CONSTITUTIONAL LAW 2

BILL OF RIGHTS
 Police power is an implied limitation of the Bill of Rights.
 Doctrine of Relative Constitutionality – The constitutionality of a statute cannot, in every instance,
be determined by a mere comparison of its provisions with applicable provisions of the Constitution,
since the statute may be constitutionally valid as applied to one set of facts and invalid in its
application to another. A statute valid at one time may become void at another time because of
altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory,
its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the
light of changed conditions. The court may review its earlier decisions; this doctrine became relevant
due to the advent of technology.
 There is hierarchy among the rights (e.g., the right to free expression is preferred over property rights
as shown in Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co.,
Inc.)
The right against unreasonable searched and seizures is “at the top of the hierarchy of rights, next
only to, if not on the same plane as, the right to life, liberty and property, x x x for the right to
personal security which, along with the right to privacy, is the foundation of the right against
unreasonable search and seizure. (People v. Sapla, G.R. No. 244045, June 16, 2020)”

Right to Life, Liberty, and Property

SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

 Can a person be deprived of life, liberty, or property? Yes, provided that he is afforded the due
process of law. Not really inviolable, these rights can be violated.
 Can death penalty be imposed? Yes. It is only suspended via a Republic Act.
 The Supreme Court have said that the arrangement of Section 1 is not randomly, but purposely. If
there is a clash between right to life, right to liberty or right to property, right to life is the supreme of
the three while right to liberty is above right to property.
 Chavez vs Romulo: No due process done cancelling the PTCFOR. PTCFOR (Permit to Carry
Firearms Outside Residences) is not a property right and even if it is so, can be regulated by the
police power of the state. It is merely a privilege.
Same goes with franchises and licenses, they can be cancelled even without affording them due
process. (e.g., timber license agreements, license to operate) However, there was a case where the
Supreme Court held that if the franchise involved is one given by Congress (media outlets and public
utilities; legislative franchise and license from the NTC; the legislative franchise should be given first
before NTC issues the administrative license/franchise or certificate of public convenience), that is
tantamount already to property right; so NTC without due process cannot cancel the media outlet’s
administrative license
Question: In 2018, resort and restaurant owners complained of the rehabilitation and temporary closure
of Boracay from tourists arguing that they were deprived of their properties without due process because
they were divested of whatever they may earn from tourist arrivals. Were they correct?

Answer: No. Only rights which have completely and definitely (not merely expected and inchoate)
accrued and settled are vested (property) rights entitled to protection under the Due Process Clause.
(Zabal v. Duterte, G.R. No. 238467, February 12, 2019)

Those expected incomes are merely inchoate rights. They cannot equate to property rights as they are not
yet earned.

Question: Cable Link, Inc. applies in NTC for authority to operate cable TV in XYZ City. The Bro Cable
TV files an opposition thereto. However, during hearing, Bro Cable TV was not given copies of the
testimonies of Cable Link’s witnesses. Bro Cable TV move to dismiss the application on the ground of
deviations from the NTC’s own procedural rules, prejudicing the right to due process of the oppositor –
Bro Cable TV. Should the NTC dismiss the application on that ground?

Answer: No. The NTC, although utilizing procedures that are quasi-judicial in nature, does not
adjudicate rights as the end-result involves a grant or denial of the permit or franchise such as CPCN,
and does not involve property right. In application proceedings before the NTC, no one will be deprived
of any vested right or legitimate claim of entitlement when there are deviations to procedural rules. (NTC
v. Brancomm Cable and Television Network Co., G.R. No. 204487, December 5, 2019)

A property is a vested right. A franchise is not a property right, but merely a privilege.

Constitutional v. Statutory Due Process

From Agabon v. NLRC, G.R. No. 158693, November 17, 2004

Constitutional Due Process Statutory Due Process in Labor Code

Has 2 aspects: substantive and procedural Has 2 aspects: substantive and procedural

Assures rights in criminal, civil, or administrative Assures right in labor cases

proceedings

Protects individuals from the government Protects employees from unjust termination by
their employers

 Rights found in the Bill of Rights are generally, rights that may be invoked against the government
(not private individuals). There are only few rights in the Bill of Rights that the Supreme Court have
identified which may be invoked against private individuals.

Aspects of Due Process

1. Substantive Due Process
 Requisites: (1) Lawful Subject: The interests of the public generally, as distinguished from
those of a particular class, require the exercise of the police power
(2) Lawful Means: The means employed are reasonably necessary for the
accomplishment of the purpose and not duly oppressive upon individuals.

Has the same requisites as police power. How does the State exercise its police
power? Through laws enacted by the Congress. Those laws should comply with
substantive due process.

2. Procedural Due Process

a. In judicial proceedings;

Requisites: (1) Impartial court/tribunal clothed with judicial power to hear and
determine the matter before it;
(2) Jurisdiction must be lawfully acquired over the person and/or over
the property;
(3) Opportunity to be heard; and
(4) Judgement must be rendered upon lawful hearing.

b. In administrative proceedings

Requisites: (1) Right to a hearing (met even without a formal or trial-type hearing),
which includes the right to present one’s case and submit evidence in
support thereof;
(2) Tribunal must consider the evidence presented;
(3) Decision must have something to support itself;
(4) Evidence must be substantial;
(5) Decision must be based on the evidence presented at the hearing, or
at least contained in the record and disclosed to the parties affected;
(6) Tribunal/body or any of its judges must act on its own independent
consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate; He may consider the views of a
subordinate office/official, but he must decide on his independent
consideration of the issue
(7) Board/body should, in all controversial questions, render its decision
in such manner that the parties to the proceeding can know the various
issues involved, and the reason for the decision rendered.

Question: On the strength of an anonymous-letter complained filed in the Internal Affairs Service
(PDEA-IAS) of the Philippine Drug Enforcement Agency (PDEA), a formal charge for administrative
investigation was initiated by the agency against its own agent “X.” After requiring him to submit a
Reply to the said anonymous complaint, a decision by the PDEA finding him guilty of conspiring with his
co-agents and rendering him liable for misconduct was issued. Dissatisfied with the IAS-PDEA’s
decision, he elevated his case to the Civil Service Commission (CSC) which likewise found him guilty of
the accusations. He goes all the way up to the Supreme Court questioning the decision raising violation
of his right to procedural due process. Specifically, there was no hearing conducted to get his side of the
story and the only basis of the findings is the anonymous complaint and his reply thereto. Will the case
prosper?

Answer: No. There is no violation of procedural due process even if no formal or trial-type hearing was
conducted, where the party was given a chance to explain his side of the controversy. In this case, he filed
his reply to the (anonymous) letter-complaint and he was also able to give his side when he elevated the
case to the CSC. (Magcamit v. Internal Affairs Service – Philippine Drug Enforcement Agency, G.R. No.
198140, January 25, 2016)

Equal Protection
Law should not be enacted or applied differently on persons having the same situation. A law or even an
act should be applied to all persons of the same class. However, there are instances where law could be
applied differently from the others. This happens when there is a valid classification which allows that a
group of people be treated differently than the rest of the society.

Requisites for Valid Classification: Should all be present. Otherwise, there is a violation of the
equal protection clause.

1. Rest on substantial distinction;

2. Germane to the general purpose of the law;
3. Not limited to existing conditions only; and
4. Apply equally to all members of the same class.

 Application of Art. 29 of the RPC to military (Garcia v. ES, 2012): Accused was preventively
imprisoned. Upon checking, he already served the punishment imposed upon him. He wanted to be
released on the basis of Art. 29. Can Art. 29 be applied to military cases? The Supreme Court, yes,
there is no substantial distinction between military cases and cases under the RPC.
 Anti-VAWC Law does not unduly favor women over men (Garcia v. Drilon, 2013): Is Anti-VAWC
Law a violation of the equal protection clause? The petitioner claim that the law only punishes men.
The contention is not true, Anti-VAWC also punishes women as it includes lesbian relationships,
even MILs may be punished if they are in conspiracy with her son.

Judicial Standard of Equal Protection

From Central Bank Employees Association v. BSP, GR No. 148208, December 15, 2004
1. Rational Basis – the Court will exercise judicial restraint in deciding questions of
constitutionality (particularly whether it violations the equal protection clause), recognizing the
broad discretion given to Congress in exercising its legislative power; May be likened to the
Doctrine of Purposeful Hesitation, in favor of holding the law constitutional
2. Strict Scrutiny – imposed two demands on the law: a demand not only as to means but also one
as to ends (whether the means employed is necessary and the ends is necessary or does not
violate the equal protection clause); and
 3. Intermediate (the middle ground between the above two) – classifications must serve important
governmental objectives and must be substantially related to achievement of those objectives.
Under our jurisdiction, we adopt the rational basis. Because most of the times, cases with regards to
equal protection clause involve suspect class.
The concept of “Suspect class” in judicial standards:
 A class saddled with such disabilities, or subjected to such history of purposeful unequal
treatment, or relegated to such a position of political powerlessness as to commend extraordinary
orotection from the majoritarian political process.
From the disadvantageous class of society. “Those who have less in life should have more in
law.”

 Under this concept, the suspect class may be treated differently from the rest without violating the
equal protection clause. Being a suspect class is a valid classification.
Judicial Standards of Equal Protection:
The concept of “suspect class” in judicial standards:
 General Rule: If the classification gives extraordinary protection (or advantage) to suspect
classes, rational basis test is the judicial standard that applies;
 If the classification burdens the suspect classes, strict scrutiny test applies;
 If the classification does not involve suspect classes, intermediate scrutiny test applies.

Question: Forever Jealous Corp. wants to declare unconstitutional Sec. 47 of RA 89 which gives a longer
period of redemption to natural persons, but shorter period for juridical persons, for properties
foreclosed by banks. It argues that the provision violates the equal protection clause. Is the Corporation
correct?
Answer: No. Juridical entities cannot be considered a “suspect class,” as compared to natural persons.
The protection and advantage given to natural persons (a suspect class in this scenario) is based on the
fact that the properties of natural persons are more often used for residential purposes, as compared to
that of juridical entities often used for commercial purposes. Natural persons are also directly
responsible for the liabilities they incur and, often, are not equipped with the same resources that
juridical entities may have. (Zomer Development Company, Inc. v. Special Twentieth Division of the
Court of Appeals, G.R. No. 194461, January 7, 2020)
The Court applied the rational basis test. The suspect class being the natural persons.
Right Against Unreasonable Searches and Seizures
SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

General Rule: No COURT warrant, no search or arrest

Exceptions:
1. Warrantless state intrusions held valid by the Supreme Court.

For searches, the exception would be the state intrusions held valid by the Supreme Court. There
are two kinds of warrantless searches.

2. Warrantless arrest allowed by the Rules of Court.

Note: Even aliens may invoke this right. (People v. Chua Ho San) Technically, rights under the Bill
of Rights are invokable only by citizens of the Philippines. However, certain rights have been held by
the Supreme Court to be invokable even by foreigners, by reason of international law or convention
the where the Philippines is a signatory.
In People v. Chua Ho San, a Chinese was searched and arrested without a warrant. The search was
invalid and the illegal drugs taken are inadmissible as evidence, as the right against unreasonable
searches and seizures may also be invoked by aliens.

Requisites of a Valid Warrant

1. Warrant shall issue only upon probable cause, to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce; and

 Probable Cause – There are two kinds of probable cause under the Rules of Court and our
jurisdiction.

Determination of Probable Cause of a Determination of Probable Cause of a

Prosecutor
Executive and quasi-judicial
Made during preliminary investigation
(Wala pang kaso)
To determine whether a crime has been
committed and the person should be held
for trial
Judge
Judicial
Made upon filing of criminal information
(There is already a case as criminal
information had already been filed)
To ascertain whether a warrant should be
issued (What is referred to in Art 3, Sec 2
of the Constitution)

In a preliminary investigation, probable cause means “more than bare suspicion but less
than evidence that would justify a conviction.” Technical rules of evidence should not be
 applied. Hence, probable cause can be established with hearsay evidence. (Reyes v.
Ombudsman, March 15, 2016) But in a judge’s determination whether an accused should be
convicted, there should be proof beyond reasonable doubt.

 Personally – it is enough that the judge personally evaluates (not just accept; the judge must
personally examine the application for warrant; BUT it does not mean that the judge should
examine the application from scratch) the prosecutor’s report and supporting documents
showing the existence of probable cause for the indictment and, on the basis thereof, issue a
warrant of arrest; or

If, on the basis of his evaluation, he finds no probable cause, to disregard the prosecutor’s
resolution and require the submission of additional affidavits of witnesses to aid him in
determining its existence.

 Judge

There can be no arrest order or search order by a non-judge. However, there is an exception.

An administrative warrant of arrest may be issued by the Deportation Board (non-court

tribunal), but only after the investigation resulted to and to carry out the final order of
deportation.

But an administrative warrant of arrest cannot be issued for purposes of investigation and
before a final order of deportation is issued is a violation of Art. 3, Sec. 2.

The purpose of the administrative warrant of arrest is only to carry out or implement the
order of deportation. It therefore cannot be issued for purposes of investigation, but only
after a final order of deportation is issued.

How about a search warrant issued by a non-judge? No, there is no administrative search
warrant issued by a non-judge. However, an administrative search under RA 9165 involving
public and private employees and students was held valid by the Supreme Court.

An administrative search such as mandatory, random, and suspicionless drug testing for
employees and students under RA 9165, needing “swift and informal disciplinary
procedures,” is reasonable and does not require the application of probable cause standard.
(SJS v. DDB, 2008) Even without warrant, such search is valid as there is a need for swift
and informal disciplinary procedures for employees and students ONLY.

Mandatory, random, and suspicionless drug testing was originally intended for (1)
candidates for public office, (2) private employees, (3) public employees, (4) students and (5)
suspects of a crime.
(1) – unconstitutional as it is tantamount to adding requirements to run for public post, not
prescribed by the constitution
(2) – valid as there is a need for swift and informal disciplinary procedures for employees
and students
 (3) – valid as if private companies and corporations have the right to protect their workplace
from drug addicts and drug influences, the more the government is entitled to protect its
workplace
(4) – valid as there is a need for swift and informal disciplinary procedures for employees
and students
(5) – unconstitutional as it is tantamount to a fishing expedition

 After examination under oath or affirmation of the complainant and the witnesses he
may produce

Question: Is hearing necessary before a judge can issue a warrant of arrest or a search
warrant?

Answer: No. It is enough that the judge personally evaluates the prosecutor’s report and
supporting documents. (Ocampo v. Abando, G.R. No. 176830, February 11, 2014)

If the state wants to arrest a person, a subpoena issued for a hearing to determine whether he
must be arrested may lead to that person to flee. Therefore, for practical reasons, there is no
need for a hearing before a warrant of arrest may be issued. It is enough that the judge
personally evaluates the prosecutor’s report and supporting documents.

Question: Since the Constitution uses the word “and,” is there a need to examine BOTH the
applicant and the witnesses?

Answer: It depends. If the affidavit of one is based on his personal and direct knowledge,
that is, not a hearsay, and his testimony alone is sufficient to establish probable cause, then
there is no need to examine both. Otherwise, both of them must be examined. (People v.
Gabiosa, Sr., G.R. No. 248395, January 29, 2020)

2. Warrant shall particularly describe the place to be searched and the persons or things to be
seized.

This requirement outlaws the so-called “general warrants” that encourages fishing expeditions.

What is a general warrant? A general warrant is a warrant that does not particularly describe
the place to be searched and the persons or things to be seized. A general warrant is invalid.

Thus, the Supreme Court held invalid a search warrant which authorized the search for and
seizure of records pertaining to all business transactions of a person and a corporation whatever
their nature are, and regardless of whether the transactions were legal or illegal.

The warrant must particularly describe the offense he is being suspected of.

Question: Are the following designation of place in a search warrant sufficient description of
the premises even though they do not contain the number of rooms in the house and the fact that
the suspect occupies only a single room therein?
 1. “MASAGANA compound located at Governor’s Drive, Barangay Lapidario, Trece
Martires, Cavite City”;
2. “the house of the accused Estela Tuan at Brgy. Gabriela Silang, Baguio City”;
3. “premises of Felix Gumpal Compound located at Ipil Junction, Echague, Isabela”; and
4. “house at Gitna, Brgy. Cuyab, San Pedro, Laguna”
Answer: Yes. An omission of the warrant to (a) indicate that the place to be searched contained a
number of rooms which were separately occupied by the suspect and her siblings; and (b)
confine the search to petitioner’s unit does not affect the warrant’s validity for the following
reasons: (1) the rooms where the accused and her siblings lived all form an integral part of the
house which was sufficiently described with particularity under the warrant; (2) even assuming
that an inaccuracy in the interior description of the place to be searched may affect the validity
of the warrant, such finding, which only emerged after the warrant was issued, has no bearing on
its validity or invalidity. (Diaz v. People, G.R. No. 213875, July 15, 2020)

If a search warrant or warrant of arrest is issued by the Court, can it be implemented by police
officers in any manner they want? No. The Supreme Court, citing the rules of court, enunciated a
particular principle in executing or implementing a warrant, which is the “Knock and Announce”
Principle.
“Knock and Announce” Principle –Police officers, in executing a warrant, must first give the
notice, show their authority, and demand that they be allowed entry.
Exceptions (Unannounced intrusion):
1. Upon demand, refuses to open;
2. Already knew the identity and authority of the officers;
3. There is an imminent peril to life and limb; and
4. A belief that an escape or destruction of evidence is being attempted.
Warrantless State Intrusions and Warrantless Arrest
1. Warrantless state intrusions held valid by the Supreme Court.

Two categories:

Reasonable Search Warrantless Search

Valid even without a warrant Valid even without a warrant
Arises from a reduced expectation of privacy Presumably an “unreasonable search”
of the person in a certain location (location-
based)
Art. III, Sec. 2, finds no application Art. III, Sec. 2 applies, but for reasons of
practicality, a search warrant can be dispensed
with

 Reasonable Search
1. Mandatory, random, and suspicionless drug testing for employees and students under RA
9165, needing “swift and informal disciplinary procedures” (SJS v. DDB);
2. Search at airports;
3. Search at seaports;
4. Search at bus terminals;
5. Search at malls; and
6. Search at similar public places. (#2 to #6 from Saluday v. People, April 3, 2018)

According to statutory construction, the general term must only include those which are
similar to the specific terms provided. #6 therefore could means those place which are
public in character where many people gather. (Other examples: theme parks, public
zoos, concert halls, cinemas)

When people go to these places, they have a reduced expectation of privacy.

Guidelines in bus searches: (Applies to all kinds of public transportations where the
passengers boarded at the terminal or while in transit; e.g., FX, jeepneys)
Prior entry – passengers can be frisked (kapkapan), bags can be inspected
While in transit – passenger and his effects can still be inspected:
a. Upon receipt on information on contraband or any proceeds of a crime;
b. If he (did not board at the terminal and) is picked en route; and
c. In routine inspection at military or police checkpoints.
In both situations (Prior entry and while in transit) – The following conditions for valid
reasonable search must be met:
1. Manner the least intrusive and uphold the person’s dignity;
2. Search must not be discriminatory and protect the rights of vulnerable identities
(special treatment must be given to vulnerable persons, e.g., PWDs and persons
with special needs);
3. Purpose of the search must be contained to ensuring public safety; and
4. Precautionary measures in placed to prevent planting of evidence. (Saluday v.
People, April 3, 2018)
Rule in airport searches:
 Election not to be searched must be exercised before walking through the
magnetometer OR placing baggage on the conveyor belt of the x-ray machine. Even
when the person is still outside the airport but he already placed his bag on the
conveyor belt, that would already mean that he consented to a search. Therefore, a
person with contraband found in his bag may be arrested once he placed his
baggage on the conveyor belt. The same goes if he walked through the
magnetometer, such act would also signify his consent to a search.
 Exception in anti-hijacking program, deliberate search for drugs violates Art. III, Sec.
2. (People v. O’Cochlain, December 10, 2018) Searches in airport are only done to
prevent hijacking and terrorism, therefore, a person may not be subjected to a
targeted inspection for illegal drugs. Targeted inspection may ONLY be done if you
are a suspected for hijacking even when you already passed the initial screening.
 A person outside the airport may not be searched without a court warrant. However,
he may be searched once inside via a routine inspection (NOT a targeted inspection).

Question: The PNP requires applicants for firearm registration to sign a consent
form voluntarily submitting themselves for presentation/inspection including within
the applicant’s home. Is this constitutional?

Answer: No. This is not a reasonable search where search is valid even without a
warrant due to recognition of the fact that there is a reduced expectation of privacy.
Even though bearing of arms remains a mere statutory privilege, grant of license
thereto should be without prejudice to the inviolability of the home. Considering that
under the consent form the inspection is done before a license is issued, there is no
compelling urgency to immediately conduct the inspection. Since this is an
unreasonable search, a search warrant must first be obtained from a judge to
determine probable cause for its issuance. (Acosta v. Ochoa, G.R. No. 211559,
October 15, 2019)

 Warrantless Search (Valid Warrantless State Intrusions)

1. Search incidental to lawful arrest; 5337

 Valid arrest must precede the search
 Arrest is valid if:
1. There is a court warrant; or
2. It falls under Rule 113, Sec. 5
a. Arrest in flagrante delicto;
b. Arrest in hot pursuit; and
c. Arrest of an escapee or detainee
Question: A person was lawfully arrested, say, caught in flagrante delicto, and
the apprehending officer conducted a search not only on the person of the
suspect, but also in area within the latter’s reach. The officer found an
unlicensed gun inside a bag placed just beside the sofa where the accused was
sitting. Is the gun admissible in evidence against the accused?
Answer: Yes. In lawful arrests, it becomes both the duty and the right of the
apprehending officers to conduct a warrantless search not only on the person of
the suspect, but also in the permissible area within the latter’s reach or “within
the area of his immediate control.”
Note: The phrase “within the area of his immediate control” means the area
from within which he might gain possession of a weapon or destructible
evidence. (People v. Amago, January 15, 2020)

2. Consented search;
 Airport search no longer falls under consented search – a kind of warrantless
arrest – as previously held in People v. Leila Johnson, but a post-9/11 world
reasonable search per Saluday v. People (2018).
  Example of a consented search: Agreeing to be frisked by a police officer
even when there is no probable cause for the search
 Consent must be “unequivocal, specific, and intelligently given,
uncontaminated by any duress or coercion.” Therefore, signing a pro
forma Consent of Voluntary Presentation for Inspection by applicants of
firearm registration does not result in a true and valid consented search
because an applicant cannot intelligently consent to the warrantless
inspection because of the utter lack of parameters on how the inspection
shall be conducted. (Acosta v. Ochoa, G.R. No. 211559, October 15,2019)

3. Plain View Doctrine;

Requisites:
1. Prior justification of intrusion or the police officer is in a position which he
can view;
If the officer trespasses and then peeks, that will not be in accordance with
the plain view doctrine since what he did first was an unjustified intrusion.
He was not supposed to be there.

But let’s say he is simply walking on the streets, then, the plain view doctrine
may apply. The streets are a public place.

2. Discovery is inadvertent; (meaning, unintentional)

3. Immediately apparent that item observed may be a contraband.
Seeing a carton and suspecting that the carton contains marijuana, in this
case, it is not apparent that the item observed may be a contraband.
However, if the police officers see dried leaves which look like marijuana,
then, the plain view doctrine shall apply.

Question: The police station, pursuant to Comelec gun ban, setup a

checkpoint. The police in the checkpoint received a report that a person on a
bus was in possession of a gun. The police officers, in coordination with the
municipal election officer, waited for the bus. Upon contact with the subject
bus, the police asked permission from the driver to board the bus. ON board
the bus, one of the policemen came across a firearm protruding from the
suspect’s half open belt bag. Is the firearm admissible in evidence?

Answer: Yes, under the plain view doctrine. There was justification of
intrusion as the policemen were conducting a checkpoint, pursuant to
Comelec gun ban; the discovery was inadvertent as the firearm was just
protruding from the suspect’s half-open bag; and it was immediately
apparent that the item seized was a contraband considering that guns are
not allowed during that time. (See Sullano v. People, June 8, 2020)

4. Stop-and-frisk search (a.k.a. Terry Search; it came from Terry vs. Ohio, a US case);
 Has two-fold interest:
1. Crime prevention (looks like the person committed or is about to
commit a crime; there must be a valid reason for them to believe
 based on their personal experiences that the person has committed a
crime; a tip is not a valid reason to search a person, there must be a
reasonable belief on their part for the stop-and-frisk search to be
valid); and
2. Self-preservation (looks like a person has a gun tucked on his waist)
 Limited to protected search of outer clothing for weapons (a search in the
woman’s private part for drugs under the stop-and-frisk search is invalid; a
drug searched under stop-and-frisk may be valid though provided that the
search was initially for weapons)

5. Search of a private moving vehicle;

 There must be a reasonable or probable cause to believe, before the search,
that either the motorist has committed a crime or the content of the vehicle a
subject matter of some criminal offense. This is what happened to Robin
Padilla who tried to escape after hitting a balut-vendor. He was searched
after stopped by the police and was found to have guns and other high-
powered firearms.
 Taxis fall under this category and the guidelines for bus searches are not
applicable (Saluday v. People) Taxis do not have terminals and pick up
passengers for private purpose or are private rentals since once the
passenger boards the taxi, no one else can board it unless he allows
 This is allowed due to practicality. It will be difficult to apply a warrant as
the vehicle is constantly moving. Also, due to the vehicle constantly moving,
it will be difficult to determine in what jurisdiction should one apply for a
search warrant.
 There should always be a reasonable or probable cause.

General Rule: Limited to routine checks or visual inspection. They cannot

ask the passengers to alight the car or be searched thoroughly, or the insides
of the car, be extensively searched.
Exception: An extensive search of a vehicle is permissible when “the
officers made it upon probable cause, i.e., upon a belief, reasonably arising
out of circumstances known to the seizing officer, that an automobile or other
vehicle contains an item, article or object which by law is subject to seizure
and destruction.” A thorough search is allowed if there is probable cause
based on the senses of the police officers that the vehicle should be subjected
to extensive search. “Made it upon probable cause” means there is a belief
on the part of the police officers reasonably arising out of circumstances
known to the seizing officers that an automobile or other vehicles contains
an item, article, or object which by law is subject to seizure and destruction.
(e.g.,a gun on the passenger seat)

What are the limits of routine checks?

1. Where the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds;
2. Where the officer simply looks into a vehicle;
 3. Where the officer flashes a light therein without opening the car’s
doors;
4. Where the occupants are not subjected to a physical or body search;
5. Where the inspection of the vehicles is limited to a visual search or
visual inspection; and
6. Where the routine check is conducted in a fixed area.
Remember:
 Sheer unverified information relayed by an anonymous
informant does not engender probable cause on the part of the
authorities that warrants an extensive and intrusive search of a
moving vehicle.
 The police officers have to rely also to their own senses in
determining probable cause.

Question: An anonymous tip was received by police officers that a

person wearing a collared white shirt with green stripes, red ball cap,
and carrying a blue sack was transporting an illegal item. The police
officers saw a person matching the description boarded a passenger
jeepney. They followed the jeepney and apprehended the man. The
man was asked to open the blue sack he was carrying and there, an
illegal item was found. Is the item seized admissible in evidence?
Answer: No. Sheer unverified information relayed by an anonymous
informant does not engender probable cause that warrants extensive
search. Probable cause must also be based on the police officer’s own
senses. (People v. Sapla, G.R. No. 244045, June 16, 2020)

Question: An anonymous tip was received by police officers that a

person wearing a collared white shirt with green stripes, red ball cap,
and carrying a blue sack was transporting marijuana with an owner-
type jeep. The police officers flagged down and approached a vehicle
of a person matching the description. As owner-type jeepney has no
windows or glass-enclosures, the officers readily smelled the
distinctive odor of marijuana. It prompted them in conducting
extensive search which caused the discovery of marijuana bricks. Are
the items seized admissible in evidence?
Answer: Yes. The police officers not just relied solely on the basis of
the tipped information but also their personal experience, i.e., when
they were able to smell the peculiar odor of marijuana. (People v.
Baterina, G.R. No. 236259, September 16, 2020)
6. Customs search;

If an items’ proper duties had not been paid.

  Not applicable in dwelling house. In case the item has already been placed
inside the dwelling house, the customs police must apply for a search
warrant.
 Warrantless search for violation of the Fisheries Code is akin to Customs
Search, and therefore, is valid.

7. Searches at checkpoints;
 E.g., Comelec gun ban

8. Exigent and emergency circumstances;

 E.g., There is a coup and the civilian courts are closed.

9. Search by private persons; and

 Art. III, Sec. 2 and its corresponding Fruit of the Poisonous Tree Doctrine, is
a prohibition against the state and not against private individuals. Therefore,
the item is admissible as evidence.

10. Searches incident of inspection, supervision, and regulation sanctioned by the State in
the exercise of its police powers.
 As part and parcel of regulations of mining operations in the country, the law
now allows the government – through particular agencies or officials (i.e.,
the Mines and Geosciences Bureau), for specific purposes and subject to
definite limitations or conditions – to enter and conduct administrative
inspections in mining sites and areas without judicial warrants. But these
inspections are reasonably limited by statute and regulation. (Pilipil, Jr., v.
Cu, G.R. 228608, August 27, 2020; a case where a mayor barged into a
mining site; under the law invoked the mayor, only the director of the MGB
may conduct the search in the mining site)

2. Warrantless arrest allowed by the Rules of Court. (Rule 113, Sec. 5 - Memorize)4
These arrests may also be implemented by private citizens, and shall be called “citizen’s
arrest.”

1. In flagrante delicto. When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense.
Requisites:
1. An overt act indicating that the person to be arrested has just committed, is
actually committing, or is attempting to commit a crime; and
2. Such overt act is done in the presence OR within the view of the arresting officer.

The following are continuing offenses which a warrantless arrest is allowed under in
flagrante delicto:
 Rebellion;
 Subversion;
 Conspiracy or proposal to commit such Rebellion or Subversion; and
 Crimes or offenses committed in furtherance thereof or in connection
therewith.
 E.g., an NPA member who was arrested in a hospital

2. Arrest in hot pursuit. When an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it; and

Question: Upon a complaint lodged by an alleged victim, police officers responded to

the scene of the crime less than one (1) hour after the alleged mauling. The alleged crime
transpired in a community where the victim and the suspects reside. Upon arrival to the
area, the victim positively identified the suspects as those responsible for his mauling.
When the suspects were confronted by the police officers, they did not deny their
participation in the incident with the victim, although they narrated a different version of
what transpired. Being not present during the alleged mauling, do the police officers
have “personal knowledge of facts or circumstances” to justify a warrantless arrest of
the suspects?
Answer: Yes. Personal knowledge of a crime just committed, does not require actual
presence at the scene while a crime was being committed; it is enough that evidence of
the recent commission of the crime is patent and the police officer has probable cause to
believe based on personal knowledge of facts or circumstances, that the person to be
arrested has recently committed the crime. With what the police officers gathered less
than one (1) hour from the time that they arrived qualify as their personal observation ,
which are within their personal knowledge, to justify a warrantless arrest. (Pestilos v.
Generoso, G.R. No. 182601, November 10, 2014)

No hard and fast rule regarding the time (as an arrest made by the police four hours
after the commission of the crime was still held valid by the Supreme Court). But less
than one hour is the latest jurisprudence.

3. Escapee. When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined
while his case is pending, or has escaped while being transferred from one confinement
to another.
Right to Privacy
SECTION 3. (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

Privacy is a broad term, which is not limited to communication and correspondence. E.g., the right against
unreasonable searches and seizures and the right against self-incrimination fall under privacy.

Two-Fold test to determine whether entitled to right to privacy (whether a person may invoke right to
privacy) (From Disini, Jr., v. The Secretary of Justice, G.R. No. 203335, February 18, 2014):
a. Subjective test, where one claiming the right must have an actual or legitimate expectation of
privacy over a certain matter; and

 The right of privacy of a “public figure” is necessarily narrower than that of an ordinary
citizen. Enrile refused the showing of a documentary. But still, not all personal
information of a public figure may be shared on the grounds of right to information and
free expression. BUT only those which are under public domain, NOT those purely
private matters (e.g., a sexual perversion).
 Pre-trial detainees and convicted prisoners have a diminished expectation of privacy
rights. Hence, letters may be inspected by prison officials, except letters from the
detainees’ lawyer marked as confidential. Former mutineers from Oakwood.
Question: Based on a complaint that Atty. ABC of Agency “XXX” (a government agency) is
doing his private law practice without authority and using government properties in
furtherance thereof, investigators of the Civil Service Commission (CSC), with the consent of
and authority from the agency head, opened Atty. ABC’s office-issued desktop computer
without his consent. Various pleadings were found therein evidencing his law practice. He
was charged administratively for misconduct. In his defense, Atty. ABC invoked his right to
privacy stating that any evidence obtained from his computer in a warrantless search is
inadmissible in evidence against him for any purpose and in any proceeding. Decide.
Answer: Atty. ABC is incorrect. An employee of the government who has been issued with a
computer for official use has no legitimate expectation of privacy as to the use and contents
of his office computer, and therefore evidence found during warrantless search of the
computer was admissible in an administrative case against him. The employee’s personal
files stored in and retrieved from the computer can be used by the government employer as
evidence of misconduct. (Pollo v. David, G.R. No. 181881, October 18, 2011)
Question: A warehouse owned by a Chinese is implementing a very strict security measure.
Part of this measure is installation of CCTVs. One of its CCTVs is directly facing the
business office of his neighbor. The owner of the said business office, who is also a Chinese,
demanded that the owner of the warehouse direct the focus of the camera to somewhere else
as it violates the privacy of its business office. The owner of the warehouse refused on two
grounds: (1) He has all the right to exercise ownership over his property, including the
 installation of CCTVs therein; and (2) Considering that the focus of the CCTV is a business
office and not a residence, there is no reasonable expectation of privacy on the part of its
occupants. Decide.
Answer: Decision should be in favor of the owner of the business office. The right to privacy
under Article 26(1) of the Civil Code covers business offices where the public are excluded
therefrom and only certain individuals are allowed to enter. The petitioners have a
“reasonable expectation of privacy” in their property, whether they use it as a business
office or as a residence and that the installation of CCTV directly facing his neighbor’s
property or covering a significant portion thereof, without their consent, is a clear violation
of their right to privacy. It would be no different from eavesdropping, which is a crime under
Republic Act No. 4200 or the Anti-Wiretapping Law. (Spouses Hing v. Choachuy, G.R. No.
179736, June 26, 2013)

Question: High school student went to a beach party and took digital pictures of themselves
in swimsuits. These pictures were then uploaded by another student on her Facebook profile.
Their computer teacher learned this thence, asked her students if they knew the names of the
students in the pictures, who were readily as identified them. The students’ teacher asked
logged onto their Facebook accounts and showed the pictures to the teacher drinking hard
liquor and smoking cigarettes. Upon discovery, the said teacher reported the matter to and
showed the pictures through the Facebook profile of one of the students to the school’s
Discipline-In-Charge. After investigation, the school was able to identify the students who, in
their opinion, violated the school’s Student Handbook. The school did not allow them to join
the graduation ceremonies. The parents sued the school arguing that since the pieces of
evidence used in disciplining their children were obtained in violation of the teen’s right to
privacy – as people who accessed and used them are not their children’s listed FB friends –
they are inadmissible in evidence against the latter. Was there a violation of privacy?
Answer: There was none. The teacher and school officials were mere recipients of what were
posted. They did not resort to any unlawful means of gathering the information as it was
voluntarily given to them by persons who had legitimate access to the said posts. Clearly, the
fault, if any, lies with the friends of the minors. Had it been proved that the access to the
pictures were limited to the original uploader, through the “Me Only” privacy setting, or
that the user’s contact list has been screened to limit access to a select few, through the
“Custom” setting, the result may have been different, for ui such instances, the intention to
limit access to the particular post, instead of being broadcasted to the public at large or all
the user’s friends en masse, becomes more manifest and palpable. (Vivares v. St. Theresa’s
College, G.R. No. 202666, September 29, 2014)
When a post is in Public, Friends of Friends, or Friends Only, the person cannot expect
privacy over said post.
b. Objective test, where his or her expectation of privacy must be one society is prepared to accept
as objectively reasonable.
For example, invoking the right to privacy while walking on a public street is not reasonable.
Two Categories of Privacy (From Disini, Jr., v. The Secretary of Justice, G.R. No. 203335,
February 18, 2014)
1. Decisional Privacy – involves the right to independence in making certain important decisions
(e.g., decision whether to marry or not, decision whether to bear a child or not)

The State cannot meddle with your decisions. (In China, only one child is allowed.)

2. Informational Privacy – Refers to the interest in avoiding disclosure of personal matters

Two Aspects of Informational Privacy:

a. The right not to have private information disclosed; and
b. The right to live freely without surveillance and intrusion.

Data Privacy Act (RA 10173)

The Data Privacy Act (RA 10173) is a law protecting informational privacy.
Rights of the data subject (or persons whose data have been obtained):
1. Right to be informed;
2. Right to object;
3. Right to access;
4. Right to data portability;
5. Right to correct;
6. Right to block or remove;
7. Right to file a complaint; and
8. Right to be indemnified.
“Right to be Forgotten” - Google Spain v. AEPD(Spanish Data Protection Agency) and Mario
Costeja Gonzalez, C-131/12
Mario Costeja, when he searched his name, it appears that he still has unpaid debts according to a
newspaper link. But he already paid said debts and he wanted Google to remove or block that
newspaper link, reasoning that the information is already obsolete. Supreme Court of Spain referred
the matter to the European Union. Under the general data protection act/law of the European Union,
citizens under the said union have the “right to be forgotten.” It is the right of the data subject to
order or request the removal of information about that person which is incorrect, unlawfully
obtained, outdated, illegal or no longer accurate.
Can “right to be forgotten” be invoked under Philippine law? According to Atty. Enan, yes. Because
under Section 5(e) of RA 10173, the data subject has the right to block or remove (which could be
considered as our right to be forgotten).

Concept of Data Inheritance under RA 10173– Heirs and assigns may invoke rights of the data
subject after the latter’s death or incapacity (e.g., a relative who is in coma).
Privacy of Communication and Correspondence
The privacy of communication and correspondence under Art. III, Sec. 3, in one under informational
privacy.
 The privacy of communication and correspondence is invocable not only against the State but
also against private individuals. (A doctor whose wife searched his office for evidence of his
relationship with his paramour, the items were held inadmissible; “for any purpose in any
proceeding,” even those filed by private individuals such as in an annulment proceeding)
 Consequence of Violation: The Fruit of the Poisonous Tree Doctrine (a.k.a., Exclusionary
Rule) – Any evidence obtained in violation of this or the preceding section is inadmissible for
any purpose in any proceeding.
o Not only in criminal cases but also in civil and administrative cases (e.g., annulment,
legal separation, disqualification from practice of profession)

Question: A female judge, Judge Panalo, filed an administrative complaint to the Supreme Court
against a colleague, Judge Tibam who is also a female, for sending her obscene messages. For
purpose of investigation, the Supreme Court, with Judge Panalo’s consent, directed the
Management Information System Office (MISO) to retrieve the messages sent by Judge Tibam to
the complainant Judge Panalo through the latter’s Yahoo and Facebook accounts with the use of
Judge Panalo’s official workstation. On the basis of what have been retrieved, the Supreme
Court disciplined Judge Tibam. Judge Tibam protested and argued that since the evidence was
obtained by violating her right to privacy, the exclusionary rule applies. Is she correct?

Answer: No. The subjects of the present inquiry were the messages sent by the respondent to a
colleague judge. Regardless of the mode of their transmission, the ownership of the messages
pertained to the latter as the recipient in accordance with Article 723 of the Civil Code.
Considering that it was the latter who granted access to such messages to the MISO, there was
no violation of the sender’s right to privacy. As such, the grant of access by the recipient’s judge
did not require the consent of the Respondent as the writer. (Office of the Court Administrator v.
Judge Yu, A.M. No. MTJ-12-1813, November 22, 2016)

Based on this case, whoever is the recipient of the message owns the message and he can
appropriate such messages for whatever purposes he may want to.

Exceptions to the Right to Privacy of Communication and Correspondence

1. Upon lawful order of the court; or

You can be subjected to surveillance if there is a lawful order of the court.

2. When public safety or order requires otherwise, as prescribed by law.

Even a non-court or an investigating body, part of the executive branch, may violate or
encroached upon your right to privacy of communication and correspondence and subject you to
surveillance, when public safety or order requires provided there is a law allowing such.
Is there a law now allowing a non-court to issue a warrant to subject a person to surveillance?
None, at the moment. Even the anti-wiretapping act requires a warrant from the Regional Trial
Court. Even the Human Security Act of 2007 does require the same warrant.

The anti-terrorism law, as well, only authorizes a person to be subjected under surveillance when
there is a court order.
Free Expression Clause
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.

Scope of Freedom of Speech and Press

The following freedoms must come together. The absence of either one is a violation of the freedom of
speech and of the press.
a) Freedom from censorship or prior restraint

If a regulation is content-based:
It is a censorship which is a violation of the freedom of expression. It pertains to the
subject matter itself and not merely on the incidents of the speech. The test used is the
Clear and Present Danger Test, as held by the Supreme Court.
If a regulation is content-neutral:
It is not censorship, hence, allowed. It pertains merely to the incidents of the speech (e.g.,
time, place, manner of assembly). The test used is Substantial Government Interest Test.

b) Freedom from subsequent punishment

Prior Restraint of Speech: Content-Based Regulation

Question: The Comelec issued a notice to the Diocese of Bacolod ordering the latter to remove the
tarpaulins containing the heading “Conscience Vote” and lists candidates as either “(Anti RH) Team
Buhay” with a check mark and “(Pro-RH) Team Patay” with an “X” mark. The COMELEC deemed it
proper to issue such order because the tarpaulins in its opinion are election campaign propaganda
material which exceed the 2 x 3 feet requirement allowed therefor (according to the Fair Elections Act).
Does the COMELEC have the authority to issue the order?

By regulating the size of a campaign paraphernalia, it is a content-based or content-neutral regulation?

Answer: No, the Comelec does not have authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate. (The size of the campaign paraphernalia shall only
apply to candidates.) While the tarpaulin may influence the success or failure of the named candidates
and political parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid
or posted by any political party or party-list group. Furthermore, the order to remove the tarpaulins for
being oversized is a content-based regulation. The tarpaulin content is not easily divorced from the size
of its medium. In this case, the size regulation is related to the suppression of speech. Limiting the
maximum size of the tarpaulin would render ineffective petitioners’ message and violate their right to
exercise freedom of expression. (The Diocese of Bacolod v. COMELEC, G.R. No. 205728, 21 January
2015)

Prior Restraint of the Press/Media: Content-Based Regulation

Question: A resolution was adopted by the Comelec introducing a radical change relative to the airtime
limitations on political advertisements by computing the airtime on an aggregate basis involving all the
media of broadcast communications instead of computing on a per station basis, as it has done in the
past. In effect, it drastically reduced the allowable minutes within which candidates and political parties
will be able to campaign through the air. Does it violate the constitutional guarantee of the freedom of
expression, of speech and of the press of candidates?
Answer: Yes. This resolution on airtime limits goes against the constitutional guaranty of freedom of
expression, of speech and of the press, the guaranty of freedom to speak is useless without the ability to
communicate and disseminate what is said. And where there is a need to reach a large audience, the need
to access the means and media for such dissemination becomes critical. (GMA Network Inc. v Comelec,
G.R. No 205357, September 2, 2014)
 The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press.
 Live TV and radio coverage of trials is not allowed because it will affect the maintenance of absolute
fairness in the judicial process. The Supreme Court held that the media cannot invoke the freedom of
the press as the right of the accused for absolute fairness in the judicial process is superior than said
freedom.
 But in 2012, the Supreme Court allowed pro hac vice live media broadcast of the Ampatuan trial,
subject to twelve conditions. (Re: Live Media Broadcast of Ampatuan Trial, Res., AM Nos. 10-11-5-
SC, 10-11-6-SC, and 10-11-7-SC, October 23, 2012) With said case, is live TV and radio coverage of
trial now allowed? According to Atty. Enan, no. Live TV and radio coverage would violate absolute
fairness in the judicial process and such is supreme over the freedom of the press. The Ampatuan case
was decided on pro hac vice, which means for this particular case only. Re: Live TV and Radio
Coverage of the Hearing of President Corazon C. Aquino’s Libel Case, October 22, 1991 and Re:
Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Case Against Former
President Joseph E. Estrada, AM No. 01-4-03-SC, June 29, 2001 are still the prevailing jurisprudence.

Prior Restraint: Content-Neutral Regulation

The O’Brien Test

O’Brien was anti-war. In a rally, he publicly tore his commission paper or draft paper. He was charged
for mutilation of military documents. The indictment against O’Brien was held valid.
Under this test, even if a law furthers an important or substantial government interest, it should be
invalidated.
1. If such governmental interest is related to the suppression of free expression; or
2. Even if the purpose is unrelated to the suppression of free speech and it is merely a restriction on
freedom of expression, but the restriction is greater than is necessary to achieve the governmental
purpose in question. This is a question of proportionality. Is the means employed proportion with
the objective of just restricting the incidence of speech?

The O’Brien Test - 4 prongs

1. It is within the constitutional power of the government;
2. If it furthers an important or substantial government interest;
3. If the government interest is unrelated to the suppression of the free expression; and
4. If the incidental restriction on freedoms of speech, expression and press is no greater than is
essential to the furtherance of that interest.

In the absence of one prongs, the law must be struck down as unconstitutional for being a
content-based regulation.
The O’Brien Test is what is referred to as the intermediate rule/test (in our jurisdiction) used in
content-neutral regulation (not used in the Philippines in content-based regulation. In content-based
regulation, we use the Clear and Present Danger Test, we no longer use the Dangerous Tendency Rule).
The test is called intermediate because the Court will not merely rubberstamp the validity of a law but
also require that the restrictions be narrowly-tailored to promote an important or significant governmental
interest that is unrelated to the suppression of expression.

Question: A law prohibits the engagement of any person in partisan political activities abroad during the
30-day overseas voting period (From the Overseas Absentee Voting Law).

(1) Is this a content-based regulation or content-neutral regulation?

(2) Is the law constitutional?

Answer:
(1) It is a content-neutral regulation. Undoubtedly, the prohibition under the questioned legislative act
restrains speech or expression, in the form of engagement in partisan political activities, before they are
spoken or made. The restraint, however, partakes of a content-neutral regulation as it merely involves a
regulation of the incidents of the expression, specifically the time and place to exercise the same. It does
not, in any manner, affect or target the actual content of the message. The fact that the questioned
regulation applies only to political speech or elected related speech does not by itself make it a content
based regulation.
(2) The law is unconstitutional. Focusing on the fourth prong of the O’Brien or Intermediate Test, the
challenged provisions sweeping and absolute prohibition against all forms of expression considered as
partisan political activities without any qualification is more than what is essential to the furtherance of
the contemplated governmental interest. The use of the unqualified term “abroad” would bring any
intelligible reader to the conclusion that the prohibition was intended to also be extraterritorial in
application. The perceived danger sought to be prevented by the restraint is the purported risk of
compromising the integrity and order of our elections. Sensibly, such risk may occur only within premises
where voting is conducted, i.e., in embassies, consulates, and other foreign-service establishments.
(Nicolas-Lewis v. Comelec, G.R. No 223705, August 14, 2019)

Commercial Speech
Commercial speech (used in commercial advertisements) has not accorded the same level of protection as
political speech, but is nonetheless entitled to protection. Restriction in the commercial speech by the
State is valid provided that the restriction or regulation met the following requirements:
1. Not false, misleading or proposing an illegal activity;
2. Substantial government interest;
3. Regulation must directly advance the government interest; and
4. Regulation must not be overbroad

An example: A commercial promoting breast milk substitute was restricted. The Supreme Court
held the commercial as part of commercial speech which is entitled to protection. Breast milk
substitutes are not illegal.
Question: Determine whether the following laws are constitutional:
1. Prohibiting and punishing transmission of unsolicited ads or e-mail spam.
2. Punishing cyber libel.
3. Punishing those who aid or abet cyber libel through “liking,” “commenting,” or “sharing”
libelous statements posted online by another person.
Answer:
1. Unconstitutional. To prohibit the transmission of unsolicited ads (email spam) would deny a
person the right to read his emails, even unsolicited commercial ads address to him. Unsolicited
advertisement are commercial speeches.
2. Cyber libel is constitutional. Libel is not a constitutionally protected speech and that the
government has an obligation to protect private individuals from defamation. Cyber libel is not a
new crime since Article 353, in relation to Article 355 of the Revised Penal Code, already
punishes it. In effect, it merely affirms that online defamation constitutes “similar means” for
committing libel.
3. Unconstitutional. Except for the original author, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of
their response to the original posting. The terms “aiding or abetting” constitute broad sweep
that generates chilling effect on those who express themselves through cyberspace posts,
comments, (likes) and other messages. (Disini, Jr. v. The Secretary of Justice, G.R. No. 203335,
February 18, 2014)

Subsequent Punishment: Tests for Restraint (Validity of Law)

“Dangerous Tendency” Rule
(Applicable before the 1987
Constitution during martial
law and the war)
Speech is punishable by mere
presence of rational
connection between the speech
and the evil apprehended (The
danger is not yet imminent)
Question of reasonableness
More in favor of government
authority, and safety and public
“Clear and Present Danger”
Rule (Prevailing rule for
freedom of speech)
Speech is punishable only when
it is of such nature as to create a
clear and present danger (The
danger is not only expected, but
is already present)
Question of proximity and
degree
More in favor of liberty
“Balancing of Interests” Rule
(Still used but only in one kind
of freedom of expression,
which is in commercial
speeches)
Speech is punishable if on
balance, it appears the public
interest outweighs the
abridgment of freedom (This
test will uphold the validity of
the law if the public interest
outweighs the abridgment of
freedom)
Question of greater weight
Court’s duty and discretion (Not
in favor of any of the two
 order previously mentioned, but the
decision as to which weighs
heavier is upon the discretion of
the court)

When a mayor is faced with an application permit to rally or for public assembly, the mayor must use the
Clear and Present Danger Rule according to Section 6 of the Public Assembly Act of 1985.

Schools’ Academic Freedom vs. Students’ Freedom of Expression

Schools’ Academic Freedom includes the freedom what to teach, how it may be taught, and who to teach
or who will be admitted, and also, the right to bestow or withdraw a degree already given to a student.
Students’ Academic Freedom is the right to exercise those rights found in the Bill of Rights inside the
school or campus.
General Rule: While the authority of educational institutions over the conduct of students must be
recognized, it cannot go so far as to be violative of constitutional safeguards such as the student’s
freedom of expression. The students’ freedom of expression is superior over the schools’ academic
freedom.
Exception: The conduct by the student in exercising his freedom of expression materially disrupts class
work or involves substantial disorder or invasion of the right of others.

Assembly and Petition

 BP 880 (The Public Assembly Act of 1985) does not restrict, but only regulates the time, manner, and
place of the assembly. In granting or not granting the permit to rally, the Mayor should use the Clear
and Present Danger Test. BP 880 is a content-neutral regulation.
 Public Assembly/rally within the 200-meter radius from the outer boundary of any courts is not
allowed. (In Re: Petition to Annul En Bank Resolution AM No. 98-7-02-SC – Ricardo C. Valmonte
and Union of Lawyers and Advocates for Transparency in Government (ULAT), GR No. 134621,
September 29, 1998)
 Government employees are not allowed to hold a strike. (Under the Civil Service Law or Labor
Code)

Question: Every second-year law student knows that the right to association of government workers does
not include the right to strike. In a government water district, however, members of an employee’s
association joined an office-sanctioned fun run in sports attire but with a grievance inscription on
Collective Negotiation Agreement (CNA). Because of this act, several association members were
disciplined administratively by the head of agency for violation of Reasonable Office Rules and
Regulation within government hours. Is the act of the head of the agency valid?
Answer: No. Although those who enter government service are subjected to a different degree of
limitation on their freedom to speak their mind, it is not tantamount to the relinquishment of their
constitutional right of expression, otherwise enjoyed by citizens, just by reasons of their employment. The
collective activity of joining the fun run in t-shirts with inscriptions on CNA incentives was not to effect
work stoppage or disrupt the service as they were in sports attire that they were allowed, nay, required to
wear. Hence, even done within governmental hours, the wearing of t-shirts with grievance inscriptions
does not constitute as a violation of Reasonable Office Rules and Regulations. (Davao City Water
District v. Aranjuez, G.R. No. 194192, June 16 2015)

Free Speech and of the Press vs. Judicial Independence

Question: A reporter of the Manila Times published an article entitled “JUSTICES OFFERED P50-
million bribe to disqualify Poe – sources.”
1. What are the two tests used in balancing the role of the media vis-à-vis the judicial
independence?
2. In indirect contempt cases against the media, which test is to be applied?
Answer:
1. The Clear and Present Danger and Dangerous Tendency Test.

Under the first, the advocacy of ideas cannot constitutionally be abridged unless there is a clear
and present danger that such advocacy will harm the administration of justice.

Under the second, the freedom of speech and of the press is restricted to protect the courts
against contempt and this does not require definite or immediate acts of force, violence or
unlawfulness be advocated, it is sufficient that such acts be advocated in general terms.

2. The Clear and Present Danger Test Rule is to be used in citing indirect contempt of a reporter . It
is to be noted, nonetheless, that under this test in relation to freedom of the press, good faith or
absence of intent to harm the courts is a valid defense. (Re: News Report of Mr. Jomar Canlas
in Manila Times Issue of 8 Mar 2016 , A.M No. 16-03-10 SC, Oct 15, 2019)