminal case against
Maliksi.

It has been suggested that the long delay in terminating

the preliminary investigation should not be deemed fatal,
for even the complete absence of a preliminary
investigation does not warrant dismissal of the
information. True — but the absence of a preliminary
investigation can be corrected by giving the accused such
investigation. But an undue delay in the conduct of a
preliminary investigation cannot be corrected for now,
until man has not yet invented a device for setting back
time.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 40

- May Remulla actually raise the issue? No.
- Because who’s the only one who can raise it? It’s the
prosecution
- The case was dismissed by the Sandiganbayan. So it’s
only the prosecution, the people.
- But why not Remulla? But the action was really in the
name of the people. As a complainant, he is actually just a
witness.
- No personality to bring up the issue.
Even if we ignore that procedural flaw, was there really
inordinate delay in this case?
- Yes. Why?
- Where should we start counting? From the fact-finding
investigation? Remulla says we should not start from the
fact finding investigation
- From the time of preliminary investigation
- In this case, fact-finding took how many years? – 6 years
- Even if you take out the 6, and you only have 3.
In the case of Mendoza-Ong, 3 years was fine
- because there was a contributory delay
Why would there be an inordinate delay and hence a
violation of right and hence the SB is correct in dismissing
the case?
Right Against Self-incrimination
People v. Ayson, 175 SCRA 216 (1989)
Rights of a person suspected of having committed a crime
and subsequently charged with its commission in court.—
In fine, a person suspected of having committed a crime
and subsequently charged with its commission in court,
has the following rights in the matter of his testifying or
producing eveidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public
prosecutor, for preliminary investigation), but after
having been taken into custody or otherwise deprived of
his liberty in some significant way, and on being
interrogated by the police: the continuing right to remain
silent and to counsel, and to be informed thereof, not to
be subjected to force, violence, threat, intimidation or any
other means which vitiates, the free will; and to have
evidence obtained in violation of these rights rejected;
and
2) AFTER THE CASE IS FILED IN COURT—a) to refuse to be
a witness; b) not to have any prejudice whatsoever result
to him by such refusal; c) to testify in his own behalf,
subject to cross-examination by the prosecution;
3) WHILE TESTIFYING, to refuse to an answer a specific
question which tends to incriminate him for some crime
other than that for which he is then prosecuted.
The Court said that actually when you talk about the right against
self-incrimination, it goes beyond just the right not to answer
when you are asked.
That actually the right against self-incrimination is something
which is present before the case is filed, after the case is filed,
and even during the trial itself.
Right against self-incrimination before the case is filed
- right to remain silent; counsel; anything you say can be used
against you (Miranda rights)
- right to be informed
- no use torture/ any other forms of compulsion
- exclusionary rule (evidence)
After the case is filed in court:
- not to be a witness – even before that can he be compelled to
testify? No.
GALLARDO - LAGMAN - SAN MIGUEL
- In this case, it was the fault of the prosecution. It was the
negligence of the prosecution that something which
cannot be attributed to Maliksi.
But the prosecutor says, there was an impeachment case
of Ombudsman Gutierrez?
- Isn’t that a justification? No because who conducts the
preliminary investigation? Is it the ombudsman herself?
- No. the special prosecutor files and litigates it. The one
who conducts the preliminary investigation would be the
investigators
- It’s not even something that the Ombudsman herself
would personally be attending to.
- What is the only thing that the Ombudsman does? Either
check approve/ disapprove, and signs.
- But that is after the overall deputy ombudsman has
already signed
- It’s just a confirmatory signature
If the preliminary investigation was done by the office of
the ombudsman herself, may be.
But in this case, it was not herself
And with regard to the trial, it was not the ombudsman but
the prosecutor.
- if he wishes he can testify, but if he testify, he is subject to
cross-examination
During trial:
- when the question is asked, he can refuse to answer. When can
he refuse to answer? Only when he’s asked.
Problem: He can testify. But if he wishes to testify, he is subject to
cross-examination.
When does he invoke the right not to answer?
- If he says I don’t want to testify, will he asked the questions? No.
He can’t be forced to answer the questions.
- Can he answer questions without being put in the witness
stand? The only one who could ask him questions- counsel can
ask him questions only if he is testifying; It is the judge who can
only ask him
When can the judge ask that? Arraignment. He is asked to enter
his plea.
Plea of guilty/ not guilty
- guilty: judge will ask series of questions (Murillo) to find out if he
really understands the guilty plea
- Was it correct for the lawyer, Garin, to ask him questions? No. it
is the judge’s duty.
Can the lawyer talk during arraignment? No.
If the accused does not want to say anything, it’s the judge who
enters the plea for the accused.
And the plea would be not guilty.
When can he refuse to answer if he’s not even a witness at all?
- When will he raise his refusal to answer question?
- Happen during cross-examination.
How does that happen during cross-examination?
- When he is asked a question pertaining to some other criminal
act (separate from the act he is being charged with)
In relation to his testimony, if on the basis on the crime he’s
charged with, can he refuse to answer? No.
- Ayson case start –
  2 sets of Rights under Sec. 20, Art. IV of 1973
Constitution.—It should at once be apparent that there are
two (2) rights, or sets of rights, dealt with in the section,
namely: 1) the right against self-incrimination—i.e., the
right of a person not to be compelled to be a witness
against himself—set out in the first sentence, which is a
verbatim reproduction of Section 18, Article III of the 1935
CONSTI 2 [FINALS 2019] Atty. Muyot 41
Constitution, and is similar to that accorded by the Fifth
Amendment of the American Constitution, and 2) the
rights of a person in custodial interrogation, i.e., the
rights of every suspect “under investigation for the
commission of an offense.”
Parenthetically, the 1987 Constitution indicates much
more clearly the individuality and disparateness of these
rights. It has placed the rights in separate sections. The
right against self-incrimination, “No person shall be
compelled to be a witness against himself,” is now
embodied in Section 17, Article III of the 1987
Constitution. The rights of a person in custodial
interrogation, which have been made more explicit, are
now contained in Section 12 of the same Article III.
The right against self-incrimination is not self-executing
or automatically operational. It must be claimed. If not
claimed by or in behalf of the witness, the protection does
not come into play. It follows that the right may be
waived, expressly, or impliedly, as by a failure to claim it
at the appropriate time
Miranda rule summarized the procedural safeguards laid
down for a person “in-custody interrogation”
Custodial interrogation - The rights above specified, to
repeat, exist only in “custodial interrogations,” or “in-
custody interrogation of accused persons.” And, as this
Court has already stated, by custodial interrogation is
meant “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise
What was the issue?
- He was investigated by his own company and he said that
cannot be used against him because in the criminal case if it
will be used against him, that will violate his right against self-
incrimination
- Because in the administrative case of the company, he was
not informed of the nature of the crime, he was not provided
for a counsel, etc.
So from his perspective, that should be excluded because he
was not afforded his rights
Anything which is in violation thereof, should be excluded.
What was the criminal case for? Estafa.
What did TC judge do?
- The judge excluded
Now, that’s the issue.
Was the TC correct in excluding the statements made by the
employee during the administrative investigation in this
company from being admitted as evidence in criminal case
for estafa?
- No.
In this case, did he have the right to remain silent? The right
to counsel? No.
- These applies to the criminal justice proceeding. Formal
proceeding. It does not apply to those which are done in a
separate and private investigation.
Court said that this does not apply for something which is not
part of criminal justice system
But if it was during the custodial investigation, the statement
was made without the right to remain silent, right to have a
counsel, would such be admissible?
- No. it will violate right against self-incrimination before the
case was filed in court.
GALLARDO - LAGMAN - SAN MIGUEL
deprived of his freedom of action in any significant way.”
The situation contemplated has also been more precisely
described by this Court. x x After a person is arrested and
his custodial investigation begins a confrontation arises
which at best may be termed unequal. The detainee is
brought to an army camp or police headquarters and
there questioned and “cross-examined” not only by one
but as many investigators as may be necessary to break
down his morale. He finds himself in strange and
unfamiliar surroundings, and every person he meets he
considers hostile to him. The investigators are well-
trained and seasoned in their work. They employ all the
methods and means that experience and study have
taught them to extract the truth, or what may pass for it,
out of the detainee. Most detainees are unlettered and
are not aware of their constitutional rights. And even if
they were, the intimidating and coercive presence of the
officers of the law in such an atmosphere overwhelms
them into silence. Section 20 of the Bill of Rights seeks to
remedy this imbalance.”
A defendant on trial or under preliminary
investigation is not under custodial interrogation.
Right of an accused in court or undergoing preliminary
investigation before the public prosecutor - Under the
Rules of Court, in all criminal prosecutions the defendant
is entitled, among others—1) to be exempt from being a
witness against himself, and 2) to testify as witness in his
own behalf; but if he offers himself as a witness he may
be cross-examined as any other witness; however, his
neglect or refusal to be a witness shall not in any manner
prejudice or be used against him.
Chavez v. CA, 24 SCRA 663 (1968)
The privilege against self-incrimination is based on the
constitutional injunction that "No person shall be
compelled to be a witness against himself" (Sec. 1, No. 18,
Art. III, Phil. Constitution), fully echoed in Section 1, Rule
115, Rules of Court where, in all criminal prosecutions, the
defendant shall be entitled: "(e) To be exempt from being
a witness against himself."
A court's jurisdiction at the beginning of trial may be lost
in the course of the proceedings due to failure to
complete the court—by providing counsel for an accused
who is unable to obtain counsel, who has not intelligently
waived this constitutional guaranty, and whose life or
liberty is at stake. If this requirement is not complied
with, the court no longer has jurisdiction to proceed.
- Side note: do you think the prosecutor will ever try to prosecute
Vasquez? No.
What is the problem of the prosecutor after he decided that okay
we now go against Chavez?
- They had no evidence.
- Solution: make him a hostile witness
What is a hostile witness?
- Is it necessarily just the accused?
- A hostile witness is any person who does not voluntarily agree to
testify
- Remedy of court/ prosecution: apply for the court to issue
subpoena to compel him to testify even against his will
If you are the lawyer, who do you want to present? Witnesses who
want to testify/ who does not want to testify?
- Those who want to testify.
Problem of prosecutor-
Not having any witness, he put the very accused on the witness
stand as the hostile witness.
What will the judge do if the prosecution failed to present
witness? Dismiss the case for failure to prosecute
Brillant solution
How did the court explain it to Chavez:
- Judge said that he has to testify, he had no choice
CONSTI 2 [FINALS 2019] Atty. Muyot 42
- Does he have his own lawyer? No. Court just appointed counsel
de oficio
Can the counsel de oficio do anything to oppose the judge?
No.
Chavez was convicted exclusively on his own testimony.
In other words, he was a witness against own self.
This case now goes on appeal.
The fall-guy Chavez
What did the Court said?
- Can Chavez’s conviction be affirmed? No.
- Forcing him to testify against himself was a breach of the
constitutional right against self-incrmination.
His right is not to be a witness.
He cannot be compelled to be a witness.
Who has the burden? The State has the burden to establish his
guilt.
The accused is presumed not guilty- until guilt beyond reasonable
doubt is established.
Malabanan vs Ramento case – even as students, have rights. As a
student, has a right to counsel.
If minor, parents have to be there.
Villaflor v. Summers, 41 Phil. 62 (1920)
RIGHTS OF ACCUSED PERSON; GENERAL PRINCIPLES.—
The object of having criminal laws is to purge the
community of persons who violate the laws to the
great prejudice of their fellow men. Criminal
procedure, the rule of evidence, and constitutional
provisions are then provided, not to protect the guilty
but to protect the innocent. No rule is intended to be
so rigid as to embarrass the administration of justice
in its endeavor to ascertain the truth.
SELF-INCRIMINATION; HISTORY OF THE GUARANTY.
— The maxim of the common law, Nemo tenetur
seipsum accusare, was recognized in England in early
days in a revolt against the thumbscrew and the rack.
A legal shield was raised against odious inquisitorial
methods of interrogating an accused person by which
to extort unwilling confessions with the ever present
temptation to commit the crime of perjury. The
principle was taken into the American Constitutions,
and from the United States was brought to the
Philippine Islands, in exactly as wide—but no wider—a
scope as it existed in old English days.
RULES.—The constitutional guaranty, that no person
shall be compelled in any criminal case to be a witness
against himself, is limited to a prohibition against
compulsory testimonial self-incrimination.
Beltran v. Samson, 53 Phil. 570 (1929)
PROCEDURE; COMPULSORY APPEARANCE OF WITNESSES
AT FISCAL'S INVESTIGATIONS; REFUSAL OF WITNESS TO
WRITE FROM DICTATION.—The fiscal under section 1687 of
the Administrative Code, and the competent judge, at the
request of the fiscal, may compel witnesses to be present
at the investigation of any crime or misdemeanor. But this
power must be exercised without prejudice to the
GALLARDO - LAGMAN - SAN MIGUEL
- When it comes to evidence produced by the accused
himself/ herself what are the rules?
- Rules to apply on the evidences coming from the accused
- She was charged with adultery
- Adultery – married woman have sex with another man other
than her husband.
In other words, who is the principal accused? Woman
The man she had sex with is just a co-principal.
Can the husband file a case directly against the man?
- No.
He has to file a case against the wife.
Then the other man as co-principal
Case was filed against VIllaflor.
What did the judge order?
- The accused to undergo physical examination to determine
pregnancy
- Why?
- Why would be a pregnancy evidence for adultery?
- Because she had not yet have sex with the husband during
that period. So if she was pregnant, it can either be
Immaculate Conception or adultery.
What is the purpose of penalizing adultery?
- prevent spurious heir
But a man who is married, have sex with a woman not his
wife, be liable for adultery? No. Crime committed is nothing.
Adultery unfortunately discriminates against women. Reason
is that for the producing of spurious heir.
When does the man become liable?
- Only when he commits concubinage.
- Concubinage – Is it about having sex? No. It’s about (1)
cohabitation, bring the woman other than wife into the
conjugal home; (2) living together in any other place; (3)
having sex with a woman other than the wife under
scandalous circumstances (e.g. sex in Luneta)
- Why does the law so discriminatory? Who created this law?
Man.
If you are a married man, what is the chance of being
convicted of concubinage? Zero, unless you are absolutely
stupid.
What is your proposal? Amend the law by taking out the
adultery and concubinage as criminal offenses, then just
make it a ground for annulment of marriage.
- Not as psychological incapacity, but 2 nd ground for
annulment of marriage, as infidelity. But of course, Catholic
Church will object because that would tantamount to divorce.
Is there a violation of Villafor’s right against self
incrimination?
- No because the doctor will just take a look at her tummy –
not really conduct procedure
constitutional rights of persons cited to appear. The
petitioner, in refusing to write down what the fiscal had to
dictate to him for the purpose of verifying his handwriting
and determining whether he had written certain
documents alleged to have been falsified, seeks
protection—his constitutional privilege.
The rights intended to be protected by the constitutional
provision that no man accused of crime shall be compelled
CONSTI 2 [FINALS 2019] Atty. Muyot 43
to be a witness against himself is so sacred, and the (2) Non-invasive
pressure toward their relaxation so great when the
suspicion of guilt is strong and the evidence obscure, that In the Philippines, the SC has not yet decided.
it is the duty of courts liberally to construe the prohibition So in other words, we have to impose a standard to
in favor of personal rights, and to refuse to permit any determine when it would be a violation/ when it would not.
steps tending toward their invasion. Hence, there is the
well-established doctrine that the constitutional inhibition Is it something to be subject of an ad hoc determination? No.
is directed not merely to giving of oral testimony, but
embraces as well the furnishing of evidence by other
means than by word of mouth, the divulging, in short, of
And who is going to provide evidence for him? Himself.
any fact which the accused has a right to hold secret."
What should be the standard?
STANDARD Actively Not invasive? Not naturally
The difference between this case and that of PROPOSED produce? occurs?
Villaflor vs. Summers (41 Phil., 62), is that in the latter the
Blood ✗ ✔ ✔
object was to have the petitioner's body examined by
physicians, without being compelled to perform a positive
need to
act, but only an omission, that is, not to prevent the - Violative extract it
examination, which could be, and was, interpreted by this
court as being no compulsion of the petitioner to furnish In US: No.
evidence by means of a testimonial act; all of which is Urine ✗ ✗ ✗
entirely different from the case at bar, where it is sought Have to
to make the petitioner perform a positive testimonial act, - Not urinate at
silent, indeed, but effective, namely, to write and give a violative. some time
sample of his handwriting for comparison. Spermatozoa ✗ ✔ ✔
Have to Have to
Court required Beltran to write, why? - Violative produce it actively
- Charged with falsification. Why was he required to write? (2 out of 3) produce
- That will be the basis for a handwriting. Saliva ✗ ✗ ✗
- How do you do that? By comparing the handwritten Does not Naturally
document to the handwriting - Not violative have to occurs
actively
Does that violate a right against self incrimination? Why? produce it
- Because requires a positive act from the accused.
Court was saying that if the accused does have not to do Feces ✗ ✗ ✗
anything, there’s no violation of right against self- Not actively Not invasive, Naturally
incrimination - Not violative produced. have to wait occurs
But if the accused will be required to do something, under It’s a by for it
compulsion, that’s a violation of right against self- product
incrimination. Breath ✗ ✗ ✗
Does that make sense? Not actively Naturally
- Not violative produced. Not invasive occurs
- If he has to do something, then that violates right against Note: Did not get 3 out of 3 for violation.
self-incrimination. Just got 1 out of 3 and 2 out of 3 for violation.
And the rest were zero out of 3.
Blood Violative of Test: Has to be extracted
right Not WON he has to produce it *re-check checkmarks and cross marks from blood to saliva.
against self- because he has already blood.
incriminatio But definitely, there has to be a standard.
n Example: Tooth.
Urine Not Test: Need not to be extracted Bite-marks, can the police take a (mark) of your teeth? Can
(for drug violative they without violating your right against self-incrimination?
test) Note: Is an assertion of violation of right against self-
Spermatozoa Violative Has to produce it. incrimination actually meritorious in the examination. 

Saliva Not It’s already there.

violative Non-imprisonment for Beliefs; Involuntary Servitude
Feces Not What if given laxative? - Consistent with the freedom of speech and freedom of
violative - Still not violative religious beliefs
Danger if he does not defecate – - Basically, there is no permissible invitation, but once you
might die for overdose acted out, that’s when there now some permissible
limitations.
Not violative because he’s going
to defecate anyway Example: In the law on rebellion, it’s okay if you believe
that the government should be overthrown.
Breath Breath analyzer (for alcohol
- crime of rebellion when taking up arms against
content)
government
- that can be penalized

The provision also provides for involuntary servitude.

In other words, you have 2 tests: What is involuntary servitude?
(1) Has to produce it - not the same as non-payment of debt.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 44

- basically it is akin to slavery. One being forced to work
against his will.
Caunca v. Salazar, 82 Phil. 851 (1940)
An employment agency, regardless of the amount, it may
advance to a prospective employee or maid, has
absolutely no power to curtail her freedom of movement.,
The fact that no physical force has been exerted to keep
her in the house of the respondent does not make less
real the deprivation of her personal freedom of
movement, freedom to transfer from one place to another,
freedom to choose one’s residence. Freedom may be lost
due to external moral compulsion, to founded or
groundless fear, to erroneous belief in the existence of an
imaginary power of an impostor to cause harm if not
blindly obeyed, to any other psychological element that
may curtail the mental faculty of choice or the
unhampered exercise of the will. If the actual effect of
such psychological spell is to place a person at the mercy
of another, the victim is entitled to the protection of
courts of justice as much as the individual who is illegally
deprived of liberty by duress or physical coercion
Caunca was a housemaid.
- Just like any other housemaid, she gets an advance
which will cover the transportation
- She wants to go to her cousin
- Just like in most cases, her accepting the contract of
employment was just to facilitate her travel to the city.
Now she wants to leave.
Her employer says, no you cannot leave. Because you still
owe money because of the advance
May the employer prevent her from leaving?
- No.
What is the remedy of the employer?
- File an action for sum of money.
- Which can file under Barangay.
But may the girl be compelled to stay? No.
The obligation being purely civil, cannot be the basis for
deprivation of liberty.
3 reasons only allowed under law for deprivation of liberty:
(1) commission of crime
(2) violent insanity
(3) contagious disease.

Excessive Fines and Cruel and Inhuman Punishment

What is excessive and what is cruel and inhuman?

- What is excessive? Proportionate.

Lim v. People, 390 SCRA 194 (2002)

Settled is the rule that a punishment authorized by

statute is not cruel, degrading or disproportionate to the
nature of the offense unless it is flagrantly and plainly
oppressive and wholly disproportionate to the nature of
the offense as to shock the moral sense of the community.
It takes more than merely being harsh, excessive, out of
proportion or severe for a penalty to be obnoxious to the
Constitution. Based on this principle, the Court has
consistently overruled contentions of the defense that the
penalty of fine or imprisonment authorized by the statute
involved is cruel and degrading.

The prohibition against cruel and unusual punishment is

generally aimed at the form or character of the
punishment rather than its severity in respect of its
duration or amount, and applies to punishments which
never existed in America or which public sentiment
regards as cruel or obsolete.

The increase in penalty in PD 818 is to effectuate the

repression of an evil that undermines the country’s
commercial and economic growth, and to serve as a
necessary precaution to deter people from issuing
bouncing checks

Lim says the penalty is excessive because there has been

no adjustment as to amount and the penalty for estafa is
to amount. For having defrauded for small amount, the
penalty is very very stiff.

Wouldn’t that violate the constitution?

- No.

May the Court decide on the severity of penalty?

- No. Because that’s a matter of wisdom. Left to the
legislative branch of government.

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 45

Lito Corpuz v. People, G.R. No. 180016, April 29, 2014
It has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or
character of the punishment rather than its severity in
respect of duration or amount, and applies to
punishments which public sentiment has regarded as
cruel or obsolete, for instance, those inflicted at the
whipping post, or in the pillory, burning at the stake,
breaking on the wheel, disemboweling, and the like. Fine
and imprisonment would not thus be within the
prohibition. It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the
punishment authorized by the statute is severe does not
make it cruel and unusual. Expressed in other terms, it
has been held that to come under the ban, the
punishment must be “flagrantly and plainly oppressive,”
“wholly disproportionate to the nature of the offense as to
shock the moral sense of the community.” Cruel as it may
be, as discussed above, it is for the Congress to amend
the law and adapt it to our modern time.
Even if the imposable penalty amounts to cruel
punishment, the Court cannot declare the provision of the
law from which the proper penalty emanates
unconstitutional in the present action. Not only is it
violative of due process, considering that the State and
the concerned parties were not given the opportunity to
comment on the subject matter, it is settled that the
constitutionality of a statute cannot be attacked
collaterally because constitutionality issues must be
pleaded directly and not collaterally, more so in the
present controversy wherein the issues never touched
upon the constitutionality of any of the provisions of the
Revised Penal Code.
- Carpio agreed with Diokno who proposed that court just
applied the adjustment for inflation to the original
amounts.
- Otherwise, the penalty would really be excessive.
Is that something the Court can do?
Can the court use the equity jurisdiction? No.
Why not?
Equity jurisdiction when the law is silent
But in this case, there’s a law.
When there’s a problem as to the wisdom of the law, what
can the Supreme Court do?
- Make recommendation to Congress.
Of course you know what happened
- SC maid a recommendation but Congress acted
expeditiously on the adjustment of the amount.
- RA that amended the RPC for penalties.
- Amended the RPC for penalties (esp. crimes against
property)
- impt on determining penalties – on who has jurisdiction.
GALLARDO - LAGMAN - SAN MIGUEL
What is meant by cruel and inhuman?
- How would the penalty shock the moral senses of the
community?
- For instance, if the penalty is death, is that cruel and
inhuman? No.
- So, what makes the penalty cruel and inhuman?
- The manner of executing/ execution of punishment.
When does the manner of execution of punishment
considered as cruel and inhuman?
- What is more painful? Psychological>Physical
- Pain is really subjective.
- So it’s not the level of pain.
Example: Before, under the 1935/1973 Constitution, do we
have the death penalty? Yes.
But how does the death penalty executed that time?
Electrocution
- At that time, such was not cruel and inhuman.
Now, can we use death penalty thru electrocution? No.
Because of the perception of the society on what is morally/
immorally accepted by society.
Singapore – penalty for malicious mischief: Caning
- in Singapore, not cruel and inhuman.
In Brunei
Adultery – penalty: stoning
Gay sex – penalty: death by stoning
- not cruel and inhuman
- for us, cruel and inhuman but also excessive
Robbery/ theft – penalty: mutilation
What is deemed cruel and inhuman vis a vis current
contemporary moral standards
- We are more forgiving for adultery.
Can you think of President who did not commit adultery? 
Noynoy Aquino haha
Would very stiff penalties of imprisonment be violation of the
Constitutional prohibition? No.
It has to do with the manner.
If death penalty is re-instituted but thru lethal injection, would
that violate the Constitution?
- No. Because the Constitution itself allows it and that
happens with the case of Echegaray - when the President
reinstituted the death penalty
- Upon the intercession of GMA, Congress revoked the law
after Echegaray was put to death.
Because what was the condition of Pope John Paul in the
Phils?
- I will not come in the Phils if you have death penalty.
Echegaray – based on Info filed against him – he should not
have been imposed a death penalty; should be reclusion
perpetua only. Because the info failed to allege the
relationship between him and the victim.
Which was the qualifying circumstance that made it
punishable by death. And realized mistake after execution.
CONSTI 2 [FINALS 2019] Atty. Muyot 46
Atkins v. Virginia, 536 U.S. 304 (2002)
The U.S Supreme Court chose to review the case because
the 1989 precedent on which the Virginia Supreme Court
based its reasoning was arguably outdated. Since that
time, a consensus had developed among state legislatures
that the death penalty was not appropriate for mentally
retarded individuals.
A consensus thus appeared to have emerged that
imposing the death penalty on mentally retarded
defendants was cruel and unusual punishment under the
Eighth Amendment. This was logical because it did not
fulfill the objectives of retribution and deterrence, since
people with mental deficiencies are less likely to
understand why they are being punished in a certain way
or to take lessons from how others in similar situations
are punished. The majority also noted that these
individuals are less likely to seem sympathetic because of
their communicative deficiencies and cognitive isolation
from those around them. As a result, they are at greater
risk for receiving the death penalty from a jury that may
misinterpret their demeanor and reactions.  - Why can’t you apply that to Atkins?
However, the majority noted that states are free to set
the definition of a mentally retarded individual as they
see fit, which still gives them some control over who may
be eligible for the death penalty.
- Death penalty not only with regards the manner but rather
to whom the penalty may be applied as a basis for
determining whether it is cruel/ inhuman.
What was the issue in the case of Atkins?
- WON penalty is properly imposed because he was mentally
retarded
Is he exempt?
- No. Because he was not insane. Not completely
incapacitated. Just had incapacity because of mental
instability.
Would it violate the Constitution if he was allowed to put to
death?
Because in the state of Virginia, made no distinction in its law
in the application of death penalty.
Analytical framework used by Court in this case:
- Did the Court strike down the death penalty? No.
- Court was very careful here.
- The death penalty is not unconstitutional per se
The question was will it be unconstitutional if you will apply
the death penalty to a mentally challenged person?
- Yes.
What was the analysis?
Two-fold purpose of death penalty: Article of Judge Tadiar
Non-imprisonment for non-payment of debt or poll tax
Lozano v. Martinez, 146 SCRA 323 (1986)
Double Jeopardy
People v. Relova, 148 SCRA 292 (1987)
People v. De la Torres, 380 SCRA 596 (2002)
Ex Post Facto Law Bill of Attainder
In re: Kay Villegas Kami, 35 SCRA 429 (1970)
People v. Ferrer, 48 SCRA 382 (1972)
Academic Freedom
Miriam College v. CA, 348 SCRA 265 (2000)
Morales v. U.P. Board of Regents, 446 SCRA 227 (2004)
GALLARDO - LAGMAN - SAN MIGUEL
(1) Retribution - assumption: when a person commits a
crime, he can be liable because he had acted with free will.
So if he acted with free will, then he should be accountable
for the consequences of his acts.
Why can’t you apply that to persons like Atkins?
- Would he have free will? Diminished because of lack of
intelligence.
- In our case, dolo. What are the components of dolo?
(freedom – not enough; but must act with intelligence and
intent)
- even if Atkins acted without compulsion, did he act with
intelligence? Malice? Intent?
- diminished intelligence.
- the Court held that the penalty of death would have to be
mitigated. Because applying to someone who did not have
complete free will.
(2) Deterrence – causing striking fear in the heart of person
because knowing the consequences will now refrain because
does not want to suffer consequences
- He may have be able fully appreciate the consequence.
- Can he be prevented from acting because of a rational
decision making on his part? No.
- Would that cause rational fear on his mind? No.
Court have to – legislative intent
Because the law in Virginia does not provide for any
distinction/ exemptions
How did the court do that?
- Is the protection against cruel and inhuman punishment,
state/ federal law? It’s federal law. It’s something that has to
be applied for the whole country.
What did the Court do?
- The Court looked at all of the different states and how they
treated mentally challenged persons
- Application of death penalty
- What did the Court find?
- There has been several amendments regarding mentally
challenged persons
- States which have not yet amended the law, they did not
actually execute the person.
- And they impose cases, there was lessening/ remission of
penalty. From death to imprisonment.
- Which satisfied the Court that it was already acceptable
among states.
- Criminal law is a State Law. But the protection is in the
Federal Constitution
- Court said that there seems to be a consensus with regard
to State Law that there should be exemptions for these
persons on the ground that imposing penalty on them without
consideration of their mental capacity can constitute cruel
and inhuman punishment.
- This case is not more on being cruel but more on inhuman.
Garcia v. Loyola School of Theology, 68 SCRA 277 (1976)
De La Salle University v. CA, G.R. No. 127980, Dec. 19,
2007
Ateneo de Manila University v. Capulong, G.R. No. 99327,
May 27, 1993
Human Rights
Commission on Human Rights
Carino v. CHR, 204 SCRA 483 (1991)
Simon v. CHR, 229 SCRA 117 (1994)
Civil Liability for Violation of Rights
Lim v. Ponce de Leon, 66 SCRA 299 (1975)
Aberca v. Ver, 160 SCRA 299 (1988)
CONSTI 2 [FINALS 2019] Atty. Muyot 47
MHP Garments v. CA, 236 SCRA 227 (1994) Wilson v. Executive Secretary, G. R. No. 189220,
December 7, 2016
UN Treaty Bodies
Citizenship
Tecson v. Comelec, G.R. No. 161634, March 3, 2004
Republic v. Lim, G.R. No. 153883, Jan. 13, 2004
Frivaldo v. Comelec, 257 SCRA 727 (1996)
Bengzon v. HRET, 357 SCRA 545 (2001)
Cordora v. Tambunting, G.R. No. 176947, Feb. 19, 2009
David v. Agbay, G.R. No. 199113, March 18, 2015
Poe-Llamanzares v. Comelec, G.R. No. 221697, March 8,
2016
David v. SET and Poe-Llamanzares, G.R. No. 221538,
September 20, 2016

Suffrage
Akbayan v. Comelec, G.R. No. 147066, March 26, 2001
Kabataan v. Comelec, G.R. No. 189868, December 15,
2009
Kabataan v. Comelec, G.R. No. 221318, December 16,
2015

GALLARDO - LAGMAN - SAN MIGUEL CONSTI 2 [FINALS 2019] Atty. Muyot 48