Consti 2 Montejo Lectures

CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES
“All the effort in the world won't lawfulness of the means require that there must be a causal
matter if you're not inspired.” connection between the means employed to achieve the
― Chuck Palahniuk, Diary purposes of the regulation. The means must be reasonable by
themselves because even if the objective of the regulation is for
26 July 2012 public interest but if the means are unreasonable, they may not
be considered as valid or legal means, and the regulatory
DUE PROCESS AND EQUAL PROTECTION AS measures maybe tested for the lawfulness of the means. This is
LIMITATIONS ON POLICE POWER, EMINENT where most of the cases in police power are destined because
DOMAIN AND TAXATION the lawfulness of the subject is generally given whereas the
lawfulness of the means would have tested whether or not these
A. Fundamental Principles on Constitutional Law and are reasonable or necessary in order to achieve the objectives of
the Bill of Rights the law. It does not follow the general principle that the end
should justify the means. The means must be reasonable or
Okay, now we are starting with the Bill of rights. lawful.
Based on the discussions of fundamental powers, you already Now, this power can be used through the exercise of eminent
know police power, eminent domain and the power to tax. Their domain or through the exercise of the power to tax. For example,
constant is that they are called inherent. Once the State comes there is a regulation on importation so that there is protection of
into being, meaning the elements of the state - people, territory, the interest of the Filipino manufacturer or producer, the State
government, sovereignty are present and existing, these may impose higher duties and taxes for imported products. So
fundamental powers can be exercised without any need of a while ostensibly it is considered as a taxation measure, the actual
constitutional or statutory conferment. The provisions in the or real intent of the regulation is to protect or promote the local
Constitution as well as in related issuances by Congress in terms manufacturers.
of statute are therefore considered as limitations of these
fundamental powers. Eminent Domain
For the valid exercise of police power, the police power is It can also be through eminent domain; the classic exercise is the
considered the most limitable, most demanding of all the powers enactment of the CARP law. The CARP law has long been
of State. It is the most demanding because it would affect any declared as not unconstitutional as early as the case of
human activity that can be imaginable in terms of regulation. It is Association of Small Land Owners vs. DAR Secretary where
however dynamic because it is supposed to adapt to the the SC said it is actually not purely an exercise of eminent
demands of the times. What have been considered as valid domain for taking of real property for public use upon giving of
regulations before in the exercise of certain rights may no longer just compensation because it is actually a regulatory measure to
be considered valid today because they are no longer considered regulate property ownership for the promotion of common good
part of the regulation. based on the social justice provisions in the Constitution
equitably defusing wealth by supposedly distributing these lands.
Lawful Subject viz Lawful Means That is the intent of the Constitution, to give to the poor and take
from the rich.
Now the general test used for the exercise of police power, would
be 1) the lawfulness of the subject or lawful subject and 2) the Association of Small Landowners vs. Secretary of DAR
G.R. No. 78742 July 14, 1989
lawfulness of the means or lawful means.
FACTS: Article XIII on Social Justice and Human Rights includes a
The lawfulness of the subject simply answers the question of call for the adoption by the State of an agrarian reform program.
which interest should be protected by reason of the regulation or The State shall, by law, undertake an agrarian reform program
founded on the right of farmers and regular farm workers, who are
the exercise of police power. More or less, this refers to any landless, to own directly or collectively the lands they till or, in the
public interest matter. So if what is to be protected is the interest case of other farm workers, to receive a just share of the fruits
of the many as compared to a few, then the required lawfulness thereof. RA 3844, Agricultural Land Reform Code, had already
of the subject is generally satisfied or complied with. Now, the been enacted by Congress on August 8, 1963. This was
1 Transcribed by: IV-MANRESA, 2012-2013©

Asong•Kintanar,K•Cañete•Dumandan•Alonzo• Evangelista•Laman •Diniay•Kintanar,L•Pendatun•Pinoon•Go•Pangandaman•
•Dumagan•Limbo-Cabuhat•Belen•Rubinos•Magabilen•Trinidad•Leyes•Givero•Travilla•Elman•Paras•Tinapay•Orcullo•Macla•Ladeza•
•Linog•Calizo•Carcedo•Paguican•Torres•Pelonio•Ilustrisimo
Ad Majorem Dei Gloriam!
substantially superseded almost a decade later by PD 27, which (1) it must be based on substantial distinctions;
was promulgated on Oct 21, 1972, along with martial law, to (2) it must be germane to the purposes of the law;
provide for the compulsory acquisition of private lands for (3) it must not be limited to existing conditions only; and
distribution among tenant-farmers and to specify maximum (4) it must apply equally to all the members of the class.
retention limits for landowners. On July 17, 1987, Cory issued EO
228, declaring full land ownership in favor of the beneficiaries of The Court finds that all these requisites have been met by the
PD 27 and providing for the valuation of still unvalued lands measures here challenged as arbitrary and discriminatory.
covered by the decree as well as the manner of their payment.
This was followed on July 22, 1987 by PP 131, instituting a Equal protection simply means that all persons or things similarly
comprehensive agrarian reform program (CARP), and EO 229, situated must be treated alike both as to the rights conferred and
providing the mechanics for its implementation. After which is the the liabilities imposed. The petitioners have not shown that they
enactment of RA 6657, Comprehensive Agrarian Reform Law of belong to a different class and entitled to a different treatment. The
1988, which Cory signed on June 10. This law, while considerably argument that not only landowners but also owners of other
changing the earlier mentioned enactments, nevertheless gives properties must be made to share the burden of implementing land
them suppletory effect insofar as they are not inconsistent with its reform must be rejected. There is a substantial distinction between
provisions. these two classes of owners that is clearly visible except to those
who will not see. There is no need to elaborate on this matter. In
In considering the rentals as advance payment on the land, the any event, the Congress is allowed a wide leeway in providing for
executive order also deprives the petitioners of their property rights a valid classification. Its decision is accorded recognition and
as protected by due process. The equal protection clause is also respect by the courts of justice except only where its discretion is
violated because the order places the burden of solving the abused to the detriment of the Bill of Rights.
agrarian problems on the owners only of agricultural lands. No
similar obligation is imposed on the owners of other properties.
Now eminent domain as understood is the highest and most
The petitioners maintain that in declaring the beneficiaries under exact idea of property right… the State which entitled to acquire
PD 27 to be the owners of the lands occupied by them, EO 228
ignored judicial prerogatives and so violated due process. Worse, private property in the concept of compulsory sale. The traditional
the measure would not solve the agrarian problem because even characterization of the exercise of eminent domain is based on
the small farmers are deprived of their lands and the retention the old and traditional concept of eminent domain as taking of
rights guaranteed by the Constitution. lands. Under the so-called Regalian doctrine, all lands originally
In his comment the Sol-Gen asserted that the alleged violation of belong to the State. It is only by State allowance that these lands
the equal protection clause, the sugar planters have failed to show are thereafter classified as alienable, disposable and therefore
that they belong to a different class and should be differently can be subjected to private ownership. So when the State takes
treated. The Comment also suggests the possibility of Congress these lands, it is just taking what it rightfully belongs to it. But as
first distributing public agricultural lands and scheduling the
expropriation of private agricultural lands later. From this viewpoint, we all know, private property in eminent domain, as society
the petition for prohibition would be premature. develops, is not necessarily limited to real property or lands.
There can be expropriation of private property which includes
ISSUE: Whether or not there was a violation of the equal personal property except the two traditional exceptions of
protection clause.
money, and those considered personal actions or personal
HELD: The SC ruled affirming the Sol-Gen. The argument of the
options of an individual. These cannot be expropriated. Other
small farmers that they have been denied equal protection than these, any other property, even if they form intangible things
because of the absence of retention limits has also become like connectivity, for example mobile phone providers, as held in
academic under Sec 6 of RA 6657. Significantly, they too have not the case of PLDT. The SC has said that the compulsory
questioned the area of such limits. There is also the complaint that
they should not be made to share the burden of agrarian reform,
interconnection in PLDT and other providers would come in the
an objection also made by the sugar planters on the ground that form of expropriation. The property of PLDT is private property
they belong to a particular class with particular interests of their even if we talk about connectivity, which is also considered
own. However, no evidence has been submitted to the Court that private property.
the requisites of a valid classification have been violated.
REPUBLIC OF THE PHILIPPINES VS. PLDT
Classification has been defined as the grouping of persons or 26 SCRA 620 (1969)
things similar to each other in certain particulars and different from
each other in these same particulars. To be valid, it must conform FACTS: Public petitioner commenced a suit against private
to the following requirements: respondent praying for the right of the Bureau of
Telecommunications to demand interconnection between the
Government Telephone System and that of PLDT, so that the
Government Telephone System could make use of the lines and Just compensation is actually a concept and theory that it must
facilities of the PLDT. Private respondent contends that it cannot
be based on owner's loss. However, there are several laws on
be compelled to enter into a contract where no agreement is had
between them. the matter of just compensation. The traditional one would refer
to the cost of the land or market value, which will consider of
ISSUE: Whether or not interconnection between PLDT and the
course the cost of acquisition, the present use of the property,
Government Telephone System can be a valid object for the potential use of the property. In later legislations like the
expropriation. CARP law, the law has even provided for certain formulae for
computing the value of the property while there are some laws
HELD: Yes, in the exercise of the sovereign power of eminent which have also provided for the minimum value, meaning the
domain, the Republic may require the telephone company to law has stated in the provision that the minimum value of the
permit interconnection as the needs of the government service property should be this much.
may require, subject to the payment of just compensation. The use
of lines and services to allow inter-service connection between the
both telephone systems, through expropriation can be a subject to Now with respect to the determination of just compensation, the
an easement of right of way. principle has always been that the owner must have to be given a
chance to prove the value of the property though that is not
Now, in eminent domain, while the limitations are provided for in necessarily the value that has to be paid, at least, there is that
the Constitution that there must have to be taking, being in the opportunity in compliance to the requirement of due process. The
concept of ousting the owner from its beneficial or common use owner has to be given that. So while a law may provide for the
and it has to be more than a momentary period, there must be a minimum value or say formula to compute the value, the owner
degree of permanence required. It must also take private must be allowed to present evidence to prove the value of just
property as we said except those two which cannot be compensation. In the end, that would be for the court to decide
expropriated; it must also be taking for public use. how much the value should be.
Concept of Public Use Now there are instances when a property, let us say land, most
especially land, where not the entire property is expropriated, so
The concept of public use has developed through jurisprudence there is a remainder for the owner to use. Now, the use of the
and as required by the demands of time. While traditionally remainder will have to be considered under the concept of
eminent domain is exercised over land, the old concept is that, consequential damage or consequential benefit. If the remainder
there must have a benefit to the public in general. So that the old of the property will not be that useful to the owner that will be
concept of public use is based on the number of people considered consequential damage and therefore that will have to
benefited. So if it is only benefiting the few, the taking is not be added to the value of the property. Conversely, if the
considered for public use because the direct advantage must be remainder after the expropriation will increase in value benefitting
for the many. the owner more than its potential uses before the expropriation,
then the property owner must have to suffer because the
However, in several cases, usually involving land reform whether consequential benefit will have to be deducted from the just
in rural and urban areas, the SC has allowed that taking of these compensation.
lands for distribution for a few is considered taking for public use.
Although it would only directly benefit the few, it would actually Question of Propriety
indirectly benefit the public. The same with the taking of lands for
conversion into economic zones, like ecotourism zones. While Now, despite all these, that all these conditions or requirements
only few individuals benefit directly from the taking, but because of the Constitution are complied with, the first question to ask in
of the business employment that these businesses will generate, the exercise of eminent domain is always the question of
there will be indirect benefit to workers and their family so taking propriety or necessity. Is it necessary to exercise the power of
there is for public use. eminent domain or expropriation? In several cases, the SC ruled
that eminent domain is an extraordinary remedy if the property
Just Compensation owner is not willing to sell. Which presupposes therefore that
when the expropriator would want to take property, there is no
immediate expropriation but there must have to be an offer to buy
the property at the level of the buyer and the seller. It is only that the just compensation is for the entire property which is
when the property owner is not going to sell or that there is no affected by the transmission towers and transmission lines
agreement as to the price to the property like in an ordinary sale, because the owner is ousted from the full use of the property.
that there should be eminent domain. So the question of
necessity or propriety. Power of Taxation
In one old case, the question of propriety was asked because the By the way, the power to tax, there is not much to discuss than
private property of the petitioner was expropriated despite the your knowledge of taxation. The only reference to the part of tax
fact that the local government unit has existing vacant property. in the Constitution is the uniform and equitable rule in taxation
The question is, could the expropriator expropriate a property, in under Article VI section 28 paragraph 1,
this case a LGU, for purposes of let us say construction of an
amusement center when it has an existing vacant lot which could “(1) The rule of taxation shall be uniform and
serve the same purpose? The SC said you cannot because equitable. The Congress shall evolve a progressive
again it is always be a question of propriety or necessity. system of taxation”
By the way, in taking, there is a concept that the taking is not the flexible tariff laws under paragraph 2,
limited to the literal act of taking. The taking now is characterized
as ousting the owner of the beneficial of use of the property or “(2) The Congress may, by law, authorize the president to fix
preventing the owner from exercising full enjoyment of the right to within specified limits, and subject to such limitations and
use over his property. So, good examples would be, in a dam restrictions as it may impose, tariff rates, import and export
project, if there is a dam to be constructed, the lands upstream quotas, tonnage and wharfage dues, and other duties or
would necessarily be inundated. There is no actual taking. The imposts within the framework of the national development
expropriator, NAPOCOR in that case, did not actually take actual program of the Government.”
property but because of the increase in the level of the water
upstream because of the construction of the dam, necessarily the
the exemption under paragraph 3, for
riverbanks of the property by the banks would be inundated. So
real property tax on charitable
the owners will be deprived of full enjoyment of the potential uses
institutions, etc.
of the property. So that will also be considered as taking.
Or if there is a prohibition on easement, then there would also be “(3) charitable institutions, churches, and parsonages or
taking because the property cannot be fully enjoyed by the convents appurtenant thereto, mosques, non-profit
owner. Good example would be if your property is adjacent to an cemeteries, and all lands, buildings, and improvements,
airport runway. You can be prevented from constructing a high- actually, directly, and exclusively used for religious,
rise building. It could cause safety issues on the airplanes taking charitable, or educational purposes shall be exempt from
of and landing to the airport. So while the property is for you to taxation.”
enjoy, you can be prevented from fully enjoying the property. Or
commonly, you may have been exposed to the transmission Under paragraph 4, tax exemption can
towers or transmission lines. In the old cases you must have be granted provided there is majority
come across decisions where the SC said that the property vote of Congress.
owner will have to be paid just compensation in the form of an
“easement of the right of way” because you can still use the parts “(4) no law granting any tax exemption shall be
of the land surrounding transition towers and under or beneath passed without the concurrence of a majority of all
the transition lines. However, in later cases, the SC says no, that the members of Congress.”
should be fully paid because the property owners have actually
been deprived of the full enjoyment of the property. So, from the Article XIV, Section 4, paragraph 3
old concept of just paying the easement of right of way for the revenues and assets of non-stock, non-
transmission lines crossing your property, now the entire value of profit educational institution are exempt
the property has to be paid for just compensation. This means from income taxes
(3) All revenues and assets of non-stock, non-profit The power to tax cannot be delegated except to the local
educational institutions used actually, directly, and government. From the national government, the Local
exclusively for educational purposed shall be Government Code provides taxing power to the LGUs. It cannot
exempt from taxes and duties. xxx” be delegated to private entities.
and paragraph 4 of the same article, Now, we have had discussed the rule on construction of
grants, endowments, donations or constitutional provisions. Now, generally, with respect to the Bill
contributions which are actually, directly of rights, the Bill of rights is supposed to be, in the study of
and exclusively used educational constitutional law, limitation of the state powers. They are
purposes are exempt. therefore claimable exclusively against the exercise of the any of
the state powers. In a limited sense however, there can be
“(4) Subject to conditions prescribed by law, all exercise of or claim of the bill of rights to limit acts of private
grants, endowments, donations, or contributions individuals or private entities when – at least in 2 occasions: 1)
used actually, directly, and exclusively for when the action of the private entity is considered as state action.
educational purposes shall be exempt from tax.” Remember the case of Manila Prince Hotel vs. GSIS. Manila
Hotel is supposed to be considered as a GOCC. GSIS is also
considered also a GOCC but can the acts of these entities be
Now, these powers can be delegated. Police power can be
questioned and limited by the bill of rights? The SC said in a
delegated by Congress to the LGUs. That has been provided for
limited sense, it can considered state action they can be limited
under Section 16 of RA 7160. This is the General Welfare
by the bill of rights.
Clause. In Section 16 there are 2 distinct powers there of LGUs
on police power. First would refer to the general grant of power to
MANILA PRINCE HOTEL vs. GSIS
enact ordinances and regulate the activities for the protection of G.R. No. 122156 February 3, 1997
general welfare and second, those which Congress may delegate
specifically to LGUs from time to time. If there is none, the LGUs Pursuant to the privatization program of the government, GSIS
can exercise police power under the general welfare clause. decided to sell 30-51% of the Manila Hotel Corporation. Two
bidders participated, MPH and Malaysian Firm Renong Berhad.
MPH’s bid was at P41.58/per share while RB’s bid was at
Section 16. General Welfare. - Every local government unit shall P44.00/share. RB was the highest bidder hence it was logically
exercise the powers expressly granted, those necessarily implied considered as the winning bidder but is yet to be declared so.
therefrom, as well as powers necessary, appropriate, or incidental Pending declaration, MPH matches RB’s bid and invoked the
for its efficient and effective governance, and those which are Filipino First policy enshrined under par. 2, Sec. 10, Art. 12 of the
essential to the promotion of the general welfare. Within their 1987 Constitution**, but GSIS refused to accept. In turn MPH filed
respective territorial jurisdictions, local government units shall a TRO to avoid the perfection/consummation of the sale to RB.
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the RB then assailed the TRO issued in favor of MPH arguing among
right of the people to a balanced ecology, encourage and support others that:
the development of appropriate and self-reliant scientific and 1. Par. 2, Sec. 10, Art. 12 of the 1987 Constitution needs an
technological capabilities, improve public morals, enhance implementing law because it is merely a statement of
economic prosperity and social justice, promote full employment principle and policy (not self-executing);
among their residents, maintain peace and order, and preserve the 2. Even if said passage is self-executing, Manila Hotel does not
comfort and convenience of their inhabitants. fall under national patrimony.
Eminent domain can be delegated not only to LGUs but also to

private entities which are usually considered quasi-public ISSUE: Whether or not RB should be admitted as the highest
bidder and hence be proclaimed as the legitimate buyer of shares.
corporations because of the services that they have, that they
offer, like PLDT and all these Telcos, water districts, the electric
HELD: No. MPH should be awarded the sale pursuant to Art 12 of
companies and cooperatives. Under the National Electrification the 1987 Const. This is in light of the Filipino First Policy.
Administration Law, the electric cooperatives have the power to
exercise eminent domain in relation to the services they are Par. 2, Sec. 10, Art. 12 of the 1987 Constitution is self executing.
offering. So, not limited to LGUs but also to private entities. The Constitution is the fundamental, paramount and supreme law

of the nation, it is deemed written in every statute and contract. the right to privacy in correspondence and communication. And
based on the ruling in the Zulueta case, the SC has somehow
Manila Hotel falls under national patrimony. Patrimony in its plain applied that section or provision in the Constitution to be
and ordinary meaning pertains to heritage. When the Constitution
speaks of national patrimony, it refers not only to the natural
claimable by a private individual against a private individual.
resources of the Philippines, as the Constitution could have very Again, generally, these are only claimable against the State for
well used the term natural resources, but also to the cultural those considered as state action.
heritage of the Filipinos. It also refers to our intelligence in arts,
sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the ZULUETA vs. CA
mental ability or faculty of our people. Note that, for more than 8 February 10, 1996
decades (9 now) Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its FACTS: The wife forcibly opened the drawers at the clinic of her
existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and doctor-husband and took diaries, checks and greeting cards of
nationhood. his alleged paramours. Thereafter, she used the same in their
legal separation case.
Herein resolved as well is the term Qualified Filipinos which not
only pertains to individuals but to corporations as well and other ISSUES: (1) Whether or not there was a violation of the right to
juridical entities/personalities. The term “qualified Filipinos” simply
means that preference shall be given to those citizens who can
privacy. (2) Whether or not right to privacy can be invoked by a
make a viable contribution to the common good, because of private individual.
credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to Filipino HELD: Said documents are inadmissible in evidence. This is so
citizens or organizations that are incompetent or inefficient, since
such an indiscriminate preference would be counter productive and
because the intimacies of husband and wife does not justify the
inimical to the common good. breaking of cabinets to determine marital infidelity.
In the granting of economic rights, privileges, and concessions, The constitutional injunction declaring “the privacy of
when a choice has to be made between a “qualified foreigner” and communication and correspondence [to be] inviolable” is no less
a “qualified Filipino,” the latter shall be chosen over the former.” applicable simply because it is the wife (who thinks herself
aggrieved by her husband’s infidelity) who is the party against
**Section 10. The Congress shall, upon recommendation of the whom the constitutional provision is to be enforced. The only
economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to corporations or exception to the prohibition in the Constitution is if there is a
associations at least sixty per centum of whose capital is owned by “lawful order [from a] court or when public safety or order
such citizens, or such higher percentage as Congress may requires otherwise, as prescribed by law.” Any violation of this
prescribe, certain areas of investments. The Congress shall enact provision renders the evidence obtained inadmissible “for any
measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos. purpose in any proceeding.”
In the grant of rights, privileges, and concessions covering

the national economy and patrimony, the State shall give There are several provisions in the Constitution which may refer
preference to qualified Filipinos. to the rights to privacy, most common there is your right against
reasonable search and seizure. But this is not a direct provision
The State shall regulate and exercise authority over foreign
that the person has the right to privacy.
investments within its national jurisdiction and in accordance with
its national goals and priorities.
“Section 2. The right of the people to be secure in
An action of a private entity is considered a state action if the their persons, houses, papers, and effects against
State is supposed to be, by the circumstances defined, to have unreasonable searches and seizures of whatever
acted employing itself to the controversy or the action in nature and for any purpose shall be inviolable, and
question. The other is 2) in the concept of the right to privacy. no search warrant or warrant of arrest shall issue
You all know that the Constitution does not provide for any except upon probable cause to be determined
provision with respect to rights to privacy. The nearest perhaps is personally by the judge after examination under

oath or affirmation of the complainant and the requirement of due process. Same with administrative cases
witnesses he may produce, and particularly because of the seven cardinal primary rights would not even
describing the place to be searched and the require a formal type of hearing. What the procedural due
persons or things to be seized.” process in administrative cases require substantially would still
be on the opportunity to present evidence which is required in
The State, under section 2, cannot search your house, cannot any proceeding.
search your belongings, and cannot even arrest you without
warrant, generally. That is because you are entitled to be left or Now, the question is asked whether due process is a
left alone under the concept of right to privacy. There are other constitutional right or a statutory right. In certain respects, the
statutes on the right to privacy but they are more on statutory general characterization should be that due process is a
rights rather than constitutional rights. The discussion on the right constitutional right because Section 1 would tell us that there is
to privacy as affecting private individuals, meaning the that Due Process Clause. But because of certain rules that the
constitutional right is claimed against a private individual may be SC or the different administrative agencies may have issued and
had in that limited respect. But largely, it should be claimed only promulgated pursuant to a valid delegation that there are
against the State. instances or issues which would refer to statutory grants. So for
example, the right to appeal is technically not a constitutional
Due Process: Substantive and Procedural right. The right to appeal is a statutory right being provided in
the rules in cases as may be allowed or provided for. Because
Now, due process, the basic concept of due process is fairness. the constitutional right to due process is always complied when
There has to be some form of fairness when the State would the case is heard for the first time. Because that is the only
have to take some of our rights and there are two components requirement that there is opportunity of the party to be heard and
there – the substantive and procedural. Substantive due process allowed to present his evidence before judgment is rendered in
would refer to the intrinsic validity of the law, there is a proper favor or against that party. So if that has been complied with, the
exercise of the legislative power, there is a valid government other modes of appeal, review will have to be granted by law or
purpose, the law is not oppressive and arbitrary, and part of the the rules and not by the constitution. So if what is violated is the
constitutional requirement to make a law effective is to comply right to due process it must have to be distinguished whether it is
the requirement of publication. If the law has not been passed in a constitutional or statutory violation. In any cases however, if
accordance with the processes of passing a bill under the there is already that mode of review or appeal on the part the
Constitution, then it affects the substantive validity of such party as provided for by the rules, which has not been granted
legislation. The procedural, this is simply characterized as that him or deprived of him, the usual disposition of the SC is that
which hears before it condemns, proceeds upon inquiry and there is a violation of this due process. This disposition of the SC
renders judgment only after trial. So, there has to be some form has also led to some questions on whether or not the twin notice
of opportunity on the part of the accused or defendant to be rule for example, under the labor code, is a requirement of legal
heard before judgment is rendered based on the rules with process. Before the employee is supposed to be terminated or
respect to trial. otherwise disciplined, he must be entitled to the two notices. The
first is the notice of the violation with the opportunity to explain.
Now, the law or the concept of due process treats procedural due There must have to be an investigation where he may be
process differently in the judicial cases and the administrative represented by counsel if he so desires. And he must be given
cases. In administrative cases, you already know the several reasonable time for that. How many days is reasonable time? Is
cardinal primary rights while in judicial cases there are technically there a requirement on days? Okay. And the second notice if the
four conditions. Impartial court with jurisdiction over the persons employee will have to be disciplined, he mus6t have to be given
of the parties, there opportunity to be heard, and judgment is a copy of the order in writing. Now if this is not complied with, the
rendered upon a lawful hearing. The essence of procedural due twin notice rule, is there a violation of due process rights?
process is based on the discussions in several cases would lead
us to conclude that it is only an opportunity. For so long as the Now, you very well remember the case of Isetan where the SC
opportunity is there, and it has not been deprived of that party has said that this is not actually a question of due process
there is sufficient chance or opportunity for him to be heard then because the constitutional provision on due process is the State
that is supposed to be complying with the constitutional denying a person his right to due process. In the case of an
employee as against his employer, its not a case against the indicting. What is your remedy now from the DOJ Secretary? So
State against the employee. It is a case between the employer you lose one or several remedies available.
and the employee where the constitutional due process clause
does not come into play. Nonetheless, the two notice rule is also Or for example, under the law creating the Sandiganbayan, we
a requirement if you have to stress it as a form of a statutory due have now several criminal cases which are triable with the
process, to give that person the employee the right to be heard Sandiganbayan against public officers. There are two
before he is condemned. Again, this is not the constitutional considerations there. One is the salary grade of the employee.
concept of due process but that which has been provided for by What’s the salary grade? 27 or higher. Lower if there is a
law. Imagine in the case of a student who is facing a disciplinary conspiracy theory. And there are aside from that the
case before the school’s disciplinary tribunal. Now under the consideration of the violation. There are only a few violation that
“procedural due process” in school’s disciplinary tribunal, we all are triable with the Sandiganbayan. Now if you are a public
know that the student must have to be informed as well in writing officer with salary grade less than 27, and your are charge none
the charges with sufficient opportunity to present his evidence as of those crimes triable with the Sandiganbayan law, from the trial
well and that the tribunal must render its decision based on the court, say MTC, when you are convicted, you can appeal it to the
evidence presented. The parties however do not have the right to RTC right? From the RTC to the CA. and eventually by certiorari
cross-examine the witnesses against them. They only have the with the SC. But if you are salary grade 27 and you commit any
right to present witnesses for them in their favor or, to rebut the of those crimes, you are tried in the Sandiganbayan. And if you
evidence or testimonies of the other party. are convicted in the Sandiganbayan, where do you go? See. You
lose some of these available remedies if you were not in that
Now that is part supposedly the procedural due process of category. Now in one case, that case of Sandiganbayan, that has
school’s disciplinary court. Now the question is again asked is been asked if whether it violates equal protection because there
that the constitutional due process mentioned. That is not the is a different statement with respect to these covered employees
constitutional due process because that is not between the and those not covered. Those not covered have several chances
student and the State. It is between the school and the student. of paying their way to freedom (class laughs). Uh no. Having
Nonetheless, because of the requirement of fairness, that before every decision reviewed or appealed, not paid. It was wrong.
a judgment or decision is rendered against a person he must be While those with the Sandiganbayan, they only have one chance
heard, there is that consideration that is also part of due process. of review or appeal. Well the SC held that is justified because
Definitely, not the constitutional kind but those which may have they belong to different classes. But again, if it were to be due
been provided by statutes or by rules. process, it will have to be in the constitution as against the
exercise of the State of its power. So no person shall be denied
Now, you’re familiar with the drug related cases. In the ordinary of his life, liberty or property without due process. So when the
course of things, if you are the respondent in a criminal case, you person is charged for committing a criminal act, it is to deprtive
are notified by the prosecutor that a case is filed against you and him of his liberty because death penalty cannot be imposed as of
you are required to file a counter-affidavit. Then if there is no the moment. So before that liberty can be taken away from him,
clarificatory hearing, there is a resolution to indict you for he must have to be granted his due process. And that is the
example. What is your first remedy available? File a motion for opportunity to be heard. In any other context if it were not as
reconsideration. If that MOR is denied, what is your available between the State, the due process takes a different perspective
remedy? You can file a Petition for Review before the Regional because it is no longer constitutional. Though cases will use the
State Prosecutor or the Dept. of Justice depending on the type of phrase “denial of due process” “violated his due process right”
hearing. After that from the RSPO you can DOJ Secretary or that should not be taken in the context of the constitutional grant
from DOJ Secretary you can go to the Office of The President, but in another only statutory allowances.
part of the administrative remedies that you must have to
exhaust. Now in drug related cases and that there is a resolution, !"
circular by the DOJ that in case the resolution of the prosecutor is PARAS, TINE
for dismissal, it goes to an automatic review to the DOJ Secretary TINAPAY, EARL
and the parties are not given a copy of the resolution. Now what
if the Secretary of Justice will reverse the ruling from dismissal to

“The study of law can be disappointing at times, a

matter of applying narrow rules and arcane procedure
to an uncooperative reality; a sort of glorified
accounting that serves to regulate the affairs of those
who have power--and that all too often seeks to
explain, to those who do not, the ultimate wisdom and
justness of their condition.
But that's not all the law is. The law is also memory;
the law also records a long-running conversation, a
nation arguing with its conscience.”
― Barack Obama, Dreams from My Father

1 August 2012
The rest of the rights in our Constitution are only provided for
peculiar to our Constitution. These are eminent domain, non-
DUE PROCESS IN GENERAL impairment clause, right to bail, suspension of the writ of the
habeas corpus, speedy disposition of cases, use of inadequate
or substandard penal facility and non-imprisonment for debt.
PROCEDURAL AND SUBSTANTIVE DUE PROCESS These are so called peculiar to our Constitution because they are
not normally found in other constitutions or more else which
When the State exercises its inherent powers with respect to the discusses the so called hierarchy of rights.
constitutional right guaranties, we have come across a lot of
cases where the SC has tried to balance the conflicting interest– Now in substantive due process, there are 3 general standards
the power of the State in exercising its inherent power as against being used. This has been discussed in the case of Southern
the protection of these constitutional rights. Generally, the SC vs. Anti-terrorism, 632 SCRA 146. These 3 general standards
has applied of what we now know as of balancing of interest test used to review substantive due process if there is a question of
to determine whether the State authority or power should be whether the law or action of the government violates substantive
upheld over the claim of individual protection of rights. In these due process. The 3 tests are (very important!):
cases, the SC has considered a conscious effort to determine in 1. Strict Scrutiny Test
taking into consideration of these powers and would decide 2. Intermediate Scrutiny Test
cases with respect to this interplay in a given situation or type of 3. Rational or Differential Test.
situation.
These 3 tests were originally or first used under the discussion of
With respect to these constitutional rights that we have, there is equal protection on the basis of classification. However, the SC
such a thing as hierarchy of rights. Which of these rights are has used these tests to test cases involving questions of
preferred under the Constitution? Generally, there are 3 rights substantive due process.
which occupy the highest or the first 3 in the hierarchy of rights
which are generally not permitted to be derogated by any of the In strict scrutiny test, there must have to be a compelling state
power of the State. These are: interest that must have to be shown and that there are available
1. arbitrary deprivation of life; means which are less restrictive to individual freedoms (murag
2. freedom from torture, cruel, degrading or inhuman ang dapat kay there are no other available less restrictive
punishment and; available means ☺) that must be proven also to allow a valid
3. freedom of thought, conscience and religion which government regulation. So if a regulation is to be tested under
includes political belief or aspirations and no religious strict scrutiny there must have to be 2 things to be proven;
test for exercise of civil or political rights. 1. That there is a compelling state interest that
must have to be observed and
In the hierarchy of rights, these are the rights under 2. There are less restrictive available means of
consideration generally there are no state regulation. regulating individual liberties to allow possible
state regulation. (I think dapat there are no other
The rest of the rights in the hierarchy will be arbitrary arrest, less restrictive available means ☺)
detention, search and seizure which should include the
provisions on ex-post facto or bill of attainder and involuntary But this test is usually used when the law in question deals with
servitude, the provision of equal protection, the rights of accused, fundamental rights such as speech, gender or race. In strict
presumption of innocence, rights during investigation, double scrutiny, the presumption of constitutionality has a very narrow
jeopardy, privilege against self incrimination, the next will be the application. To state it differently, the presumption of
right to privacy and privacy of communication, next will be abode constitutionality may not even apply because the State has to
and travel, next will be speech, assembly and formation, and the prove that there is a compelling state interest and that there are
last would be the right to association. These rights can be no other less restrictive means available to regulate individual
derogated or there can be permissible derogation particularly liberties.
during times of emergencies.
In intermediate review, the substantiality of government interest In regulatory ordinance for local governments as stated in the
is seriously looked into and the availability of less restrictive case of White Light Corp. vs. City of Manila, 576 SCRA 1416,
alternatives is considered. Here, 2 things; the local regulatory ordinance must have to be within the powers
1. There is government interest which must of the LGU to pass, must have been passed by the LGU
have to be shown to be substantial not according to the procedure as provided in LGC and third it must
necessarily compelling and satisfy 6 other substantial requirements. These are:
1. Regulatory ordinance must not contravene
2. That there are available less restrictive
the Constitution or the law;
alternatives for regulating liberties. 2. It must not be unfair or oppressive;
3. It must not be partial or discriminatory;
This test is usually used when the laws in question affect gender 4. It must not prohibit a legitimate activity but
and legitimacy. can only regulate;
5. It must be general and must be consistent
The last test is differential or rational review test. There is only with public policy and;
a need to show that the regulation rationally further a legitimate 6. The ordinance must not be administrative (?)
government interest. There is no need for the court to inquire into (please check this because ingon ni sir admin
the substantiality of that government interest or that there are pero sa case na White Light it must not be
less restrictive alternatives available. What is needed to be unreasonable)
shown is that the legislation rationally furthers a government
interest. This test is used when the law in question affects White Light Corporation vs. City of Manila
economics or the economy. G.R. No. 122846. January 20, 2009
Facts: On December 3, 1992, City Mayor Alfredo S. Lim

So it largely depends on what rights are played as against a signed into law and ordinance entitled An Ordinance
government interest. If it refers to fundamental rights, it’s always Prohibiting Short-time Admission, Short-time Admission
a strict scrutiny test, that there is no presumption of Rates, and Wash-up Schemes in Hotels, Motels, Inns,
Lodging Houses, and Similar Establishments in the City
constitutionality, the State has the burden of proving 2 things- of Manila. On December 15, 1992, the Malate Tourist and
state interest that is compelling and that there are no less Development Corporation (MTDC) filed a complaint for
restrictive means available for regulating it. declaratory relief with prayer for a writ of preliminary
injunction and/or temporary restraining order (TRO) with the
Regional Trial Court of Manila, Branch 9 and prayed that the
The strict scrutiny test has also been applied to laws dealing with Ordinance be declared invalid and unconstitutional. On
freedom of the mind or political process. The US Supreme December 21, 1992, petitioners White Light Corporation,
Court has expanded it to suffrage, judicial access and Titanium Corporation and Sta. Mesa Tourist Development
interstate travel. Interstate travel to us is actually liberty of travel Corporation filed a motion to intervene, which was granted
by the RTC. MTDC moved to withdraw as plaintiff which
within the Philippines. There is no interstate travel here because was also granted by the RTC.
we are not comprised of sub states.
On January 14, 1993, the RTC issued a TRO directing the
These standards are applied when there is a question on validity City to cease and desist from enforcing the Ordinance. On
October 20, 1993, the RTC rendered a decision declaring
of deprivation and as we all know if it is tested under judicial the Ordinance null and void. The City then filed a petition for
review, there’s always that question of grave abuse of discretion. review on certiorari with the Supreme Court. However, the
While these are the general test used, there are individual tests Supreme Court referred the same to the Court of Appeals.
which are applicable to individual exercises of authority. As we The City asserted that the Ordinance is a valid exercise of
police power pursuant to Local government code and the
have mentioned before, like in police power, the 2 standard tests, Revised Manila charter. The Court of Appeals reversed the
the lawfulness of the subject and the lawfulness of the means. decision of the RTC and affirmed the constitutionality of the
There are also standard tests used to determine of whether the Ordinance.
regulation is valid. In eminent domain we have the validity of the
Issue: Whether the Ordinance is constitutional.
exercise of regulation based on the elements or conditions.
Held: No, it is not constitutional. The test of a valid
ordinance is well established. A long line of decisions

including City of Manila has held that for an ordinance to be The void for vagueness doctrine has resulted into three other
valid, it must not only be within the corporate powers of the discussions. They are:
local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the 1. Facial Challenge
following substantive requirements: (1) must not contravene 2. Overbreadth doctrine
the Constitution or any statute; (2) must not be unfair or 3. As applied challenge
oppressive; (3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not Facial Challenge is a challenge of law that it is not constitutional.
be unreasonable. There is a word by word, phrase by phrase, provision by
provision examination on whether or not the law is valid or
The Ordinance prohibits two specific and distinct business whether the law is unconstitutional. Facial challenges are
practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to generally allowed only in cases involving free speech and
be rooted in the police power as conferred on local related activities. It is also extended to religious freedom and
government units by the Local Government Code through other fundamental rights such as life, liberty, conscience, petition,
such implements as the general welfare clause. assembly, pursuit of happiness and privacy. It is not however
The apparent goal of the Ordinance is to minimize if not applicable to penal laws in general. The reason for disallowing
eliminate the use of the covered establishments for illicit facial challenges on penal laws in general is because it will
sex, prostitution, drug use and the like. These goals, by prevent the state from prosecuting any person simply because
themselves, are unimpeachable and certainly fall within the the person can question the constitutionality of penal statute
ambit of the police power of the State. Yet the desirability of
these ends does not sanctify any and all means for their which ruling may also affect part persons who are not parties to
achievement. However well-intentioned the Ordinance may the case.
be, it is in effect an arbitrary and whimsical intrusion into the
rights of the establishments as well as their patrons. The That is the difference with respect to “as applied challenge”.
Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricts the rights of When the criminal statute is questioned as unconstitutional and it
their patrons without sufficient justification. does not involve speech and any of those fundamental rights,
“as applied challenge” maybe allowed, the reason for that as to
Also in the case of Southern vs. Anti-Terrorism, 632 SCRA that specific accused or defendant, the law maybe
146 (2010), there was a mentioned of void for vagueness unconstitutional. I may have mentioned here before about the
doctrine. We have come across this doctrine in People vs. decision of RTC 11 Judge Europa about unconstitutionality of
Siton, 600 SCRA 476 (2009) and the previous case to that that that provision on vagrancy law. That is an example of “as applied
under the void for vagueness doctrine there is an issue in challenge” as against that individual the law has to be considered
substantive due process the law which is vague. Under this by that court as unconstitutional. Of course it does not apply to all
doctrine, it is stated that a law which is vague is void because it the rest who are not parties to the case. That is allowed because
generally, one, it would fail to give the subjected persons or each person charged before the court in violation of criminal
activity fair notice of the law and secondly, it would give the state statute may have different circumstance than the rest. If the
authorities a right or discretion in the implementation. A statute is circumstance is so and that tested against the law in question,
void therefore considered vague if the provisions of the law are that law maybe considered as unconstitutional to him if applied.
by characteristic that men of common intelligence would So that maybe allowed even in ordinary criminal case provided it
necessarily differ as to its meaning or a guess as to its is made “as applied challenge”.
meaning can differ as to its application.
Again, facial invalidation is generally not allowed in criminal
The voidness however of the law is not to be based on the use of cases except those involving speech or those involving
imprecise language or that the law is ambiguous. It is vague if it fundamental rights. This allowance is considered by court as
cannot be interpreted, that with the application of the rules of permissible because these are our fundamental rights. If this
statutory construction the statute cannot be interpreted and given regulation of one’s right to speech is declared unconstitutional,
meaning. It is only then the statute is considered vague and the effect would not only be to the person challenging the
therefore considered void. constitutionality of the law but also to those who may in the
future commit the same act or exercise the same right and also
with respect to other fundamental rights.
COMMITTED A REVERSIBLE ERROR IN DECLARING

UNCONSTITUTIONAL ARTICLE 202 (2) OF THE
Overbreadth doctrine on the other hand has nothing to do with
REVISED PENAL CODE
what is void, what is vague or what is should be under facial
challenge. This doctrine applies to statue which are clear, there is HELD: The Court finds for petitioner.The power to define
no vagueness, there’s no ambiguity as to who are covered, what crimes and prescribe their corresponding penalties is
acts are covered, what are the penalties, but they cover certain legislative in nature and inherent in the sovereign power of
the state to maintain social order as an aspect of police
fundamentally protected rights. So the State in promulgating a power. The legislature may even forbid and penalize acts
law has covered an act have been covered to begin with that’s formerly considered innocent and lawful provided that no
why there’s an overbreadth in the application of the power of the constitutional rights have been abridged. However, in
state in relation to the law having been promulgated. That can be exercising its power to declare what acts constitute a
crime, the legislature must inform the citizen with
questioned by anybody and usually this would involve reasonable precision what acts it intends to prohibit so that
fundamental rights because even if you are not a party to the he may have a certain understandable rule of conduct and
case because it affects you just the same if that law is not know what acts it is his duty to avoid. This requirement has
declared unconstitutional – a law maybe declared come to be known as the void-for-vagueness
doctrine which states that “a statute which either forbids or
unconstitutional under the overbreadth doctrine. There is an over requires the doing of an act in terms so vague that men of
breadth in the application or in the exercise of the power of the common intelligence must necessarily guess at its meaning
state by defining an act, providing penalties therefor because it and differ as to its application, violates the first essential of
have been defined as regulated and it should not have been due process of law.”
regulated to begin with. That is the overbreadth doctrine. The Regional Trial Court, in asserting the
unconstitutionality of Article 202 (2), take support mainly
PEOPLE VS. SITON from the U.S. Supreme Court’s opinion in the Papachristou
600 SCRA 476 (2009) v. City of Jacksonville case. The underlying principles
in Papachristou are that: 1) the
FACTS: Respondents Evangeline Siton and Krystel Kate assailed Jacksonville ordinance “fails to give a person of
Sagarano were charged with vagrancy pursuant to Article ordinary intelligence fair notice that his contemplated
202 (2) of the Revised Penal Code. Instead of submitting conduct is forbidden by the statute;” and 2) it encourages
their counter-affidavits as directed, respondents filed or promotes opportunities for the application of
separate Motions to Quash[3] on the ground that Article 202 discriminatory law enforcement.
(2) is unconstitutional for being vague and overbroad.
The said underlying principle in Papachristou that the
In an Order dated April 28, 2004, the municipal trial court Jacksonville ordinance, or Article 202 (2) in this case, fails
denied the motions. Respondents thus filed an original to give fair notice of what constitutes forbidden conduct,
petition for certiorari and prohibition with the Regional Trial finds no application here because under our legal system,
Court of Davao City, directly challenging the ignorance of the law excuses no one from compliance
constitutionality of the anti-vagrancy law, claiming that the therewith.
definition of the crime of vagrancy under Article 202 (2),
vague, results as well in an arbitrary identification of Thus, the U.S. Supreme Court in Jacksonville declared the
violators, since the definition of the crime includes in its ordinance unconstitutional, because such activities or
coverage persons who are otherwise performing ordinary habits as nightwalking, wandering or strolling around
peaceful acts. without any lawful purpose or object, habitual
The State, through the Office of the Solicitor General, loafing, habitual spending of time at places where alcoholic
argued that pursuant to the Court’s ruling in Estrada v. beverages are sold or served, and living upon the earnings
Sandiganbayan, the overbreadth and vagueness doctrines of wives or minor children, which are otherwise common
apply only to free speech cases and not to penal and normal, were declared illegal. But these are specific
statutes. It also asserted that Article 202 (2) must be acts or activities not found in Article 202 (2). The closest to
presumed valid and constitutional, since the respondents Article 202 (2) – “any person found loitering about public or
failed to overcome this presumption. semi-public buildings or places, or tramping or wandering
about the country or the streets without visible means of
The Regional Trial Court issued the assailed Order support” – from the Jacksonville ordinance, would be
granting the petition. In declaring Article 202 (2) “persons wandering or strolling around from place to place
unconstitutional, the trial court opined that the law is without any lawful purpose or object.” But these two acts
vague. It held that the “void for vagueness” doctrine is are still not the same: Article 202 (2) is qualified by “without
equally applicable in testing the validity of penal statutes. visible means of support” while the Jacksonville ordinance
prohibits wandering or strolling “without any lawful purpose
ISSUE: WHETHER THE REGIONAL TRIAL COURT or object,” which was held by the U.S. Supreme Court to

constitute a “trap for innocent acts.” in to an unlawful demand” are nebulous leaving law
enforcement agencies with no standard to measure
Finally, we agree with the position of the State that first and the prohibited act.
foremost, Article 202 (2) should be presumed valid and
constitutional. When confronted with a constitutional ISSUE: WON RA 9372 is vague and broad in defining the
question, it is elementary that every court must approach it crime of terrorism.
with grave care and considerable caution bearing in mind Held: NO.
that every statute is presumed valid and every reasonable 1. The doctrines of void-for-vagueness and
doubt should be resolved in favor of its overbreadth find no application in the present case
constitutionality. The policy of our courts is to avoid ruling since these doctrines apply only to free speech cases
on constitutional questions and to presume that the acts of and that RA 9372 regulates conduct, not speech.
the political departments are valid in the absence of a clear a. Romualdez v. Sandiganbayan: The overbreadth and the
and unmistakable showing to the contrary. To doubt is to vagueness doctrines have special application only to free
sustain, this presumption is based on the doctrine of speech cases, and are not appropriate for testing the
separation of powers which enjoins upon each department validity of penal statutes.
a becoming respect for the acts of the other
departments. The theory is that as the joint act of b. Romualdez v. COMELEC: A facial invalidation of
Congress and the President of the Philippines, a law has criminal statutes is not appropriate, but the Court
been carefully studied, crafted and determined to be in nonetheless proceeded to conduct a vagueness analysis,
accordance with the fundamental law before it was finally and concluded that the therein subject election offense
enacted. under the Voter’s Registration Act of 1996, with which the
therein petitioners were charged is couched in precise
Southern Hemisphere Engagement Network, Inc. v. language.
Anti-Terrorism Council
c. The aforementioned cases rely heavily on Justice
FACTS: This case consists of 6 petitions challenging the Mendoza’s Separate Opinion in the Estrada case:
constitutionality of RA 9372, “An Act to Secure the State Allegations that a penal statute is vague and overbroad do
and Protect our People from Terrorism,” aka Human not justify a facial review of its validity. A facial challenge is
Security Act of 2007. allowed to be made to a vague statute and to one, which
is overbroad because of possible chilling effect
Petitioner-organizations assert locus standi on the basis of upon protected speech.
being suspected “communist fronts” by the government,
whereas individual petitioners invoke the” transcendental This rationale does not apply to penal statutes. Criminal
importance” doctrine and their status as citizens and statutes have general in terrorem effect. If facial
taxpayers. challenge is allowed, the State may well be prevented from
enacting laws against socially harmful conduct.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP, Overbreadth and vagueness doctrines then have special
and PCR allege they have been subjected to “close application only to free speech cases. They are inapt for
security surveillance by state security forces,” their testing the validity of penal statutes.
members followed by “suspicious persons” and” vehicles
with dark windshields,” and their offices monitored by “men 2. Since a penal statute may only be assailed for being
with military build.” They likewise claim they have been vague as applied to petitioners, a limited vagueness
branded as “enemies of the State.” analysis of the definition of “terrorism” in RA 9372 is
legally impossible absent an actual or imminent charge
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, against them.
KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD, and Agham would like the Court to take a. The doctrine of vagueness and the doctrine of
judicial notice of respondents’ alleged action of tagging overbreadth do not operate on the same plane.
them as militant organizations fronting for the CPP and
NPA. They claim such Tagging is tantamount to the effects i. A statute or acts suffers from the defect
of proscription without following the procedure under the of vagueness when:
law.
• It lacks comprehensible standards that men
Meanwhile, IBP and CODAL base their claim of locus of common intelligence must necessarily
standi on their sworn duty to uphold the Constitution. guess at its meaning and differ as to its
application.
Petitioners claim that RA 9372 is vague and broad, in that
terms like “widespread and extraordinary fear and panic • It is repugnant to the Constitution in 2 ways:
among the populace” and “coerce the government to give a. Violates due process for failure to
accord fair notice of conduct to avoid
b. Leaves law enforcers unbridled conduct nor the essence of the whole act as conduct
discretion in carrying out and not speech.
its provisions and becomes an
arbitrary flexing of the Government
muscle.
EQUAL PROTECTION
ii. The over breadth doctrine decrees that a
governmental purpose to control or prevent Now, let’s go to equal protection.
activities constitutionally subject to state
regulations may not be achieved by means, which
sweep unnecessarily broadly and thereby invade There’s a case between Surigao Electric vs. ERC. This is a
the area of protected freedoms. case involving imposition of rates by public utilities. The question,
can they be regulated under the police power? It is a no brainer,
b. A “facial” challenge is likewise different from an
it should be regulated. The only discussion here perhaps is the
“as applied” challenge.
nature of the rate fixing authority of our regulatory bodies. In rate
i. “As applied” challenge considers only extant facts fixing, there are two considerations: One, the quasi-judicial
affecting real litigants. function of the regulatory office or the quasi-legislative function of
the regulating office in fixing the rate. If the rates are fixed under
ii “Facial” challenge is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis the body’s quasi-judicial function, then the requirements of due
of its actual operation to the parties, but also on the process or notice and hearing must have to be satisfied. Because
assumption or prediction that its very existence may it will only apply to a particular party or particular operator in that
cause others not before the court to refrain from case. But if the rate is fixed under the exercise of its quasi-
constitutionally protected speech oractivities.
legislative power then notice and hearing need not be complied
Under no case may ordinary penal statutes be subjected to as a requirement of due process because regulatory departments
a facial challenge. If facial challenge to a penal statute is or offices involved in public utilities are always given the power to
permitted, the prosecution of crimes may be hampered. No fix the rates based on public hearings and consultations and that
prosecution would be possible.
should satisfy the requirement of due process because anyway it
3. There is no merit in the claim that RA 9372 regulates is not only applicable to one specific operator or public utility
speech so as to permit a facial analysis of its validity. operator but it will affect the rest or all of those in the particular
a. Section 3 of RA 9372 provides the following elements industry. There is no specific operator targeted because all of the
of the crime of terrorism:
operators are targeted and the power of these regulatory offices
i. Offender commits an act punishable under to fix rates are not limited to the exercise of quasi-judicial power.
RPC and the enumerated special penal laws;
ii. Commission of the predicate crime sows and
creates a condition of widespread and
extraordinary fear and panic among the G.R. No. 183626 October 4, 2010
populace; SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC.
iii. The offender is actuated by the desire to (SURNECO) vs.
coerce the government to give in to an unlawful ENERGY REGULATORY COMMISSION
demand.
Petitioner Surigao Del Norte Electric Cooperative, Inc.
b. Petitioners contend that the element of “unlawful (SURNECO) is a rural electric cooperative organized and existing
demand” in the definition of terrorism must necessarily be by virtue of Presidential Decree No. 269.
transmitted through some form of expression protected
by the free speech clause. The argument does not On February 8, 1996, the Association of Mindanao Rural Electric
persuade. What RA 9372 seeks to penalize is conduct, not Cooperatives, as representative of SURNECO and of the other 33
speech. rural electric cooperatives in Mindanao, filed a petition before the
then Energy Regulatory Board (ERB) for the approval of the
c. Petitioners’ notion on the transmission of message is formula for automatic cost adjustment and adoption of the National
entirely inaccurate, as it unduly focuses on just one particle Power Corporation (NPC) restructured rate adjustment to comply
of an element of the crime. Almost every commission of a with Republic Act (R.A.) No. 7832.
crime entails some mincing of words on the part of
offender. Utterances not elemental but inevitably Held:
incidental to the doing of the criminal conduct alter It is beyond cavil that the State, in the exercise of police power,
neither the intent of the law to punish socially harmful can regulate the rates imposed by a public utility such as

SURNECO. As we held in Republic of the Philippines v. Manila claimed that as owner and operator of the Victoria Court in Malate,
Electric Company— Manila it was authorized by P.D. No. 259 to admit customers on a
short time basis as well as to charge customers wash up rates for
The regulation of rates to be charged by public utilities is founded stays of only three hours.
upon the police powers of the State and statutes prescribing rules
for the control and regulation of public utilities are a valid exercise On December 21, 1992, petitioners White Light Corporation
thereof. When private property is used for a public purpose and is (WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and
affected with public interest, it ceases to be juris privati only and Development Corporation (STDC) filed a motion to intervene and
becomes subject to regulation. The regulation is to promote the to admit attached complaint-in-intervention on the ground that the
common good. Submission to regulation may be withdrawn by the Ordinance directly affects their business interests as operators of
owner by discontinuing use; but as long as use of the property is drive-in-hotels and motels in Manila.
continued, the same is subject to public regulation.
The Court of Appeals reversed the decision of the RTC and
Likewise, SURNECO cannot validly assert that the caps set by affirmed the constitutionality of the Ordinance.
R.A. No. 7832 are arbitrary, or that they violate the non-impairment
clause of the Constitution for allegedly traversing the loan Held: That the Ordinance prevents the lawful uses of a wash rate
agreement between NEA and ADB. Striking down a legislative depriving patrons of a product and the petitioners of lucrative
enactment, or any of its provisions, can be done only by way of a business ties in with another constitutional requisite for the
direct action, not through a collateral attack, and more so, not for legitimacy of the Ordinance as a police power measure. It must
the first time on appeal in order to avoid compliance. The appear that the interests of the public generally, as distinguished
challenge to the law’s constitutionality should also be raised at the from those of a particular class, require an interference with private
earliest opportunity. rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of
Even assuming, merely for argument’s sake, that the ERC private rights. It must also be evident that no other alternative for
issuances violated the NEA and ADB covenant, the contract had to the accomplishment of the purpose less intrusive of private rights
yield to the greater authority of the State’s exercise of police can work. More importantly, a reasonable relation must exist
power. It has long been settled that police power legislation, between the purposes of the measure and the means employed
adopted by the State to promote the health, morals, peace, for its accomplishment, for even under the guise of protecting the
education, good order, safety, and general welfare of the people public interest, personal rights and those pertaining to private
prevail not only over future contracts but even over those already property will not be permitted to be arbitrarily invaded.
in existence, for all private contracts must yield to the superior and Lacking a concurrence of these requisites, the police measure
legitimate measures taken by the State to promote public welfare. shall be struck down as an arbitrary intrusion into private rights. As
held in Morfe v. Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is affected. However,
This case of White Light vs. City of Manila... This is an old case this is not in any way meant to take it away from the vastness of
involving an old problem in the City of Manila. As you have read, State police power whose exercise enjoys the presumption of
this involves the power of the local government unit to enact an validity.
ordinance to limit or regulate the business involving operations of
The Ordinance makes no distinction between places frequented by
hotels and motels to curb the increasing problem of prostitution. patrons engaged in illicit activities and patrons engaged in
legitimate actions. Thus it prevents legitimate use of places where
illicit activities are rare or even unheard of. A plain reading of
section 3 of the Ordinance (“SECTION 3. Pursuant to the above
policy, short-time admission and rate, wash-up rate or other
G.R. No. 122846 January 20, 2009
similarly concocted terms, are hereby prohibited in hotels, motels,
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and
inns, lodging houses, pension houses and similar establishments
STA. MESA TOURIST & DEVELOPMENT CORPORATION
in the City of Manila.) shows it makes no classification of places of
vs.CITY OF MANILA, represented by DE CASTRO, MAYOR
lodging, thus deems them all susceptible to illicit patronage and
ALFREDO S. LIM
subject them without exception to the unjustified prohibition.
On December 3, 1992, Mayor Lim signed into law the Ordinance
The behavior which the Ordinance seeks to curtail is in fact already
prohibiting short time admission in hotels, motels, lodging houses,
prohibited and could in fact be diminished simply by applying
pension houses and similar establishments in the City of Manila.
existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police
On December 15, 1992, the Malate Tourist and Development
work would be more effective in easing the situation. So would the
Corporation (MTDC) filed a complaint for declaratory relief with
strict enforcement of existing laws and regulations penalizing
prayer for a writ of preliminary injunction and/or temporary
prostitution and drug use. These measures would have minimal
restraining order (TRO). MTDC prayed that the Ordinance, insofar
intrusion on the businesses of the petitioners and other legitimate
as it includes motels and inns as among its prohibited
merchants. Further, it is apparent that the Ordinance can easily be
establishments, be declared invalid and unconstitutional. MTDC
circumvented by merely paying the whole day rate without any

hindrance to those engaged in illicit activities. Moreover, drug prohibit but may regulate trade; (5) must be general and
dealers and prostitutes can in fact collect "wash rates" from their
consistent with public policy; and (6) must not be unreasonable.
clientele by charging their customers a portion of the rent for motel
rooms and even apartments.
I think that what is most important there is that the ordinance
The Decision of the RTC is REINSTATED. Ordinance No. 7774 is must not prohibit but must only regulate the business. A business
hereby declared UNCONSTITUTIONAL. which is otherwise legal can be regulated and cannot be totally
prohibited or declared to be illegal per se or per accidens like
This is an old issue because in the old case of Ermita-Malate
operation of motels or hotels. There is nothing illegal about it. It
Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
can be regulated for the protection of the public interest matter
of Manila, (the City ordinance requiring patrons to fill up a
like public health because of the responsible parenthood thing.
prescribed form stating personal information such as name,
Ok. What other cases? This case of Office of the Solicitor
gender, nationality, age, address and occupation before they
General vs. Ayala (G.R. No. 177056, September 2009). This
could be admitted to a motel, hotel or lodging house. This earlier
involves private parking in malls which collect fees. Now, in this
ordinance was precisely enacted to minimize certain practices
case, there was a proposal where private malls cannot collect
deemed harmful to public morals. A purpose similar to the
parking fees, so can that be allowed? SC said that the law is not
annulled ordinance in City of Manila which sought a blanket ban
valid and it is not in the valid exercise of police power because
on motels, inns and similar establishments in the Ermita-Malate
mall owners have obviously spent money for the construction of
area. However, the constitutionality of the ordinance in Ermita-
these parking areas and they have the right to exact reasonable
Malate was sustained by the Court.) The SC has upheld as
parking fees. If there is a law prohibiting from collecting parking
discussed the matter of the regulation requiring several providing
fees, it will result into taking in the concept of eminent domain
for an ordinance requiring several acts to be done before a
and they must have to be paid with just compensation if the
person may be permitted inside the motel in Metro Manila. One
ordinance prohibits them from exacting parking fees because
of which was the requirement of lighting in the lobby. There is a
they are prevented them from the beneficial use of the property
requirement of filling-up of registration documents. There is a
which has been converted into a parking lot.
limitation for not allowing the room to be let out for more than
once in a period of 24 hours. There is a limitation in allowing G.R. No. 177056 September 18, 2009
minors to be admitted as guests without the company of their THE OFFICE OF THE SOLICITOR GENERAL vs.
parents or legal guardians and there are corresponding penalties AYALA LAND INCORPORATED, ROBINSON'S LAND
for violations. In that old case, the SC has ruled that this CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM
PRIME HOLDINGS, INC.
regulation is permissible. And in this new case White Light, the
same issue was raised. There is also a provision in the ordinance The shopping malls operated or leased out by respondents have
providing for the same regulations on the exercise of this parking facilities for all kinds of motor vehicles, either by way of
business. And the SC had the occasion to discuss what I have parking spaces inside the mall buildings or in separate buildings
and/or adjacent lots that are solely devoted for use as parking
mentioned earlier, that aside from the general test of lawfulness
spaces.
or standards of lawfulness of the means, the local ordinance
exercised in its regulatory function must have to comply with Respondents received information that, pursuant to Senate
those three (3) basic requirements or conditions and the six (6) Committee Report No. 225, the DPWH Secretary and the local
substantive requirements. building officials of Manila, Quezon City, and Las Piñas intended to
institute, through the OSG, an action to enjoin respondents from
collecting parking fees, and to impose upon said establishments
“The test of a valid ordinance is well established. A long line of penal sanctions under PD No. 1096 (National Building Code) and
decisions including City of Manila has held that for an ordinance its IRR. With the threatened action against it, respondent SM
to be valid, it must not only be within the corporate powers of the Prime filed, on 3 October 2000, a Petition for Declaratory
Relief8 under Rule 63.
local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the Held:
following substantive requirements: (1) must not contravene The Building Code, which is the enabling law and the
the Constitution or any statute; (2) must not be unfair or Implementing Rules and Regulations do not impose that parking
spaces shall be provided by the mall owners free of charge.
oppressive; (3) must not be partial or discriminatory; (4) must not Absent such directive, respondents are under no obligation to
provide them for free. In conclusion, the total prohibition against

the collection by respondents of parking fees from persons who labor is not dependent on whether one is a man or woman. So
use the mall parking facilities has no basis in the National Building
far as long as one gives a fair day’s labor, he must be paid a fair
Code or its IRR. The State also cannot impose the same
prohibition by generally invoking police power, since said day’s wage. So gender, in that case, cannot be considered
prohibition amounts to a taking of respondents’ property without substantial. Age like minority or majority may be substantial if you
payment of just compensation. look into protecting public morality or morality of children, also
health. But if for the purpose of education, you could not say that
Ok. Equal protection. We have said that the inclusion of the equal children should have more access to education than those who
protection clause under the same Section 1 of the due process are adults because each one should have an equal access to
clause is by design and not by accident. General violations of education whether it should be free or at least given a substantial
due process or arbitrariness are usually questioned under the subsidy. Again, the substantiality of the distinction must have to
due process clause but specific instances of violations or acts of be based on whether the distinction is germane to the purpose of
arbitrariness are usually raised under equal protection issues the law. Aliens or citizens, if you are talking about the exercise of
because it affects a particular class or individual. Now, the equal profession, it cannot be argued that constitutionally exercise of
protection clause in the Constitution simply requires that all profession is reserved for Filipino citizens only except in cases
persons or things similarly situated should be treated alike both provided by law. But if you say enjoyment of the rights under the
as to the rights conferred and responsibilities imposed. Bill of Rights, citizenship is not a valid classification because
every citizen except every person, except the right to information,
The equal protection just like due process has two components: should be allowed to enjoy protection under the Constitution. As
(1) the substantive parts and (2) the procedural parts. Procedural mentioned earlier, the classification must not be limited to
is simply that the law must have to be applied equally to those in existing conditions only. This should also mean that for so long
the same class. Equal protection does not require absolute as the problem sought to be addressed by the legislation then the
equality, it only requires substantive equality among equals ordinance or the law must have to be existing as well. While we
and the equality is measured or determined on the basis of valid all know that there are laws which would take effect only after a
classification which is based on similarities and some particular fixed period of time, that is not unconstitutional because these
which is not shared by the rest with respect to the same are laws which are necessary to protect only the particular issue
particulars. There is, again, no absolute similarity in all but at which is to be addressed for a limited period of time. But if it is a
least to these specifics they are similar and they are not shared purely regulatory measure, for example, it cannot be made to
with the rest who do not belong to said class. apply only for the present because if there is only one individual,
entity or activity covered by the legislation for now, it maybe
Now for there to be a valid classification the law has always considered as unconstitutional because it becomes a specific
required that the classification must rest on (1) substantial target of the legislation and not applicable to those who may
distinction. (2) It must be germane to the purpose of the law. The come under the classification. The classification, to be
classification must (3) not be limited to existing conditions only reasonable, should be in terms applicable to future conditions as
and that (4) it must be equally applicable to those belonging to well. Now, the classification must also be equally applicable to all
the same class. in the same class, this requires substantial symmetry not literal
equality in the application for it has always been an example that
When it is said that the law must be based on substantial is given in the income tax payment in your law on taxation. There
distinction, the distinction must be of considerable value or are income tax brackets where individuals may have different
importance. As to what or how considerable the classification or income taxes but because they belong to the same category or
distinction is actually based on the second condition that it must class, they have the same burden so while they do not pay the
be germane to the purpose of the law, meaning, there is same amount, the burden imposed to them under the laws of
reasonable connection with the means to accomplish the taxation are the same because they belong to the same class.
purpose of the law. For example, when you say classification
based on gender, it may be substantial if the purpose of the law Now, standards of judicial review as mentioned before… the
is to grant maternity or paternity benefits but gender if used for rational of the intermediate and strict scrutiny test have first been
purposes of granting minimum wages then it is not substantial used in equal protection cases. They have just been used also in
because it is not germane to the purpose of the law. The purpose cases involving substantive due process. Now, they are of the
being is to give a fair day’s wage to a fair day’s labor. A fair day’s same discussions whether in equal protection or in substantive
due process. The strictest test here would be the strict scrutiny
test and this is used on issues on a equal protection or
discrimination is based on the fundamental rights. So I think if
the local ordinance in Davao on anti-discrimination eventually
pass and if there should be a question, it should be tested under
the strict scrutiny test. Whether or not it is a valid regulation on an
issue on discrimination based on race, gender, power, religion
and other factors mentioned therein. There are constitutionally-
imposed equalities in the Constitution: provisions on economic
equality, on political equality and on social equality. There is a
provision there where political wealth or economic wealth should
be diffused or property ownership, I have read somewhere, I do
not know who wrote this which says “you cannot legislate the
poor into prosperity by legislating the wealthy out of property”
which is actually true, you take property from the wealthy does
not mean that the poor can prosper. I don’t know. You cannot
multiply wealth by dividing it or that the government cannot give
to anybody anything that the government does not take first from
somebody else. The government will not actually give something
it owns to the poor to prosper. It takes it somewhere else
normally from the rich to give to the poor. So, we, the poor will be
happy. I remember those because I had a discussion one time
with another professor and he said these are fundamental
mistakes in the Constitution. Fundamental because it is the
fundamental law of the land. How could you diffuse property or
legislate the poor into prosperity by taking the wealth of the rich?
Because if you take it from the rich, normally, government will still
have to pay just compensation. So where will the government
take what it will have to pay for just compensation? Take them
from the rich, but as Obama would have it, “tax the rich to give to
the poor”. Probably I took this from Obama’s political opponents.
Ok, let’s continue tomorrow.
!"
GIVERO, KATRINA “KONGKONG”

LEYES, HANNA
“Always remember, your focus

determines your reality.”
― George Lucas

executive departments, and extend to all actions of a state denying

2 August 2012 equal protection of the laws, through whatever agency or whatever
guise is taken.
EQUAL PROTECTION It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
Before we leave the item on Equal Protection, there’s 1 case is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
involving EO 1 of PNoy creating the Philippine Truth classification. Such classification, however, to be valid must pass
Commission. In this case of Biraogo vs. Philippine Truth the test of reasonableness. The test has four requisites: (1) The
Commission, the SC nullified the creation of the Commission on classification rests on substantial distinctions; (2) It is germane to
the ground of violation of equal protection. The dismissal was the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class.
based on the reasoning that the non-inclusion of past "Superficial differences do not make for a valid classification."
administrations similarly situated (since the only object of the For a classification to meet the requirements of constitutionality, it
investigation was the Arroyo administration) constitutes must include or embrace all persons who naturally belong to the
arbitrariness. The Arroyo administration, according to the SC, is class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
not a class by itself and if the object of the commission is to conferred and obligations imposed. It is not necessary that the
inquire into the excesses of the previous administration, then classification be made with absolute symmetry, in the sense that
everybody (i.e. those before Arroyo) must have to be included. the members of the class should possess the same characteristics
The non-inclusion therefore of the other past administrations in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
constitutes class legislation. treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
LOUIS "BAROK" C. BIRAOGO vs. substantially distinguishable from all others, does not justify the
THE PHILIPPINE TRUTH COMMISSION OF 2010 non-application of the law to him."
G.R. No. 192935 December 7, 2010
The classification must not be based on existing circumstances
Concept of the Equal Protection Clause only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
One of the basic principles on which this government was founded those who may thereafter be in similar circumstances and
is that of the equality of right which is embodied in Section 1, conditions. It must not leave out or "underinclude" those that
Article III of the 1987 Constitution. The equal protection of the laws should otherwise fall into a certain classification. As elucidated in
is embraced in the concept of due process, as every unfair Victoriano vs. Elizalde Rope Workers' Union and reiterated in a
discrimination offends the requirements of justice and fair play. It long line of cases,
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or The guaranty of equal protection of the laws is not a guaranty of
hostility from the government. Arbitrariness in general may be equality in the application of the laws upon all citizens of the state.
challenged on the basis of the due process clause. But if the It is not, therefore, a requirement, in order to avoid the
particular act assailed partakes of an unwarranted partiality or constitutional prohibition against inequality, that every man, woman
prejudice, the sharper weapon to cut it down is the equal protection and child should be affected alike by a statute. Equality of
clause. operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
"According to a long line of decisions, equal protection simply circumstances surrounding them. It guarantees equality, not
requires that all persons or things similarly situated should be identity of rights. The Constitution does not require that things
treated alike, both as to rights conferred and responsibilities which are different in fact be treated in law as though they were the
imposed." It "requires public bodies and institutions to treat same. The equal protection clause does not forbid discrimination
similarly situated individuals in a similar manner." "The purpose of as to things that are different. It does not prohibit legislation which
the equal protection clause is to secure every person within a is limited either in the object to which it is directed or by the
state’s jurisdiction against intentional and arbitrary discrimination, territory within which it is to operate.
whether occasioned by the express terms of a statue or by its
improper execution through the state’s duly constituted The equal protection of the laws clause of the Constitution allows
authorities." "In other words, the concept of equal justice under the classification. Classification in law, as in the other departments of
law requires the state to govern impartially, and it may not draw knowledge or practice, is the grouping of things in speculation or
distinctions between individuals solely on differences that are practice because they agree with one another in certain
irrelevant to a legitimate governmental objective." particulars. A law is not invalid because of simple inequality. The
The equal protection clause is aimed at all official state actions, not very idea of classification is that of inequality, so that it goes
just those of the legislature. Its inhibitions cover all the without saying that the mere fact of inequality in no manner
departments of the government including the political and determines the matter of constitutionality. All that is required of a

valid classification is that it be reasonable, which means that the as basis for distinguishing said administration from earlier
classification should be based on substantial distinctions which administrations which were also blemished by similar widespread
make for real differences, that it must be germane to the purpose reports of impropriety. They are not inherent in, and do not inure
of the law; that it must not be limited to existing conditions only; solely to, the Arroyo administration. As Justice Isagani Cruz put it,
and that it must apply equally to each member of the class. This "Superficial differences do not make for a valid classification."
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis The public needs to be enlightened why Executive Order No. 1
and is not palpably arbitrary. [Citations omitted] chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
Applying these precepts to this case, Executive Order No. 1 should include other past administrations, at this point, may unnecessarily
be struck down as violative of the equal protection clause. The overburden the commission and lead it to lose its effectiveness."
clear mandate of the envisioned truth commission is to investigate The reason given is specious. It is without doubt irrelevant to the
and find out the truth "concerning the reported cases of graft and legitimate and noble objective of the PTC to stamp out or "end
corruption during the previous administration" only. The intent to corruption and the evil it breeds."
single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the The probability that there would be difficulty in unearthing evidence
questioned executive order. Specifically, these are: or that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased
WHEREAS, there is a need for a separate body dedicated solely presidents and cases which have already prescribed can no longer
to investigating and finding out the truth concerning the reported be the subjects of inquiry by the PTC. Neither is the PTC expected
cases of graft and corruption during the previous administration, to conduct simultaneous investigations of previous administrations,
and which will recommend the prosecution of the offenders and given the body’s limited time and resources. "The law does not
secure justice for all; require the impossible" (Lex non cogit ad impossibilia).
SECTION 1. Creation of a Commission. – There is hereby Given the foregoing physical and legal impossibility, the Court
created the PHILIPPINE TRUTH COMMISSION, hereinafter logically recognizes the unfeasibility of investigating almost a
referred to as the "COMMISSION," which shall primarily seek and century’s worth of graft cases. However, the fact remains that
find the truth on, and toward this end, investigate reports of graft Executive Order No. 1 suffers from arbitrary classification. The
and corruption of such scale and magnitude that shock and offend PTC, to be true to its mandate of searching for the truth, must not
the moral and ethical sensibilities of the people, committed by exclude the other past administrations. The PTC must, at least,
public officers and employees, their co-principals, accomplices and have the authority to investigate all past administrations. While
accessories from the private sector, if any, during the previous reasonable prioritization is permitted, it should not be arbitrary
administration; and thereafter recommend the appropriate action or lest it be struck down for being unconstitutional. In the often quoted
measure to be taken thereon to ensure that the full measure of language of Yick Wo vs. Hopkins,
justice shall be served without fear or favor. Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority
SECTION 2. Powers and Functions. – The Commission, which with an evil eye and an unequal hand, so as practically to make
shall have all the powers of an investigative body under Section unjust and illegal discriminations between persons in similar
37, Chapter 9, Book I of the Administrative Code of 1987, is circumstances, material to their rights, the denial of equal justice is
primarily tasked to conduct a thorough fact-finding investigation of still within the prohibition of the constitution. [Emphasis supplied]
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals, It could be argued that considering that the PTC is an ad hoc body,
accomplices and accessories from the private sector, if any, during its scope is limited. The Court, however, is of the considered view
the previous administration and thereafter submit its finding and that although its focus is restricted, the constitutional guarantee of
recommendations to the President, Congress and the equal protection under the laws should not in any way be
Ombudsman. [Emphases supplied] circumvented. The Constitution is the fundamental and paramount
law of the nation to which all other laws must conform and in
In this regard, it must be borne in mind that the Arroyo accordance with which all private rights determined and all public
administration is but just a member of a class, that is, a class of authority administered. Laws that do not conform to the
past administrations. It is not a class of its own. Not to include past Constitution should be stricken down for being unconstitutional.
administrations similarly situated constitutes arbitrariness which While the thrust of the PTC is specific, that is, for investigation of
the equal protection clause cannot sanction. Such discriminating acts of graft and corruption, Executive Order No. 1, to survive,
differentiation clearly reverberates to label the commission as a must be read together with the provisions of the Constitution. To
vehicle for vindictiveness and selective retribution. exclude the earlier administrations in the guise of "substantial
distinctions" would only confirm the petitioners’ lament that the
Though the OSG enumerates several differences between the subject executive order is only an "adventure in partisan hostility."
Arroyo administration and other past administrations, these In the case of US v. Cyprian, it was written: "A rather limited
distinctions are not substantial enough to merit the restriction of the number of such classifications have routinely been held or
investigation to the "previous administration" only. The reports of assumed to be arbitrary; those include: race, national origin,
widespread corruption in the Arroyo administration cannot be taken gender, political activity or membership in a political party, union

activity or membership in a labor union, or more generally the then that is not protected. The unreasonable searches and
exercise of first amendment rights."
seizures would cover:
To reiterate, in order for a classification to meet the requirements
of constitutionality, it must include or embrace all persons who 1. search without warrant where it does not fall in any of
naturally belong to the class. "Such a classification must not be the 6 general/common exceptions or
based on existing circumstances only, or so constituted as to 2. even if there is a warrant, either the warrant was
preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be illegally obtained or the warrant legally obtained is
in similar circumstances and conditions. Furthermore, all who are illegally presented.
in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from So in those cases the search would become unreasonable and
those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the subject to the rule on exclusion (i.e. any items seized on the
members of the class." occasion of the unreasonable search would be considered as
The Court is not unaware that "mere underinclusiveness is not inadmissible in evidence.)
fatal to the validity of a law under the equal protection clause."
"Legislation is not unconstitutional merely because it is not all-
embracing and does not include all the evils within its reach." It has $ REQUIREMENTS OF SEARCH WARRANTS
been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply The Rules of Court provide for the requirements for the issuance
because it happens to be incomplete. In several instances, the of search warrants:
underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in 1. an application must be under oath or affirmation;
future legislations or regulations. These cases refer to the "step by 2. there is determination of probable cause to be done
step" process. "With regard to equal protection claims, a legislature personally by the judge.
does not run the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise, to cover every
evil that might conceivably have been attacked." Probable cause has been defined as such amount of facts or
circumstances which would lead a prudent judge to believe that a
In Executive Order No. 1, however, there is no inadvertence. That crime has been committed and that the fruits, effects or objects of
the previous administration was picked out was deliberate and the crime are in the place to be searched. There is also a
intentional as can be gleaned from the fact that it was underscored requirement of a hearing for the determination of probable cause.
at least three times in the assailed executive order. It must be The hearing is obviously summary in character but what is
noted that Executive Order No. 1 does not even mention any
particular act, event or report to be focused on unlike the required under the Rules is that there must have to be an oath or
investigative commissions created in the past. "The equal affirmation during or before the examination and that the judge
protection clause is violated by purposeful and intentional must have to ask searching questions on the applicant and/or
discrimination." witnesses. There were several cases in the past that [ruled that]
leading questions would not be allowed or are insufficient for the
REQUIREMENTS OF FAIR PROCEDURE judge to determine probable cause. The answers must have to
be based on the personal knowledge of the applicant and/or
A. Arrests, Searches and Seizures witnesses. This is a rule on Evidence i.e. that a person can only
Section 2, Article III, 1987 Constitution be allowed to testify on facts which he has perceived through the
Section 3, Article III, 1987 Constitution use of his senses so that if the matters taken in the application
turn out to be false, such applicant and/or witnesses can be held
Now, let’s go to the requirements of fair procedure, search and liable for false testimony.
seizure and arrest. The concept of the protection against
unreasonable search and seizure is largely based on privacy (the Now in one case, People vs. Mamaril (October 6, 2010), the SC
right to be let and left alone). The State therefore is not allowed had occasion to characterize the test for the proper determination
to conduct searches in any house, dwelling or search the of probable cause. The issue raised by the appellant on appeal
documents or other effects of any person unless it is warranted. was that there was no proper determination of probable cause
The Constitution extends the protection to unreasonable search based on the line of questioning of the applicant (a police officer)
and seizure only so that if the search and seizure is reasonable, considering that there were only few questions asked. The SC
said that there are no general criteria on the amount of probable
cause (or the amount of questions that the judge must ask for Q: Because personally you heard that the accused was dealing
probable cause to be properly determined). What is important is prohibited drugs and that was the basis for you to apply for search
warrant with Branch 66?
that the judge must personally believe that there exists probable
cause based on the facts and circumstances of the case. Again,
A: Yes, sir. (Emphasis supplied) x x x
there is no hard and fast rule as to how the determination of
probable cause should be made because it is largely dependent
Section 6, Rule 126 of the Rules on Criminal Procedure provides
on findings and the application of these facts by the judge. that:
PEOPLE OF THE PHILIPPINES vs. OLIVE RUBIO MAMARIL If the judge is satisfied of the existence of facts upon which the
G.R. No. 171980 October 6, 2010
application is based or that there is probable cause to believe that
they exist, he shall issue the warrant, which must be substantially
The contention of the accused-appellant, as asserted through the in the form prescribed by these Rules. (Emphasis supplied)
Public Attorney’s Office, is that the issued search warrant was not
based on probable cause. The accused-appellant relied heavily on There is no general formula or fixed rule for the determination of
its argument that SPO4 Gotidoc, as the applicant of the search probable cause since the same must be decided in light of the
warrant, did not testify on facts personally known to him but simply conditions obtaining in given situations and its existence depends
relied on stories that the accused- appellant was peddling illegal to a large degree upon the findings or opinion of the judge
drugs. conducting the examination.
The requisites for the issuance of a search warrant are: (1) It is presumed that a judicial function has been regularly
probable cause is present; (2) such probable cause must be performed, absent a showing to the contrary. A magistrate’s
determined personally by the judge; (3) the judge must examine, in determination of a probable cause for the issuance of a search
writing and under oath or affirmation, the complainant and the warrant is paid with great deference by a reviewing court, as long
witnesses he or she may produce; (4) the applicant and the as there was substantial basis for that determination.
witnesses testify on the facts personally known to them; and (5)
the warrant specifically describes the place to be searched and the
things to be seized. The defense’s reliance of the quoted testimony of the police officer
alone, without any other evidence to show that there was indeed
lack of personal knowledge, is insufficient to overturn the finding of
On the other hand, probable cause means such facts and the trial court. The accused-appellant, having failed to present
circumstances which would lead a reasonable discreet and substantial rebuttal evidence to defeat the presumption of
prudent man to believe that an offense has been committed and regularity of duty of the issuing judge, will not be sustained by this
that the objects sought in connection with the offense are in the Court.
place sought to be searched.
Based on the records, the Court is convinced that the questioned Also, the next requirement is that the warrant must be issued in
search warrant was based on a probable cause. A portion of the connection with one specific offense, thus, avoiding what is
direct testimony of SPO4 Gotidoc is hereby quoted: known as scatter shot warrant. The theoretical basis for
disallowing a warrant issued for more than one specific offense is
Q: What is your basis for applying for search warrant against the that the judge will have difficulty in determining probable cause
accused?
that a crime has been committed and such will be subjected to a
search warrant with respect to the fruits, proceeds or things to be
A: Because there were many persons who were going to her place
and we’ve been hearing news that she is selling prohibited drugs
used (for purposes of determining probable cause, if the warrant
and some of them were even identified, sir. should be issued for more than 1 specific offense). So only 1
offense for every warrant. In this case of Tan vs. Sy Tiong Gue,
Q: But you did not conduct any surveillance before you applied for the search warrant here was issued for robbery but the
search warrant? information (for robbery) was dismissed thereafter. The question
raised here is: can the item seized under the warrant be used as
A: Prior to the application for search warrant, we conducted evidence in a case of qualified theft? Remember that double
surveillance already. jeopardy had not set in yet because the information (for robbery)
had been dismissed. The SC said NO considering that the
dismissal of the information (for robbery) was for lack of sufficient

cause or prima facie case of taking. If there’s no taking, there and circumstances as will warrant a cautious man to believe that
his action and the means taken in prosecuting it are legally just
could be no qualified theft.
and proper. Probable cause requires facts and circumstances that
would lead a reasonably prudent man to believe that an offense
ROMER SY TAN vs. SY TIONG GUE has been committed and that the objects sought in connection with
G.R. No. 174570 February 22, 2010 that offense are in the place to be searched. In Microsoft
Corporation v. Maxicorp, Inc., this Court stressed that:
A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a The determination of probable cause does not call for the
peace officer, commanding him to search for personal property application of rules and standards of proof that a judgment of
described therein and to bring it before the court. The issuance of conviction requires after trial on the merits. As implied by the words
a search warrant is governed by Rule 126 of the Rules of Court, themselves, "probable cause" is concerned with probability, not
the relevant sections of which provide: absolute or even moral certainty. The prosecution need not
present at this stage reasonable doubt. The standards of judgment
Section 4. Requisites for issuing search warrant. — A search are those of a reasonably prudent man, not the exacting
warrant shall not issue except upon probable cause in connection calibrations of a judge after a full-blown trial.
with one specific offense to be determined personally by the judge
after examination under oath or affirmation of the complainant and Applying these set standards, this Court finds that there was no
the witnesses he may produce, and particularly describing the grave abuse of discretion on the part of the RTC judge in issuing
place to be searched and the things to be seized which may be the subject search warrants.
anywhere in the Philippines.1avvphi1
A perusal of the Sinumpaang Salaysay and the Transcript of
Section 5. Examination of complainant; record. — The judge must, Stenographic Notes reveals that Judge Lanzanas, through
before issuing the warrant, personally examine in the form of searching and probing questions, was satisfied that there were
searching questions and answers, in writing and under oath, the good reasons to believe that respondents, accompanied by five
complainant and the witnesses he may produce on facts maids, took five boxes of Hennessy XO owned by the Guan Yiak
personally known to them and attach to the record their sworn Hardware and brought them to the 8th floor of 524 T. Pinpin St.,
statements together with the affidavits submitted. Binondo, Manila; and that a person named "Yubol" took various
checks from the company’s vault, which was later brought to the
Section 6. Issuance and form of search warrant. — If the judge is 7th floor of 524 T. Pinpin St., Binondo, Manila. When they entered
satisfied of the existence of facts upon which the application is the premises, Felicidad Chan Sy was accompanied by two
based or that there is probable cause to believe that they exist, he policemen, which stunned Romer Sy Tan, so that he was not able
shall issue the warrant, which must be substantially in the form to do anything in the face of the calculated and concerted actions
prescribed by these Rules. of his grandmother, Felicidad Chan Sy, and her seven
companions. Based on the foregoing circumstances, Romer Sy
Tan believed that the crime of robbery was committed by the
Therefore, the validity of the issuance of a search warrant rests respondents.
upon the following factors: (1) it must be issued upon probable
cause; (2) the probable cause must be determined by the judge
himself and not by the applicant or any other person; (3) in the The power to issue search warrants is exclusively vested in the
determination of probable cause, the judge must examine, under trial judges in the exercise of their judicial functions. A finding of
oath or affirmation, the complainant and such witnesses as the probable cause, which would merit the issuance of a search
latter may produce; and (4) the warrant issued must particularly warrant, needs only to rest on evidence showing that, more likely
describe the place to be searched and persons or things to be than not, a crime has been committed and that it was committed by
seized. the accused. The determination of whether probable cause exists
as to justify the issuance of a search warrant is best left to the
sound discretion of a judge. Apparent in the case at bar and as
In the case at bar, the CA concluded that the RTC did not comply aptly found by the RTC judge, there was probable cause justifying
with any of the requisites required for the issuance of the subject the issuance of the search warrants. This was established by the
search warrants. The CA ratiocinated that although the RTC judge Sinumpaang Salaysay and the testimonies, consisting of no less
personally determined if probable cause existed by examining the than 37 pages, given by witnesses who had personal knowledge of
witnesses through searching questions, and although the search facts indicating that the crime of robbery had been committed and
warrants sufficiently described the place to be searched and things that the objects sought in connection with the offense were in the
to be seized, there was no probable cause warranting the issuance place sought to be searched. The facts narrated by the witnesses
of the subject search warrants. We do not agree. while under oath, when they were asked by the examining judge,
were sufficient justification for the issuance of the subject search
warrants.
Jurisprudence dictates that probable cause, as a condition for the
issuance of a search warrant, is such reasons supported by facts

The last 2 requisites for the issuance of a search warrant would

ROMER SY TAN vs. SY TIONG GUE (MR) be:
G.R. No. 174570 December 15, 2010 3. the particularity in the description of the place to be
On March 22, 2010, respondents filed a Motion for
searched and
Reconsideration wherein respondents informed this Court, albeit 4. the particularity in the description of the things to be
belatedly, that the Regional Trial Court (RTC) granted their motion seized.
for the withdrawal of the Information filed in Criminal Case No. 06-
241375. As such, respondents prayed that the decision be
reconsidered and set aside and that the quashal of the subject
Now, with respect to the place to be searched…In this case of
search warrants be rendered moot and academic on the basis of People vs. Tuan , 628 SCRA 226, the issue raised by the
the dismissal of the criminal case. appellant with respect to the description of the house to be
searched was based on the fact that the warrant application and
Consequently, in view of the withdrawal of the Information for the warrant itself did not include the description of the house as
Robbery, the quashal of the subject search warrants and the a 2 storey house with several rooms. The judge issued a warrant
determination of the issue of whether or not there was probable
for a particular house in a specific address. So is that sufficient to
cause warranting the issuance by the RTC of the said search
warrants for respondents’ alleged acts of robbery has been satisfy the requirement of particularity of description? The SC
rendered moot and academic. Verily, there is no more reason to said YES. What is important (in particularity of description) would
further delve into the propriety of the quashal of the search be to allow the searching officer (the one with the warrant) to
warrants as it has no more practical legal effect.
sufficiently determine which place is sought to be searched and
the subject of the search warrant. We must remember that the
Furthermore, even if an Information for Qualified Theft be later filed warrant is the authority which gives the searching party the right
on the basis of the same incident subject matter of the dismissed
case of robbery, petitioner cannot include the seized items as part to enter the premises. So that if the warrant is sufficient by itself,
of the evidence therein. Contrary to petitioner’s contention, he like in this case where there is a specific address, there is no
cannot use the items seized as evidence in any other offense more need to put in the description that the house is a 2 storey
except in that in which the subject search warrants were issued. structure with several rooms. The appellant apparently raised the
Section 4, Rule 126 of the Revised Rules of Court provides:
issue because 1 of the rooms of the said 2 storey house was not
used by him but had been rented for quite a while to somebody.
Section 4. Requisites for issuing search warrant. — A search
warrant shall not issue except upon probable cause in connection But that was not taken by the RTC and the CA considering that
with one specific offense to be determined personally by the judge this is a question on the particularity in the description of the
after examination under oath or affirmation of the complainant and place (to be searched).
the witnesses he may produce, and particularly describing the
place to be searched and things to be seized which may be
anywhere in the Philippines.1avvphi1 PEOPLE OF THE PHILIPPINES vs.
ESTELA TUAN y BALUDDA
G.R. No. 176066 August 11, 2010
Thus, a search warrant may be issued only if there is probable
cause in connection with only one specific offense alleged in an
application on the basis of the applicant’s personal knowledge and Equally without merit is accused-appellant’s assertion that the
his or her witnesses. Petitioner cannot, therefore, utilize the Search Warrant did not describe with particularity the place to be
evidence seized by virtue of the search warrants issued in searched.
connection with the case of Robbery in a separate case of
Qualified Theft, even if both cases emanated from the same A description of the place to be searched is sufficient if the
incident. officer serving the warrant can, with reasonable effort,
ascertain and identify the place intended and distinguish it
Moreover, considering that the withdrawal of the Information was from other places in the community. A designation or
based on the findings of the CA, as affirmed by this Court, that description that points out the place to be searched to the
there was no probable cause to indict respondents for the crime of exclusion of all others, and on inquiry unerringly leads the peace
Robbery absent the essential element of unlawful taking, which is officers to it, satisfies the constitutional requirement of definiteness.
likewise an essential element for the crime of Qualified Theft, all In the case at bar, the address and description of the place to be
offenses which are necessarily included in the crime of Robbery searched in the Search Warrant was specific enough. There was
can no longer be filed, much more, prosper. only one house located at the stated address, which was accused-
appellant’s residence, consisting of a structure with two floors and
composed of several rooms.

In view of the foregoing, the Court upholds the validity of the premises to be searched when they applied for the warrant. They
Search Warrant for accused-appellant’s house issued by MTCC add that not one of the PICOP Compound housing units was
Judge Cortes, and any items seized as a result of the search searched, because they were not among those identified during
conducted by virtue thereof, may be presented as evidence the hearing.
against the accused-appellant.
These arguments are not convincing. The sketches allegedly
submitted by the police were not made integral parts of the search
Now, don’t confuse this with that old case involving PICOP in warrant issued by Judge Asucion. Moreover, the fact that the
Bislig City. The issue there was on the particularity in the raiding police team knew which of the buildings or structures in the
description of the place (to be searched) because PICOP is a PICOP Compound housed firearms and ammunitions did not
very big compound. What was sought to be searched there were justify the lack of particulars of the place to be searched.
Otherwise, confusion would arise regarding the subject of the
the structures where illegal firearms and ammunitions were warrant — the place indicated in the warrant or the place identified
supposed to have been kept and stored. In that case, the SC by the police. Such conflict invites uncalled for mischief or abuse of
said that the warrant failed to describe the particular structure to discretion on the part of law enforces.
be searched simply because it (PICOP) is a very big compound
(including forest land, among others). So if it were to be a big Thus, in People v. Court of Appeals, this Court ruled that the
compound where the structures are considerably separated from police had no authority to search the apartment behind the store,
which was the place indicated in the warrant, even if they intended
each other, there must have to be a sufficient description of it to be the subject of their application. Indeed, the place to be
which structure in the said address is sought to be searched—not searched cannot be changed, enlarged or amplified by the police,
only of the address of the big compound. viz.:
PAPER INDUSTRIES CORPORATION OF THE . . . In the instant case, there is no ambiguity at all in the warrant.
PHILIPPINES (PICOP) vs. The ambiguity lies outside the instrument, arising from the absence
JUDGE MAXIMIANO C. ASUNCION of a meeting of the minds as to the place to be searched between
G.R. No. 122092 May 19, 1999 the applicants for the warrant and the Judge issuing the same; and
what was done was to substitute for the place that the Judge had
Thus, this Court has held that "this constitutional right [i]s the written down in the warrant, the premises that the executing
embodiment of a spiritual concept: the belief that to value the officers had in their mind. This should not have been done. It [was]
privacy of home and person and to afford it constitutional neither fair nor licit to allow police officers to search a place
protection against the long reach of government is no less than to different from that stated in the warrant on the claim that the place
value human dignity, and that his privacy must not be disturbed actually searched — although not that specified in the warrant —
except in case of overriding social need, and then only under [was] exactly what they had in view when they applied for the
stringent procedural safeguards." Additionally, the requisite of warrant and had demarcated in the supporting evidence. What is
particularity is related to the probable cause requirement in that, at material in determining the validity of a search is the place stated
least under some circumstances, the lack of a more specific in the warrant itself, not what the applicants had in their thoughts,
description will make it apparent that there has not been a or had represented in the proofs they submitted to the court issuing
sufficient showing to the magistrate that the described items are to the warrant. Indeed, following the officers' theory, in the context of
be found in particular place. the facts of this case, all four (4) apartment units at the rear of
Abigail's Variety Store would have been fair game for a search.
In the present case, the assailed search warrant failed to described

the place with particularly. It simply authorizes a search of "the The place to be searched, as set out in the warrant, cannot be
aforementioned premises," but it did not specify such premises. amplified or modified by the officers' own personal knowledge of
The warrant identifies only one place, and that is the "Paper the premises, or the evidence they adduced in support of their
Industries Corporation of the Philippines, located at PICOP application for the warrant. Such a change is proscribed by the
Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The Constitution which requires inter alia the search warrant to
PICOP compound, however, is made up of "200 offices/building, particularly describe the place to be searched as well as the
15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23 persons or things to be seized. It would concede to police officers
warehouses, 6 POL depots/quick service outlets and some 800 the power of choosing the place to be searched, even if it not be
miscellaneous structures, all of which are spread out over some that delineated in the warrant. It would open wide the door to
one hundred fifty-five hectares." Obviously, the warrant gives the abuse of the search process, and grant to officers executing a
police officers unbridled and thus illegal authority to search all the search warrant that discretion which the Constitution has precisely
structures found inside the PICOP compound. removed from them. The particularization of the description of the
place to be searched may properly be done only by the Judge, and
only in the warrant itself; it cannot be left to the discretion of the
In their Opposition, the police state that they complied with the police officers conducting the search. (Emphasis supplied.)
constitutional requirement, because they submitted sketches of the

The other matter with respect to the description of the place to be This is because under the circumstances, it is not reasonably
searched is mistake of the address. Now, in all warrant expected that the applicant or witnesses would have a clear and
applications, it is required now (under a separate issuance of the accurate description as to the quantity or quality. So, mostly, it
SC) that there must have to be a sketch so that the judge also would be phrased as “so much of the drugs,” described as
will be informed of the place intended to be searched. This methamphetamine hydrochloride or marijuana leaves, or in case
supposed sketch is to be included in the records for the purpose of firearms, “pistols or rifles” would suffice—all based on the
of issuing the warrant. circumstances.
What if there is a mistake in the description of the place, say as Case in Point (CIP): Ty v. De Jemil (2010)
to the address indicated in the warrant? Would the warrant be
valid and therefore served validly as well in the correct address— It was held that the property to be seized based on the warrant
not in the address as mistakenly indicated in the warrant? The need not belong to the person against whom the warrant was
first consideration is that the warrant is the piece of paper which issued.
authorizes entry into a property. Most often than not, the ones
serving the warrant would be the applicant and the witnesses. It must be remembered that in crimes (where searches are
There are instances (however) where these [search warrants] are usually done) say, drugs or illegal possession of firearms, the
not served by the applicant and the witnesses but by any other criminal act is not premised on one’s ownership of the drugs or
law enforcement agency. Normally these are the same persons firearms, rather, it is based on one’s possession. Mere
[the applicant and the witnesses] who have previously conducted possession or (effective) control is sufficient to constitute a
surveillance on the determination of probable cause later when prima facie proof of your culpability.
they are to testify in the summary hearing. So they usually know
where the place is actually located (the subject of the search). If The fact of your non-ownership (of the drugs or firearms) will not
the mistake in the warrant as to the address is clearly destroy said proof since ownership was never, in the first place, a
typographical (not really a mistake which would give rise to consideration for your apprehension. This also holds true if your
confusion), then the service of the warrant in the correct address defense is non-ownership of the place where the things seized
and the search conducted therein would be considered valid— were found—mere possession or control of the items is enough.
not because of the knowledge of the searching party per se but
because the search was really intended in that place. This has ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY
happened in one case. It’s no longer included in the outline. This DY, and ALVIN TY vs. NBI SUPERVISING AGENT MARVIN E.
DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and
involves an address somewhere in Cebu, in Mandaue City. A TOTALGAZ DEALERS ASSOCIATION,
person applied for SW where the address was, say, 123 G.R. No. 182147; December 15, 2010
Bonifacio St., a common name for a street in every locality.
However, what was typed in the search warrant (SW) was merely Petitioners were stockholders of Omni Gas Corporation (Omni). It
is engaged in the business of trading and refilling of Liquefied
Cebu City. That notwithstanding, the SW indicated also the Petroleum Gas (LPG) cylinders. The case started when the JGAC
business name for which the SW was issued. The SC said this Law Office sent a letter to the NBI requesting, on behalf of their
was already sufficient. The error in this case was merely clients (Shellane Dealers Association, Inc., Petron Gasul Dealers
typographical. The SW was considered to have been validly Association, Inc., and Totalgaz Dealers Association, Inc.,) for the
surveillance, investigation, and apprehension of persons or
issued; hence, it could be validly executed. establishments in Pasig City that are engaged in alleged illegal
trading of petroleum products and underfilling of branded LPG
4. Particularity in the description of the things to be seized cylinders in violation of BP 33, as amended by PD 1865.
The NBI’s test-buy yielded positive results for violations of BP 33.

What is required here is sufficiency of description. Thus, the NBI served warrants which resulted in the seizure of
several items from Omni’s premises. Before the Supreme Court,
As such, based on the circumstances, the exact quantity of say, Omni argued, among others, whether a probable cause exists
the drugs, or identity of the firearms to be seized (i.e. the serial against them for violations of Sec. 2 (a) and (c) of BP 33.
number, the caliber)—these are not necessary for the purpose of The SC found probable cause based on, among others, the
complying with this requirement. following grounds:

xxx
Fourth. The issue of ownership of the seized branded LPG 5. The issuance of the SW was pursuant to a proper
cylinders is irrelevant and hence need no belaboring. BP 33, as
amended, does not require ownership of the branded LPG
application with the issuing court
cylinders as a condition sine qua non for the commission of
offenses involving petroleum and petroleum products. Verily, the GR: SEC. 2, RULE 126
offense of refilling a branded LPG cylinder without the written EXC: A.M. ORDER 3-8-02
consent of the brand owner constitutes the offense regardless of
the buyer or possessor of the branded LPG cylinder.After all, once
a consumer buys a branded LPG cylinder from the brand owner or Under Sec. 2, Rule 126, as a rule, the warrant must be
its authorized dealer, said consumer is practically free to do what issued by the court which has territorial jurisdiction over
he pleases with the branded LPG cylinder. He can simply store the place where the crime was supposedly committed
the cylinder once it is empty or he can even destroy it since he has
paid a deposit for it which answers for the loss or cost of the empty
and where it shall be enforced.
branded LPG cylinder. Given such fact, what the law manifestly
prohibits is the refilling of a branded LPG cylinder by a refiller who The exception would be if there is no court or judge in
has no written authority from the brand owner. Apropos, a refiller that court of said place, then the proper court is any
cannot and ought not to refill branded LPG cylinders if it has no
written authority from the brand owner.
court within the judicial region where the crime was
supposed to have been committed. (For instance, if
Fifth. The ownership of the seized branded LPG cylinders, there is no RTC, then you can apply with MTC).
allegedly owned by Omni customers as petitioners adamantly
profess, is of no consequence. The law does not require that the
property to be seized should be owned by the person against
whom the search warrants is directed. Ownership, therefore, is of Sec. 2. Court where application for search warrant
no consequence, and it is sufficient that the person against whom shall be filed.* --An application for search warrant
the warrant is directed has control or possession of the property shall be filed with the following:
sought to be seized. Petitioners cannot deny that the seized LPG
cylinders were in the possession of Omni, found as they were 1. Any court within whose territorial jurisdiction
inside the Omni compound. a crime was committed.
In fine, we also note that among those seized by the NBI are 16
2. For compelling reasons stated in the
LPG cylinders bearing the embossed brand names
of Shellane, Gasul andTotalgaz but were marked as application, any court within the judicial
Omnigas. Evidently, this pernicious practice of tampering or region where the crime was committed if the
changing the appearance of a branded LPG cylinder to look like place of the commission of the crime is
another brand violates the brand owners’ property rights
known, or any court within the judicial region
as infringement under Sec. 155.1 of RA 8293. Moreover,
tampering of LPG cylinders is a mode of perpetrating the criminal where the warrant shall be enforced.
offenses under BP 33, as amended, and clearly enunciated under
DOE Circular No. 2000-06-010 which provided penalties on a per SC A.M. No. 99-20-09-SC, Resolution clarifying guidelines on
cylinder basis for each violation.
the application for enforceability of search warrants.
Foregoing considered, in the backdrop of the quantum of evidence
required to support a finding of probable cause, we agree with the It can be seen with said provision thus that gone are
appellate court and the Office of the Chief State Prosecutor, which the days when the judge can issue a SW in one place
conducted the preliminary investigation, that there exists probable
cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP but it will be enforced in any another place. In the case
33, as amended. earlier cited, PICOP v. Asuncion, the warrant there was
Probable cause has been defined as the existence of such facts issued in the Quezon City and was served in BISLIG.
and circumstances as would excite belief in a reasonable mind, This was valid before, but not now. Under Rule 126,
acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was the proper issuing court would be those as enumerated
prosecuted. therein.
After all, probable cause need not be based on clear and There is however a special exception to Rule 126, Sec.
convincing evidence of guilt, as the investigating officer acts upon
reasonable belief—probable cause implies probability of guilt and 2, that is:
requires more than bare suspicion but less than evidence which
would justify a conviction. SC A.M. Order 03-8-02

GUIDELINES ON THE SELECTION AND DESIGNATION a) It is within said period that searches and seizures can
OF EXECUTIVE JUDGES AND DEFINING THEIR be made. Otherwise, it will be void. (Sec. 10, Rule 126)
POWERS, PREROGATIVES AND DUTIES
(See attached file for Full Text) b) Any search and seizure conducted in a day can be
continued to another day, provided the next day falls
This AM Order concerns crimes which are heinous, within that 10 day period.
illegal gambling…. (see enumeration). The SC said that
SW for any of these crimes can be applied for in the Time of the Search
Executive Judge (or if they are not available, the Vice-
Executive Judges) of RTC of Manila or Quezon City As a rule, the search can be conducted only during daytime.
and the SW issued shall be valid for service (Sec. 9, Rule 126). Search during nighttime may be conducted as
ANYWHERE in the Philippines. an exception if authorized by the court thru a special order after
application therein. The reason for this is that there are more
Chapter V. Specific Powers, Prerogatives and Duties of “evils” during nighttime which must be avoided.
Executive Judges in Judicial Supervision
xxx
SEC. 12. Issuance of search warrants in special criminal cases by Requirement of Witnesses
the Regional Trial Courts of Manila and Quezon City.– The
Executive Judges and, whenever they are on official leave of Under Sec. 8, Rule 126:
absence or are not physically present in the station, the Vice-
Executive Judges of the RTCs of Manila and Quezon City shall
have authority to act on applications filed by the National Bureau of Sec. 8. Search of house, room, or premises to be
Investigation (NBI), the Philippine National Police (PNP) and the made in presence of two witnesses. – No search of a
Anti-Crime Task Force (ACTAF), for search warrants involving house, room, or any other premises shall be made
heinous crimes, illegal gambling, illegal possession of firearms and
ammunitions as well as violations of the Comprehensive except in the presence of the lawful occupant thereof or
Dangerous Drugs Act of 2002, the Intellectual Property Code, the any member of his family or in the absence of the
Anti-Money Laundering Act of 2001, the Tariff and Customs Code, latter, two witnesses of sufficient age and discretion
as amended, and other relevant laws that may hereafter be residing in the same locality.
enacted by Congress, and included herein by the Supreme Court.
The applications shall be personally endorsed by the heads of

such agencies and shall particularly describe therein the places to As such, it is common in searches that barangay officials are
be searched and/or the property or things to be seized as present as independent persons witnessing the same.
prescribed in the Rules of Court. The Executive Judges and Vice-
Executive Judges concerned shall issue the warrants, if justified,
which may be served in places outside the territorial jurisdiction of CIP: Del Rosario v. Donato, Sr. (2010)
the said courts.
The SC said that the applicants and witnesses need not be
The Executive Judges and the authorized Judges shall keep a
special docket book listing names of Judges to whom the residents of the place intended to be searched.
applications are assigned, the details of the applications and the
results of the searches and seizures made pursuant to the This ruling came about because the reason for the provision Sec.
warrants issued. 2, Rule 126 (requiring that the court where the SW must be
This Section shall be an exception to Section 2 of Rule 126 of the
Rules of Court.
applied for should be the court which has territorial jurisdiction
over the place where the crime was committed) was the belief
that witnesses to crimes are usually found (or residing) in the
Period of Validity of Search Warrant same place intended to be searched. That is the general rule
only; there is no requirement that they must be so.
The SW is valid 10 days from issuance, and not from the
ARTHUR DEL ROSARIO and ALEXANDER DEL ROSARIO,
receipt of copy of the same by the law officers. Petitioners, v. HELLENOR D. DONATO, JR. and RAFAEL V.
GONZAGA, Respondents. March 5, 2010

Philip Morris Products, Inc. Philip Morris wrote the NBI, requesting Further, the allegation that the search warrant in this case was
assistance in curtailing the proliferation of fake Marlboro cigarettes served in a malicious manner is also not sufficient. Allegations
in Angeles City, Pampanga. After doing surveillance work in that of bad faith, malice, and other related words without ultimate facts
city, Respondent Donato, Jr., the NBI agent assigned to the case, to support the same are mere conclusions of law.
succeeded in confirming the storage and sale of such fake
cigarettes at the house that belonged to petitioner del Rosario. The Del Rosarios’ broad assertion in their complaint that the
search was conducted “in full and plain view of members of the
Respondent Donato applied for a search warrant. The NBI agents community” does not likewise support their claim that such search
proceeded to implement the warrant; however, their search yielded was maliciously enforced. There is nothing inherently wrong with
no fake Marlboro cigarettes. search warrants being enforced in full view of neighbors. In fact,
when the respondent or his representative is not present during the
Subsequently, Petitioners filed a complaint for P50 million in search, the rules require that it be done in the presence of two
damages against Respondents. The latter answered the complaint residents of the same locality. These safeguards exist to protect
with a motion to dismiss on the grounds of: a) the failure of the persons from possible abuses that may occur if searches were
complaint to state a cause of action; b) forum shopping; and c) the done surreptitiously or clandestinely.
NBI agents’ immunity from suit, they being sued as such
agents. The RTC denied the motion, which was annulled by CA. [Two]
Petitioners sought reconsideration of the decision but the CA
denied it; hence, this petition for review. Invoking Section 21 of this Court’s AM 02-1-06-SC, the CA held
that, rather than file a separate action for damages, the Del
Issues Rosarios should have filed their claim for compensation in the
same proceeding and with the same court that issued the writ of
1. Whether or not the CA correctly ruled that the complaint of search and seizure. The Del Rosarios were thus guilty of forum
the petitioners did not state a cause of action; and shopping.
2. Whether or not the CA correctly ruled that the petitioners
were guilty of forum shopping. The SC found this untenable as the subject search warrant was
not issued under A.M. 02-1-06-SC, which governed the issuance
Rulings of a writ of search and seizure in a civil action for infringement filed
by an intellectual property right owner against the supposed
[One] infringer of his trademark or name.
The CA held that the petitioners’ complaint before the RTC failed Philip Morris, the manufacturer of Marlboro cigarettes, did not go
to state a cause of action. This was because while said complaint by this route. Philip Morris did not file a civil action for infringement
alleged that the NBI agents unlawfully procured and enforced the of its trademark against the Del Rosarios before the RTC of
search warrant issued against the Del Rosarios, it failed to state Angeles City. Instead, Philip Morris sought assistance from the
the ultimate facts from which they drew such conclusion. NBI for the apprehension and criminal prosecution of those
reportedly appropriating its trademark and selling fake Marlboro
According to the Del Rosarios, the allegations in their complaint cigarettes.
stated a cause of action against respondents NBI agents.
However, the court found that all that the Del Rosarios alleged was In turn, the NBI instituted a police action that included applying for
that respondents NBI agents used an unlawfully obtained search a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule
warrant against them, evidenced by the fact that, contrary to the 126 of the Rules of Criminal Procedure (not under the provisions of
sworn statements used to get such warrant, the NBI agents found A.M. 02-1-06-SC) against the Del Rosarios upon the belief that
no fake Marlboro cigarettes in petitioner Alexander del Rosario’s they were storing and selling fake Marlboro cigarettes in violation
premises. of the penal provisions of the intellectual property law.
It must be noted that a judicially ordered search that fails to The proceeding under Rule 126, a limited criminal one, does
yield the described illicit article does not of itself render the not provide for the filing of counterclaims for damages
court’s order “unlawful.” against those who may have improperly sought the issuance
of the search warrant. Consequently, the Del Rosarios had the
The Del Rosarios did not allege that respondents NBI agents right to seek damages, if the circumstances warranted, by
violated their right by fabricating testimonies to convince the RTC separate civil action for the wrong inflicted on them by an
of Angeles City to issue the search warrant. Their allegation that improperly obtained or enforced search warrant. Unfortunately,
the NBI agents used an unlawfully obtained search warrant is a their complaint, as worded, failed to state a proper cause of action.
mere conclusion of law. While a motion to dismiss assumes as
true the facts alleged in the complaint, such admission does not Petitioner Arthur del Rosario claims that respondents NBI agents
extend to conclusions of law. Statements of mere conclusions of wrongfully included him as respondent in their application for a
law expose the complaint to a motion to dismiss on ground of search warrant since he neither owned the house at 51 New York
failure to state a cause of action. Street nor resided in it.

The court said that the rules do not require respondents in office, is to determine probable cause for the issuance of warrant
search warrant proceedings to be residents of the premises to only.
be searched. If this were the case, criminals in possession of
illegal articles could simply use other people’s residence for storing
such articles to avoid being raided and searched. In the old case of Lim (no citation), the SC said that the judge in
determining the probable cause for the existence of a warrant is
The procedure for the issuance of SW and actually performing a judicial function, whereas the determination
Warrant of Arrest is different. by the investigating officer as to the existence of a probable
cause to indict a person in court is an executive function.
This is so even if the Constitution provides that (together) they
But now, under the Rules of Court, the judge, upon receiving the
shall not issue except upon…. (see provision: Sec. 2, Article III).
full set of documents from the investigating officer can both, one,
perform the executive function by determining the existence of
As to Warrants of Arrest
probable cause whether or not there is a well-engendered belief
to charge the person in court. If there is none (probable cause),
Under the Rules of Court, the criminal case against an accused
the judge must require the prosecution to submit additional
has already been processed during preliminary investigation or
evidence.
preliminary examination. As such, what is now before the court
for the issuance of warrant (of arrest) is a complete set of records
And second, if after that or even before that the judge really
coming from the investigating officer him or herself (whether from
believes there is no really probable cause to continue with the
the prosecutor or the MTC judge [if s/he is still allowed to do so,
indictment or prosecution of the case, then the judge can dismiss
today? No longer…] or by the Ombudsman in appropriate cases).
the case. This is the second right:
The judge is required to personally go over these complete
records, meaning all the affidavit complaint/s, counter-affidavit/s 2. If the judge believes there is no probable cause to continue
(if any), documentary evidences, the finding of the investigating with the indictment or prosecution of the case, then the judge
officer (resolution) and the Information (which is prepared by the can dismiss the case.
investigating office and approved by the officer therein). The
judge must go over these. 3. The judge, upon finding the existence of a probable cause to
continue with the indictment, must then determine whether or
With those records in hand, under the Rules of Court, the judge not there is a probable cause to issue the warrant of arrest.
has these three rights:
Now, is there a difference between those two? There is:
1. To determine whether or not there is probable cause to a) In the first determination, it is for the purpose of determining
proceed, that is, whether or not there is probable cause whether there is a need to proceed or continue with the
to cause the indictment of the accused. indictment;
b) In the second, it is for the purpose of determining whether or not
If the judge does not find any probable cause or does not there is a need to place the person under the custody of the
continue with the indictment, the judge must require the court.
investigating officer (the prosecutor) to submit, within a certain
period of time, further documents or evidence for him or her (the Thus, if the judge finds there is a probable cause to issue a
judge) to determine whether or not there is probable cause to warrant of arrest, then the warrant shall issue.
proceed.
It would seem that under the Rules of Court, the judge can Now if you compare that with Search Warrants:
determine probable cause just like a prosecutor (referring to this
right). This is a variation from the previous discussions that the As to Search Warrants
determination by the judge of the existence of a probable cause,
when the case docket is received by him from the investigating

The difference as to the procedure for their issuance primarily That alias warrant will be
lies on the presence or absence of an indictment. outstanding and will
continue to have effect
When the search warrant is applied for, granted, and issued by until the accused has
the court, there is yet to be an indictment or charge. This is been arrested.
because the reason why the SW was applied for in the first place 2. As to the As a rule, it None.
is to secure evidence so that the subject person may be indicted time of must be in
(under a proper charge or case). implementat daytime. The arrest can be made at
ion anytime of the day and
But when it is the warrant of arrest that is going to be issued, there is no limitation as to
there is already a prior determination by the investigating officer place. It can be
that the crime has been committed and there is already a well- implemented anywhere
founded belief that the person respondent has probably within the territorial
committed the same and, therefore, s/he must be brought to trial. jurisdiction of the court.
As such, after the warrant of arrest is issued by the judge, there 3. As to the It must be This need not be shown to
would be then no longer issue as to whether or not there would manner of shown to the the person to be arrested.
be case against that person to be tried before the court. The implementat person who
same has been resolved initially. ion is in control Although it must be shown
of the place to the accused at some
Further Distinctions intended to later time when the same
be searched will be requested, but
SEARCH WARRANT OF ARREST definitely not needed
WARRANT during the arrest per se.
1. As to its 10 days from None.
lifetime its issuance
It is valid until it is served. VALID INSTANCES OF WARRANTLESS
SEARCHES AND ARRESTS
The 10 day period referred
to under the Rules of There are 6 generally known exceptions to warrantless searches
Court (Sec. 4, Rule 113) and seizures. There are also 6 as to warrantless arrests.
refers to the requirement However, there is a common exception for both:
of return or the duty of the
enforcing officer to return Common ground: Lack of sufficient opportunity to
the warrant to the court, secure a warrant
whether or not it has been
served. This is not the life That would justify generally the so called warrantless search or
of warrant of arrest. warrantless arrest. Again, there is no sufficient opportunity to
secure a warrant.
In practice, if after the
return was made the Now, the 6 exceptions are:
accused was not yet
indicted or the arrest was 1.) Search of moving vehicles
not successful, an alias
warrant is issued upon 2.) Search incident to a valid arrest
application by the 3.) Evidence seized in plain view
prosecution. This issues 4.) The stop and frisk situation
as a matter of course. 5.) Searches under express waiver, and

6.) Search under the Customs and Tariffs Code arrest. There is no such thing as arrest then searched in cases of
search of moving vehicles. So, this is always the situation.
SEARCH OF MOVING VEHICLES Now, in relation to putting up of checkpoints, the Supreme Court
has already made a pronouncement in the case of Davilla where
Now, search of a moving vehicle is largely justified on account of putting up of checkpoints and the searches conducted in the
the nature of a vehicle which is easy to take away from the checkpoint must have to follow certain guidelines:
jurisdiction of the place where it is intended to be searched.
Nonetheless, even if it is a known exception, what is required is a 1. The decision to put up a checkpoint must have to
minimum determination of probable cause, that the vehicle be determined by the responsible officers, the one
must be stopped and therefore must be searched. in command, because that person would be in the
best position to determine which of his men will be
It is not correct to assume that just because search of moving allocated for purposes of putting up a checkpoint.
vehicles is a known exception that law enforcement agents would
just or be allowed to stop a vehicle and search that vehicle for no
apparent reason. 2. The checkpoint must have to be manned not only
by enlisted personnel, but also, there must have to
Again, there is a minimum determination of probable cause that be for purposes of responsibility.
there is a need to stop that vehicle and search it.
What is that probable cause? 3. The checkpoint must have to be stationary. It must
not be mobile except in emergency situations like
Almost the same as that of a judge but this time, only to be
determined by a police officer and not by a judge. there is an ongoing bank robbery, there is an
ongoing crime being committed, where police
So, such facts and circumstances which would lead that police officers in the field will determine which would be
officer that a crime has been committed and the goods, effects, the best locations to set up the checkpoints to
and objects to be used for the commission of the crime are in the avoid the escape of the perpetrators. Generally, it
motor vehicle. would have to be stationary.
That minimum determination is a state of mind and would not be
easy to dispute. Now, in relation to search of moving vehicles, 4. The search in the checkpoints must have to be
most of the cases here, you would notice, would involve the limited to visual search. So that the vehicles must
participation of informants, the putting up of checkpoints and the have to be detained in those checkpoints
police officers eventually getting hold of that vehicle in a consistent with what is required for the conduct of
checkpoint. Those are usually the same set of facts in almost all a visual search. The rule is visual search—no
cases of search of moving vehicles that have reached the extensive search is allowed unless, (here we go
Supreme Court. So:
again), there is a minimum determination of
An information is received, reliable information from a reliable probable cause that an extensive search must
source that this person will be travelling in that motor vehicle. have to be conducted. In Davao, we are used to
There is a sufficient description of a motor vehicle travelling along the checkpoints of Task Force Davao and I think
this route and bringing with him illegal items or contraband; and they have largely complied with the requirement of
true to the information relayed, at some point in time later in the a visual search unless, you look suspicious, where
day, this motor vehicle is stopped at a checkpoint purposely put
an extensive search will have to be conducted.
up based on that information.; and a person which would fit the
description given by the reliable informant is… not really
apprehended because it is supposed to be searched and then That is why I was wondering, I’ve read in today’s local papers
that one person is violated for violation the special gun ban rule
in Davao from August 1 – 31 in the task force Davao checkpoint Now, search incident to a valid arrest is of a different species as
in the south wondering because, how was that firearm that of search of moving vehicles situation, because here there
discovered? Was that person carrying it with him or pointing it to must have to be an arrest first before a search will have to be
the task personnel? (giggles). conducted. The arrest must have to be valid before the search is
allowed and would be considered as valid. The search however,
If you have been to those checkpoints regularly, you would notice to be valid, must have to follow the two limitations:
that, in the visual search they would look at you, look at your
dashboard, and look at the direction of the glove compartment. 1.) Limitation on time
They would not even ask you to open the glove compartment 2.) Limitations on space
because that is not part of visual search. Unless of course you
are acting suspiciously. Perhaps that person was acting Limitation on time because, the reason why a search is allowed
suspiciously because there was an extensive search, and it (gun) immediately after a valid arrest is, to protect the arresting officer
was found in his glove compartment. If you regularly pass those form any act of violence that may be committed on him by the
checkpoints, why would you place your handgun in the glove person arrested on account of concealed weapons. That is why
compartment, why not place it somewhere else where they do search is allowed immediately after the arrest.
not usually conduct this search.
Second, in order for the arresting officer to secure the evidence
Either magaling yung task force or tanga yung nahuli. I was that may have been used or fruits or objects which may be used
reminded when some lawyers were in the list thingy… there was for the commission of the offense—which may have been in the
a time when lawyers were firing their firearms to distressed possession or in the person of the person arrested or, within his
themselves and a lot of lawyers had firearms, some were license immediate vicinity.
some with not. And for those licensed, some do not even have
the permit to carry the firearm outside the residence. So there And that should be the reason for allowing the requirement of
were questions asked, how would I bring my handgun or my the second limitation, limitation on space. The search must
guns to the firing range and there were several who said “Why? If have to be conducted on the person only of the person arrested
you are bringing them to the firing range, would you place them as well as within the immediate environment which he has
on your hood? Of course you will have to conceal them, place effective control.
them in places where they would not look for it. Because if there
is nothing suspicious about you running your vehicle in a highway Again, this is in relation to the objects or fruits of the crime or
going to the firing range, they will not stop and search your other objects that he may use to commit a crime or other
vehicle… ahh.. Okay. Do not place it on the hood of your vehicle, weapons which he may use to effect an escape or to avoid an
place it somewhere else. arrest.
SEARCH INCIDENT TO A VALID ARREST So, the limitation is extended to the immediate vicinity where he
has effective control. Otherwise, it if were to be literally on his
Okay, now the second instance is search incident to a valid person then it would be easy for that person arrested to escape
arrest. liability simply by throwing away all those things that would have
been seized from his person to avoid any liability.
Now, I mentioned earlier in search of moving vehicles based on It will not however extend to the space or environment where he
those usual set of facts, they do not effect an arrest, they just no longer has effective control. In one earlier case, the arrest for
conduct the search and then effect the arrest later, after the example, was effected in the living room of the house, the search
discovery of the illegal item or contraband. Mostly, if they see this conducted in the separate rooms of the safe house were not
person fitting the description, they will search the bags or considered as valid searches because they were not already
belongings nearest to that person. And in all these cases where complying with the limitation on space. It must have to be in the
the Supreme Court upheld the search for moving vehicles, they living room.
validated it because there was a search first before the arrest
was made. EVIDENCE SEIZED IN PLAIN VIEW

This is the so called “plain view doctrine”. Now in plain view that this is an illegal item or contraband. There is no
doctrine, this justifies also the seizures made of items not listed need for the police officer to exercise discretion that
or described in the search warrant. There is some confusion, (I this could be or may be illegal.
know it’s not you but for some),where, the question is asked, can
an item be seized even if it is not described or listed in the Now this plain view doctrine is almost always applied in cases
warrant. The answer is yes, provided it falls under any of these involving drugs and firearms simply, because the presumptions
exceptions, and one of the most common exceptions would be here in the country on possession of firearms and drugs are
the so called evidence in plain view. Now in evidence in plain against regularity or allowance. We do not have the constitutional
view, the requirements are: right to bear arms and therefore, if a person is caught possessing
a firearm, the obligation is on him, to prove that he is duly
1.) There is a justification for the prior intrusion – meaning, permitted and duly allowed to carry that farm. So the presumption
the police officers must have a right to be in the place is always against regularity.
where the search was made before there can be an
allowed seizure therein. If they were not properly Same with drugs—regulated rugs included. We have prohibited
equipped with any right to be in the place to be and regulated drugs. Even where the drugs are regulated drugs,
searched to begin with, then any search conducted it is the person arrested in possession of these regulated drugs to
prove that he is duly permitted to have or possess these drugs.
thereafter would not be considered as valid. Of course, if prohibited, there is no other recourse but that person
is to be arrested. You cannot prove that you are in possession of
2.) The evidence is inadvertently discovered—meaning , marijuana duly authorized by the state because it is medicinal for
there was no intent to look for this object or thing you. It is not accepted as a theory or law in the country. In other
except that in the course of the search, these things states in the US, marijuana is medicinal in certain quantities, wag
were accidentally discovered. Again, this is a state of lang mag overdose. (NB: there is no practical toxic level of
marijuana; hence, you cannot overdose on it”—Wa El).
mind, but, it is usually appreciated if say, the search
was conducted on account of a search warrant. There Okay. So, there was one case, ahhmmm… it’s no longer here,
were items listed on the search warrant, say, the items one of the older cases. The arrest was made in the living room
were drugs. And the conduct of the search where drugs because of a buy bust operation. And so they searched the
would normally be stashed or normally be found if kept immediate vicinity of the living room. They went to the next room;
or hidden, found firearms which turned out to be not it was actually the kitchen, where they found a plastic bag. The
licensed. Then this is a good example of that plastic was opaque; it was not translucent, hanging by a nail on
the wall. Hey brought it down and they opened it. They saw some
(mumbles, sounds like ”daywhore”), “inadvertently” or
item wrapped in newspaper. When they opened it up, they were
“accidentally” discovered. bricks of dried marijuana.
3.) Evidence is open to the eye or hand of the searching So the question is, are those bricks of dried marijuana leaves
officer – it simply means, again, that it strengthens the admissible in evidence? (Actually, it should be “buds” not
requirement that there is no intent to really search for “leaves”, the flowering portion of the plant, and it is “cured”, not
these things. They were just discovered, they are open “dried”—Wa El)
for the eye to see or open for the hand to feel when the Supreme Court said:
valid search was conducted.
-It will not fall under search incident of a valid arrest because they
4.) The evidence of illegality is immediately apparent—this went in the next room. The living room was partitioned with a wall
is where most of the cases are discussed. The from the kitchen.
evidence of illegality to be apparent is literal. It must be,
just by looking at it, the officer can make a conclusion

-Secondly, it could not fall under evidence in plain view because, ASONG, JP LEO
the evidence of illegality is not immediately apparent. They had to KINTANAR, KRISZA JOY
bring down the bag, opened the packing of newspaper, to LAMAN, JAHMES ”WA EL”
determine, to discover that it was indeed a prohibited drug. That
being the case, the Supreme Court said, the evidence of illegality
is not immediately apparent.
For illegal gambling for example, if there is a raid for illegal

gambling, what can be seized in plain view? Without inspiration the best powers of the mind
remain dormant. There is a fuel in us which needs to
Money? Can money be seized when there is a search on be ignited with sparks.
account of illegal gambling under plain view doctrine? —Johann Gottfried Von Herder
Is the evidence of illegality just by looking at money immediately

apparent? Di noh?
"I returned, and saw under the sun, that the race is not to the
That is why in relation to these special offenses, not when the swift, nor the battle to the strong, neither yet bread to the wise,
possession is illegal per se by presumption, like drugs and nor yet riches to men of understanding, nor yet favour to men
firearms. If they were to be like, violation of the Internal Revenue of skill; but time and chance happeneth to them all."
~Ecclesiastes 9:11
Code, violation of Intellectual Property Code. The description of
the things to be seized must also be indicated to have been
illegally used or illegally obtained in violation of these laws.
Otherwise, the mere identification of these items which are not
illegal per se will not constitute as sufficient justification on
description to validate the seizure of these items.
In some old cases involving piracy, or video piracy, this case of

Sunny Philippines, this case of Columbia Pictures... The seizure
of television sets and video recorders and other items used in the
so called violation of intellectual property rights, but which were
not sufficiently described as having been used for such illegal
activity were ordered returned by the court because the
possession of these items are not illegal per se.
What is so illegal for possessing a television set? Or a video

recorder? Eh mahilig lang talaga akong mag record kaya may
sampu ako dyan. So there must have to be a description that
these items are illegally used in violation of these laws.
Gambling, the same, normally the money or monies are always

described as bets. Because if you only indicate there, “money”, it
will end up to be kept by the police officer.. no no (sniggles).
They will return… not kept, returned to the person from whom
they were taken. Let us continue next meeting.
!"

barged into the residence. There, they verified the informant’s tip
that the accused were actually in pot session. There were several
August 7, 2012 items taken consisting of sachets which turn out to be MET
(shabu). So, the question was whether or not the search and
seizure of these drugs was considered valid and therefore
VALID INSTANCES OF WARRANTLESS
admissible under the doctrine of pain view.
SEARCHES AND SEIZURES
The SC reiterated the conditions in which search in plain view
A. SEARCH OF MOVING VEHICLES shall be applicable.
The exception as to warrantless searches and seizures has also The first—and which is the most important requisite or
been applied to searches and seizure of MOVING VESSELS. condition—is that there must have to be a valid prior intrusion.
Like searches on MOTOR VESSELS (in the same The intrusion must have to be valid before all the rest of the
characterization of MOVING VEHICLES), [they] can be also be conditions will be appreciated in favor of the applicability of the
brought out of the territorial jurisdiction of the search warrant doctrine.
where it is supposed to be implemented or served.
Now, based on the facts of the case, the knowledge of the police
As such, searches of moving vessels are considered covered by officers was based on the informant’s tip. Neither did they have
the instance of search of moving vehicles. Thus, there must have any personal knowledge, nor anything which consisted of
to be also that minimum determination of probable cause. probable cause so as to make the entry.
Also covered are searches on AIRCRAFTS. These vehicles have Therefore, the intrusion was not justifiable. Since the intrusion
the same characteristics as that of those previously mentioned. was not justified, the discovery of the drugs later on would not be
In their case, however, the visible searches will be to determine justified as well because they should not have been there to
violations of customs and tariff laws as well as immigration laws. begin with.
Also, in some cases, the search-of-moving-vehicles-exception
has been applied to cover instances of SEARCHES OF
VEHICLES IN BORDERS. G.R. No. 191366 December 13, 2010
PEOPLE OF THE PHILIPPINES vs.
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER,
In that case, checkpoints are conducted at the borders (land REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y
border, no border as to seas). These are [conducted and] CUNANAN
allowed when the vehicles to be searched would cross the border
to get to another state. This case would appear to fall under either a warrantless search
incidental to a lawful arrest or a plain view search, both of which
require a lawful arrest in order to be considered valid exceptions to
So again, invariably, those instances are covered under searches the constitutional guarantee.
of moving vehicles, which by their nature, are moving in or out
the territory where the search warrant will have to be Rule 113 of the Revised Rules of Criminal Procedure provides for
the circumstances under which a warrantless arrest is lawful. Thus:
implemented.
Sec. 5. Arrest without warrant; when lawful. – A peace officer or a
private person may, without a warrant, arrest a person:
B. PLAIN VIEW DOCTRINE
(a) When, in his presence, the person to be arrested has
Now, the last instance to be discussed is SEARCH IN PLAIN committed, is actually committing, or is attempting to commit
VIEW. Case in point is PEOPLE vs. MARTINEZ. an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
This involves a search of residence in Trinidad Subdivision, facts or circumstances that the person to be arrested has
Dagupan City while the occupants of the house were having pot committed it; and
session. So, the police officer, with the help of the informants, (c) 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 (b) The evidence was inadvertently discovered by the police who
case is pending, or has escaped while being transferred have the right to be where they are;
from one confinement to another.xxx (c) The evidence must be immediately apparent; and
(d) "Plain view" justified mere seizure of evidence without further
The manner by which accused-appellants were apprehended does search.
not fall under any of the above-enumerated categories. Perforce,
their arrest is illegal. The evidence was not inadvertently discovered as the police
officers intentionally entered the house with no prior surveillance or
First, the arresting officers had no personal knowledge that at the investigation before they discovered the accused with the subject
time of their arrest, accused-appellants had just committed, were items. If the prior peeking of the police officers in Bolasa was held
committing, or were about to commit a crime. to be insufficient to constitute plain view, then more so should the
warrantless search in this case be struck down. Neither can the
Second, the arresting officers had no personal knowledge that a search be considered as a search of a moving vehicle, a
crime was committed nor did they have any reasonable ground to consented warrantless search, a customs search, a stop and frisk,
believe that accused-appellants committed it. or one under exigent and emergency circumstances.
Third, accused-appellants were not prisoners who have escaped The apprehending officers should have first conducted a
from a penal establishment. surveillance considering that the identity and address of one of the
accused were already ascertained. After conducting the
Neither can it be said that the objects were seized in plain view. surveillance and determining the existence of probable cause, then
a search warrant should have been secured prior to effecting
First, there was no valid intrusion. As already discussed, accused- arrest and seizure.
appellants were illegally arrested. Second, the evidence, i.e., the
tea bags later on found to contain marijuana, was not inadvertently The arrest being illegal, the ensuing search as a result thereof is
discovered. The police officers intentionally peeped first through likewise illegal. Evidence procured on the occasion of an
the window before they saw and ascertained the activities of unreasonable search and seizure is deemed tainted for being the
accused-appellants inside the room. proverbial fruit of a poisonous tree and should be excluded. The
subject items seized during the illegal arrest are thus inadmissible.
In like manner, the search cannot be categorized as a search of a The drug, being the very corpus delicti of the crime of illegal
moving vehicle, a consented warrantless search, a customs possession of dangerous drugs, its inadmissibility thus precludes
search, or a stop and frisk; it cannot even fall under exigent and conviction, and calls for the acquittal of the accused.
emergency circumstances, for the evidence at hand is bereft of
any such showing.
The SC noted some other cases In the case of PEOPLE vs.
On the contrary, it indicates that the apprehending officers should BOLASA, the SC said that even peeping from a hole does not
have conducted first a surveillance considering that the identities even constitute plain view.
and address of the suspected culprits were already ascertained.
After conducting the surveillance and determining the existence of
probable cause for arresting accused-appellants, they should have In the case of BOLASA, there was also an informant’s tip. An
secured a search warrant prior to effecting a valid arrest and informant relayed to the police officers that a man and a woman,
seizure. The arrest being illegal ab initio, the accompanying search supposedly spouses, were packing marijuana leaves in their
was likewise illegal. Every evidence thus obtained during the illegal residence. So what the police did was that they went to the
search cannot be used against accused-appellants; hence, their
acquittal must follow in faithful obeisance to the fundamental law. house, peeped through the hole and actually saw in fact that the
spouses were indeed packing marijuana leaves. They then
It has been held that personal knowledge of facts in arrests without entered the residence, announced the arrest and seized the
warrant must be based upon probable cause, which means an evidence.
actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when the suspicion, that the person to be
arrested is probably guilty of committing an offense, is based on The SC said there was no justifiable intrusion. They should have,
actual facts, that is, supported by circumstances sufficiently strong as in the case of Martinez, applied for a warrant. The SC made a
in themselves to create the probable cause of guilt of the person to rule that the police should have conducted surveillance
be arrested. Xxx
under the circumstance. And based on their (police) personal
Neither can it be said that the subject items were seized in plain knowledge, they could have applied for search warrant and
view. The elements of plain view are: thereafter serve or implement said search warrant.
(a) A prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their
official duties; G.R. No. 125754. December 22, 1999

PEOPLE OF THE PHILIPPINES vs. ZENAIDA BOLASA Y

NAKOBOAN and ROBERTO DELOS REYES. A person charged with an offense may be searched for dangerous
weapons or anything which may be used as proof of the
An anonymous caller tipped off PO3 Dante Salonga and PO3 commission of the offense.
Albert Carizon that a man and a woman were repacking prohibited
drugs at a certain house in Manila. IN THIS CASE, the manner by which accused-appellants were
apprehended does not fall under any of the above-enumerated
PO3 Salonga and PO3 Carizon together with SPO1 Fernando categories.
Arenas immediately proceeded to the house of the suspects and
parked their car some three hundred (300) meters away. They Perforce, their arrest is illegal. First, the arresting officers had no
walked towards their quarry's lair accompanied this time by their personal knowledge that at the time of their arrest, accused-
unnamed informer. appellants had just committed, were committing, or were about to
commit a crime.
When they reached the house they "peeped (inside) through a
small window and x x x saw one man and a woman repacking Second, the arresting officers had no personal knowledge that a
suspected marijuana." crime was committed nor did they have any reasonable ground to
believe that accused-appellants committed it.
They entered the house and introduced themselves as police
officers to the occupants and thereupon confiscated the tea bags Third, accused-appellants were not prisoners who have escaped
and some drug paraphernalia. They arrested the two (2) who from a penal establishment.
turned out to be the accused Zenaida Bolasa y Nakoboan and
Roberto delos Reyes. Subsequent examination of the tea bags by Neither can it be said that the objects were seized in plain view.
NBI Forensic Chemist Rubie Calalo confirmed the suspicion that
the tea bags contained marijuana. First, there was no valid intrusion. As already discussed, accused-
appellants were illegally arrested. Second, the evidence, i.e., the
RULING tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through
Arrests and seizures in the following instances are not deemed the window before they saw and ascertained the activities of
“unreasonable” and are thus allowed even in the absence of a accused-appellants inside the room.
warrant –
In like manner, the search cannot be categorized as a search of a
1. Warrantless search incidental to a lawful arrest (Sec. 12, Rule moving vehicle, a consented warrantless search, a customs
126 of the Rules of Court and prevailing jurisprudence); search, or a stop and frisk; it cannot even fall under exigent and
2. Search of evidence in “plain view.” The elements are: (a) a emergency circumstances, for the evidence at hand is bereft of
prior valid intrusion based on the valid warrantless arrest in any such showing.
which the police are legally present in the pursuit of their
official duties; (b) the evidence was inadvertently discovered On the contrary, it indicates that the apprehending officers should
by the police who have the right to be where they are; (c) the have conducted first a surveillance considering that the identities
evidence must be immediately apparent; and, (d) "plain view" and address of the suspected culprits were already ascertained.
justified mere seizure of evidence without further search. After conducting the surveillance and determining the existence of
3. Search of a moving vehicle. Highly regulated by the probable cause for arresting accused-appellants, they should have
government, the vehicle’s inherent mobility reduces secured a search warrant prior to effecting a valid arrest and
expectation of privacy especially when its transit in public seizure. The arrest being illegal ab initio, the accompanying
thoroughfares furnishes a highly reasonable suspicion search was likewise illegal. Every evidence thus obtained during
amounting to probable cause that the occupant committed a the illegal search cannot be used against accused-appellants;
criminal activity; hence, their acquittal must follow in faithful obeisance to the
4. Consented warrantless search; fundamental law.
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances. C. STOP AND FRISK
An arrest is lawful even in the absence of a warrant: (a) when the
person to be arrested has committed, is actually committing, or is
This has been considered as an exception because to begin with,
about to commit an offense in his presence; (b) when an offense there is no actual intention to search.
has in fact been committed and he has reasonable ground to
believe that the person to be arrested has committed it; and, (c) The STOP and FRISK SITUATION is based on the 1968 ruling of
when the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
the US SC in the case of TERRY vs. OHIO.
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
What happened in that case was that there were 3 accused, THE HONORABLE COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES
apparently colored people, who were suspiciously facing a
business establishment, according to the police officer who Pat. Ursicio Ungab and Pat. Umbra Umpar were conducting a
arrested them. The business establishment was a jewelry store. surveillance along Magallanes Street, Davao City. While they were
They were acting suspiciously, so the police officer stopped and within the premises of the Rizal Memorial Colleges they spotted
frisked them for the presence of concealed deadly weapon which petitioner carrying a "buri" bag and they noticed him to be acting
suspiciously.
they may use to harm the police officer while effecting the
search. And, eventually they were arrested. When they were They approached the petitioner and identified themselves as
convicted by the state court of Ohio, they appealed to the SC, members of the PNP. Petitioner attempted to flee but his attempt
which affirmed the decision. to get away was thwarted by the two notwithstanding his
resistance.
They then checked the "buri" bag of the petitioner where they
The SC said that there was no search in the ordinary course of found one (1) caliber .38 Smith & Wesson revolver with two (2)
search and seizure. There was only a stopping and frisking of the rounds of live ammunition for a .38 caliber gun, a smoke (tear gas)
person and incidentally the concealed weapon or contraband grenade, and two (2) live ammunitions for a .22 caliber gun.
was discovered upon such. This is where a police officer is Then, they brought the petitioner to the police station for further
given ample latitude based on his experience on a possible investigation. In the course of the same, the petitioner was asked
crime activity on going and therefore the rule allows him to to show the necessary license or authority to possess firearms and
stop the person and frisk him for the purpose. ammunitions found in his possession but he failed to do so. He
was then taken to the Davao Metrodiscom office and the prohibited
articles recovered from him were indorsed to M/Sgt. Didoy the
First, the general purpose is based on crime prevention. Because officer then on duty. He was prosecuted for illegal possession of
of his (police officer) experience, he may have thought that there firearms and ammunitions.
is an on going criminal activity but he is not sure of it, thus, he is
RULING
given the right to stop and frisk that person. Second, this was for Clearly, the search in the case at bar can be sustained under the
him to be safe while he is still determining whether or not there is exceptions.
indeed an ongoing criminal activity. In such a case, he is allowed
to search that person for concealment of weapon that the person There are many instances where a warrant and seizure can be
effected without necessarily being preceded by an arrest, foremost
may use to commit violence. of which is the "stop and search" without a search warrant at
military or police checkpoints, the constitutionality or validity of
That characterization however is based on several factors. which has been upheld by this Court in Valmonte vs. de Villa.
The most important is the appropriateness of the
It was held in said case that “[n]ot all searches and seizures are
circumstances. prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but
In this case of POSADAS Y ZAMORA vs CA (G.R. No. 89139), is to be resolved according to the facts of each case.”
an old case originally decided in Davao, the landmark case of
Where, for example, the officer merely draws aside the curtain of a
TERRY vs. OHIO was applied. vacant vehicle which is parked on the public fair grounds, or simply
looks into a vehicle or flashes a light therein, these do not
This is the circumstance that happened on the height of the constitute unreasonable search.
“Sparrow unit” of the CPP- NPA. The persons (involved) while
The setting up of the questioned checkpoints in Valenzuela (and
walking, apparently innocent, and bringing with them market probably in other areas) may be considered as a security measure
baskets or “buri bags,” were approached by police officers. They to enable the NCRDC to pursue its mission of establishing
attempted to run but they were eventually accosted. The bags effective territorial defense and maintaining peace and order for
turned out to contain deadly weapons and ammunitions. So, the benefit of the public. Checkpoints may also be regarded as
measures to thwart plots to destabilize the government in the
based on the circumstances, the search would be allowable. The interest of public security.
local judge here applied the TERRY vs. OHIO ruling.
In this connection, the Court may take judicial notice of the shift to
G.R. No. 89139 August 2, 1990 ROMEO POSADAS y ZAMORA, urban centers and their suburbs of the insurgency movement, so
vs. clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the
abundance of unlicensed firearms and the alarming rise in

lawlessness and violence in such urban centers, not all of which a person for the purpose of investigating possible criminal
are reported in media, most likely brought about by deteriorating behaviour even though there is no probable cause to make an
economic conditions — which all sum up to what one can rightly arrest."
consider, at the very least, as abnormal times.
In such a situation, it is reasonable for an officer rather than simply
Between the inherent right of the state to protect its existence and to shrug his shoulder and allow a crime to occur, to stop a
promote public welfare and an individual's right against a suspicious individual briefly in order to determine his identity or
warrantless search which is however reasonably conducted, the maintain the status quo while obtaining more information. . . .”
former should prevail.
Meanwhile, in the case of ESQUILLO vs. PEOPLE, G.R. No.
True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform in the same manner that all 182010, the police officer was sent on a mission to make
governmental power is susceptible of abuse. But, at the cost of surveillance on an activity of an alleged pickpocket.
occasional inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times, when When he reached the area, he chanced upon petitioner Susan
conducted within reasonable limits, are part of the price we pay for
an orderly society and a peaceful community” Equillo, standing and apparently placing what appears to be a
small sachet inside a false bottom of a lighter. Since the police
Thus, as between a warrantless search and seizure conducted at officer, based on his experience, had knowledge that drugs are
military or police checkpoints and the search thereat in the case at contained in such sachets, he went to the appellant and
bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of introduced himself as a police officer. The woman started to run
a probable cause. but she was eventually caught up. When the officer inspected the
lighter, it turned out to be shabu.
The probable cause in this case was that when the petitioner acted
suspiciously and attempted to flee with the buri bag, there was a
probable cause that he was concealing something illegal in the bag So the question there was whether there was a valid arrest and
and it was the right and duty of the police officers to inspect the seizure upon search and frisk.
same.
The SC made it fall under the STOP and FRISK SITUATION
It is too much indeed to require the police officers to search the
bag in the possession of the petitioner only after they shall have because there was no intention really to arrest that person or any
obtained a search warrant for the purpose. Such an exercise may intention to search the appellant. The police officer was there for
prove to be useless, futile and much too late. different reason. But because of his experience, he noticed that
the woman was acting suspiciously, for which reason the seizure
The Court reproduces with approval the following disquisition of
the Solicitor General:
was considered valid under the STOP and FRISK.
The assailed search and seizure may still be justified as akin to a ESQUILLO vs PEOPLE G.R. No. 182010
"stop and frisk" situation whose object is either to determine the
identity of a suspicious individual or to maintain the status quo On the basis of an informant’s tip, PO1 Cruzin, together with PO2
momentarily while the police officer seeks to obtain more Angel Aguas (PO2 Aguas), proceeded to Pasay City to conduct
information. surveillance on the activities of an alleged notorious snatcher
operating in the area known only as “Ryan.”
This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1
(1968). In this case, two men repeatedly walked past a store As PO1 Cruzin alighted from the private vehicle that brought him
window and returned to a spot where they apparently conferred and PO2 Aguas to the target area, he glanced in the direction of
with a third man. This aroused the suspicion of a police officer. To petitioner who was standing three meters away and seen placing
the experienced officer, the behaviour of the men indicated that inside a yellow cigarette case what appeared to be a small heat-
they were sizing up the store for an armed robbery. When the sealed transparent plastic sachet containing white substance.
police officer approached the men and asked them for their names,
they mumbled a reply. Whereupon, the officer grabbed one of While PO1 Cruz was not sure what the plastic sachet contained,
them, spun him around and frisked him. Finding a concealed he became suspicious when petitioner started acting strangely as
weapon in one, he did the same to the other two and found he began to approach her. He then introduced himself as a police
another weapon. In the prosecution for the offense of carrying a officer to petitioner and inquired about the plastic sachet she was
concealed weapon, the defense of illegal search and seizure was placing inside her cigarette case.
put up.
Instead of replying, however, petitioner attempted to flee to her
The United States Supreme Court held that "a police officer may in house nearby but was timely restrained by PO1 Cruzin who then
appropriate circumstances and in an appropriate manner approach requested her to take out the transparent plastic sachet from the

cigarette case. After apprising petitioner of her constitutional rights, interest of safety and self-preservation which permit the police
PO1 Cruzin confiscated the plastic sachet on which he marked her officer to take steps to assure himself that the person with whom
initials “SRE.” A case was filed against her. he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
In her present petition, petitioner assails the appellate court’s
application of the “stop-and-frisk” principle in light of PO1 Cruzin’s From these standards, the Court finds that the questioned act of
failure to justify his suspicion that a crime was being committed, he the police officers constituted a valid “stop-and-frisk” operation.
having merely noticed her placing something inside a cigarette
case which could hardly be deemed suspicious. The search/seizure of the suspected shabu initially noticed in
petitioner’s possession - later voluntarily exhibited to the police
To petitioner, such legal principle could only be invoked if there operative - was undertaken after she was interrogated on what she
were overt acts constituting unusual conduct that would arouse the placed inside a cigarette case, and after PO1 Cruzin introduced
suspicion. circumstances leading to petitioner’s arrest. himself to petitioner as a police officer. And, at the time of her
arrest, petitioner was exhibiting suspicious behavior and in fact
RULING attempted to flee after the police officer had identified himself.
Appellant’s conviction stands. Elucidating on what includes “stop-
and-frisk” operation and how it is to be carried out, the Court in
People v. Chua held: This case should be differentiated from the case of PEOPLE vs.
MENGOTE.
. . . the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband. The This case was still based on informant’s tip. The police station
police officer should properly introduce himself and make initial
inquiries, approach and restrain a person who manifests unusual received a phone call that there was a man acting suspiciously in
and suspicious conduct, in order to check the latter’s outer clothing the corner of 2 streets because there was something on his
for possibly concealed weapons. waistline. So, the police officer went to that place and saw that
man based on the description and jumped on him and found in
The apprehending police officer must have a genuine reason, in
accordance with the police officer’s experience and the his possession unlicensed firearms. So he was charged
surrounding conditions, to warrant the belief that the person to be accordingly. The question thus is whether it was a valid stop-and-
held has weapons (or contraband) concealed about him. It should frisk situation.
therefore be emphasized that a search and seizure should precede
the arrest for this principle to apply.
The SC said NO because the circumstance was not appropriate.
This principle of “stop-and-frisk” search was invoked by the Court The facts of the case will show that this happened around noon
in Manalili v. Court of Appeals. In said case, the policemen time in the corner of two busy streets and that the person was not
chanced upon the accused who had reddish eyes, walking in a the only person there because again, these are two busy streets.
swaying manner, and who appeared to be high on drugs. Thus,
we upheld the validity of the search as akin to a “stop-and-frisk.” The SC said there was nothing suspicious with a man holding his
tummy; it might be that he was just experiencing something that
In People v. Solayao, we also found justifiable reason to “stop-and- requires him to touch his stomach.
frisk” the accused after considering the following circumstances:
the drunken actuations of the accused and his companions, the
fact that his companions fled when they saw the policemen, and
the fact that the peace officers were precisely on an intelligence G.R. No. 87059 June 22, 1992
mission to verify reports that armed persons w[h]ere roaming the THE PEOPLE OF THE PHILIPPINES vs. ROGELIO MENGOTE
vicinity. (emphasis and underscoring supplied; citations omitted)
xxx There is no question that evidence obtained as a result of an illegal
search or seizure is inadmissible in any proceeding for any
What is, therefore, essential is that a genuine reason must exist, in purpose.
light of the police officer’s experience and surrounding conditions,
to warrant the belief that the person who manifests unusual That is the absolute prohibition of Article III, Section 3(2), of the
suspicious conduct has weapons or contraband concealed about Constitution. This is the celebrated exclusionary rule based on the
him. justification given by Judge Learned Hand that "only in case the
prosecution, which itself controls the seizing officials, knows that it
Such a “stop-and-frisk” practice serves a dual purpose: (1) the cannot profit by their wrong will the wrong be repressed."
general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under The Solicitor General, while conceding the rule, maintains that it is
appropriate circumstances and in an appropriate manner, not applicable in the case at bar. His reason is that the arrest and
approach a person for purposes of investigating possible criminal search of Mengote and the seizure of the revolver from him were
behavior even without probable cause; and (2) the more pressing

lawful under Rule 113, Section 5, of the Rules of Court reading as Boulevard. The caller did not explain why he thought the men
follows:XXX looked suspicious nor did he elaborate on the impending crime.
In cases failing under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the Again, the STOP and FRISK is based on the appropriateness of
nearest police station or jail, and he shall be proceeded against in the situation. So the appropriateness of the circumstance would
accordance with Rule 112, Section 7. define whether or not the STOP and FRISK situation should be a
ground for warrantless situation.
We have carefully examined the wording of this Rule and cannot
see how we can agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not D. EXPRESS WAIVER
an escapee from a penal institution when he was arrested. We
therefore confine ourselves to determining the lawfulness of his
arrest under either Par. (a) or Par. (b) of this section. There are several matters to remember on EXPRESS WAIVER.
First, the waiver must have to be express. It cannot be
Par. (a) requires that the person be arrested (1) after he has considered a waiver therefore if there is a failure of the person to
committed or while he is actually committing or is at least whom the right pertains to object or to refuse, or to avoid the
attempting to commit an offense, (2) in the presence of the
arresting officer. search of his person because most often than not, the failure to
object expressly is supposed to be based on one’s fear or
These requirements have not been established in the case at bar. perhaps, one’s respect from authority, and not because he
At the time of the arrest in question, the accused-appellant was actually allows the search to be conducted.
merely "looking from side to side" and "holding his abdomen,"
according to the arresting officers themselves. There was
apparently no offense that had just been committed or was being Second, it must be given by the person to whom the right
actually committed or at least being attempted by Mengote in their pertains. In this case of PEOPLE vs. NUEVAS, that was the
presence. principle laid down by the Court. It must be given by the person
The Solicitor General submits that the actual existence of an to whom the right pertains. That is why in some cases, there are
offense was not necessary as long as Mengote's acts "created a instances on the question on “to whom the right pertains?”
reasonable suspicion on the part of the arresting officers and
induced in them the belief that an offense had been committed and For example, in a lease room in a boarding house, who has the
that the accused-appellant had committed it." The question is,
what offense? What offense could possibly have been suggested right to grant consent? Is it the landlord/lady or the lessee of the
by a person "looking from side to side" and "holding his abdomen" room? What is the object of the lease? Is the object turn over
and in a place not exactly forsaken? ownership or only possession to lessee?
These are certainly not sinister acts. And the setting of the arrest
made them less so, if at all. It might have been different if Mengote Even if there is consent, the search must have to be conducted in
had been apprehended at an ungodly hour and in a place where relation or within the terms of the consent. No problem if the
he had no reason to be, like a darkened alley at 3 o'clock in the consent is general, “okay you can search the house etc...”, then
morning. there is no limitation as to the scope of the search to be
But he was arrested at 11:30 in the morning and in a crowded conducted.
street shortly after alighting from a passenger jeep with his
companion. He was not skulking in the shadows but walking in the PEOPLE VS. NUEVAS
clear light of day. There was nothing clandestine about his being
on that street at that busy hour in the blaze of the noonday sun. Police officers Fami and Cabling, during a stationary surveillance
and monitoring of illegal drug trafficking in Olongapo City, came
On the other hand, there could have been a number of reasons, all across Jesus Nuevas, who they suspected to be carrying drugs.
of them innocent, why his eyes were darting from side to side and
he was holding his abdomen. If they excited suspicion in the minds Upon inquiry, Nuevas showed them a plastic bag which contained
of the arresting officers, as the prosecution suggests, it has marijuana leaves and bricks wrapped in a blue cloth. He then
nevertheless not been shown what their suspicion was all about. informed the officers of 2 other persons who would be making
marijuana deliveries.
In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from The police officers then proceeded where Nuevas said his
the informer that there were "suspicious-looking" persons in that associates, Reynaldo Din and Fernando Inocencio, could be
vicinity who were about to commit a robbery at North Bay located. Din was carrying a plastic which contained marijuana
packed in newspaper and wrapped therein. When the police
officers introduced themselves, Din voluntarily handed the plastic Thus, the search is to be conducted only in the place where it is
bag over them. After the items were confiscated, the police officers
reasonably expected that a person would hide.
took the three men to the police office.
Police officer Fami then revealed that when the receipt of the Based on the facts of the case, however, they found the
evidence was prepared, all 3 accused were not represented by supposed documents, firearms, and ammunitions in the places
counsel. He likewise disclosed that he was the one who escorted where it cannot be reasonably expected to a person to be hiding,
all the accused during their physical examination. He also escorted
all 3 to the fiscal’s office where they were informed of the charges that is, in the drawer and small cabinet where no human can fit.
against them. The SC said that the search was INVALID.
The 3 were found guilty by the trial court, and the case was VEROY VS. LAYAGUE
automatically elevated to the CA for review. However, Nuevas (210 SCRA 92)
withdrew his appeal. Thus, the case was considered closed and
terminated as to him. The CA affirmed the trial court.
Petitioners are husband and wife who owned and formerly resided
at Skyline, Davao City. In June 1988, they transferred to Quezon
Issue
City where they are presently residing. The care and upkeep of
Whether or not Din and Inocencio waived their right against
their residence was left to two (2) houseboys. The key to the
unreasonable searches and seizures?
master's bedroom as well as the keys to the children's rooms were
retained by petitioners.
Held
No. The search conducted in Nuevas’ case was made with his
On April 12, 1990, Capt. Obrero, raided the house of herein
consent. However, in Din’s case there was none.
petitioners in Davao City on information that the said residence
was being used as a safehouse of rebel soldiers. They were able
There is a reason to believe that Nuevas indeed willingly submitted
to enter the yard with the help of the caretakers but did not enter
the plastic bag with the incriminating contents to the police officers.
the house since the owner was not present and they did not have a
It can be seen that in his desperate attempt to exculpate himself
search warrant.
from any criminal liability, he cooperated with the police, gave them
the plastic bag, and even revealed his associates, offering himself
Petitioner Ma. Luisa was contacted by telephone to ask permission
as an informant.
to search the house. Ma. Luisa Veroy responded that she is flying
to Davao City to witness the search but relented if the search
His actuations were consistent with the lamentable human
would not be conducted in the presence of Major Ernesto
inclination to find excuses, blame others, and save oneself even at
Macasaet.
the cost of others’ lives. Thus, the Court would have affirmed
Nuevas’ conviction had he not withdrawn his appeal.
The authority given by Ma. Luisa Veroy was relayed by Capt.
Obrero to Major Macasaet who answered that Ma. Luisa Veroy has
On the other hand, with respect to the search conducted in the
called him twice by telephone on the matter and that the
case of Din, the Court finds that no such consent had actually been
permission was given on the condition that the search be
given. The police officers gave inconsistent, dissimilar testimonies
conducted in his presence.
regarding the manner by which they got hold of the plastic bag.
Neither can Din’s silence at the time be construed as implied
The following day, Capt. Obrero and Major Macasaet conducted
acquiescence to the warrantless search. Thus, the prosecution
the search pursuant to the authority granted by petitioner Ma.
failed to clearly show that Din intentionally surrendered his right
Luisa Veroy. The caretakers facilitated their entry into the yard,
against unreasonable searches.
and using the key entrusted to Edna Soguilon, they were able to
gain entrance into the kitchen. A locksmith, Badiang, had to be
As to Inocencio’s case, his supposed possession of the dried
employed to open the padlock of the door leading to the children's
marijuana leaves was sought to be shown through his act of
room. Capt. Obrero and Major Macasaet then entered the
looking into the plastic bag that Din was carrying. The act
children's room and conducted the search. Capt. Obrero recovered
attributed to Inocencio is insufficient to establish illegal possession
handgun, printed materials, etc.
of the drugs or even conspiracy to illegally possess the same. The
prosecution failed to show by convincing proof that Inocencio knew Issue
of the contents of the bag and that he conspired with Din to
Whether the articles were inadmissible as evidence for being
possess the illegal items. violative of the prohibition against unreasonable searches and
seizures?
But in one case, that case of VEROY vs. LAYAGUE, the consent
Held
there to conduct a search was allowed [but only for the purpose Yes. Petitioners aver that while they concede that Capt. Obrero
of ] searching the house for the presence of rebel soldiers. So had permission from Ma. Luisa Veroy to break open the door of
these are people supposedly hiding in the residential building. their residence, it was merely for the purpose of ascertaining

thereat the presence of the alleged "rebel" soldiers. The

permission did not include any authority to conduct a room to room
Second, it must have to be given by the person whose right
search once inside the house.
pertains and the search must have to be conducted in relation to
The Constitution guarantees the right of the people to be secure in the consent given.
their persons, houses, papers and effects against unreasonable
searches and seizures. However, the rule that searches and
seizures must be supported by a valid warrant is not an absolute E. VIOLATION OF CUSTOM AND TARIFF LAWS
one. Among the recognized exceptions thereto are:
These searches are allowed because of the difference in
(1) A search incidental to an arrest;
(2) A search of a moving vehicle; and
effecting searches therein. In this kind of search, however, there
(3) Seizure of evidence in plain view. must have to be a prohibition that these searches are limited to
the warehouses as well as any modes of transport.
None of these exceptions pertains to the case at bar. The reason
for searching the house of herein petitioners is that it was
reportedly being used as a hideout and recruitment center for rebel
As such, these searches cannot extend to residential units or
soldiers. dwelling. Thus, if the search is to be conducted in residential
units or dwelling places there must have to be a search warrant
While Capt. Obrero was able to enter the compound, he did not duly applied for and secured from the judge.
enter the house because he did not have a search warrant and the
owners were not present. This shows that he himself recognized
the need for a search warrant, hence, he did not persist in entering Now, in your outline, there are instances not covered by the
the house but rather contacted the Veroys to seek permission to six general instances. It is not covered because they have not
enter the same. Permission was indeed granted by Ma. Luisa reached the status of the six in the discussion. They have just
Veroy to enter the house but only to ascertain the presence of
rebel soldiers.
been laid lately because of the jurisprudence of the SC. They are
as follows:
Under the circumstances it is undeniable that the police officers
had ample time to procure a search warrant but did not. F. EXIGENT CIRCUMSTANCES
Undeniably, the offense of illegal possession of firearms is malum
prohibitum but it does not follow that the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita but Again based on our discussion on hierarchy of rights, in cases of
the subjects of this kind of offense may not be summarily seized emergency, the right against unreasonable searches and seizure
simply because they are prohibited. A search warrant is still
necessary.
can be regulated and even be violated in some extent because of
the nature of exigency.
Hence, the rule having been violated and no exception being
applicable, the articles seized were confiscated illegally and are So in cases of EXIGENCY, where the organized state or
therefore protected by the exclusionary principle. They cannot be
used as evidence against the petitioners in the criminal action
government is at stake, then there can be so called allowance for
against them for illegal possession of firearms. unwarranted searches and seizure.
Besides, assuming that there was indeed a search warrant, still in In airports, because of the 9/11 incident, we have seen the
mala prohibita, while there is no need of criminal intent, there must
be knowledge that the same existed. Without the knowledge or
increase of airport security. While there is no compulsion for you
voluntariness there is no crime. The criminal case against the to undergo this checks as part of airport security, if you don’t
petitioners for illegal possession of firearms is DISMISSED. want your personal right to be violated, you cannot compel the
airport personnel or management to allow you to take a flight
without going through the security control of these aircrafts.
SO, the waiver must have to be express and not implied. Failure
to object is not considered an express waiver. G. JAIL SAFETY
In sum, express waiver requires an understanding of the right In the case of PEOPLE vs. CONDE, the SC made mention that
of that person for unreasonable searches and seizure, and when you are (inmate) incarcerated, there is a diminished right to
full understanding of the effect of waiving or granting consent privacy of the inmate. That is why many matter or things
to the search. delivered by a relative can be searched. As such, if you delivered

a cake, the guard can slice it without violation because the right
to privacy is diminished because you are supposed to be CIVIL ACTION for DAMAGES
incarcerated. It is based on the protection of STATE INTEREST.
The 2nd remedy is civil action for damages under Article 32 of the
CC. This refers to violation of civil liberties including the rights
REMEDIES against unreasonable searches and seizure. You can claim
damages under CIVIL LAW.
The following are the remedies in case of violations:
In fact, not only the person conducting the search and seizure,
but also the officials who ordered the same under the concept of
EXCLUSIONARY RULE RESPONDEAT SUPERIOR.
This is the constitutional provision protecting the right of the
The damages would range from the actual damages based on
people against unreasonable searches and seizure. All evidence
actual injuries suffered due to loss or destruction of property. It
obtained in violation of the right against unreasonable searches
could also be moral damages for the moral suffering.
and seizure shall be inadmissible. However this RIGHT MUST
HAVE TO BE CLAIMED.
CRIMINAL VIOLATIONS
Normally it could be claimed when the object evidence is being
Also these 3 Articles in the RPC are considered as remedies:
offered. Under the rules on evidence, oral testimony is offered
1. ART 128 - Violation of domicile.
upon presentation of the witness or his own testimony while
objects or other documents are offered after the presentation of 2. ART 129 - Search warrants maliciously obtained
the oral testimonies of the witnesses. and abuse in the service of those
legally obtained.
So, it is usually around that time when there is a formal offer of
documentary evidence that the EXCLUSIONARY RULE is 3. ART 130 - Searching domicile without witnesses.
claimed by objecting to the offer of the prosecution.
These crimes carry the penalty from the range of arresto mayor
MOTION to QUASH maximum to prision correccional minimum.
There is also another procedure by which you could seek a ruling So, you can claim these protections, SIMULTANEOUSLY. They
on the admissibility and this is to file a motion to quash the are not exclusive.
information.
The motion to quash the information is usually filed in the court COMMON INSTANCES
where the case is pending. It is provided for in your Rule 116,
Rules of Court. in such a case, the court will have to determine
whether the evidence is inadmissible. The motion to quash is In warrantless arrests, there are also six common instances in
warrantless searches.
filed normally before the start of the trial and not during the trial
after the presentation of the prosecution of its evidence.
It is provided in Section 5, Rule 113 of Rules of Court:
First, the inflagrante delicto case,
LIMINE
Second, when the offense has just been committed and that the
There is also what have been allowed (at least in local practice person arresting has personal knowledge of the facts that the
person to be arrested has committed it.
but not in the rules of court) the so-called LIMINE. This is a pre
trial proceeding where the accused would ask the court before Third, when the person to be arrested has escaped from
trial for [a] determination whether [an evidence] should be detention facility whether serving prior sentence or pending trial.
The 3 more are provided for in different provisions:
excluded.
Under Section 24, Rule 114, Rules of Court:
1. If a person is arrested by bonds person, the bonds

person need not be armed by a warrant; or But again, in hot pursuit situations, there must have to be NO
2. If the accused attempts to leave the country, he can be APPRECIABLE BREAK in the sequence of events from the time
of the commission in the pursuit until the arrest is made. That is
arrested even without a warrant in order to prevent
the essence of hot pursuit, NO APPRECIABLE GAP.
situation that he will be out the jurisdiction of the court.
The reason there being that there is no reasonable opportunity to
The last instance is still under Rules of Court, Sec. 13, Rule 113: secure a warrant of arrest because if there is an appreciable gap
1. The person legally arrested can be rearrested without from the time of commission to the pursuit until the arrest is
warrant. made, then the police officer should have filed a case and should
have secured a warrant before effecting the arrest.
So, a person who was legally arrested but has escaped before
he was turned over to penal facility or has been rescued, then Now, as to “personal knowledge of facts indicating that the
that person can be rearrested without warrant. person to be arrested has committed,” that is where most of the
discussion are also had. This is because the question would be
So those are the 6 common instances of warrantless arrest. whose knowledge is supposed to be considered? Is it the
knowledge of the witnesses as relayed to the arresting officer?
DISCUSSIONS The rule is quite clear that it must be the personal knowledge of
the person making the arrest.
So the discussions here are on the first 2 instances. First, the in
flagrante delicto case and second, where an offense has just But when the person making the arrest was not there when the
been committed. offense is committed, it is hardly expected that all the knowledge
or perspective of the witnesses would be based on their own
Now, in the in flagrante delicto cases, a personal knowledge is perceptions.
required that there has been a commission of an offense
because the offense here is being committed, has just been There are some which will come from the testimony or
committed, is about to be committed, is being committed, or has information of eyewitness. But what is important is that these
just been committed in the presence of the person arresting. information or testimony coming from the witnesses must have
been coupled with the evidence they have found in the scene of
So, the personal knowledge is upon the offense. It goes without the crime and therefore their perception would become personal
saying that since it is in flagrante delicto, the identity goes there to them, making this as knowledge personal through them.
as well. But then again, the emphasis is on the offense because
the offense must have been committed in the presence of the If the information as to the identity is based mainly on what the
person arresting. informant or witnesses have relayed to them and it is not coupled
with what they have discovered personally in the scene of the
Now, as to the second situation, there are two considerations: the crime, then there is no satisfaction of the requirement. They must
phrase “that the offense has just been committed” and the 2nd have personally knowledge of the fact indicating the identity of
phrase “personal knowledge of facts indicating to the person to the person to be arrested.
be arrested has committed it.”
In one case involving a fight where the two accused persons
Now, in the phrase “that the offense has just been committed.” were picking woods and hollow blocks, crushing the skull of the
the safest rule, I think, is less than 24 hours. victim resulting to his death.
There is a case 12 hours or 18 hours which are still within the When the call for police investigation came, the police officer
phrase “that the offense has just been committed.” The only went to the hospital and there, they were able to see the
exception perhaps in some cases that it can go beyond 24 hours condition of the victim, that is, there were pieces of wood and
from the time of commission until the time of arrest would be hollow block in his skull. Also, they went to the scene of the crime
those considered in “HOT PURSUIT” situations. and they discovered that there was a wood and broken hollow
block soaked in blood. And, the identities of the persons were Neither could the “arrest” effected 6 days after be reasonably
actually provided to them by the other persons. regarded as effected “when the shooting had in fact just been
committed.”
Thus, the officers eventually made the arrest within 12 hours and Plus, none of the “arresting” officers had any “personal knowledge”
the SC said that it was valid based on Rule 113 section 5 of facts indicating that Go was the gunman. The police merely
paragraph B because the personal knowledge of the witness relied on the statements of an alleged eyewitness.
were also confirmed by the person who were in the scene of the
crime upon their investigation. !"
In the famous case of ROLITO GO vs. CA, while the name of the STRICT ENFORCEMENT of the rule is the general rule for
accused ROLITO GO was simply relayed to them, being the warrantless arrests because this is really a violation of one’s
arresting officer, the arresting officer was able to determine his personal privacy.
identity through the credit card receipt payment that the accused
paid. His identity was also determined based on the car Meaning, there must have to be adherence to the determination
registration and therefore based on their investigation, there is a of probable cause if there is a warrant for the arrest or, if there is
reasonable conclusion that the identity of the accused was not no warrant, they must have to follow strictly within the 6 allowable
merely provided to them by the witness but they were also able instances.
to personally determine by their investigation that that is the
identity of the person to be arrested. TAKE NOTE: The exception to that would be arrest without
warrant in relation to the Comprehensive Dangerous Drugs
ROLITO GO VS. COURT OF APPEALS Law as well as the Illegal possession of firearms,
ammunitions and explosives.
On July 2, 1991, Eldon Maguan was allegedly shot to death by The reason for that based on the SC decision is that there is
accused Rolito Go due to a traffic altercation when petitioner’s car difficulty in effecting arrest for people engaged by reason of
and the victim’s car nearly bumped each other. The security guard
of the Cravings Bake Shop saw the whole incident and pointed secrecy attending the same. There is no such thing as business
herein petitioner as the gunman, which he positively identified of selling drugs and firearms and the like as opposed to those
when questioned by the authorities. ordinary goods or business.
Being convinced of the suspect’s identity, the police launched a
manhunt operation that caused petitioner to present himself before That is why there is a little leeway granted to state authorities if
the San Juan Police Station to verify the said issue; he was then the warrants of arrest involve these.
detained by the police.
%
Issue: Whether or not the warrantless arrest of herein petitioner CARCEDO, HARVEY
was lawful LADEZA, ROEL
Held PAGUICAN, JOSHUA
No. The reliance of both petitioner and the Solicitor General upon PELONIO, AM
Umil vs. Ramos is, in the circumstances of this case, misplaced.
In Umil vs. Ramos, there was a valid warrantless arrest because

the offense (subversion) constituted a “continuing crimes.” Here,
the offense was murder, not a continuing crime.
The warrantless “arrest” does not fall within the terms of Section 5
of Rule 113 of the 1985 Rules on Criminal Procedure.
Go’s “arrest” took place 6 days after the shooting. The “arresting”
officers obviously were not present at the time petitioner allegedly
shot Maguan.

August 8, 2012 when public safety or order requires

otherwise, as prescribed by law.
Rendition normally is not allowed under our Constitutional set-up 2. Any evidence obtained in violation of
because warrants of arrest are supposed to be issued only after this or the preceding section shall be
the determination of probable cause in relation to the criminal inadmissible for any purpose in any
offense. We have said earlier that in case of the president, in the proceeding.
exercise of his powers over foreign relations, he has the authority
to issue a warrant for the arrest of an undesirable alien for his
immediate deportation. That is a form of an administrative arrest. This privacy of communications is just one of those provisions in
It is a long established exception to the rule that warrants of the Constitution which relates to one’s right to privacy. One’s
arrest can only be issued by the courts. right to privacy, though not expressed in the Constitution is a
known constitutional right. The provisions respecting
Now the other form of administrative arrest would be the unreasonable searches and seizures, or the provision on
issuance of warrants of arrest on account of a refusal or unreasonable arrest are examples of provisions in the
disobedience to a subpoena. If it is issued by a court in relation Constitution that guarantees one’s right to privacy or the right to
to a court case, there might not be a difficulty of understanding be left or let alone. So the State in the exercise of its powers
that such warrant may be issued for disobeying the subpoena cannot affect a right to privacy unless of course it is consistent
because that would constitute contempt of court. Nonetheless, in with the general requirement of due process among others for a
our system there are certain non-judicial bodies which have the valid exercise of its police power.
power to issue subpoena where the refusal or disobedience
would also result into a contemptuous act resulting into that body The right to privacy is something new as discussed in Philippine
to issue a warrant for the arrest. That is also a form of an jurisprudence because again there is a dearth in the Constitution
administrative arrest. So for example, Congress has the power to as to the expressed provision respecting one’s right to privacy.
issue subpoena and while it is not based on any positive rule or Nonetheless, there are several provisions in our Constitution
express provision of law, but by reason of its mission that the which would pertain to one’s right to privacy. They are referred to
National Legislature should have all the necessary authority to as zones of privacy. Several provisions on the matter in the Civil
ensure that all its processes are made effective (just like the Code, like Article 26:
courts, in relation to its legislative functions specifically in its
legislative investigations, its can issue warrants of arrest directing Article 26. Every person shall respect the
the arrest of persons for refusal to obey or follow the subpoena dignity, personality, privacy and peace of
and that contempt power of the national legislature need not be mind of his neighbors and other persons. The
exercised by the courts). That is again a form of an administrative following and similar acts, though they may
arrest. not constitute a criminal offense, shall
produce a cause of action for damages,
The next item in your outline is prevention and other relief:
(1) Prying into the privacy of another's
PRIVACY OF COMMUNICATIONS residence;
(2) Meddling with or disturbing the
We have made mention already that this privacy of private life or family relations of another;
communications or privacy or the right to privacy is not actually a (3) Intriguing to cause another to be
--- there is no direct provision in the constitution with respect to alienated from his friends;
one’s right to privacy, at most is this Section 3, Article III – (4) Vexing or humiliating another on
Privacy of Communications: account of his religious beliefs, lowly
station in life, place of birth, physical
Section 3. defect, or other personal condition.
1. The privacy of communication and
correspondence shall be inviolable and this may be a cause of action for damages if there is a
except upon lawful order of the court, or violation. Also there is an act punishable (for torts) on account of
persons meddling or prying into the privacy of another that is of the joke that there was this man, because of the unavailability
under the same article 26; and Article 32 holds any public officer of these kinds of information or education in Philippine society,
or employee or any private individual for damages for any Filipinos would normally have a hard time dealing with these
violation of the rights and liberties of other persons. Under Article things, words or phrases. So there was this one man who was to
723, which is a mirror of Article III, Sec. 3, the privacy of letters buy a condom and so he told the pharmacist, the sales lady in
and other private communications are also covered. the pharmacy: “Miss, condom Miss” in a very low tone and voice
as if… and the sales lady said “Saiz Sir” and then he said again
The Revised Penal Code has also several provisions with “Miss, condom Miss”. Lady: “Saiz lagi Sir”, Man: “Small Miss”,
respect to rights to privacy under Art. 229 (violation of secrets), Lady: “Tag Saiz Pisos Sir ba, Sa-iz”. ☺ By the way, do they
Art. 290-292 (revelation of trade and industrial secrets, trespass come in sizes? I’ve heard they come in different flavors? ☺
to dwelling). Invasion of privacy is also an offense under special
law, R.A. 4200 the Anti-Wire Tapping Act. Also included are the This also led to the controversial decision in that American
old laws, R.A. 425 (the Secrecy of Bank Deposits) and R.A. 8293 decision in Roe vs. Wade. Abortion or the right to have an
(the Intellectual Property Code). abortion has long been decided by the US Supreme Court in this
case where in the first trimester it is allowed and there is no
The Rules of Court also recognize privilege communications and limitation or regulation allowed by the State. In the second
also pertain to privacy of certain information under the Rules on trimester, there is a little regulation; in the third trimester, State
Evidence. There are information or matters which cannot be has the right to regulate abortion except for medical reasons. So
elicited in the ordinary course of testimony because they are that is something which is not an issue about anything else but
considered privileged communication. more on the right of the mother to be let and left alone in her
decision whether she would want to have a child. Again this is in
The right to privacy is not new in American Jurisprudence relation to her right to privacy, to be left her the decision whether
because it has long been established. The right to privacy has she would want a child.
been discussed in a lot of regulations which would include (it may
be discussed today because of the RH Bill in the understanding Now, in the Constitution, this right to privacy under Sec. 3, Article
that because of the information that the government is supposed III was included for the first time in the 1935 Constitution and the
to make available to the public so that they can make intelligent prevailing rule from which this was copied from (American rule)
choices in terms of their reproductive health. The use of was that the right to privacy is extended only to tangible objects
contraceptives is an issue which has long been decided in the (Tangibles Only Rule) and there must be a trespass. Now in the
US. In relation to the use of contraceptives amongst spouses, it privacy of communication and correspondence, if there is no
has long been decided that this has been considered a situation trespass, there is no applicability of the right (to privacy in relation
to one’s privacy because the use of contraceptives in the to the search and seizure clause). That’s why it has to be
bedroom is beyond the authority or powers of the court to inquire. extended. The search and seizure clause in the American
What happens in the bedroom supposedly would be left to the experience at the time this provision was included in 1935
discretion of these people which the State has no right to Constitution was that for the search and seizure clause to apply,
intervene. So in that old case involving the use of contraceptives there must have to be an actual trespass and what is sought to
which would prevent the use of contraceptives in certain be seized are tangible items. Now letters of communication are
situations, the court said it could not be allowed as a regulatory not tangible if they are electronically transmitted and normally if
measure because that involves one’s right to privacy.) there is such electronic seizure of this communication, there is no
actual trespass. So to extend that to communications and
In another case, there was a case involving a regulation on the correspondence they can include this provision in ’35, which was
availability of contraceptives to minors – meaning below 18. The copied until the present Constitution.
age ranges from 16 to 18, meaning these people are already
capable of reproduction or reproducing children. The law in the The term communications here is used in its general sense. But
US has disallowed to make these contraceptives available to what is actually covered by this privacy of communications is
minors. SC also struck down the provision of that law because communications between a government official and a private
the use of contraceptives is actually in relation to one’s right to citizen, and the communications between private citizens which
privacy. You don’t actually announce it publicly… you have heard cannot be violated by the State. So the question is, what about
the communications between government officials? Are these the trial court rendered judgment for Martin. It (1) declared that the
documents and papers are properties of Dr. Martin, (2) ordered
communications covered by this prohibition? Because again the
Zulueta to return them and (3) enjoined her from using them in
general concept is that the Bill of rights is a limitation to State evidence. On appeal, the Court of Appeals affirmed the decision of
authority. So it is a clash between the right of the State to the Regional Trial Court. Hence, Zulueta filed this petition for
exercise its powers and the right of its citizens to claim their review with the Supreme Court.
rights and privileges. But what if the communications are
Issue:
between public officers like the Hello Garci scandal? President Whether or not the constitutional injunction declaring that “the
talking to the Commissioner of the Comelec, can that privacy of communication and correspondence to be inviolable”
communication be intercepted and recorded with the use of apply even to the spouse of the aggrieved party.
government facility? That has not been answered but if you try to
Held:
look at this provision in relation to the general concept of the Bill The documents and papers are inadmissible in evidence. The
of rights, only communications between the individuals or constitutional injunction declaring “the privacy of communication
government officials and individuals are generally covered by this and correspondence [to be] inviolable” is no less applicable simply
provision. Please don’t forget the case of ZULUETA vs. CA because it is the wife (who thinks herself aggrieved by her
husband’s infidelity) who is the party against whom the
because that’s a peculiar decision. Peculiar in the sense that they constitutional provision is to be enforced. The only exception to the
have applied this provision when the claim is between private prohibition in the Constitution is if there is a “lawful order [from a]
individuals. That is no encroachment or alleged violation coming court or when public safety or order requires otherwise, as
from the State. It is a case between husband and the wife over prescribed by law.” Any violation of this provision renders the
evidence obtained inadmissible “for any purpose in any
the supposed letters which were sent by the paramour to the proceeding.”
husband and which were unlawfully taken from the private office
of the husband and introduced as evidence in the same case. So The intimacies between husband and wife do not justify any one of
the SC in that case applied this provision saying that generally them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A
when two persons contract marriage they do not actually person, by contracting marriage, does not shed his/her integrity or
surrender all the rights to privacy. That is a limitation of what is his right to privacy as an individual and the constitutional protection
being surrendered. For obvious reasons the most common of is ever available to him or to her.
what is to be surrendered are known to you, all the rest… and so
The law insures absolute freedom of communication between the
when the wife unlawfully entered the private office of the husband spouses by making it privileged. Neither husband nor wife may
and unlawfully or forcibly opened the cabinet where these letters, testify for or against the other without the consent of the affected
documents and pictures were found, the SC said they are spouse while the marriage subsists. Neither may be examined
inadmissible under the second paragraph of this Sec. 3. And it without the consent of the other as to any communication received
in confidence by one from the other during the marriage, save for
has not been applied since then probably because there has specified exceptions. But one thing is freedom of communication;
been no case filed with the same set of facts or husbands had quite another is a compulsion for each one to share what one
become, since they have already known the decision, had knows with the other. And this has nothing to do with the duty of
become more….. Okay. fidelity that each owes to the other.
Hence, the petition for review is DENIED.

ZULUETA vs. CA
G.R. No. 107383 ; Feb. 20, 1996
Facts: The usual law in point with respect to privacy of communications

Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982, violation is R.A. 4200, the Anti-Wire Tapping Act. Now that law
Zulueta entered the clinic of her husband, a doctor of medicine,
and in the presence of her mother, a driver and Martin’s secretary,
basically allows wiretapping for reporting purposes for
forcibly opened the drawers and cabinet in her husband’s clinic presentation as evidence thereafter, provided, there is
and took 157 documents consisting of private correspondence compliance with the requirements for getting the warrant. The
between Dr. Martin and his alleged paramours, greetings cards, warrant application is just like the search warrant application only
cancelled checks, diaries, Dr. Martin’s passport, and photographs.
The documents and papers were seized for use in evidence in a
that what is sought to be seized here is the communication
case for legal separation and for disqualification from the practice between two private individuals, which may be used by the state
of medicine which Zulueta had filed against her husband. Dr. for filing a case against them. This law however has been out-
Martin brought the action for recovery of the documents and dated so to speak because at the time this law was enacted, the
papers and for damages against Zulueta with the RTC. After trial,

usual modes of communication, though covered by RA 4200, did defamatory statement is supposed to be found? Ok.
not anticipate the forms of communication today. The age of
technology where mobile phones are already here or the so Now the intrusion as allowed will only be upon lawful order of the
called equipment which can be used for surveillance and court based on the Constitution. And even without lawful order of
eventual recording by intercepting the electronic messages have the court, if public order or safety requires there can be an
not also been envisioned in the Anti-Wire Tapping Act. The law intrusion into one’s right to privacy of communications. Now the
as the title suggests would require that there is an actual cutting intrusion must have to be issued by an Executive Order. So if it is
of the line, i.e. tapping it and tapping it for listening AND a Court order, no problem. If there is no court order, it can be by
recording because if it is only for listening, there is no violation. executive order, provided, there is still public order or safety
Violation eventually would have to result from the recorded requirement. So for example, the public order or safety is at stake
communication which is eventually presented to the court where where human lives, property, and liberty are at stake then the
there was no warrant previously secured. executive can order intrusion into one’s right to privacy of
communications.
This is supposed to have been amended on account of the
Committee Report hearing of the Hello Garci scandal. But you In relation to this privacy of communications by executive order
know, Congress(men) are only good at that during investigations where there can be proper intrusion provided public order or
because of the free media publicity that they get. And they don’t safety requirement would be your SC Resolution on the Writ of
push with the recommendations of the Committee that there Habeas Data. The Writ of Habeas Data refers to one’s right to
should be an amendment to RA 4200 to cover present day privacy in life, liberty and security. So that would include your
situation. right to privacy and it may relate to privacy of communications.
The writ is applicable if there is a violation or threatened violation
Just like in your law on libel... Is libel in the internet, do the of such right to privacy by unlawful act or omission of any person
defamatory statements or comments in the internet constitute or entity engaged in the gathering, collecting or storing of data or
libel? That has been questioned always because if you try to look information regarding the person, family, home and
at the law on libel, the publication is supposed to be in any of correspondence of the aggrieved party.
those modes or means. And when this law was enacted in the
1930’s or 50’s, internet was never imagined yet. The latest case The objective of the writ is to enjoin the act or order the deletion,
which has been dismissed I think was that.... I don’t know... here destruction, rectification of the erroneous data of information.
in Davao there was a case that’s been filed against Aportadera, This writ is normally addressed to those or properly addressed to
which the prosecutor found probable cause. [EDITOR’S NOTE: those who are tasked with gathering these information. There are
Congress has recently passed RA 10175 or the Cybercrime two things that may be the object of this writ:
Prevention Law. This lecture was delivered prior to the passage 1. If the information gathered is violative of your right to
of said Act. See for example Sec. 4(c) (4): xxx Libel. — The privacy, life, liberty or security; or
unlawful or prohibited acts of libel as defined in Article 355 of the 2. If there is a need to update the facts taken of you then
Revised Penal Code, as amended, committed through a the data, they can be ordered corrected.
computer system or any other similar means which may be
devised in the future.] FREEDOM OF EXPRESSION
In libel there are several aspects to consider like The theory under freedom of expression is that it is only through
1. Where was the publication made; a free speech that ultimately government is to be hold. When
2. Where was the publication first made or where was it there is a competition of ideas in the free market of ideas where
first read; everybody could freely speak and compete therein that
3. The person defamed is a public officer or private government is ultimately ran by __ of public opinion. The entire
person, there are considerations for purposes of idea is that based on philosophical basis of it, desired ultimate
jurisdiction good is better reached if people are free to speak against the ills
of government because if people are not free to speak, abuses in
When you post a defamatory statement on Facebook, is that the government or in the administration may not be made public
particular medium included in the definition of libel where the and therefore not corrected.
are not actually a form of censorship because they can be shown

Scope of Freedom of Expression in appropriate theatres but, again, we don’t have one yet.
The scope of freedom of expression is only available in In prior restraints, the usual course of the SC’s decision on the
discussion of matters affecting public interest. Purely private validity of the prior restraint regulation is to declare against its
matters are not covered and are not supposed to be guaranteed constitutionality or validity. The presumption is that, the prior
under free speech. The two components or elements are: restraint is not valid or unconstitutional. Again this is only for
1. Prior restraint purely censorship provisions of law or laws providing for
2. Freedom from subsequent punishment censorship, but if it is rating or classification, it has long been
established that the MTRCB has the power.
Prior restraint is normally in the form of censorship. There is an
injunction for the expression prior to them being made. There are There’s special mention with respect to movies, television and
some government regulations which must have to be complied radio programs that they can be classified and rated for public
before the activity involving the freedom can be exercised. And exhibition not (as forms of censorship) but because there is a
sometimes they are confused to be in the form of censorship just need to protect the intended viewers or listeners of these
like the requirement of permits and fees. If, say ABS-CBN, a programs or motion pictures. The rule of thumb is that, the
media facility, is required to secure a franchise first before it greater access of the public to this form of mass media, the
could exercise an activity involving free speech or freedom of the greater there is allowance for state regulation. If there is less
press or media and/or required thereafter to secure business access of this form of mass media by the public, there is less
permit, that is not censorship because it is not a non-content state regulation. Radio and television... there is more access on
based regulation. They are imposed as a matter of constitution radio than in TV that’s why in radio there is more regulation that
with respect to franchise because to engage in mass media is not TV Motion pictures as against TV shows... there is more
a right but a privilege. The privilege there is made as a matter of regulation in TV than in motion pictures because sometimes the
course because the government has the right to control them in prohibitive cause of viewing a motion picture in public theatres
certain situations not as to their content but as to their coverage would limit or prevent a lot more to view the motion picture.
as the need arises. The most common of which is when the
government as part of the franchise, conditions the grant by Going back to the new forms of mass media today like the
requiring these media facilities to give them free government internet, is that regulated? Do you know of a law which has
time. You have seen these on TV: “the public service is brought regulated the use of the internet as a form of mass media? I think
to you by blah blah...” Those are normally part of the conditions there is no law, as far as I know. I have not come across a law
of the franchise. which has dealt directly with the use of the internet. There are
some... there is a law regarding recording and uploading of sex
The other form of regulation, which the State has imposed and scandal videos [Anti-Voyeurism Act]. There is a law on that. It is
which the SC has refused also to consider as censorship, is the violative of the right of those people on the video. But it’s just
imposition of the ratings and classifications by the MTRCB. In one, but you go to other forms, what about selling on Facebook?
several cases that had been brought to the SC, all of them turned
out to have been ruled in favour of the MTRCB because this is There may be allowable regulation when it comes to these
just a ratings and classifications board. If a movie, motion picture normal forms (like TV, motion pictures...). Between radio and
or a television show has been rated as X or XX or XXX, they printed mass media, there is less regulation in printed form
cannot be shown in theatres other that those which have been because its form makes it not available to everybody. If the
established and allowed for business to publicly show X, XX or printed publication is not available to certain localities,
many X rated motion pictures. We don’t have those kinds. That’s automatically those will never go to targeted individuals. And
why it cannot be publicly displayed or shown. But in reality, if since it is printed, it has to be read. Those who cannot read will
there are theatres established for that purpose, they can actually necessarily be excepted of that target group unless those would
be exhibited publicly just like in the other countries. Again, there refer to pictures.
is none yet established here and none yet allowed for that
purpose. But if there is such, they can be publicly shown. That is Subsequent punishment
basically the common reasoning why the classification and rating
Subsequent punishment... the second component... the or not the evil sought to be avoided will inevitably happen if the
restrictions come in the form of punishments. There are two expression is not regulated.
considerations when a regulation in a form of subsequent
punishment is tested: The Balancing of Interest Test is normally used when there are
1. It has to be determined whether it is a content-based clashes of rights or claims of rights. Remember when we
restriction or a content neutral restriction mentioned about the hierarchy of rights? The Constitution has
preferred rights in accordance with their importance or value in
In content-based restriction, the usual tests would be: our system of existence. And when there are several of these
a. Dangerous Tendency Test rights clashing with each other, then the court will have to
b. Clear-and-Present Danger Test exercise its discretion with the use of this Balancing of Interest
c. Balancing of Interest Test test. Which of these interests should be upheld in this particular
situation? Again, while there is a hierarchy of these rights not
Those are the three most common tests. There are two tests because one occupies a higher level than the other (that
mentioned also in your outline: automatically this right in the higher level will prevail over that
d. Direct Incitement which pertains to a lower right in the hierarchy), it is to be
e. Grave but Improbable Danger decided or resolved based on the circumstances of the case and
which of these rights will prevail using the Balancing of Interest
They are cited there because they have been quoted in some test. Let’s continue tomorrow.
cases though they may not have been applied.
The Dangerous Tendency Test: when there is a state interest !"

which has to be protected from the evils to be brought about by
the speech or expression and there is a dangerous tendency that
the speech or expression will bring about that evil, then the State TRINIDAD, CHE
has the right to prevent it from happening. This test is normally MAGABILEN, DARLENE
used if the speech or regulation has something to do with
national security interest. When the very existence of an
organized government is at stake, the State will not wait that It is not enough to take steps which may some
there is a clear-and-present danger. The mere tendency that day lead to a goal; each step must be itself a
these utterances claimed under free speech will bring about the goal and a step likewise.
evil which will generally affect the very existence of an organized ~Johann Wolfgang von Goethe
government is sufficient for the State to regulate that particular
form of expression.
You got a dream... You gotta protect it. People
In Clear-and-Present Danger Test, there are two operative can't do somethin' themselves, they wanna tell
phrases there. Clear meaning there is a causal relation between you you can't do it. If you want somethin', go
the expression or the exercise of the right and the evil sought to get it. Period.
be avoided. Present that it is inevitable that the evil sought to be ~ Will Smith,
Smith The Pursuit of Happyness
avoided will happen because of the subject expression. Now in
this test, it is not only the words which are supposed to be tested,
it is also to consider the circumstances that these utterances are
made. Usual example is when you shout the word “fire” in an
open field. Though fire or the existence of fire or expressing that
there is a fire will bring about some form of distraction but if it is
uttered in the open field it cannot bring about such distraction.
But if it is uttered in a movie house, then that will bring about
stampede, distraction, injury or death to the movie theatre goers.
So the circumstances are also considered in determining whether
August 9, 2012 Now in freedom of the press there are four aspects to it that was
discussed in the cases of News Sound Broadcasting vs Dy and
FREEDOM OF EXPRESSION Soriano vs Laguardia. The four aspects are as follows:
1. Freedom from prior restraint
2. Freedom from subsequent punishment
Now we are still with content neutral restrictions and we have which are actually the two main components of free speech
discussed the various tests generally used in determining
whether the regulation under subsequent punishment is
3. Freedom to access for information under Article
3,Section 7
supposed to be valid based on the applicable tests. Now in
various situations as applied, to restate, in print media, we have 4. Freedom of circulation (CHAVEZ vs GONZALES)
mentioned that there is lesser latitude as compared to the other
G.R. No. 168338 February 15, 2008
forms of mass media based on the extent of the reach of FRANCISCO CHAVEZ vs. RAUL M. GONZALES
coverage of said form of mass media. In print media itself, there
is also a distinction to be made if it were to be a news item or a THIS CASE IS ABOUT THE GARCI SCANDAL
feature story. When the item subject of the regulation is an action
for libel or damages, for example, is based on a news story, the
Generally, restraints on freedom of speech and expression are
SC has given a wider latitude for freedom of expression of media evaluated by either or a combination of three tests, i.e., (a) the
in deference of the fact that in news items there is a daily dangerous tendency doctrine which permits limitations on
deadline to meet so that if there are in accuracies in the speech once a rational connection has been established between
statements, provided there is no malice intended then the the speech restrained and the danger contemplated; (b) the
balancing of interests tests, used as a standard when courts
expression would be upheld over the regulation. However, if it need to balance conflicting social values and individual interests,
were to be a feature story, there is supposed to be a lesser and requires a conscious and detailed consideration of the
latitude as compared to that of the news item because in a interplay of interests observable in a given situation of type of
feature story there is a reasonable amount of time to verify the situation; and (c) the clear and present danger rule which rests
on the premise that speech may be restrained because there is
sources and to verify the veracity or falsity of a fact which is substantial danger that the speech will likely lead to an evil the
subject of a feature story. In one case, an old case, SC said that government has a right to prevent. This rule requires that the evil
care is to be taken that in publication, there is avoidance of consequences sought to be prevented must be substantive,
affirming of what is not true or reckless disregard to take "extremely serious and the degree of imminence extremely high."
necessary steps in ascertaining its truth or falsity. That is why in
news items, where there is another person or entity involved, As articulated in our jurisprudence, we have applied either the
dangerous tendency doctrine or clear and present danger test
they would always have a statement that they had taken steps to to resolve free speech challenges. More recently, we have
secure the comment of the persons subject of the item before concluded that we have generally adhered to the clear and
they have published the item in deference to or in response to present danger test.XXX
their obligation that they must have acted diligently or prudently
to ascertain the truth or falsity of the item before it seize the libel Anatomy of Restrictions: Prior Restraint, Content-Neutral and
thing in print media because if the reason for the failure to seek Content-Based Regulations
or verify its truth or falsity is careless disregard for the truth or
there is really a willful assertion of what is false then they could Philippine jurisprudence, even as early as the period under the
1935 Constitution, has recognized four aspects of freedom of the
not be protected under the freedom of speech, media or press. These are (1) freedom from prior restraint; (2) freedom from
expression. Now in broadcast media, we mentioned yesterday punishment subsequent to publication; (3) freedom of access to
that there is stringent regulatory powers on the part of the information; and (4) freedom of circulation.
government due to its nature and its accessibility. As between TV
and radio, there is more government regulation in radio based on Considering that petitioner has argued that respondents’ press
the nature of radio coverage and the reach of audiences which is statement constitutes a form of impermissible prior restraint, a
closer scrutiny of this principle is in order, as well as its sub-specie
not similar to that of TV. of content-based (as distinguished from content-neutral)
regulations.

At this point, it should be noted that respondents in this case deny its validity. Because regulations of this type are not designed to
that their acts constitute prior restraints. This presents a unique suppress any particular message, they are not subject to the
tinge to the present challenge, considering that the cases in our strictest form of judicial scrutiny but an intermediate approach—
jurisdiction involving prior restrictions on speech never had any somewhere between the mere rationality that is required of any
issue of whether the governmental act or issuance actually other law and the compelling interest standard applied to content-
constituted prior restraint. Rather, the determinations were always based restrictions. The test is called intermediate because the
about whether the restraint was justified by the Constitution. 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
Be that as it may, the determination in every case of whether there the suppression of expression. The intermediate approach has
is an impermissible restraint on the freedom of speech has always been formulated in this manner:
been based on the circumstances of each case, including the
nature of the restraint. And in its application in our jurisdiction,
the parameters of this principle have been etched on a case- A governmental regulation is sufficiently justified if it is within the
to-case basis, always tested by scrutinizing the governmental constitutional power of the Government, if it furthers an important
issuance or act against the circumstances in which they or substantial governmental interest; if the governmental interest is
operate, and then determining the appropriate test with which unrelated to the suppression of free expression; and if the incident
to evaluate. restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.
Prior restraint refers to official governmental restrictions on the
press or other forms of expression in advance of actual publication On the other hand, a governmental action that restricts freedom of
or dissemination. Freedom from prior restraint is largely freedom speech or of the press based on content is given the strictest
from government censorship of publications, whatever the form of scrutiny in light of its inherent and invasive impact. Only when the
censorship, and regardless of whether it is wielded by the challenged act has overcome the clear and present danger rule
executive, legislative or judicial branch of the government. Thus, it will it pass constitutional muster, with the government having the
precludes governmental acts that required approval of a proposal burden of overcoming the presumed unconstitutionality.
to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish; Unless the government can overthrow this presumption, the
and even injunctions against publication. Even the closure of the content-based restraint will be struck down.
business and printing offices of certain newspapers, resulting in
the discontinuation of their printing and publication, are deemed as
previous restraint or censorship. Any law or official that requires With respect to content-based restrictions, the government must
some form of permission to be had before publication can be also show the type of harm the speech sought to be restrained
made, commits an infringement of the constitutional right, and would bring about— especially the gravity and the imminence of
remedy can be had at the courts the threatened harm – otherwise the prior restraint will be invalid.
Prior restraint on speech based on its content cannot be justified
by hypothetical fears, "but only by showing a substantive and
Given that deeply ensconced in our fundamental law is the hostility imminent evil that has taken the life of a reality already on ground."
against all prior restraints on speech, and any act that restrains As formulated, "the question in every case is whether the words
speech is presumed invalid, and "any act that restrains speech is used are used in such circumstances and are of such a nature as
hobbled by the presumption of invalidity and should be greeted to create a clear and present danger that they will bring about the
with furrowed brows," it is important to stress not all prior restraints substantive evils that Congress has a right to prevent. It is a
on speech are invalid. Certain previous restraints may be question of proximity and degree."
permitted by the Constitution, but determined only upon a
careful evaluation of the challenged act as against the appropriate
test by which it should be measured against. The regulation which restricts the speech content must also serve
an important or substantial government interest, which is unrelated
to the suppression of free expression.
Hence, it is not enough to determine whether the challenged act
constitutes some form of restraint on freedom of speech. A
distinction has to be made whether the restraint is (1) a content- Also, the incidental restriction on speech must be no greater than
neutral regulation, i.e., merely concerned with the incidents of the what is essential to the furtherance of that interest. A restriction
speech, or one that merely controls the time, place or manner, and that is so broad that it encompasses more than what is required to
under well defined standards; or (2) a content-based restraint or satisfy the governmental interest will be invalidated. The
censorship, i.e., the restriction is based on the subject matter of the regulation, therefore, must be reasonable and narrowly drawn to fit
utterance or speech. The cast of the restriction determines the test the regulatory purpose, with the least restrictive means
by which the challenged act is assayed with. undertaken.
When the speech restraints take the form of a content-neutral Thus, when the prior restraint partakes of a content-neutral
regulation, only a substantial governmental interest is required for regulation, it is subjected to an intermediate review. A content-

based regulation, however, bears a heavy presumption of invalidity However, there are certain situations where malice is not
and is measured against the clear and present danger rule. The
presumed though it can be proven or that the presumption of
latter will pass constitutional muster only if justified by a compelling
reason, and the restrictions imposed are neither overbroad nor malice can be overcome. So for the following statements: private
vague. communication for legal, moral or social duty or fair and true
report in good faith without comment of any judicial, legislative or
Applying the foregoing, it is clear that the challenged acts in the other official proceedings not confidential in nature or the court or
case at bar need to be subjected to the clear and present danger speech in such proceedings as exercised by public officials are
rule, as they are content-based restrictions. The acts of considered relatively privilege statements that malice in those
respondents focused solely on but one object—a specific
content— fixed as these were on the alleged taped conversations statements is not presumed but they can be actually be proven
between the President and a COMELEC official. Undoubtedly as a fact. So that if the statement for example refers to a letter
these did not merely provide regulations as to the time, place or that is made in relation to the call of social, civic or moral duty
manner of the dissemination of speech or expression. addressed to a person of position who could address the
problems sought to be addressed in the said letter, if there is no
So these are the four aspects generally followed under freedom unnecessary publication then that may be considered as
of press. The usual form and which is still a good law today as a relatively privilege. It would be different if there is an unnecessary
form of subsequent punishment which has not been declared as publication of that letter because that would erase the fact that
unconstitutional as yet is our law on libel whether it be a case for there is no malice in fact. Or if there are comments on official
libel arising from a statement which is claimed to be defamatory proceedings this is not a fair and true report, malice in fact may
either in its criminal form or as a form of claim for civil damages. be considered as present.
This has been the usual form of subsequent punishment imposed
after the expression has been made. We all know that the law on Now, the absolutely privilege statements that may not be
libel is still a good law although in the news paper you may have subjected to any cause of action, the most common could be
read that Sen. Honasan has introduced a bill in the senate which under speech and debate clause of members of congress. They
will decriminalize libel. They would want libel to be decriminalized shall not be held liable in any other place for any speech or
so it’s free for everybody to defame anybody else. So libel is any debate made in congress or in any committee thereof while
public and malicious imputation of a crime, vice, or defect, real or congress is in session, so absolutely privilege statements. Also,
imaginary of an act, status, condition, commission or omission or statements in pleadings which are material to the cause or case
circumstance tending to cause dishonor, discredit or contempt of under consideration are also considered as absolutely privilege
person or blacken the memory of the dead. In several cases, it statements. So that if the statements in the pleadings are not
has also been said that praise undeserved is libel in disguise. material to the cause or the case under consideration they may
not fall under the relatively privilege statements. So statements
Several matters with respect to libel, as you very well know, there like, in the answer “the allegations in paragraph 16 of the
is no need to particularly name a person as the person defamed complaint is denied, the claims of the plaintiff being absolutely
to constitute a violation and therefore be criminally liable for libel false and the plaintiff is an absolute liar”. That statement cannot
for so long as from the statement it can be ascertained by the be subjected to a criminal case or civil case for libel because it is
readers, if it is in print media or by the mass who have heard it if material to the case because there is a denial of the claim.
it is orally made, that the person defamed is identifiable. Of
course, it is not based solely on the fact that the person defamed Now the other matter with respect to libel would be your truth or
could identity itself, it must have to be that the readers or the proof as a defense so that question is: can you prove that truth of
listeners could identify the person defamed although not named. the statement to avoid liability? “Burikat mana siya! ☺ She is a
That is why the most common, even the broad sheet of the Phil prostitute! “. If you can prove that she is a prostitute, can you
Inquirer, would make these blind items and give clues as to who avoid liability for libel? OK, so the general rule is that if the
these particular persons are but necessarily giving up the identity statement is true provided that it is established for good motive
of that person from the printed item to avoid any liability for libel and for justifiable ends, proof of truth is a defense. The problem
be it criminal or civil. is what is so called “justifiable” about claiming that the person is
“burikat”.
Now in libel, malice is also presumed, so that when the statement
is defamatory it is presumed in law that it is maliciously made.
If the defamatory statement is not a crime, it is only accepted as somehow much greater leeway given to the exhibition in the form
a defense for pubic officers in relation to discharge of official of motion picture or, say, TV show of the public character of that
duties. And if it amounts to a crime, it can be used as proof or public person’s life. Of course, it does not include his private life.
defense if the defamation is against public or private person. So if
you call a private person a thief if you can prove that he is really For example if he is a government official and the government
a thief because he has committed theft or thievery then you can officials to be depicted - that his life would be depicted in that art
be exempted from liability. form is supposed to be important because it involves a public
incident or public event. For so long as there is no fictionalization
to that extent then there is no need for an agreement with respect
APPLICATION OF TESTS IN VARIOUS to that public person’s depiction of public life in that art form. That
CONTEXTS is to that extent.
A. FREEDOM OF EXPRESSION AND However, there are situations where the person is not a public
NATIONAL SECURITY functionary, strictly speaking, but because of his status in society
there has, somehow, been a conversion of his person as a
The other situation where the matter of free speech is usually private character to a public personality.
tested is when there is the question of the free exercise and
against or versus our national security interest. As we have said, A lot of the movie actors would fall in this category. So, can their
the dangerous tendency test is the normal test used if the lives or can they be depicted in an art form without their
utterances or expression is directed against the very existence of permission? The answer is only with their respect, again, to the
organized government. When the national security is at stake, public character of that public personality not the private aspects
the State will not wait that the evil sought to be avoided in the of their private lives.
expression is not regulated or prevented to happen. So usually, it
is resolved in favor of the State again if there is dangerous C. FREEDOM OF EXPRESSION AND THE
tendency that the speech sought to be avoided, if the speech is ADMINISTRATION OF JUSTICE (CONTEMPT OF
not regulated, will come true. COURT)
The last of these would be the freedom of expression and

B. FREEDOM OF EXPRESSION AND THE administration of justice.
RIGHT TO PRIVACY The discussion here is with respect to - the first is criticism to the
court or of court actions or proceeding or decision. And the
In a clash of rights between the freedom of expression and second would be that of concept SUB JUDICE RULE.
freedom to be left or let alone or the right to privacy of the
individuals, there should be a distinction if the depiction of a In FAIR CRITICISM, the SC had already lain down in TULFO
person in the exercise of freedom of expression, like in the VS. PEOPLE (2008) that there is allowable criticism to court’s
motion picture or in the TV show, involves a public officer or a decision provided it is made fairly or this is the FAIR CRITICISM
private person. If it is a public officer, generally there is leeway RULE, which must comply with the following conditions:
granted in favor of the freedom expression because of the 1. Must be made in good faith;
character of that public personality. If it is a private person there 2. Must be couched with respectful language;
is always a need for some arrangement with respect to the public 3. Must be directed at the merits; and
depiction of a private life of a private person. 4. Must not that grave or ridicule in court or insults its
members.
So you have contracts to that effect then if you produce a movie
involving Manny Pacquiao when he was not yet a member of TULFO VS. PEOPLE
congress then there must have to be some sort of agreement to
Facts: Atty. Ding So of the Bureau of Customs filed four
that person and the person exercising freedom of expression to
separateInformations against Erwin Tulfo, Susan Cambri, Rey
be able to be allowed to, in a limited sense, invade that person’s Salao, JocelynBarlizo, and Philip Pichay, accusing them of libel in
right to privacy. But with respect to a public person, there is
connection with the publication of articles in the column “Direct Hit” hearing still the case or petition pending before it because any of
of the daily tabloid Remate. those persons who would make the said criticism will the
subjected to what we know as a violation of sub judice rule and
The column accused So of corruption, and portrayed him as an
extortionist and smuggler. After trial, the RTC found Tulfo, et al.
may be held liable for contempt of court.
guilty of libel. The CA affirmed the decision.
The sub judice rule, strictly speaking, applies to situations where
Issues: W/N the assailed articles are fair commentaries. the utterances or actions or actuations are directed against or to
Ruling: NO.
courts to sway his decision in favor of one course of action and
a. Good faith is lacking, as Tulfo failed to substantiate or against another.
even attempt to verify his story before publication. He provided no
details on the acts committed by the subject. They are plain and To say or state or utter something with respect to a pending case
simple baseless accusations, backed up by the word of one
unnamed source.
is not per se violative of the sub judice rule. The expression or
b. Not “fair” or “true” because “fair” is defined as “having utterances or actuations or actions must be directed to unduly
the qualities of impartiality and honesty.” “True” is defined as influence the court in coming up its decision. So if the intent and
“comfortable to fact; correct; exact; actual; genuine; honest.” Tulfo objective of that utterance, expression, actuation or action is to
failed to satisfy these requirements, as he did not do research
before making his allegations, and it has been shown that these
sway the decision of the court and duly influence it to be one and
allegations were baseless. The articles are not “fair and true not the other is what is contemplated under the sub judice rule.
reports,” but merely wild accusations. Most often than not, the public or lawyers will refuse to comment
on a pending action for a fear that they will be held liable for
The elements of fair commentary (to be considered
privileged): a. That it is a fair and true report of a judicial,
contempt of court. But then again, if it is not intended to unduly
legislative, or other official proceedings which are not of influence the outcome of the case then there is no violation of the
confidential nature, or of a statement, report, or speech delivered sub judice rule. With all the more reason here in the Philippines
in said proceedings, or of any other act performed by a public where we do not follow the jury system. The sub judice rule has
officer in the exercise of his functions; b. That it is made in good
faith; c. That it is without any comments or remarks.
taken its roots from countries where the case is decided under
jury system because it would be difficult to insulate the members
Journalists may be allowed an adequate margin of the jury from any utterances made outside of court which may
error in the exercise of their profession, but this margin does bring about them to decide the case one way and not the other.
not expand to cover every defamatory or injurious statement
they may make in the furtherance of their profession, nor
In our system where case is decided by a sole presiding judge or
does this margin cover total abandonment of responsibility. as differentiated in collegiate courts, the so called sub due dice
The mere fact that the subject of an article is a public figure or a rule, though applicable, would not really be that prejudicial for
matter of public interest does not mean it is a fair commentary parties because judges are supposed to have this proven probity
within the scope of qualified privileged communication, which
would automatically exclude the author from liability. The
and independence that they should be swayed by public’s
confidentiality of sources and their importance to journalists are persuasions on a pending action.
accepted and respected. What cannot be accepted are journalists
making no efforts to verify the information given by a source, and In fact, if you remember the case of WEBB vs. DE LEON and in
using that unverified information to throw wild accusations and
besmirch the name of possibly an innocent person. Journalists
the onset of that case, there was a question of whether there is
have a responsibility to report the truth, and in doing so must at violation of the sub due dice rule, the media has kept on covering
least investigate their stories before publication, and be able to the particular case and at that point of having prejudicial
back up their stories with proof. Journalists are not storytellers or coverage of that of case in the media. The SC made an obiter
novelists who may just spin tales out of fevered imaginings, and
that the judges are supposed to be insulated from all these media
pass them off as reality. There must be some foundation to their
reports; these reports must be warranted by facts. Freedom of coverage whether it may be prejudicial or not because of the fact
expression as well as freedom of the press may not be that they are supposed to be deciding cases based on the facts
unrestrained, but neither must it be reined in too harshly.*** and evidence presented. The so called prejudicial coverage
would only be considered as having unduly influence the judge if
Now this fair criticism rule would relate only to decisions, there is a direct showing that there is a causal relation between
resolutions or orders of the court disposing of a case or a petition the prejudicial coverage and the decision or the resolution of the
pending before the Court. It is not ordinarily allowable in judge.
situations where the court is yet to decide or which is actually

Now, in relation, still, to the fair criticism rule, the SC has Now, CONTENT NEUTRAL RESTRICTIONS, the regulation, as
mentioned two principles affecting one’s right to criticize a form of subsequent punishment, may be allowed because it is
court’s proceedings, namely: on the circumstances when the expression is made and not on
the content of the expression. The normal test used is the
1. OPEN JUSTICE POLICY; and O’BRIEN TEST taken from the US decision of US vs. O’BRIEN
2. PRINCIPLE OF JUDICIAL INDEPENDENCE. (1968). This was adopted in the case of ADIONG VS. COMELEC
(1992).
The open justice policy allows a person’s right to criticize the
judiciary in order to prevent arbitrariness in the exercise of
judicial power and thus, maintaining the public’s confidence in If you remember this case, this refers to the political exercise
that system. However in the principle of judicial where the COMELEC issued, then, what was referred to
independence, in order for the courts to decide cases fair and COMELEC TIME and COMELEC SPACE -that the public or that
square and not unduly influence by these criticisms, it states that the election propaganda of any candidate in printed form can
the courts should be free from unjust criticisms and the freedom only be posted in areas designated as COMELEC SPACES. Now
of the court from these unjust criticisms are in two aspects, this refers to cars, stickers or decals bearing the name of a
namely: candidate. Now, can the COMELEC penalize or regulate the
posting of these election propaganda in the form of stickers or
1. The institutional; and decals to be posted only in COMELEC spaces not to be allowed
2. The individual. to be posted in anywhere else like a motor vehicle.
Institutional, meaning that the courts in general must be insulated So, the SC quoted the case the principle in the case of US vs.
from unfair criticism so that it will not or the judiciary being the O’BRIEN, the regulation is valid
non-reactive branch of government and being a non political 1. if it is within the constitutional powers of government;
office, it is supposed to be insulated from the pressures of public 2. if it furthers an important or substantial government
opinion where it is mostly desired in the executive and legislative interest;
department. 3. if the governmental interest is unrelated to the
suppression of free expression; and
The philosophical basis of the freedom of expression that the 4. if the incidental restriction on alleged freedom of
government’s objective is best achieved through the competing expression is greater than is essential to the
ideas in the free market should not be applied to ordinary court furtherance of government interest.
decisions because courts must decide cases based on the facts,
evidence and the applicable laws on the particular case.
Individual because judges are also human beings. They must ADIONG VS. COMELEC
also be free from unjust criticisms. While public officers are not
immune from criticisms, in one old case, the SC made a Facts: COMELEC promulgated Resolution No. 2347 which
provides that decals and stickers may be posted only in any of the
statement that the balm of clean conscience would actually authorized posting areas, prohibiting posting in "mobile" places,
assuage the wounded feelings brought about by unfair criticisms public or private. Petitioner Blo Umpar Adiong, a senatorial
is not only applicable to other public officers but must also be candidate in the May 11, 1992 elections now assails the
applicable to judges. But then again, since judges are, like the Resolution. In addition, the petitioner believes that with the ban on
radio, television and print political advertisements, he, being a
judiciary, are not political officers, they should be insulated from neophyte in the field of politics stands to suffer grave and
unjust criticisms so that they will be able to maintain their judicial irreparable injury with this prohibition.
independence - that they will decide cases based on what has
been presented to them or before them, with the evidence and
Issue: Whether or Not the COMELEC’s prohibition
apply it to the applicable laws in that particular case. unconstitutional.
CONTENT NEUTRAL RESTRICTIONS

Held: The prohibition unduly infringes on the citizen's fundamental
right of free speech. The preferred freedom of expression calls all

the more for the utmost respect when what may be curtailed is the 2. does not restrict one’s the expression or belief or
dissemination of information to make more meaningful the equally
opinion of qualification;
vital right of suffrage. The so-called balancing of interests —
individual freedom on one hand and substantial public interests on 3. does not cut off the flow of media reporting; and
the other — is made even more difficult in election campaign cases 4. must bear clear and reasonable connection with the
because the Constitution also gives specific authority to the sanction and objective of the regulation.
Commission on Elections to supervise the conduct of free, honest,
and orderly elections. When faced with border line situations where
freedom to speak by a candidate or party and freedom to know on What was subject of this case of OSMENA whether or not media
the part of the electorate are invoked against actions intended for practitioners should be regulated in COMELEC time and space if
maintaining clean and free elections, the police, local officials and they would write something about a candidate.
COMELEC, should lean in favor of freedom. The regulation of
election campaign activity may not pass the test of validity if it is
too general in its terms or not limited in time and scope in its No problem if it were to be a plebiscite because in a plebiscite,
application, if it restricts one's expression of belief in a candidate or there is no candidate to be elected but the ones to be voted on
one's opinion of his or her qualifications, if it cuts off the flow of are issues, so media practitioners to be allowed to defend a
media reporting, and if the regulatory measure bears no clear and position on that issue in a plebiscite. But with respect to the
reasonable nexus with the constitutionally sanctioned objective.
election, there seems to be a way of media practitioners in right
The posting of decals and stickers in mobile places like cars and to circumvent the regulation on equal access to public office. This
other moving vehicles does not endanger any substantial so called COMELEC time and space before were instituted in
government interest. There is no clear public interest threatened by order to equalize the supposed exposure of candidates to have
such activity so as to justify the curtailment of the cherished
citizen's right of free speech and expression. Under the clear and the resources and those who have none under the constitutional
present danger rule not only must the danger be patently clear and concept of equal chances or opportunity to public office. Those
pressingly present but the evil sought to be avoided must be so rules have been changed substantially by the Fair Elections Act
substantive as to justify a clamp over one's mouth or a writing of 2001. There are more allowable time, there are more allowable
instrument to be stilled. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on his car, exposure in print media but just the same principle should apply -
to convince others to agree with him. A sticker may be furnished by the principle on whether or not the State through the COMELEC
a candidate but once the car owner agrees to have it placed on his which is tasked to enforce or implement all elections related laws
private vehicle, the expression becomes a statement by the owner, would have the power to regulate the exercise of media
primarily his own and not of anybody else. The restriction as to
where the decals and stickers should be posted is so broad that it practitioners over qualifications or other considerations of a
encompasses even the citizen's private property, which in this candidate during an election campaign. Now, the SC has
case is a privately-owned vehicle. In consequence of this resolved this issue in favor of the press people - that for so long
prohibition, another cardinal rule prescribed by the Constitution as it is a legitimate reporting on that qualifications of that
would be violated. Section 1, Article III of the Bill of Rights provides
that no person shall be deprived of his property without due candidate in trying to illicit from the readers an approval or
process of law. disapproval of the qualifications or non-qualifications of a
candidate, that should be allowable.
The prohibition on posting of decals and stickers on "mobile"
places whether public or private except in the authorized areas
designated by the COMELEC becomes censorship. Now, in the O’BRIEN case which was adopted in the case of
ADIONG, the putting up and the sticking of these decals or
REGULATION OF POLITICAL CAMPAIGN OR stickers in places other than the COMELEC space was held by
ELECTION ACTIVITY the SC as unconstitutional because to stick the decals or stickers
in cars or privately owned properties are actually considered as a
Now in that election related activity, as discussed also in the case form of expression because this is the choice of the person as to
of OSMENA VS. PHILIPPINE PRESS INSTITUTE (not found in his candidate.
the outline).
In relation to that O’BRIEN TEST, in the case of ADIONG, the So, it is not normally expected that the candidate would just be
regulation of election related activity: allowed to stick the sticker in any car without the permission of
the owner because it is the owner’s choice and preference on
1. must not be too general or limited in time and scope on which candidate sticker will be allowed to be posted or to be
its application; placed on this motor vehicle. So it goes beyond the supposed
regulation if it were to cover that situation.
And under the law, which is correct, if under BP 880, if there is no

That is why even in the FAIR ELECTIONS ACT you may have word within, I think, 24 or 48 hours from the time the application
noticed that during election campaign, there are a lot of posters is made, it is deemed approved.
or streamers which are not compliant that are posted in private
places. Because there is a question, even if you read the Fair BATAS PAMBANSA BLG. 880
Elections Act, what is covered by the regulation to be posted in
COMELEC spaces must have to be compliant is no question. It AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE
must compliant to the regulated sizes. But what if you would want OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION
it to be placed in your own private place, should your poster or THE GOVERNMENT FOR OTHER PURPOSES
sticker be compliant?
Section 4. Permit when required and when not required - A written
In the past several elections, this 2001 Fair Elections Act had
permit shall be required for any person or persons to organize and
always maintained that if it is in a private property, you can put hold a public assembly in a public place. However, no permit shall
everything there, in whatever size, because it is your expression. be required if the public assembly shall be done or made in a
If you have a wall by your building, write your name there, put freedom park duly established by law or ordinance or in private
your face there and let the COMELEC bring it down and let us property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
see who shall win because it is your expression. The reason why government-owned and operated educational institution which
they regulate the sizes in the COMELEC Space is to give shall be subject to the rules and regulations of said educational
everybody a fair chance. If the regulation is one long bond paper institution. Political meetings or rallies held during any election
size, why put up a poster size? Your face will be bigger than the campaign period as provided for by law are not covered by this
Act.
rest.
Section 5. Application requirements - All applications for a permit
FREEDOM OF ASSEMBLY shall comply with the following guidelines:
The other allowable or which still continue to be allowed under (a) The applications shall be in writing and shall include the names
present day consideration is the Public Assembly Act of 1985 of the leaders or organizers; the purpose of such public assembly;
or BP 880. Under BP 880, the law primarily requires a permit to the date, time and duration thereof, and place or streets to be used
be secured first if the public assembly is to be held in a public for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be
place other than those designated as freedom parks. Now, this used.
requirement of permit is content neutral because it has nothing to
do with the utterances or the expression made in that public (b) The application shall incorporate the duty and responsibility of
assembly. The reason why permit is required is in-order for the applicant under Section 8 hereof.
LGU or for the State, for that matter, to allocate from among the
public using the public facility on who shall be allowed to use this (c) The application shall be filed with the office of the mayor of the
for the efficient use of everybody. city or municipality in whose jurisdiction the intended activity is to
be held, at least five (5) working days before the scheduled public
assembly.
If it is in a private place, BP 880 is not applicable. So you can do
your own thing in that private place. The only requirement is that,
(d) Upon receipt of the application, which must be duly
there must have consent from the private place owner. If it is in acknowledged in writing, the office of the city or municipal mayor
the freedom park or established to be a freedom park, still no shall cause the same to immediately be posted at a conspicuous
requirement of permit because it is supposed to be established place in the city or municipal building.
for such purpose.
Section 6. Action to be taken on the application –
Now, if you have noticed there was an issue on this permit during
the last SONA because from the vantage point of the applicant, (a) It shall be the duty of the mayor or any official acting in his
the one who conducted the rally going to Batasang Pambansa behalf to issue or grant a permit unless there is clear and
convincing evidence that the public assembly will create a clear
they said they have made an application and there was no
and present danger to public order, public safety, public
response - either to grant it or to deny it. convenience, public morals or public health.(b) The mayor or any
official acting in his behalf shall act on the application within two (2) with local government officials concerned and law enforcers to the
working days from the date the application was filed, failing which, end that the public assembly may be held peacefully;(d) To see to
the permit shall be deemed granted. Should for any reason the it that the public assembly undertaken shall not go beyond the time
mayor or any official acting in his behalf refuse to accept the stated in the permit; and(e) To take positive steps that
application for a permit, said application shall be posted by the demonstrators do not molest any person or do any act unduly
applicant on the premises of the office of the mayor and shall be interfering with the rights of other persons not participating in the
deemed to have been filed.(c) If the mayor is of the view that there public assembly.
is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the
Section 9. Non-interference by law enforcement authorities - Law
applicant who must be heard on the matter.
enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a
(d) The action on the permit shall be in writing and served on the law enforcement contingent under the command of a responsible
application within twenty-four hours. police officer may be detailed and stationed in a place at least one
hundred (100) meter away from the area of activity ready to
maintain peace and order at all times.xxx
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law. Section 15. Freedom parks - Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
(f) In case suit is brought before the Metropolitan Trial Court, the
in their respective jurisdictions which, as far as practicable, shall be
Municipal Trial Court, the Municipal Circuit Trial Court, the
centrally located within the poblacion where demonstrations and
Regional Trial Court, or the Intermediate Appellate Court, its
meetings may be held at any time without the need of any prior
decisions may be appealed to the appropriate court within forty-
permit. In the cities and municipalities of Metropolitan Manila, the
eight (48) hours after receipt of the same. No appeal bond and
respective mayors shall establish the freedom parks within the
record on appeal shall be required. A decision granting such permit
period of six months from the effectivity of this Act.
or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided And also, in this case of IBP vs. ATIENZA, a 2010 case, 2
within twenty-four (24) hours from date of filing. Cases filed matters are subject of discussion, to wit;
hereunder shall be immediately endorsed to the executive judge
for disposition or, in his absence, to the next in rank.
1. One, the application for a permit under the BP 880
(h) In all cases, any decision may be appealed to the Supreme
can be denied based on clear and present danger.
Court. So, if the rally is to be allowed since a permit is to be
granted and there is a clear and present danger that
(i) Telegraphic appeals to be followed by formal appeals are the evil sought to be avoided will happen then the
hereby allowed. application must have to be denied. However, if it is to
be denied, the applicant must have to be heard. So,
Section 7. Use of public thoroughfare - Should the proposed relating this to the last SONA, if the city government of
public assembly involve the use, for an appreciable length of time, QC would have denied it because they thought that it
of any public highway, boulevard, avenue, road or street, the
mayor or any official acting in his behalf may, to prevent grave
will bring about chaos and violence if this rally will be
public inconvenience, designate the route thereof which is allowed to get in the Batasan complex when the
convenient to the participants or reroute the vehicular traffic to President will deliver his SONA, then they should have
another direction so that there will be no serious or undue denied the application after hearing the applicant why
interference with the free flow of commerce and trade.
they would want to have permit.
Section 8. Responsibility of applicant - It shall be the duty and
2. The second is that, still in the case of IBP, the SC said
responsibility of the leaders and organizers of a public assembly to
take all reasonable measures and steps to the end that the that when the application is made, it should be
intended public assembly shall be conducted peacefully in granted based on the terms of the application. So
accordance with the terms of the permit. These shall include but for example, the application is made for a particular
not be limited to the following:(a) To inform the participants of their
day, and that the rally particular day at a particular
responsibility under the permit; (b) To police the ranks of the
demonstrators in order to prevent non-demonstrators from place, it should be granted based on those terms. If the
disrupting the lawful activities of the public assembly;(c) To confer LGU chief executive would wish to grant it on different
terms from that of the application, the clear and present limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a
danger test should be used to determine why there character both grave and imminent, of a serious evil to public
should be a change in the terms for the application and safety, public morals, public health, or any other legitimate
that grant of the application would also require hearing public interest.14 (emphasis supplied)
for that purpose of determining whether there is clear
and present danger for a allowing the LGU to change The Court in Bayan stated that the provisions of the Public
the terms of the application. Assembly Act of 1985 practically codified the 1983 ruling in Reyes
v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public
Assembly Act with the pertinent portion of the Reyes case, the
Court elucidated as follows:
What happened in this case was that the IBP National Office
applied for a rally permit to conduct a rally at Mendiola Bridge. It x x x [The public official concerned shall] appraise whether there
was granted without any hearing but they were allowed to may be valid objections to the grant of the permit or to its grant but
conduct that public assembly or rally at Plaza Miranda. The IBP at another public place. It is an indispensable condition to such
still proceeded to conduct their rally at the designated time and refusal or modification that the clear and present danger test be
the standard for the decision reached. If he is of the view that there
date per application and also at the place of the application but is such an imminent and grave danger of a substantive evil, the
not in the place as indicated in the permit. They went to Plaza applicants must be heard on the matter. Thereafter, his decision,
Mendiola and they were charge for violation of BP 880, for whether favorable or adverse, must be transmitted to them at the
conducting a rally without a permit. They went to the SC on that earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority.16 (italics and underscoring supplied)
issue eventually and the SC upheld the position of the IBP
because the change of the tenor of the application in the grant of
In modifying the permit outright, respondent gravely abused his
the permit as applied for can only be done if there is justifiable discretion when he did not immediately inform the IBP who should
reasons for doing so under the clear and present danger rule and have been heard first on the matter of his perceived imminent and
there is a hearing conducted to determine whether or not indeed grave danger of a substantive evil that may warrant the changing
there is a need to alter or change the terms of the application. of the venue. The opportunity to be heard precedes the action on
the permit, since the applicant may directly go to court after an
OK! unfavorable action on the permit.1avvphi1
G.R. No. 175241 February 24, 2010

Respondent failed to indicate how he had arrived at modifying the
INTEGRATED BAR OF THE PHILIPPINES
terms of the permit against the standard of a clear and present
vs. MAYOR JOSE "LITO" ATIENZA
danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. imminent and grave danger of a substantive evil, which "blank"
Ermita, the Court reiterated: denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny
thereof.
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference It is true that the licensing official, here respondent Mayor, is not
and respect. It is not to be limited, much less denied, except on devoid of discretion in determining whether or not a permit would
a showing, as is the case with freedom of expression, of a be granted. It is not, however, unfettered discretion. While
clear and present danger of a substantive evil that the state prudence requires that there be a realistic appraisal not of what
has a right to prevent. Even prior to the 1935 Constitution, may possibly occur but of what may probably occur, given all the
Justice Malcolm had occasion to stress that it is a necessary relevant circumstances, still the assumption – especially so where
consequence of our republican institutions and complements the the assembly is scheduled for a specific public place – is that the
right of free speech. To paraphrase the opinion of Justice permit must be for the assembly being held there. The exercise of
Rutledge, speaking for the majority of the American Supreme such a right, in the language of Justice Roberts, speaking for
Court in Thomas v. Collins, it was not by accident or coincidence the American Supreme Court, is not to be "abridged on the
that the rights to freedom of speech and of the press were coupled plea that it may be exercised in some other place." (emphasis
in a single guarantee with the rights of the people peaceably to and underscoring supplied)
assemble and to petition the government for redress of grievances.
All these rights, while not identical, are inseparable. In every case,
Notably, respondent failed to indicate in his Comment any basis or
therefore, where there is a limitation placed on the exercise of this
explanation for his action. It smacks of whim and caprice for
right, the judiciary is called upon to examine the effects of the
respondent to just impose a change of venue for an assembly that
challenged governmental actuation. The sole justification for a

was slated for a specific public place. It is thus reversible error for example, if you, as a media practitioner, has written a news item
the appellate court not to have found such grave abuse of
or a feature story which turns out to be false, could you be held
discretion and, under specific statutoryprovision, not to have
modified the permit "in terms satisfactory to the applicant." liable for it? YES! Of course you can because that is no longer
protected speech.
Now final items on freedom of expression. Commercial speech.
But how about government speech? If PNOY says that the
Now, what is a commercial speech? A commercial speech is a
Philippines GDP last year 6.4 blah blah number one…. If that
speech done in behalf of a company or individual for economic or
turns out to be false, could you hold him liable? That is the
financial gains. Common example of it would be your
question.
advertisements.
Or in, (NAGRING ANG CELL NI CHAM, sir: “HELLO!”) public
So for example VIC SOTTO will say something about TIDE ba
advertisements, government advertisements on TV….
yon? The name is BLAH BLAH… Can the government regulate
“This has been brought to you by Kapisanan ng mga
that speech because it is not true, that there is no truth to that
Broadcasters ng Pilipinas through the help Government
statement because in reality it is surf which has the
information office, blah blah…” Can those messages regulated,
characteristic?
that if it turns out to be false or there is an ascertion of falsehood
making it as true, can they be held liable?
“Iba nga dyan sa commercial ilalagay ko lang walang kuso kuso,
malilinis na daw. San kaya yang sabon na yan?”
And finally, there is a matter of HECKLER’s VETO.
Can the government regulate that? OK!
What is a HECKLER’s VETO?
In the US, there is truth in advertising. That is why, it is common
in them that if there is brand X, Y, Z, A, B, C as front cover in the
A person who is to deliver a speech which is expected to arouse
Philippines, there, there is none. It is really by brand name. If I
violence from the reactionary group, may be called as a heckler.
am selling TIDE and I have a brand SURF here, ARIEL here and
Can that heckler be vetoed or enjoined from actually making
state that TIDE is the BEST! In the Philippines, it is always X, Y,
utterances?
Z, and that TIDE because they don’t want to be held liable for
those other brands.
So for example here is a group of pro RH bill. “When was this
when the catholic church had these? …last Sunday.” that the
Now, can that be regulated - commercial speech? Commercial
nationwide call for a rally. There is one in manila, there is one in,
speech meaning those expressions in relation to commercial
I think Nograles, in Davao. Sila lang ata mag-isa, but di ko lang
transactions. They are not protected speech in the same
sure. But I read in the newspapers that Karlo Nograles is anti-RH
category as private speech. OK? So the ordinary expression,
bill. So, for example, there is a group of nun and priest, an anti-
say, media practitioners, you as a commentator or member of
RH, and there is this one guy, what is his name? The famous
non government organizations participating in public assemblies
intramuros guy, (CES BELTRAN) - that guy is pro-RH. In fact he
for regress and grievances, speeches thereto are protected
was one who is charged for some misdemeanor when he went to
speech and they are greatly protected than the commercial
church in Intramuros and shouted statements against the church
speeches. So, commercial speeches because for they are for
leaders for being anti-RH, that same guy. What if he is about to
commercial transactions or commercial gains or financial gains,
deliver his piece in front or before this group of religious including
they are protected but not the same category as protected
Bishops who were there for an ANTI-RH rally, could he be
speech.
prevented from uttering or from making his speech for fear that
there will be a violent reaction from the targeted group which is
Now government speech. Government speech, of course, are
the anti-RH bill proponents?
government messages. Question is that, are they subject to
regulation? Well, the common subsequent answer is that, NO
Now, it has not been tested here but in the US, there is a mix
they are not because they are made by the State anyway. But
reaction on whether a HECKLER’s veto is allowed. AGAIN, the
the question here is really, if there is, say, an untruthful statement
HECKLER’S VETO is that act of the state of preventing that
in a government speech, can they be held liable for it? Like for
person considered as a heckler from making his speech or
utterance for fear that violence may erupt if he will be allowed to

make his expression.
Some would say that there is no heckler’s veto because of the

right of the person to express which may illicit a violent reaction
from the rest should not be curtailed simply because of the
perceived violent reaction because who has the right to express
and whose right of expression should be upheld - the one of the
heckler or one of the reacting group? If there the reacting group
has the right to express their selves, why should the heckler be
prevented from expressing his opinion as well on the matter?
Who should be prevented, the heckler or the reactionary group?

The heckler’s utterances may bring about violence, so who
should be prevented, the reacting group which will commit
violence or the heckler whose expression would illicit some
violence from the rest? We shall continue tomorrow.
!"
MACLA, JAMAIL
ORCULLO, HAZEL BETH
“If you want to make your dreams come true, the

first thing you have to do is wake up.”
- J.M. Power
If we are facing in the right direction, all we have to do is

keep on walking.
~Buddhist Saying

demands or force concessions, economic or otherwise. Only if

August 14, 2012 the actions would be constitutive of such extent with the intent to
force the government to give in to their demands under threat of
FREEDOM OF ASSOCIATION a work stoppage would it be constitutive of a prohibited act.
What they simply did here was to wear shirts and arm bands
Section 8. The right of the people, including those employed in supposedly to redress their grievances to GSIS management.
the public and private sectors, to form unions, associations, or They did not actually commit an act of work stoppage because
societies for purposes not contrary to law, shall not be abridged. they reported to work so the administrative sanctions against
them were not justified. So must that be for all other government
ARTICLE IX B 2(5) employees.
5. The right to self-organization shall not be denied to While they may form an association and collectively bargain with
government employees. the government, they cannot collectively bargain with the
government as if they were employees from the private sector for
several reasons.
ARTICLE XIII, Section 3. XXX
It shall guarantee the rights of all workers to self-organization, REASONS WHY GOVERNMENT EMPLOYEES
collective bargaining and negotiations, and peaceful concerted CANNOT COLLECTIVELY BARGAIN
activities, including the right to strike in accordance with law. First, would be the nature of the job is public service. It’s not
They shall be entitled to security of tenure, humane conditions of actual employment.
work, and a living wage. They shall also participate in policy and Second is, government cannot give concessions especially
decision-making processes affecting their rights and benefits as economic demands as ordinary CBA negotiations would have
may be provided by law. because this is largely dependent upon items already
appropriated for by Congress.
Under freedom of association, we have this case of GSIS vs.
Villariza. Everything with respect to money -------- public treasury requires
appropriations made by Congress, they cannot involve
GOVERNMENT EMPLOYEES HAVE THE themselves into any activity which would force the government to
FREEDOM TO ASSOCIATE, (disburse public funds?).
HOWEVER, THEY DO NOT HAVE THE RIGHT TO
STRIKE GSIS VS VILLARIZA
GR 180291
We all know that government employees have the right to
In this case, CSC found that the acts of respondents in going to the
associate themselves or to exercise their right or freedom to GSIS-IU office wearing red shirts to witness a public hearing do not
associate. However, they do not have the right to strike (public amount to a concerted activity or mass action proscribed
sector) considering that the right to strike is mentioned in the above. CSC even added that their actuations can be deemed an
Constitution must have to be exercised in accordance with law. exercise of their constitutional right to freedom of expression. The
CA found no cogent reason to deviate therefrom.
Where there is a law prohibiting strike or work stoppage in the
public sector considering the nature of the service, they may As defined in Section 5 of CSC Resolution No. 02-1316 which
engage in concerted activities to some extent but they can not serves to regulate the political rights of those in the government
engage in any activity that is considered a strike or work service, the concerted activity or mass action proscribed must be
coupled with the “intent of effecting work stoppage or service
stoppage. disruption in order to realize their demands of force concession.”
Wearing similarly colored shirts, attending a public hearing at the
Now in this case of GSIS vs Villariza, this was a mass action by GSIS-IU office, bringing with them recording gadgets, clenching
GSIS employees against the GSIS management. They were their fists, some even badmouthing the guards and PGM Garcia,
are acts not constitutive of an (i) intent to effect work stoppage or
eventually held administratively liable for it. Now the question service disruption and (ii) for the purpose of realizing their
here is whether their actions were prohibited under law. What is demands of force concession.
prohibited under the law is any act with the intent of effecting
work stoppage or service disruption in order to realize their

Precisely, the limitations or qualifications found in Section 5 of Election System (AES) technologies it used in the 2010 national
CSC Resolution No. 02-1316 are there to temper and focus the and local elections.
application of such prohibition. Not all collective activity or mass
undertaking of government employees is prohibited. Otherwise, we The Court finds the petition and this last manifestation meritorious.
would be totally depriving our brothers and sisters in the The pertinent portion of Section 12 of R.A. 9369 is clear in that
government service of their constitutional right to freedom of "once an AES technology is selected for implementation, the
expression. Commission shall promptly make the source code of that
Government workers, whatever their ranks, have as much right as technology available and open to any interested political party or
any person in the land to voice out their protests against what they groups which may conduct their own review thereof." The
believe to be a violation of their rights and interests. Civil Service COMELEC has offered no reason not to comply with this
does not deprive them of their freedom of expression. It would be requirement of the law. Indeed, its only excuse for not disclosing
unfair to hold that by joining the government service, the members the source code was that it was not yet available when CenPEG
thereof have renounced or waived this basic liberty. This freedom asked for it and, subsequently, that the review had to be done,
can be reasonably regulated only but can never be taken away. apparently for security reason, "under a controlled environment."
The elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus and
FREEDOM OF INFORMATION DIRECTS the COMELEC to make the source codes for the AES
technologies it selected for implementation pursuant to R.A. 9369
Section 7. The right of the people to information on matters of immediately available to CenPEG and all other interested political
parties or groups for independent review.
public concern shall be recognized. Access to official records,
and to documents and papers pertaining to official acts,
ANY MATTER OF PUBLIC INTEREST, NOT
transactions, or decisions, as well as to government research
COVERED BY NATIONAL SECURITY ISSUES
data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Now in the freedom of information we always know that what is
supposed to be covered here are any matter of public interest
Now this case of CenPEG vs COMELEC involves freedom of which is not covered by national security issues. And even if
information refers to the matter of disclosure of the source code there is access supposedly to this kind of information, this
of the automated national and local elections of 2010. The source information is not to be given out for free or if there is an absence
code is actually as described in this case the readable of any good intention requiring such information.
representation of the instructions on how the machine would
work during the elections. In simple terms, the SC even likened it The freedom of information must have to be related to the so
to a blueprint of instructions or a recipe if you would want to be called freedom of expression that would include the speech,
more simple about it on how the machine would read and media because only an informed individual can intelligibly
eventually count, canvass and eventually transmit the votes. formulate his thoughts to be able to compete in the free market of
ideas. So if the reason for acquiring a certain information of a
Freedom of information-- the petitioner here wanted to examine public office is not based on that good will of intentions, then
the source code. The COMELEC, however, failed to make the denial of that request for absolute information would not be a
source code available until the source code was delivered and denial of the right to information simply because again there is no
deposited with the Banko Sentral ng Pilipinas. It was too late bona fide, legitimate purpose for securing that particular
because the elections have already been conducted. But still in information.
this petition for mandamus, the SC granted the petition
compelling the COMELEC to disclose the source code of the ACADEMIC FREEDOM
AES technology for the automated elections. Rightfully so
because this will be the same source code, perhaps, that we will Now the other matter in your outline with respect to freedom of
be using in the 2013 elections. expression would be the academic freedom. We have always
related this academic freedom with respect to, in relation to
G.R. No. 189546 September 21, 2010
CENTER FOR PEOPLE EMPOWERMENT IN freedom of expression. Because of the aspect or ---- affecting
GOVERNANCE, vs.COMMISSION ON ELECTIONS, one’s free speech when one enters an institution of higher
learning.
This case concerns the duty of the Commission on Elections
(COMELEC) to disclose the source code for the Automated

In Garcia v. The Faculty Admission Committee, Loyola School 1. what subjects to teach,
of Theology (68 SCRA 277 [1975]), the Court had occasion to 2. what courses to offer,
note the scope of academic freedom recognized by the
Constitution as follows:
3. who to hire as part of the members of the faculty,
4. who to admit to study in the institution.
(I)t is to be noted that the reference is to the 'institutions of higher
learning' as the recipients of this boon. It would follow then that the That goes with it the discretion to determine what are the
school or college itself is possessed of such a right. It decides for
itself its aims and objectives and how best to attain them. It is free
reasonable rules for engagement of the members of the faculty
from outside coercion or interference save possibly when the as well as reasonable rules for admission and continued
overriding public welfare calls for some restraint. It has a wide admission of its students. That would also include the right to
sphere of autonomy certainly extending to the choice of students. form its own objectives, mission, what its policies are in relation
This constitutional provision is not to be construed in a niggardly
manner or in a grudging fashion. That would be to frustrate its
to running the institution of higher learning.
purpose, nullify its intent.
xxx ACADEMIC FREEDOM WITH RESPECT TO THE
"To clarify further the distinction between the freedom of the TEACHERS
university and that of the individual scholar, he says: "The personal
aspect of freedom consists in the right of each university teacher
recognized and effectively guaranteed by society to seek and The second would be with respect to the teachers, the members
express the truth as he personally sees it, both in his academic of the faculty because the members of the faculty would have
work and in his capacity as a private citizen. Thus the status of the their academic freedom in relation to the way they teach the
individual university teacher is at least as important, in considering
academic freedom, as the status of the institutions to which they
subject, the way they would want to impart their knowledge to
belong and through which they disseminate their learning."' their students, they way they handle their particular sections or
subjects.
He likewise quoted from the President of the Queen's University in
Belfast, Sir Eric Ashby: "'The internal conditions for academic
freedom in a university are that the academic staff should have de
And in the interest of their higher learning, they are supposed to
facto control of the following functions: be protected also with respect to the results of any studies that
(i) the admission and examination of students; they may have done in relation to their further studies on account
(ii) the curricula for courses of study; of their being members of the faculty without fear of retribution
(iii) the appointment and tenure of office of academic staff; and
(iv) the allocation of income among the different categories of
from the school for any mistake or error that may have been
expenditure. caused on account of that particular study.
It would be a poor prospect for academic freedom if universities Of course if results of the research were, for example, or a paper
had to rely on the literal interpretation of their constitutions in order
to acquire for their academic members control of these four
based on a research is plagiarised or something done to come
functions, for in one constitution or another most of these functions up with a false result, then that would not be protected under
are laid on the shoulders of the law governing body .'" XXXX academic freedom
It is the business of a university to provide that atmosphere which
is most conducive to speculation, experiment and creation. It is an
FREEDOM WITH RESPECT TO THE STUDENTS
atmosphere in which there prevail the four essential freedom of a
university to determine for itself on academic grounds who may The third which is mostly related to freedom of expression is that
teach, what may be taught, how it shall be taught, and who may be of the students. Because there have been several cases in the
admitted to study"' (Emphasis supplied; citing Sinco, Philippine past decided on which should prevail- the right of the students to
Political Law, 491, (1962) and the concurring opinion of Justice
Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]). freely express themselves in joining activities in redress of their
grievances or whether the school has the right to discipline them
Academic freedom has practically types or components. according to the reasonable rules of the school.
ACADEMIC FREEDOM OF THE INSTITUTION Now, it’s a given that when students enter a school or institutions
for higher learning would not divest themselves of their right to
The first would be academic freedom of the institution. freedom of expression. They would always continue to have the
The right of the institution to decide for itself: right to express themselves. But since everything is not absolute,
they must be subjected to reasonable rules of the school with
respect to when they would be able to express their sentiments you should pass the subject and not fail the subject. So
or thoughts on a particular issue. everything is given for you to explain or even allowed you to
attach your countervailing evidence if there is.
Again, for so long as these reasonable regulations are imposed But for violation of the school’s rules on discipline, you always
by the school at least are content neutral restrictions then they follow that procedural due process. It has been applied in several
would not be considered to be unreasonable regulations on the cases already. One of the landmark cases is that of the Ateneo
content of the speech. involving fraternity Aquila Legis where the SC said that the
That is why the school would always require that the students respondent student must be furnished with the charge in writing,
would have to express their grievances or conduct rallies or given the opportunity to present his evidence. There must be a
similar activities in areas of the school were the holding of regular hearing conducted where the parties be allowed to offer
classes would not be disturbed. Of course these students evidence. Although, there is no allowance for cross examination.
engaged in these activities would not also be allowed without fear
of penalty to disrupt the holding of regular classes because the The investigating committee must act independently and must
other students who are in their classes would also have the right also decide the case based on the evidence on record adduced
to continue their study in that institution of higher learning. So by the parties. These are the minimum requirements for
there would always be that clash in that particular context. procedural due process when the school for higher learning will
impose sanctions upon a student.
Now when the students under the Magna Carta would have the
right to be allowed enrolment in a school and also allowed re
enrolment until the full completion of the course requirement to ADMU vs Capulong
earn a degree. These are subject to reasonable rules of G.R. No. 99327 May 27, 1993
academics as well as rule on behaviour or rules of discipline in Corollary to their contention of denials of due process is their
school. argument that it is Ang Tibay case 25 and not theGuzman case
which is applicable in the case at bar. Though both cases
Everything is supposed to have been given at the time of essentially deal with the requirements of due process,
the Guzman case is more apropos to the instant case, since the
engagement in the sense that they are admitted to study in the latter deals specifically with the minimum standards to be satisfied
institution of higher learning. So that the students cannot later on in the imposition of disciplinary sanctions in academic institutions,
complain that they were proceeded against and penalized such as petitioner university herein, thus:
accordingly based on the rules they do not know.
(1) the students must be informed in writing of the nature and
I think after some time for those who studied here in the Ateneo cause of any accusation against them; (2) that they shall have the
undergraduate courses, before the males did not have uniforms. right to answer the charges against them with the assistance of
But a certain time they have required the freshmen light blue counsel, if desired: (3) they shall be informed of the evidence
colored upper garment. Everybody now is wearing that, for the against them (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by
males at least. And I think students have been made to sign an the investigating committee or official designated by the school
acknowledgement, furnished with, read of and understood the authorities to hear and decide the case.
rules respecting the academic rules.
It cannot seriously be asserted that the above requirements were
not met. When, in view of the death of Leonardo Villa, petitioner
Now in relation to that is the procedural due process in the Cynthia del Castillo, as Dean of the Ateneo Law School, notified
institutions of higher learning. When the students supposed to be and required respondent students on February 11, 1991 to submit
proceeded against by the school for violations rules whether within twenty-four hours their written statement on the
academic or rules of discipline. incident, 27 the records show that instead of filing a reply,
respondent students requested through their counsel, copies of the
charges. 28While of the students mentioned in the February 11,
In academic rules, there’s not much discussion because it’s as 1991 notice duly submitted written statements, the others failed to
simple as you make the grade or you don’t. There’s no such thing do so. Thus, the latter were granted an extension of up to February
as the holding of a hearing, investigation you would be made to 18, 1991 to file their statements.
explain yourself because you have been heard when you took Indubitably, the nature and cause of the accusation were
the exam. That’s the opportunity to be heard already ☺ and adequately spelled out in petitioners' notices dated February 14
during the exam you were supposed to give all the evidence why and 20, 1991. 30 It is to be noted that the February 20, 1991 letter

which quoted Rule No. 3 of its Rules of Discipline as contained in the closer the link of a profession to a public interest or a public
the Ateneo Law School Catalogue was addressed individually to
interest matter, the greater there is the state regulation allowable.
respondent students. Petitioners' notices/letters dated February
11, February 14 and 20 clearly show that respondent students So that if it were to be a different kind of profession, there may
were given ample opportunity to adduce evidence in their behalf not be stringent government regulation given for admission in the
and to answer the charges leveled against them. school. But if it is a school or a degree which has closer relation
to public interest matter, then there may be greater state
The requisite assistance of counsel was met when, from the very
start of the investigations before the Joint Administration Faculty- regulation allowable as to who shall be admitted. And also, the
Student Committee, the law firm of Gonzales Batiler and Bilog and school itself has the right under its academic freedom to impose
Associates put in its appearance and filed pleadings in behalf of reasonable rules for admission.
respondent students.
Respondent students may not use the argument that since they Some would require as to take entrance examinations and there
were not accorded the opportunity to see and examine the written is the requirement of passing the entrance exam, is ordinarily
statements which became the basis of petitioners' February 14, considered to be reasonable regulations or rule for admission.
1991 order, they were denied procedural due process. 31 Granting So, student knows he has a right under academic freedom to
that they were denied such opportunity, the same may not be said
to detract from the observance of due process, for disciplinary enrol in the institution, he must have to comply with reasonable
cases involving students need not necessarily include the right to regulations imposed.
cross examination. An administrative proceeding conducted to
investigate students' participation in a hazing activity need not be DECS v San Diego (1989)
clothed with the attributes of a judicial proceeding. A closer FACTS:
examination of the March 2, 1991 hearing which characterized the Roberto Rey San Diego, the private respondent is a graduate of
rules on the investigation as being summary in nature and that the University of the East with a degree of Bachelor of Science
respondent students have no right to examine affiants-neophytes, in Zoology. The petitioner claims that he took the NMAT
reveals that this is but a reiteration of our previous ruling inAlcuaz. three times and flunked itas many times.
Respondent students' contention that the investigating committee ISSUE:
failed to consider their evidence is far from the truth because the Whether the private respondent who has thrice failed the National
February 14, 1992 ordered clearly states that it was reached only Medical Admission Test (NMAT) is entitled to take it again as it is
after receiving the written statements and hearing the testimonies a requirement for admission to any Medical School in the
of several witnesses. 33 Similarly, the Disciplinary Board's Philippines. He invoked of his constitutional rights to academic
resolution dated March 10, 1991 was preceded by a hearing on freedom and quality education, squarely challenging the
March 2, 1991 wherein respondent students were summoned to constitutionality of MECS Order No. 12, Series of 1972.
answer clarificatory questions.
HELD:
While student again has the right to continue re-enrolment at a The private respondent cannot take the NMAT again and pursue
his medical profession because of the following grounds:
completion of a degree, but of course, that would be... it would 1. For the purpose of gauging at least initially by the admission test
always remain as the right of the school under its academic and by the three-flunk rule, a student shall not be allowed to take
freedom to determine who to allow to study based on its the NMAT again after three successive failures.
reasonable rules on its academics... 2. The State ensures that medical profession is not permeated by
incompetents to whom patients may unwarily hand over their lives
and health.
THREE-FLUNK RULE 3. It is not enough to simply invoke the right to quality education as
a guarantee of the Constitution, while one has the right to aspire to
As to the right of the student to allow enrolment, that has long be a doctor, he does not have the constitutional right to be a
doctor; one must show that he is entitled to it because of his
been decided and one of the cases is the case of DECS vs. preparation and promise.
Sandiego, where the “three-flunk rule” in the examinations for
admission in a Medical school in the Philippines, has been to test 4. The conflict that the challenged rule violates the equal protection
the argument of the respondent... is that a student has the right clause is not well-taken. Conformable to Article III, Section 1 of the
Constitution, a law does not have to operate with equal force on
to be admitted to a school of higher learning or a medical school
all person or things.
for that matter. But the SC said, ruling in favor of DECS, that a
three-flunk rule is reasonable considering that the profession
In an old case, there is this case of Garcia vs. Faculty of
eventually coming out from the medical school has a close link to
Admission, faculty of admission is the School of Theology of
a public interest issue which is public health. Stated differently,
Ateneo, there is this woman who would want to be admitted to if that 3 year period as fixed in the contract... is that probationary
that school of theology. Per practice or traditions for the Catholic also or is it a fixed term?
Church, Schools for Theologies are always reserved for
biologically male persons. ☺ (at least biologically....) if you are SC said that when, the fix term overlaps the probationary status,
biologically female, you may not force yourself into admission for then the probationary status required under Article 281 of the
school of theology, at least for catholic church. OKAY... Labor Code, that an employee must have to be regularized after
the probationary status unless,
Now, this case of Mercado vs. Ama, this case involves AMA 1. he has been informed of what must be achieved during
members of faculty or teachers who were terminated by the the probationary status otherwise, he will not be
school based on non-renewal of the fixed term contracts. The regularized;
argument of the school was that, they have the right under its 2. Second, the employees was not able to meet those
academic freedom to engage the services of a teacher for whom standards conditioned to be met at that time of service.
to employ as members of the faculty. But the question is that, is
their claim of academic freedom proper? SC looked into the basis So since, the employees here were serviced or both there’s an
of the claim of petitioners, the petitioners here won in the NLRC overlapped within the fixed term and the probationary status by
and eventually lost in the CA. The SC reversed the CA ruling and law, then the SC said that it should be treated as probationary
decided in their favor of the faculty members. Here is the status. And that the failure of AMA’s duty to inform them of the
question of whether these teachers can be terminated based on reasonable requirements to pass the probationary status, would
non-renewal of contract or whether they could be terminated make their termination or the claim of academic freedom of
because of non-regularization after the probationary status. We school or institution of higher learning was not considered as
all know that in the teaching profession under the Magna Carta valid.
for teachers, the probationary period is how long? THREE
YEARS... 6 semesters actually... that would be 3 school years.
Now these teachers involved were hired for 7 trimesters (AMA MERCADO VS AMA (2010)
follows trimester, 1 trimester is 1/3) almost 2 years and 1/3... FACTS:
The teachers in this case were on probationary status on fixed
Short for the 3 years. AMA terminated them on two grounds: term contracts from the time they were employed and until the
1. Non-renewal of fixed term contract; and expiration of their teaching contracts. Subsequently, before they
2. The contracts, they will never be regularized because were able to complete three consecutive years of service, they
they fail to pass the probationary status. were informed by the school that with the expiration of their
contract to teach, their contract would no longer be renewed.
Hence, they filed a complaint for illegal dismissal.
There was a “test”, they failed to pass the test... the Performance
Appraisal System for Teachers (PAST) and other requirements The Labor Arbiter ruled that the teachers were illegally dismissed
for regularization that the school implements to maintain its high and stated that Article 281 of the Labor Code on probationary
employment applied to the case.
academic standards. So they were terminated for separate
concerns. The SC said that there may be a problem if the On appeal, the NLRC ruled that the applicable law is Section 92 of
probationary status period overlapped the fixed term status. We the Manual regulations for Private Schools and not Article 281 of
all know that as way back as the Brent Ruling, a fixed term the Labor Code. However, the NLRC affirmed the Labor Arbiters
decision since the teachers were terminated on the basis of
contract is allowed, so there is no regularization or expectation of standards which were made known to them only near the end of
regularization after the expiration of the fixed term contract. You their probationary period.
are agreed for a period of 1-year, you’re a temporary faculty
because the regular faculty left for further studies abroad. So On a petition for certiorari, the Court of Appeals reversed the
decision of the NLRC because the teachers were not actually
you’re hired for a fixed term of 1 year. If the period expires, dismissed in that their contracts merely expired.
automatically you lose your work, and you are therefore not
considered to be regular or there is no violation of security of RULING:
tenure. The problem here is that, the person is supposed to have The Supreme Court stated that nothing is illegitimate in defining
the school-teacher on fixed term basis. The school, however,
been hired for a fixed term as provided in their probationary cannot forget that its system of fixed-term contract is a system that
status, like, you’re in contract for 3 years, how would, SC asked, operates during the probationary period and for this reason is
subject to the terms of Article 281 of the Labor Code. Unless this

reconciliation is made, the requirements of this Article on

probationary status would be fully negated as the school may
freely choose not to renew contracts simply because their terms
have expired. SEPARATION OF THE CHURCH AND STATE
Given the clear constitutional and statutory intents, the Supreme ARTICLE II, Section 6. The separation of Church and State shall
Court concluded that in a situation where the probationary status
overlaps with a fixed-term contract not specifically used for the be inviolable.
fixed term it offers, Article 281 should assume primacy and the
fixed-period character of the contract must give way. Already understood in its original concept, the separation of the
To highlight what the Supreme Court mean by a fixed-term
Church and State, prohibits the State from intruding into religious
contract specifically used for the fixed term it offers, a replacement matters. But it does not work the other way around, there is no
teacher, for example, may be contracted for a period of one year to such thing as religion prohibiting from engaging itself into political
temporarily take the place of a permanent teacher on a one-year matters, because by origin the church has always been intruding
study leave. The expiration of the replacement teacher's
contracted term, under the circumstances, leads to no probationary
into the realm of politics, as it is today.
status implications as she was never employed on probationary
basis; her employment is for a specific purpose with particular EXEMPTION FROM REALTY TAXES
focus on the term and with every intent to end her teaching
relationship with the school upon expiration of this term.
ARTICLE VI, Section 28.
While the Supreme Court can grant that the standards were duly 1. xxx
communicated to the teachers and could be applied beginning the 2. xxx
1st trimester of the school year 2000-2001, glaring and very basic 3. Charitable institutions, churches and personages or
gaps in the school's evidence still exist.
convents appurtenant thereto, mosques, non-profit cemeteries,
The exact terms of the standards were never introduced as and all lands, buildings, and improvements, actually, directly, and
evidence; neither does the evidence show how these standards exclusively used for religious, charitable, or educational purposes
were applied to the teachers. Without these pieces of evidence the shall be exempt from taxation.
Supreme Court had nothing to consider and pass upon as valid or
invalid for each of the teachers. Inevitably, the non-renewal (or 4. Xxx
effectively, the termination of employment of employees on
probationary status) lacks the supporting finding of just cause that There can also be no payment of public funds for religious
the law requires and, hence, is illegal.
services, except for those ministers, preacher who have been
employed in the government penal institutions, orphanage. They
“ln my experience, Nick, lessons not learned in blood
are paid not because they are religious people, but because of
are soon forgotten”
the tasks.
-Clyde Shelton, Law Abiding Citizen
And we have mentioned before, there was a question in the bar,
FREEDOM OF RELIGION
several years ago. OFWs in Hong Kong who converge in public
squares every Sunday, for “tsismis”. ☺ and in order to give in to
Section 5. No law shall be made respecting an establishment of their religious needs, the OWWA, decided to engage the services
religion, or prohibiting the free exercise thereof. The free exercise of a Catholic Priest, to deliver mass every Sunday. Can this
and enjoyment of religious profession and worship, without religious service be valid? …
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political BELIEF AND ACTION TEST
rights.
Now the scope of the freedom would refer to what is known as
Religion: any system of belief, worship, conducts, often involving the BELIEF AND ACTION TEST. The first is the BELIEF, the
ethics, which includes the freedom not to believe. second is the ACTION.
The Freedom of religion is found in several provisions in the
constitution. The first is the separation of the Church and the In BELIEF, whatever is in the realm of the thought that is
State. supposed to be absolutely protected. There is no such thing as

reasonable regulation allowable if it remains in the realms of so, as you may have seen, the bigger religious groups or sects,
thought. we have are those who encourage freedom of thought and
In ACTION however, to act in accordance to one’s belief, then it freedom conscience of its members.
may be subject to reasonable regulation under the Police Power.
The right is not absolute. For those who have these thought and conscience imposed on
them, they may be good in numbers but they are not good in
The prohibitions are as follows: (……)
1. Non-establishment clause
2. Free exercise of Religion The Philippines is how many percent Catholics? (80% according
to Wikipedia, citing the NSO Census of 2000 as its source.)
(School District v. Schempp, 374 US 203)
Government Neutrality should be summarized as follows:
The non-establishment clause does not depend upon any
showing of direct governmental compulsion. It is violated by the
1. Government must not prefer one religion or no-religion
enactment of laws which establish an official religion whether those over another
laws operate directly to coerce non-observing individuals or not. 2. Government funds must not be applied for religious
The test of compliance with the non-establishment clause can be purposes
stated as follows: What are the purposes and primary effect of the
enactment? If either is the advancement or inhibition of religion,
3. Government action must not aid religion
the law violates the non-establishment clause. Thus, in order for a 4. Government action must not result into excessive
law to comply with the non-establishment clause, two requisites entanglement with religion.
must be met. First, it has a secular legislative purpose. Second,
its primary effect neither advances nor inhibits religion.
The free exercise of religion clause withdraws from legislative For the non-establishment clause, there are acts permitted and
power the exertion of any restraint on the free exercise of religion. these are called as non-discriminatory concessions (?) and these
In order to show a violation of this clause, the person affected must are the cases mentioned earlier under the Constitutions
show the coercive effect of the legislation as it operates against
him in the practice of his religion. While the freedom to believe
exemptions on realty taxes, public schools (primary and
(non-establishment) is absolute, the moment such belief flows over secondary schools) the constitution allows it provided it would
into action, it becomes subject to government regulation. comply with the requirements, that there is no additional
expenditure allowing religious instructions in public schools.
NON-ESTABLISHMENT CLAUSE They must also be based on the religion, where the child
belongs, upon the written request and approval by the
1. Prohibits excessive governmental entanglement with administrators and parents, and there shall be no discrimination.
religious institutions and;
2. Government endorsement or disapproval of religion No problem with private schools, they are not regulated as those
with the public primary and secondary schools. In the Ateneo, we
FREE EXERCISE CLAUSE have religious instructions. In the Law School, we also have
Christian Ethics, at least man lang meron. ☺
Prohibits the government from inhibiting religious beliefs with The test used normally when the issue pertains to non-
imposition of penalties on (such) religious beliefs. establishment, is the so called benevolent neutrality or
accommodation, again the State is considered to be innocent by-
The concept of freedom of religion with respect to the stander with respect to the exercise of the different religions
participation or the entanglement of the government is that the which is practiced among the different sects. There should be a
government must have to be an innocent by-stander with respect wall of separation between the Churches and the State.
to religion and religious practices.
OPERATION OF SECTARIAN SCHOOLS
Religion can be best achieved by the volunteerism of its
members not because the State has imposed upon them to be ARTICLE XIV, Section 2. The State shall:
religious or from prohibiting them from being religious. Rightfully 1. XXX
2. Establish and maintain, a system of free public Act No. 3350 cannot be said to violate the constitutional inhibition
of the "no-establishment" (of religion) clause of the Constitution.
education in the elementary and high school levels. Without
limiting the natural rights of parents to rear their children, Act 4052 contemplates no religious purpose in view. What it gives
elementary education is compulsory for all children of school age; the Director of Posts is the discretionary power to determine when
the issuance of special postage stamps would be “advantageous
to the Government.” Of course, the phrase “advantageous to the
RELIGIOUS INSTRUCTIONS IN PUBLIC Government” does not authorize the violation of the Constitution;
SCHOOLS i.e. to appropriate, use or apply of public money or property for the
use, benefit or support of a particular sect or church. In the case at
bar, the issuance of the postage stamps was not inspired by any
ARTICLE XIV, Section 3. sectarian feeling to favor a particular church or religious
1. XXX denominations. The stamps were not issued and sold for the
2. XXX benefit of the Roman Catholic Church, nor were money derived
3. At the option expressed in writing by the parents or from the sale of the stamps given to that church. The purpose of
the issuing of the stamps was to take advantage of an event
guardians, religion shall be allowed to be taught to their children considered of international importance to give publicity to the
or wards in public elementary and high schools within the regular Philippines and its people and attract more tourists to the country.
class hours by instructors designated or approved by the Thus, instead of showing a Catholic chalice, the stamp contained a
religious authorities of the religion to which the children or wards map of the Philippines, the location of the City of Manila, and an
inscription that reads “Seat XXXIII International Eucharistic
belong, without additional cost to the Government. Congress, Feb. 3-7, 1937.”
CIVIL CODE, Article 359. The government promotes the full In the Free exercise clause, the government is prohibited from
growth of the faculties of every child. For this purpose, the inhibiting religious beliefs, with imposition of penalties for
government will establish, whenever possible: religious beliefs and practices.
(1) Schools in every barrio, municipality and city where optional
religious instruction shall be taught as part of the curriculum at Three basic accommodations for Free exercise:
the option of the parent or guardian; 1. MANDATORY ACCOMODATION
a. Those which are found to be constitutionally compelled
PUBLIC AID TO RELIGION and required by the free exercise clause.
2. PERMISSIVE ACCOMODATION
ARTICLE VI, Section 29. a. Those which are discretionary, that is not required by
1. XXX the free exercise clause, but nonetheless permitted by the
2. No public money or property shall be appropriated, establishment clause.
applied, paid, or employed, directly or indirectly, for the use, 3. PROHIBITED ACCOMODATION
benefit, or support of any sect, church, denomination, sectarian a. THOSE WHICH THE RELIGIOUS CLAUSES
institution, or system of religion, or of any priest, preacher, PROHIBITS, WHICH IS PROHIBITTED (?)
minister, other religious teacher, or dignitary as such, except b. In this, the establishment prevails over potential
when such priest, preacher, minister, or dignitary is assigned to accommodation requests.
the armed forces, or to any penal institution, or government
orphanage or leprosarium. When there is an exercise of an act, the State may prohibit such
3. XXX exercise depending on these 3 accommodations.
Aglipay vs. Ruiz (Not Discussed by Atty. Montejo)

Boy Pick-up: Neneng, Hinding hindi kita sasagutin ng OO.
In Aglipay v. Ruiz, this Court had occasion to state that the Neneng B: Bakit?
government should not be precluded from pursuing valid objectives Boy Pick-up: Kasi, True or False ang tanong mo. Boom!
secular in character even if the incidental result would be favorable
to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must !"
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. Assessed by these criteria, Republic

ELMAN, JENIKA
TRAVILLA, CHERRYL
PENDATUN, DATS
DUMAGAN, MENCHIE
"What's your road, man?--holyboy road, madman road,

rainbow road, guppy road, any road. It's an anywhere road
for anybody anyhow."
~ Jack Kerouac, On the Road, Part 4, Ch. 1
The important thing is to strive towards a goal which is

not immediately visible. That goal is not the concern of the
mind, but of the spirit.
~Antoine de Saint-Exupéry,
Flight to Arras, 1942

Agust 24, 2012

Issue: Whether or not school children who are members or a
religious sect may be expelled from school for disobedience of
FREEDOM OF RELIGION R.A. No. 1265 and Department Order No. 8.
So we are still under freedom of religion. Now, the multiple test Held: No. Religious freedom is a fundamental right which is
entitled to the highest priority and the amplest protection among
used in the free exercise clause is at least based on the
human rights, for it involves the relationship of man to his Creator
decisions of the SC would be: The sole justification for a prior restraint or limitation on the
exercise of religious freedom is the existence of a grave and
1.) Clear and Present Danger - this was applied in discussion present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
on flag salute cases. Remember the case of Ebralinag. This is
other legitimate public interest, that the State has a right (and duty)
similarly applied in the discussion on freedom of expression, the to prevent." Absent such a threat to public safety, the expulsion of
question in every case is whether the words used in such the petitioners from the schools is not justified. (Teehankee).
circumstances and is in such a nature as to create a clear and
present danger that they will make about the serious evil which The petitioners further contend that while they do not take part in
the compulsory flag ceremony, they do not engage in "external
the state has a right to prevent. If you relate this to the case acts" or behavior that would offend their countrymen who believe
Ebralinag v. Division Superintendent of Schools of Cebu, is the in expressing their love of country through the observance of the
regulation on flag salute constitutive of a violation of free exercise flag ceremony. They quietly stand at attention during the flag
by reason of the penalty imposable? However the claim of ceremony to show the irrespect for the right of those who choose
to participate in the solemn proceedings. Since they do not engage
freedom of religion must have to be upheld over that regulation. in disruptive behavior, there is no warrant for their expulsion.
To put it differently whether to allow the freedom of religion to
create a situation that will bring about the evil sought to be The Court is not persuaded that by exempting the Jehovah's
avoided. In the old case, the possibility that the citizenry will be Witnesses from saluting the flag, singing the national anthem and
reciting the patriotic pledge, this religious group which admittedly
composed of un-nationalistic individuals because children were comprises a "small portion of the school population" will shake up
not compelled to salute the flag. In the Ebralinag case it was our part of the globe and suddenly produce a nation "untaught and
explained that the evil sought to be avoided is presumed happen uninculcated in and unimbued with reverence for the flag,
will come to pass simply because to be patriotic or nationalist will patriotism, love of country and admiration for national heroes"
.What the petitioners seek only is exemption from the flag
not be achieved by requiring the children to salute the flag among ceremony, not exclusion from the public schools where they may
others. study the Constitution, the democratic way of life and form of
government, and learn not only the arts, sciences, Philippine
EBRALINAG v. THE DIVISION SUPERINTENDENT OF history and culture but also receive training for a vocation of
SCHOOLS OF CEBU profession and be taught the virtues of "patriotism, respect for
G.R. No. 95770 March 1, 1993 human rights, appreciation for national heroes, the rights and
duties of citizenship, and moral and spiritual values (Sec. 3[2], Art.
Facts: The petitioners in both (consolidated) cases were expelled XIV, 1987 Constitution) as part of the curricula. Expelling or
from their classes by the public school authorities in Cebu for banning the petitioners from Philippine schools will bring about the
refusing to salute the flag, sing the national anthem and recite the very situation that this Court had feared in Gerona . Forcing a
patriotic pledge as required by Republic Act No. 1265 (An Act small religious group, through the iron hand of the law, to
making flag ceremony compulsory in all educational institutions) of participate in a ceremony that violates their religious beliefs, will
July 11, 1955 , and by Department Order No. 8 (Rules and hardly be conducive to love of country or respect for dully
Regulations for Conducting the Flag Ceremony in All Educational constituted authorities.
Institutions) dated July 21, 1955 of the Department of Education,
Culture and Sports (DECS)making the flag ceremony compulsory Also, the expulsion of members of Jehovah's Witnesses from the
in all educational institutions. Jehovah's Witnesses admitted that schools where they are enrolled violates their right as Philippine
they taught their children not to salute the flag, sing the national citizens, under the 1987 Constitution, to" protect and promote the
anthem, and recite the patriotic pledge for they believe that those right of all citizens to quality education . . . and to make such
are" acts of worship" or "religious devotion" which they "cannot education accessible to all (Sec. 1, Art. XIV).
conscientiously give to anyone or anything except God". They
consider the flag as an image or idol representing the State. They
think the action of the local authorities in compelling the flag salute
and pledge transcends constitutional limitations on the State's
In the case of Texas vs. Johnson regarding the flag burning issue
power and invades the sphere of the intellect and spirit which the it has been upheld that such is a valid freedom of expression
Constitution protect against official control. provided that the flag that you burn is you own, meaning that it is

your own property and for so long as you burn your own property that may not be allowable because there is a compelling state
which will not result in burning of another person's property that interest.
is sufficiently protected under freedom of expression. So the flag
is therefore not icon or an object which would be imbued with Under that compelling state interest in relation to our discussion
such interest that it will promote nationalism or patriotism on in freedom of expression we also mentioned that there must have
individual. There are a lot of acts which would ordinarily be to be showing that the intrusion or regulation of the government
shown as disrespect in relation to how flags are tainted in certain is necessary and that It is the least intrusive measure on the free
national activities. Of course it would be different if it is the flag exercise to be an allowable regulation. If the means to regulate in
owned by the state which would be subjected to such acts order to protect the state interest is not the least intrusive, that
because that would necessarily show disrespect. regulation cannot be also considered as valid. So there must
have to be a determination of the court on whether or not of all
Even in the Philippines, we still have that law which would the available means to protect the compelling state interest, this
penalize unauthorized use or destruction of Philippine flag which is the least intrusive of all these measures.
are ordinarily used in the course or conduct of official business.
There is a way of disposing a tattered flags which if not followed In the case of Estrada, the SC clarified that they were charge of
will subject the person to a criminal liability. an administrative case, again, it would have been different if they
were charge with a criminal case, say for bigamy or concubinage,
The other case is Estrada vs. Escritor, if you remember this case, because the state has the right to protect its citizens from
there was an administrative case for gross immorality involving a commission of offenses. It must remain clear that, it may be
Supreme Court employee because of a supposed to be immoral different if they have been charge criminally because then again,
liaison between two married individuals separated from their the state has always have the right to ensure that the task to
respective spouses. They have claimed that their association or protect its citizens is done.
union is authorized as part of their religious practices and in fact
they were able to show that this practice had long been practiced ESTRADA v. ESCRITOR
in their religion and there is a document signed by them, AM No. P‐‐02‐‐1651 June 20, 2000
Facts: Escritor is a court interpreter since 1999 in the RTC of Las
supposedly witnessed by their God that their union is a union Pinas City. She has been living with Quilapio, a man who is not her
base on their belief. The SC applied the compelling interest test. husband, for more than twenty five years and had a son with him
We have discussed this already in freedom of expression, that if as well. Respondent’s husband died a year before she entered into
there is a compelling state interest, the state has the right to the judiciary while Quilapio is still legally married to another
woman.
protect. The state may regulate the expression, in this case
between the exercise of religion. Complainant Estrada requested the Judge of said RTC to
investigate respondent. According to complainant, respondent
As we have known from our freedom of expression discussion, should not be allowed to remain employed therein for it will appear
as if the court allows such act.
there must have a compelling interest that must be shown. What
that compelling state interest is not defined or contained in an Respondent claims that their conjugal arrangement is permitted by
enumerated list of items that would fall under that. It is merely her religion—the Jehovah’s Witnesses and the Watch Tower and
characterized as something preferred like national security, the Bible Trace Society. They allegedly have a ‘Declaration of
Pledging Faithfulness’ under the approval of their congregation.
preservation of the lives of multiple individuals and not violating Such a declaration is effective when legal impediments render it
explicit constitutional protection. So if we go by the extreme of impossible for a couple to legalize their union.
your religion. Take for example your religion believes of offering a
virgin to your god, we have always said that it may be regulated Issue: Whether or Not the State could penalize respondent for
such conjugal arrangement.
not only because it is difficult to find one now (just kidding ☺) but
because it would result to something that the state has the right Held: No. The State could not penalize respondent for she is
to prevent. Nobody is entitled to kill a person; it is said under the exercising her right to freedom of religion. The free exercise of
Constitution, without due process of law. So even if with the claim religion is specifically articulated as one of the fundamental rights
in our Constitution. As Jefferson put it, it is the most inalienable
of religious right, that this is free exercise -- we believed that we and sacred of human rights. The State’s interest in enforcing its
can be saved from all of these if we offer a virgin to our god – prohibition cannot be merely abstract or symbolic in order to be
sufficiently compelling to outweigh a free exercise claim. In the

case at bar, the State has not evinced any concrete interest in
enforcing the concubinage or bigamy charges against respondent
or her partner. Thus the State’s interest only amounts to the 3.) Least Intrusive of all means.
symbolic preservation of an unenforced prohibition.
Those three questions must have to be answered in order that a
Furthermore, a distinction between public and secular morality and valid claim for free exercise may be vested.
religious morality should be kept in mind. The jurisdiction of the
Court extends only to public and secular morality.
FREEDOM TO PROPAGATE RELIGIOUS
The Court further states that our Constitution adheres the DOCTRINES
benevolent neutrality approach that gives room for accommodation
of religious exercises as required by the Free Exercise Clause.
This benevolent neutrality could allow for accommodation of
The usual question here in relation to propagation of religious
morality based on religion, provided it does not offend compelling doctrines is the requirement in acquiring permit prior to
state interests. Assuming arguendo that the OSG has proved a dissemination of religious publication. One must distinguish
compelling state interest, it has to further demonstrate that the between what is regularly required as part of the conduct of
state has used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
business. Like a requirement of a business permit. The licensing
legitimate goal of the state. Thus the conjugal arrangement cannot requirement there must not be confused with the licensing to
be penalized for it constitutes an exemption to the law based on propagate in relation to free exercise and the licensing in relation
her right to freedom of religion. to the privilege of conducting business. So, Daugthers of St. Paul
which sells religious publication as well as religious items, is that
entity exempt from the payment of license fees or permits? So
Remember the discussion on facial invalidation or void for one must be able to distinguish that.
vagueness, in criminal offenses, that may not be ordinarily
allowed, unless it involves free speech. Now religion is closely The other is in the case of Iglesia ni Cristo, the ratings and
related to expression because freedom of religion is placed under classification of television show involving religious programs. The
the category of freedom of thought or conscience. So, while in SC has always upheld the power of the MTRCB over motion
the Estrada case administrative liability is observed to be non- pictures and television shows and the law creating the MTRCB
existent during the exercise of religious right, in criminal cases, as well as the powers granted therein have not yet been declared
there must have to be a greater scrutiny of whether or not the as unconstitutional. As mentioned before, the only problem with
claim is a valid claim. the classification board is that, there are not enough medium or
places by which those rated other than the usual can be publicly
Now, in this compelling state interest there are 3 questions to be exhibited or shown. The ratings and classification is not a form of
asked: censorship yet it can be shown in the appropriate place that is
consistent with the ratings of the firm.
1.) Is the claim for religious right a sincere claim? –
Apparently, there must be sincerity of the claim of the EXEMPTION FROM UNION SHIP IN RE
exercise of religious right although the court will not FREEDOM TO ASSOCIATE
look into its truthfulness or validity. Sincerity because it
must have to be practiced and the practice have been It has always been allowed that members of certain religious
established already, a standard practice of the religion groups who are not allowed to associate themselves other than
and that person claiming exemption from the coverage their own religious groups are not covered by the terms of the
of the state regulation must have been practicing that union shop clauses. In admission however, they are not
religion. The most common is been akin to a joke: They prohibited from associating by themselves by reason of their
say that can I convert my religion from Christianity to religious beliefs and aspiration. Again in all of these, the sincerity
Islam so that I may be allowed to marry more than of the claim must have to be established. It cannot be like a rule
once. I don’t know why they would want to marry more just promulgated yesterday for the convenience of the members.
than once, having one is difficult enough, they want It must be established in the religious dogma or being as
more difficulty. practiced in that particular religion.
2.) Whether there is sufficient compelling interest?

DISQUALIFICATION FROM LOCAL ELECTIVE would end up being the Secretary of Education it will become
OFFICE more expensive. ☺
This old case of Pamil vs. Teleron discuss the old provision of the One matter in freedom of religion is the conscientious objector.
Revised Administrative Code that there is a disqualification for So what is a consensus objector? This has relation to an
priest or religious persons to participate in elections or to be individual who has claim the right to refuse to perform military
elected to the public office because of the Constitutional service on the grounds of freedom of thought, conscience, and/or
principle of the separation of the Church and the state. religion. Perhaps, the most famous of whom is Cassius Clay
because he was about to be drafted in Vietnam War, he changed
PAMIL v. TELERON his religion to Islam and became Muhammad Ali for which the
G.R. No. L-34854 November 20, 1978 dodged the drafting and he was penalized accordingly. He was
Facts: Private respondent, Father Margarito R. Gonzaga, was, in made to suffer and penalized and jailed. That, I think has not
1971, elected to the position of municipal mayor of Alburquerque, happened in the Philippines because we have no force drafting in
Bohol. Therefore, he was duly proclaimed. A suit for quo warranto the military. Since the martial law, the military has been the
was then filed by petitioner, himself an aspirant for the office, for blatant source of employment and it has increase in number ever
his disqualification based on this Administrative Code provision: "In
no case shall there be elected or appointed to a municipal office since, and because the maximum allowable age for service has
ecclesiastics, soldiers in active service, persons receiving salaries been fixed. Despite the retirement of previous ones there are so
or compensation from provincial or national funds, or contractors many more enlisted throughout the year, so there is no need to
for public works of the municipality." The suit did not prosper, forcible draft everybody to perform a military service.
respondent Judge sustaining the right of Father Gonzaga to the
office of municipal mayor. He ruled that such statutory ineligibility
was impliedly repealed by the Election Code of 1971. The matter Now this has been allowed in some jurisdiction but generally,
was then elevated to this Tribunal by petitioner. It is his contention again, the claim is supposed to be sincere. If you were to avoid
that there was no such implied repeal, that it is still in full force and forced drafting into the military because of the religious belief,
effect. Thus was the specific question raised.
you are a conscientious objector, your freedom of religion would
Issue: WON the disqualification of the respondent based on prevent you from joining the service because it against your
Administrative Code provision Constitutional. religion. But then again, it is allowed in certain jurisdiction but
certainly not in the state because they can compel you to render
Held: The challenged Administrative Code provision, certainly
insofar as it declares ineligible ecclesiastics to any elective or civilian service. Just compulsory service. You must have heard of
appointive office, is, on its face, inconsistent with the religious the National Guard, the National Guard that is used to be kept as
freedom guaranteed by the Constitution. To so exclude them is to a reserve force for the purposes of augmenting regular armed
impose a religious test. Here being an ecclesiastic and therefore forces of the US if there is a local emergency or strike. In need
professing a religious faith suffices to disqualify for a public office.
There is thus an incompatibility between the Administrative Code not be a war, if there is a national emergency or there is a need
provision relied upon by petitioner and an express constitutional for military personnel to participate in a search and rescue
mandate. operations or similar activities. They can call in the National
Guard and these are technically military service.
But since the Revised Administrative Code has been repealed
and we have with respect to local government official the Local Clay v. United States
Government Code, the national official in the Constitution there 403 U.S. 698 June 28, 1971
seems to be no prohibition now on elective offices that religious In 1966, Muhammad Ali (formerly Cassius Clay) was classified as
persons cannot run or even elected to office. The only effect is 1-A (eligible for service in the U.S. armed forces), two years after
that, for the church policy is that they must have to resign or take being classified as I-Y (not qualified), due to an amendment in his
a leave so that there will be no confusion when they are sitting in mental aptitude test. In response, Ali applied for conscientious
objector status but was turned down by both his local draft board
that capacity, that they are there to act as public officers and not and the State Appeal Board. According to existing statutes, the
as officers of their respective religion. In the Cabinet now we matter was then referred to the Justice Department for an advisory
have Bro. Armin A. Luistro of the Department of Education. recommendation and the FBI, in preparation for a hearing on "the
Perhaps the president believes that the Jesuits could offer better character and good faith of the [petitioner's] objections," conducted
more than 35 interviews with Ali's family, friends, neighbors, and
policy in the Education or perhaps they believe that if Jesuit business and religious associates. The hearing officer at Ali's
hearing, after listening the testimony of Ali's parents, one of his

attorneys and Ali himself (and after reviewing the report generated indisputably clear, for the reasons stated, that the
by the FBI to which he had access), recommended to the Justice Department was simply wrong as a matter of law in
Department that Ali be granted his conscientious objector status. advising that the petitioner's beliefs were not religiously
based and were not sincerely held."
However, the Justice Department, in a letter to the Appeal Board,
advised against granting such status. The Board honored this
request without stating the reasons it was basing its decision.
LIBERTY OF ABODE and of Changing the same
According to the U.S. Supreme Court:
There is not much change there. Liberty of abode and of
"That denial, for which no reasons were ever given, was, changing the same can be affected by lawful order of the court.
as we have said, based on a recommendation of the
Department of Justice, overruling its hearing officer and
advising the Appeal Board that it 'finds that the THE RIGHT TO TRAVEL
registrant's conscientious-objector claim is not sustained
and recommends to your Board that he be not [so] The reasons for infringing it would be interest of national security,
classified.' This finding was contained in a long letter of
explanation, from which it is evident that Selective
public safety and public health. These are not limitations on the
Service officials were led to believe that the Department court, the court can actually impose its powers and jurisdiction
had found that the petitioner had failed to satisfy each of over the person and thereby protect the right of the person to
the three basic tests for qualification as a conscientious travel even if the constitution says it is only to infringe in the
objector."
interest of national security, public safety or public health. Under
The three basic tests for conscientious objector status that the Rules of Court, the courts have the inherent power to make its
Justice Department letter argued Ali did not meet were: functions work. If the person is under the jurisdiction of the court,
the court can issue any order to prevent that person from getting
1. an applicant's objection must be against
participating in war in any form, not just a particular
out of the court’s jurisdiction and outside the effects of the
war (the Justice Department letter indicated that warrant.
Ali's objection was "limited to military service in the
Armed Forces of the United States"); Remember that old case of Marcos vs. Manglapus, the
2. an applicant's objection to service in the
discussion here was on whether or not the right to travel in the
military must be based on religious training and
belief (the Justice Department letter stated that Ali's Constitution includes one’s right to travel back or to enter into the
"claimed objections to participation in war insofar as country. The liberty of abode means the liberty or your right to
they are based upon the teaching of the Nation of choose where to live and to change the place of your residence
Islam rests on grounds which primarily are political
that can only be infringe upon lawful order of the court. The most
and racial"); and that
3. an applicant's objection must be sincere (the common example we give is Destierro. You have been
Justice Department letter stated that Ali "has not penalized as a concubine in concubinage and you are also
shown overt manifestations sufficient to establish penalized with distierro, you cannot enter within the 200km
his subjective belief where, as here, his radius.
conscientious-objector claim was not asserted until
military service became imminent")
The right to travel is intra-country, within the country, or going
Now, before the Supreme Court, the government conceded that outside of the country. In the US where there are several state,
Muhammad Ali's objection was based upon the "religious training the right to travel include travel within the state going to another
and belief" of the Nation of Islam after all, and that his reasons for
doing so were indeed sincere (and the Supreme Court agreed with state provided it within the entire United States. But the right to
the government's revised thinking). However, the government travel back in the case of Manglapus was discussed not as an
continued to argue that Muhammad Ali was not against all war, but express provision in the Constitution included in Section 6 of
only wars that were not declared by Allah, which in fact Ali had Article III but rather under the principle of Incorporation. In the
personally stated many times. However, the Supreme Court found
that: Doctrine of Incorporation, generally accepted principles of
international law are deemed part of the law of the land. The
"Since the Appeal Board gave no reasons for its denial Universal Declaration of Human Rights among others states that
of the petitioner's claim, there is absolutely no way of everyone has the right to freedom of movement and residence
knowing upon which of the three grounds offered in the
Department's letter it relied. Yet the Government now within the borders of each state and everyone has the right to
acknowledges that two of those grounds were not valid. leave any country including his own and to return to his country.
And the Government's concession aside, it is
That is the generally accepted principle and that deemed Pres. Marcos and his family poses a serious threat to national
incorporated as part of the law of the land. interest and welfare. President Aquino has determined that the
destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years after the
Marcos vs. Manglapus Marcos regime.
G.R. No. 88211 Sept. 15, 1989
The return of the Marcoses poses a serious threat and therefore
Facts: This case involves a petition of mandamus and prohibition prohibiting their return to the Philippines.
asking the court to order the respondents Secretary of Foreign
Affairs, etc. To issue travel documents to former Pres. Marcos and
the immediate members of his family and to enjoin the
RIGHT OF PERSONS UNDER CUSTODIAL
implementation of the President's decision to bar their return to the INVESTIGATION
Philippines. Petitioners assert that the right of the Marcoses to miranda rights / warnings
return in the Philippines is guaranteed by the Bill of Rights, In 1963, the US Supreme Court in the case of Miranda vs. State
specifically Sections 1 and 6. They contended that Pres. Aquino is
without power to impair the liberty of abode of the Marcoses
of Arizona, the court made a ruling that known as the Miranda
because only a court may do so within the limits prescribed by law. Rule. Ernesto Miranda by his family name Hispanic was arrested
Nor the President impair their right to travel because no law has on account of a complaint for abduction and rape of a female and
authorized her to do so. the car plate was taken and it was traced to him. So several days
They further assert that under international law, their right to return
later, he was arrested and placed in custody and brought to the
to the Philippines is guaranteed particularly by the Universal police station and after several hours of interrogation he signed a
Declaration of Human Rights and the International Covenant on confession. The court of Arizona convicted him solely on the
Civil and Political Rights, which has been ratified by the basis of the extrajudicial confession and on appeal, the US
Philippines.
Supreme Court discussed and reversed the decision of the lower
Issue: Whether or not, in the exercise of the powers granted by court and remand the case to the lower court for presentation of
the constitution, the President (Aquino) may prohibit the Marcoses other evidence because the extrajudicial confession was
from returning to the Philippines. excluded. The trial court nonetheless upon the trial convicted him
Held: "It must be emphasized that the individual right involved is
and imposed a penalty. But in the Supreme Court, it had a
not the right to travel from the Philippines to other countries or discussion of what are the rights of the person if that person is
within the Philippines. These are what the right to travel would placed under investigation. There are two distinct rights because
normally connote. Essentially, the right involved in this case at bar the Miranda Rule was not yet established which were sought to
is the right to return to one's country, a distinct right under
international law, independent from although related to the right to
be reviewed as having been violated in the case of Ernesto
travel. Thus, the Universal Declaration of Human Rights and the Miranda:
International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the 1.) His privilege against self-incrimination which under
right to leave the country, and the right to enter one's country as
Sec. 17 of Art. III now;
separate and distinct rights. What the Declaration speaks of is the
"right to freedom of movement and residence within the borders of 2.) His right to be represented by counsel. Should a
each state". On the other hand, the Covenant guarantees the right person be assisted by counsel when he is under
to liberty of movement and freedom to choose his residence and investigation? And so we came to be what we have
the right to be free to leave any country, including his own. Such
now what we know as Miranda Warning.
rights may only be restricted by laws protecting the national
security, public order, public health or morals or the separate rights
of others. However, right to enter one's country cannot be This was first incorporated in the 1973 Constitution of the
arbitrarily deprived. It would be therefore inappropriate to construe Philippines, simply because the decision was in 1963, it could not
the limitations to the right to return to ones country in the same have been incorporated in 1935. What the ruling simply requires
context as those pertaining to the liberty of abode and the right to
travel. is that the person must have to be informed of these so called
Miranda Rights, and that information is what we know as Miranda
The Bill of rights treats only the liberty of abode and the right to Warning. The Miranda Rights are:
travel, but it is a well considered view that the right to return may 1.) The right to remain silent;
be considered, as a generally accepted principle of International
Law and under our Constitution as part of the law of the land. 2.) The right to be informed that if he would waive his right
to remain silent anything that he will provide and say
The court held that President did not act arbitrarily or with grave will be and can be used against him in the court of law.
abuse of discretion in determining that the return of the Former

3.) He will also be informed that his Miranda Rights include The currently question asked is that, why should the so called
the right to be represented by counsel; and Miranda Rights be considered as claimable. Constitutionally, it
4.) If he could not afford the service of a counsel the state must have to be when a person is taken under investigation. In
will provide a counsel for him. the ’73 Constitution it was originally placed to require Custodial
Investigation. The person must have to be placed under custody.
To give the Miranda Warning would require much more than the Meaning they must have been arrested at the very least for a
perfunctory presentation of the rights. In the US, there is no such substantial restriction of his freedom to go around. It is not
thing or only some as difficulty in the manner or way that the necessary that he is in jail but at least his freedom to move
Miranda Warnings are given but not as much as here because around or mobility is substantially affected, he is considered to be
English is not a first language. So, in the previous decisions of theoretically placed under custody.
the Supreme Court on the manner, the SC simply characterizes it
that there must be a meaningful transmission of a right. In the case of Escobedo vs. Illinois which was the basis for ’87
Meaningful transmission requires that individual differences of Draft, one need not be under the custody anymore because the
person to whom these warnings are given and to whom these experience in the ’73 Constitution would show that persons
rights are afforded must have to be taken into consideration. The investigated, admissions are taken even if these persons are not
SC assumed that the public servant would easily recite these in custody. So the Escobedo v. Illinois ruling on investigation has
rights. I would have to pose that it should have been better that been adopted under the ’87 Constitution. The investigation
there must have to be a requirement that the police officer giving happens when the person is asked or the questions asked
these warnings must also be able to give them properly and relating to that persons possible complicity of the crime under
intelligently. The Supreme Court decisions have placed investigation. These would go beyond the general line of
importance that the person to whom the right pertains have questioning on the person or persons whereabouts but is now
understood the meaning and import of these rights and that pointing to that person as possible suspect. So if that question is
would include the meaning and import of any waiver of such pointing to that person as a possible suspect then that is already
rights. considered investigation regardless of the fact that the person is
in custody or not. So as soon as the investigation is or has
Constitutionally, it is simply required that there is a meaningful commenced then the right is now at play.
transmission of a right and that if there is a waiver, the waiver
must have to be in writing and must have to be with the
assistance of counsel. The question is asked today that have the Escobedo v. Illinois
answers ready because if it were to be asked prior to the 1987 378 U.S. 478 June 22, 1964
Constitution, there was this case of People vs. Galit which Facts: Danny Escobedo's brother-in-law was killed on January 19,
somehow defined how the rights are to be waived based on the 1960. At about 2:30 in the morning, Escobedo was arrested
decision of March 20, 1985 which have since then been without a warrant and taken to the Chicago police headquarters for
incorporated in the 1987 Constitution. So atleast those problems questioning. Escobedo made no statement to the police and was
released at approximately 5:00 that afternoon, after his lawyer
were answered in the Constitution: obtained a writ of habeascorpus.
1.) Meaningful transmission of a right; Ten days later, on January 30, Escobedo was again arrested,
2.) Meaningful transmission of the consequences of a handcuffed, and driven to the police station. On the way to the sta
tion, the police allegedly informed Escobedo that a man named
waiver; Benedict DiGerlando had said it was Escobedo who had fired the
3.) The waiver must have to be in writing; and shots that killed his brother-in-law. The police also allegedly told
4.) The waiver must have to be made with the assistance Escobedo that the case against him was pretty secure and he
of counsel. might as well "come clean" and admit to the killing. At that point,
Escobedo asked to have his lawyer present before answering any
questions.
(Distinction) So, while the assistance of counsel during the taking
of the testimony or during the investigation may be waived the The police questioned Escobedo for several hours, during which
requirement that the waiver must be in writing with the assistance he continued to ask for his attorney. He was told that he could do
so after the police concluded their interrogation. Escobedo's
of counsel, the assistance of counsel there may not be waived. attorney, who was at the police station on another matter,
discovered that Escobedo was in custody. He asked repeatedly to

speak to his client but got the same answer: He could see investigated can claim the right, now as we know as Miranda
Escobedo after the questioning. Rights. So, before in the Constitutional context, if the person is
While interrogating Escobedo, the police told him that they had
DiGerlando in custody. They asked Escobedo if he would like to not yet arrested, he could not claim Miranda Rights. He need not
call DiGerlando a liar to his face. Escobedo said he would, and be informed of his Miranda Rights through a Miranda Warning.
when the two men met, Escobedo said to DiGerlando: "I didn't R.A. No. 7438 has expanded it to cover time of arrest already.
shoot Manuel-yo4 did." This statement placed Escobedo at the
crime scene for the first time or, at the least, showed that he had
knowledge of the crime. As the questioning continued, Escobedo This is also not claimable for statement taken before the ’73
gave other information that incriminated himself, his sister, and Constitution because there is no Miranda Warning to talk about.
DiGerlando in the murder of his brother-in-law. It is not also considered in situations like police line-up where
there is no questioning technically. When the person is faced or
Before his trial, and on appeal, Escobedo asked the court
to suppress all information gathered during the interrogation identification in a police line-up, that person is not placed under
without his attorney. The motion was denied, and Escobedo was investigation. That is the in the Constitutional context again,
convicted of the murder of his brother-in-law. because in R.A. No. 7438, the practice of inviting persons to the
police station to shed light on the crime being investigated is
In February 1963, the Illinois Supreme Court heard Escobedo's
appeal, ruled that the information should not have been allowed as considered covered under R.A. No. 7438.
evidence, and reversed the decision of the lower court. However,
the state appealed for a rehearing. Saying that Escobedo had So if you were, for example, invited to a police station for
given the information voluntarily, the state asked the court to rule in purposed of identification. The Police Line-up, if it were to be in
favor of the prosecution and admit the evidence. The court
agreed. the construction of the Constitution that is not covered, but if you
Escobedo then petitioned the United States Supreme Court to were to argue that this is covered by the R.A. No. 7438 then the
review the case. answer should be, that the Miranda Warning should have been
given.
Issue: Was the refusal by police to honor Escobedo's request to
consult with his lawyer a violation of his Sixth Amendment rights?
Now, there are also some other discussion on the Miranda
Held: The U. S. Supreme Court, by a vote of 5-4, said that Rights, under R.A. No. 7438. There two documents there
Escobedo's rights had been violated. Overturning the ruling of the required:
state supreme court, it declared that the information was not
admissible as evidence because it had been unlawfully obtained.
1.) The custodial investigation report; and
Writing for the Court, Justice Arthur Goldberg explained the point 2.) Extra-judicial confession.
at which a police procedure became "accusatory" instead of
'investigatory:"
In the original context of the Constitution of the application of the
... [when] the investigation is no longer a general inquiry Miranda Warnings and of the Miranda Rights, there was no need
into an unsolved crime but has begun to focus on a of any written extra-judicial protection. Before the practice of
particular subject, ... the police carry out a process of police officers would be one of two things:
interrogation that lends itself to eliciting incriminating
statements, the suspect has requested and been denied
an opportunity to consult with his lawyer, and the police 1.) There is a signed confession;
have not effectively warned him of his absolute 2.) The police investigator would testify in court that the
constitutional right to remain silent, the accused has accused has admitted to a committing the said crime.
been denied 'the Assistance of Counsel" in violation of
the Sixth Amendment .... [N]o statement elicited by the
police during the interrogation may be used against him In order to do away with the said practices the R.A. No. 7438 has
at a criminal trial. responded by requiring them to document the custodial
The dissenting justices expressed their serious concerns investigation report which must be:
that this decision would make it much more difficult for
the police to obtain information and for prosecutors to
gain convictions. 1.) In writing;
2.) Read and understood by the confessant and
We say that in the Constitutional context because R.A. No. 7438 3.) Explained to him, if the he does not know how to read
(April 27, 1992) as you all know, it has expanded the applicability and write;
of Miranda Rule because, a person who is arrested detained or 4.) In the language that he speaks and understands.
Constitutional context. So in one case, I think in Samal where the

Extra-judicial confession have the same requirement before it will MTC Judge acted as counsel, there were questions as to
be signed, which are: whether they could be an assisting counsel and most questions
would be if the fact that the assisting counsel has been provided
1.) It must be in writing; by the police officers did not be a ground for excluding the
2.) It must be read and understood by the person and confession because the assisting counsel is one provided by the
3.) It must be explained to him, if the he does not know investigating officer. The answer is not necessarily because
how to read and write; Miranda Rights include the right to be represented by counsel
4.) The explanation must be in the language that he and if he cannot afford that the State will provide him with one.
speaks and understands; So for so long as the counsel who assisted the person is there to
5.) It must be signed by him with the assistance of his protect his rights then that lawyer assisting is fine.
counsel.
R.A. No. 7438 defines who can be an assisting counsel as any
If there is no counsel because there is a valid waiver, the law still lawyer, except those directly affected by the case, those charged
requires that it must still have to be signed by that person in the with conducting preliminary investigation or those charged with
presence of any of his parents, older brothers and sisters, his the prosecution of crimes cannot be assisting counsel. That
spouse, the municipal mayor, the municipal judge, district school would be the general rule, then if you are the municipal attorney,
supervisor, or priest or minister of the gospel as chosen by him. city attorney, provincial legal officer, you cannot be an assisting
Otherwise, such extrajudicial confession shall be inadmissible as counsel because you’re interested in the prosecution of offenses.
evidence in any proceeding. The exemption probably is when you are a relative of that
person.
Remember, when a person is arrested without warrant, the usual
proceedings to be conducted by the prosecutor against the In this right under investigation, the choice of counsel use the
person is called inquest proceeding. Then the information is word “preferably” and as we always maintained the word should
thereafter filed in court and if the accused wants to avail himself be understood liberally if it is claimed by that person that
of the provisions of Rule 112 of the Rules of Court on Preliminary “preferably” means that – if allowed or allowable under the
Investigation, can he avail of that and what are the conditions? statute.
Well, the ROC requires that he must avail of that in 5 days from Final item with respect Extra-Judicial Confession would be the
knowledge that the information has been filed and he must have rule on admissibility. There are always two things that would
waived his right under Art. 125 of the Revised Penal Code which affect the admissibility of the extra-judicial confession:
is arbitrary detention (ang arbitrary detention kay Art. 124 man,
basi Delay in the delivery of detained persons to the proper 1.) Question on the validity of the waiver;
judicial authorities, you mean?) R.A. No. 7438 covers Art. 125. 2.) Question on the validity of the confession.
Any waiver of the right under Art. 125 of the RPC must have to
be in writing and must have to be signed by that person with the Whether the waiver is voluntary or involuntary given, and whether
assistance of counsel. the confession is voluntary or involuntary given. Now with respect
to the waiver, the burden is always on the State. Because this is
Again, this is in an expansion of the ROC and because this is a Constitutional Right, the presumption of regularity does not
substantive law, it shall govern and this is also the law which has work in this particular situation. The presumption is that the
expanded somehow the Constitutional provision, though it did not waiver is not valid. It is for the State to prove that the waiver was
violate the Constitutional provision in the right of the persons validly given. So we start with:
under investigation.
1.) Meaningful transmission of the right;
Other matter in R.A. No. 7438 is assisting of counsel. There are a 2.) Meaningful transmission of the consequence of the
lot of questions and cases before R.A. No. 7438, on who can be waiver;
an assisting counsel for purposes of waiving his right to remain 3.) That the waiver is in writing;
silent or his right to be assisted by counsel under the
4.) That the waiver has been given with the assistance of a investigating officer in the language or dialect known to
counsel. such arrested or detained person, otherwise, such
investigation report shall be null and void and of no
effect whatsoever.
But with respect to the confession, we still follow the presumption
that people would always easily confess if they are liable or guilty (d) Any extrajudicial confession made by a person
of it. So that if the confessant or the person investigated would arrested, detained or under custodial investigation shall
claim otherwise, it is his burden to prove that the confession was be in writing and signed by such person in the presence
obtained by reason of vitiated consent, or by force, intimidation, of his counsel or in the latter's absence, upon a valid
waiver, and in the presence of any of the parents, elder
torture or the like. There is no presumption of torture or any brothers and sisters, his spouse, the municipal mayor,
vitiation of consent even if it were true. The presumption is that, the municipal judge, district school supervisor, or priest
the police officers are performing their regular function and or minister of the gospel as chosen by him; otherwise,
torture is not part of their regular function. such extrajudicial confession shall be inadmissible as
evidence in any proceeding.
Republic Act No. 7438 April 27, 1992
(e) Any waiver by a person arrested or detained under
the provisions of Article 125 of the Revised Penal Code,
AN ACT DEFINING CERTAIN RIGHTS OF PERSON or under custodial investigation, shall be in writing and
ARRESTED, DETAINED OR UNDER CUSTODIAL signed by such person in the presence of his counsel;
INVESTIGATION AS WELL AS THE DUTIES OF THE otherwise the waiver shall be null and void and of no
ARRESTING, DETAINING AND INVESTIGATING OFFICERS, effect.
AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF
(f) Any person arrested or detained or under custodial

Be it enacted by the Senate and House of Representatives of the investigation shall be allowed visits by or conferences
Philippines in Congress assembled:: with any member of his immediate family, or any medical
doctor or priest or religious minister chosen by him or by
Section 1. Statement of Policy. – It is the policy of the Senate to any member of his immediate family or by his counsel,
value the dignity of every human being and guarantee full respect or by any national non-governmental organization duly
for human rights. 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
Section 2. Rights of Persons Arrested, Detained or Under "immediate family" shall include his or her spouse, fiancé
Custodial Investigation; Duties of Public Officers.– or fiancée, parent or child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew or niece, and
(a) Any person arrested detained or under custodial guardian or ward.
investigation shall at all times be assisted by counsel.
As used in this Act, "custodial investigation" shall include the
(b) Any public officer or employee, or anyone acting practice of issuing an "invitation" to a person who is investigated in
under his order or his place, who arrests, detains or connection with an offense he is suspected to have committed,
investigates any person for the commission of an without prejudice to the liability of the "inviting" officer for any
offense shall inform the latter, in a language known to violation of law.
and understood by him, of his rights to remain silent and
to have competent and independent counsel, preferably Section 3. Assisting Counsel. – Assisting counsel is any lawyer,
of his own choice, who shall at all times be allowed to except those directly affected by the case, those charged with
confer privately with the person arrested, detained or conducting preliminary investigation or those charged with the
under custodial investigation. If such person cannot prosecution of crimes.
afford the services of his own counsel, he must be
provided with a competent and independent counsel by
the investigating officer. The assisting counsel other than the government lawyers shall be
entitled to the following fees;
(c) The custodial investigation report shall be reduced to

writing by the investigating officer, provided that before (a) The amount of One hundred fifty pesos (P150.00) if
such report is signed, or thumbmarked if the person the suspected person is chargeable with light felonies;
arrested or detained does not know how to read and
write, it shall be read and adequately explained to him by (b) The amount of Two hundred fifty pesos (P250.00) if
his counsel or by the assisting counsel provided by the

the suspected person is chargeable with less grave or to secure his safety and prevent his escape.
grave felonies;
Section 5. Repealing Clause. – Republic Act No. No. 857, as
(c) The amount of Three hundred fifty pesos (P350.00) if amended, is hereby repealed. Other laws, presidential decrees,
the suspected person is chargeable with a capital executive orders or rules and regulations, or parts thereof
offense. inconsistent with the provisions of this Act are repealed or modified
accordingly.
The fee for the assisting counsel shall be paid by the city
or municipality where the custodial investigation is Section 6. Effectivity. – This Act shall take effect fifteen (15) days
conducted, provided that if the municipality of city cannot following its publication in the Official Gazette or in any daily
pay such fee, the province comprising such municipality newspapers of general circulation in the Philippines.
or city shall pay the fee: Provided, That the Municipal or
City Treasurer must certify that no funds are available to
Approved: April 27, 1992
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 PINOON, LOREVILL
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 The greatest results in life are usually attained by
right to remain silent and to have competent and independent simple means and the exercise of ordinary qualities.
counsel preferably of his own choice, shall suffer a fine of Six
These may for the most part be summed in these
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. two: common-sense and perseverance.
The penalty of perpetual absolute disqualification shall also be ~Owen Feltham
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).
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

by any person in any proceeding, criminal or administrative,

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

date the victim died, forcibly took the victim to his vehicle. The
victim jumped out of the vehicle. After the incident the accused RIGHT TO BAIL
went directly to the police station to voluntarily give the statement
that the victim jumped out of the motor vehicle. Now, that When Right may be Invoked
statement was taken as part of the evidence of the prosecution
and the accused was convicted. It was admissible as it was not Right to bail. It must be understood in relation to Rule 114 of the
taken under custodial interrogation. The Supreme Court Rules on Criminal Procedure because when the Constitution
rationalize on the ground that the statement was voluntarily provides when bail is a matter of right or when it is a matter of
given. It should be treated as one of the exceptions that the discretion, the basis is when the offense which a person is
rights under Miranda Rule are not claimable because there is no charged would carry with it the penalty of Reclusion Perpetua or
questioning on the part of the police officer that may have elicited higher, bail is a matter of discretion. However, in the Rules of
the extra judicial confession. Court, it provides for certain circumstances which a person in a
criminal case may have bail as a matter of discretion even if the
So, if the statement is voluntarily given, it is considered penalty is less than Reclusion Perpetua, this is when the penalty
admissible. This is commonly observed when persons suspected is six years and one day to twenty years and there is showing of
of committing a crime are interviewed by media and perhaps the following circumstances such as being a recidivist, habitual
because of lack of any knowledge of such rights, they would delinquent, that the accused has previously escape, there is
normally give information as to whether they have committed the probability of flight a free list or on bail or risk that he would
crime and those are admissible because they are elicited not by commit another crime. Rule 114 section 5.
reason of questioning where they are place under investigation.
Sec. 5. Bail, when discretionary. – XXX
Now in administrative investigations which ordinarily are not in If the penalty imposed by the trial court is imprisonment
relation to criminal offense, the Mirada rule is not applicable. But exceeding six (6) years, the accused shall be denied bail, or his
they must have the right to be represented by counsel as bail shall be cancelled upon a showing by the prosecution, with
required in the fundamental rules of due process. But as to notice to the accuse, of the following or other similar
whether they should be given the warning and as to whether they circumstances:
could be extended to the so called Miranda rights, it’s another (a) That he is a recidivist, quasi-recidivist, or habitual delinquent,
thing. or has committed the crime aggravated by the circumstance of
reiteration;
Example, if an employee is charge administratively by an (b) That he has previously escaped from legal confinement,
employer for violating a company rule or policy, he is entitled to evaded sentence, or violated the conditions of his bail without
representation in accordance to the labor code. However, as to valid justification;
whether he is entitled to be informed of his rights to remain silent, (c) That he committed the offense while under probation, parole,
it is not included. It is also not an obligation of the employer to or conditional pardon;
provide him a counsel if he can’t afford one, though it is provided (d) That the circumstances of his case indicate the probability of
under the Miranda rights. But as to entitlement of counsel and to flight if released on bail; or
be informed on this right it is mandated under the labor code. (e) That there is undue risk that he may commit another crime
Same principle would apply in cases of students with during the pendency of the appeal.
administrative cases in tertiary level, it is mandated that they XXX
should be allowed representation but the school has no
obligation to give Miranda warnings or provide a counsel if they If a person is not yet charged, can a person put up bail? If he is
can’t afford one. This should not be confused with the privilege of under custody he could. What if the accused is already charged
self-incrimination under section 17 because here it is claimable in court but not yet arrested? Can he put up bail? I think the
logical thinking would tell us that as soon as the information is Any person in custody who is not yet charged in court may
charged, even if no warrant is issued yet, you must be allowed to apply for bail with any court in the province, city, or municipality
post bail. Nonetheless, remember our discussion on arrest. where he is held.
When the information is filed in court the rules of court provide for
three things that a judge can do. Bail in Military Courts
1. Judge would determine whether or not there is a Okay now, we already know that there is no bail in military courts
probable cause to proceed with the case. So the judge involving military personnel as to the respondent or accused
can dismiss the case without issuing a warrant. because of the condition or nature of the proceedings in military
2. If there is doubt as to the probable cause it can require courts, including the offenses are not ordinary as it involves
offenses against the state, such as treason. If they would be
the prosecution to present additional evidence to prove
allowed bail, they could be out there and commit same acts of
probable cause to proceed. treason.
3. If there is reason to proceed the judge will determine
whether there is a probable cause to issue a warrant. Standards for Fixing Bail
Now if the judge can determine the probable cause whether or Now when bail is a matter of right, section 9 of rule 114 (standard
not to proceed and thereby dismisses the case, what should for fixing bail) may be taken by the court in relation to the request
happen then if the accused already posted bail even before he of the prosecution to increase bail or request of the defense to
was arrested? I don’t know the answer but just a thinking based reduce bail. Now in case where bail is a matter of discretion
on the provisions of the Rules of Court. hearing is mandated. It is a condition precedent, to determine the
presence of those circumstances under section 5 in rule 114
Now in relation to the court where you have to post bail… when however, if bail is a matter of right, hearing is not normally
bail is a matter of discretion, you cannot file it anywhere but in the required. The court would just issue the release after the accused
issuing court. If you want bail to be reduced or want to post is complied with the undertaking requirements. But again, if there
another kind of bail other than cash, it must be applied for in the is a request in increase or reduced bail, then hearing is normally
issuing court. It is only the issuing court can exercise discretion if taken to determine it.
there is a need to exercise discretion if there is none then you
could file it in any of those court mentioned under the rules. Sec. 9. Amount of bail; guidelines. – The judge who issued the
Section 17, Rule 114. warrant or granted the application shall fix a reasonable amount
of bail considering primarily, but not limited to, the following
Sec. 17. Bail, where filed. – (a) Bail in the amount fixed may factors:chanroblesvirtuallawlibrary
be filed with the court where the case is pending, or in the (a) Financial liability of the accused to give bail;
absence or unavailability of the judge thereof, with any regional (b) Nature and circumstance of the offense;
trial judge, metropolitan trial judge, municipal trial judge, or (c) Penalty for the offense charged;
municipal circuit trial judge in the province, city or municipality. If (d) Character and reputation of the accused;
the accused is arrested in a province, city, or municipality other (e) Age and health of the accused;
than where the case is pending, bail may also be filed with any (f) Weight of the evidence against the accused;
regional trial court of said place, of if no judge thereof is (g) Probability of the accused appearing at the trial;
available, with any metropolitan trial judge, municipal trial judge, (h) Forfeiture of other bail;
or municipal circuit trial judge therein. (i) The fact that the accused was a fugitive from justice when
(b) Where the grant of bail is a matter of discretion, or the arrested; and
accused seeks to be released on recognizance, the application (j) Pendency of other cases where the accused is on bail.
may only be filed in the court where the case is pending, whether Excessive bail shall not be required.
on preliminary investigation, trial, or appeal.

Now these standards in section 9 are not the hard and fast rule, Court of Appeals and when the lawyer received the notice to file
they are just guidelines that may be used in determining amount the appellant’s brief within 20 days, in relation to Rule 124 of our
of bail the court may use any other reason for granting bail. Rules of Court, the lawyer failed to file the appellants brief
despite 4 extensions sought. The appeal was dismissed on the
Now, bail is not required when the law does not require any bail ground of failure to prosecute by the Court of Appeals. The
or would allow recognizance. When is recognizance allowed? accused’s lawyer filed a motion for reconsideration stating,
Ordinarily, if the person is charged with a violation of ordinance among others, that the reason for failure to file the brief was his
or of a light felony, the bail to be granted there is merely own fault considering that he was suffering from some personal
recognizance. Under R.A. 7636, when the penalty range does problem on account of an ailment and, on the same motion for
not exceed 6 months or a fine of not more than P2000.00 or both, reconsideration, undertook to file the appellant’s brief within a
recognizance shall be granted. When the accused has been period of 7 days. Despite that, he still failed to file the appellants
incarcerated for a period of at least equal to or more than the brief for which reason the motion for reconsideration was denied.
minimum of the principal penalty, without applying the modifying Thereafter, the accused filed an omnibus motion for
circumstances, the accused shall be released on recognizance reconsideration stating again the reasons for the delay, and this
even if that case shall have to continue. If the accused has time raising the ground that based on the Rules of Court, there
applied for probation and he is not on bail pending the grant of must have to be a notice to the appellant. The CA is allowed to
the application, the accused may be released on recognizance. dismiss the appeal motu proprio upon the failure of the appellant
Youthful offender under P.D. 603 shall be released on to file the appellant’s brief but with prior notice to the appellant.
recognizance. No bail shall be required. And, as we all know The reason for granting the appellant to give the appellant such
recognizance shall be to place the obligation to a responsible notice is to give the appellant to state the reason for the failure
member of the community to ensure that the accused will be and for the court to determine whether the reasons are
present every time the case is called and the presence of the satisfactory or justified. Can the CA in this particular case motu
accused is required. proprio dismiss the appeal for failure to file the appellant’s brief
even without notice to the appellant and if so should this be a
Now, in cash, property or surety as bond, it is quite easy to violation of his right to due process? The Supreme Court said in
understand that in case of violation of the undertaking of the this case, there is no violation of due process. There is even no
accused, the cash bond shall be forfeited in favor of the need for notice as may have been required by the rules.
government as well as the property bond and the surety Ordinarily, it is so required in order to give the accused the
company will be liable for the entire amount of bail under his reasons for the failure and for the court to appreciate whether
guaranty. Now, what should happen if the accused is released on those reasons are satisfactory or justified. But, the facts of the
recognizance and the accused does not appear as required by case would tell us, according to the SC, that accused’s appellant
the court? Will that responsible member of the community be failed to file appellant’s brief despite 4 extensions sought and
incarcerated instead until the accused appears? What happens? granted. He even failed to file the undertaking in the motion for
OK. reconsideration filed. Again due process is merely to give an
opportunity to the party to plead his case. The facts of the case
RIGHTS DURING TRIAL would show that more than sufficient opportunity has been
granted. It also highlights the constitutional discussion on due
Let’s go to rights during trial. Now, the first of these rights during process which does not include the right to appeal. As we made
trial is your due process in criminal cases. We have said that in mention, the right to appeal is only included in the Rules of Court
section 14, that is a restatement of the due process right or rule under Rule 115, Section 1(i) with respect to the accused having
in criminal cases, not because of anything else but because there this right to appeal. The right to appeal is therefore statutory and
is a need to restate that considering that in our system, an not constitutional with respect to cases or parties where cases
accused is charged an the entire resources of the government is are filed in our system because the due process is satisfied
against him. That’s why there is a need to restate, to put more substantially when the case is heard even in the first instance
emphasis on that due process clause in criminal cases. that it is filed, tried and decided.
This case of Dimarucot vs. People involves an accused who has G.R. No. 183975 September 20, 2010
been convicted in the trial court. The accused appealed to the GREGORIO DIMARUCOT y GARCIA vs. PEOPLE

Petitioner cannot simply harp on the mistakes and negligence of

his lawyer allegedly beset with personal problems and emotional PRESUMPTION OF INNOCENCE
depression. The negligence and mistakes of counsel are binding
on the client.18 There are exceptions to this rule, such as when the
reckless or gross negligence of counsel deprives the client of due The next right of the accused is the presumption of innocence.
process of law, or when the application of the general rule results
in the outright deprivation of one’s property or liberty through a The presumption of innocence, as the term suggests, is merely a
technicality. However, in this case, we find no reason to exempt
petitioner from the general rule. The admitted inability of his
presumption. It does not create any protection on the part of the
counsel to attend fully and ably to the prosecution of his appeal accused that the state cannot in any other way prove his guilt.
and other sorts of excuses should have prompted petitioner to be The presumption simply gives the state the burden of proving,
more vigilant in protecting his rights and replace said counsel with first, that the accused has committed the act and that the act
a more competent lawyer. Instead, petitioner continued to allow his
counsel to represent him on appeal and even up to this Court,
constitutes a crime. When that burden is met, then, the burden of
apparently in the hope of moving this Court with a fervent plea for evidence shifts to the accused. The accused has now the burden
relaxation of the rules for reason of petitioner’s age and medical of proving his innocence. The state is not even barred from
condition. Verily, diligence is required not only from lawyers but legislating a law which would provide for a prima facie
also from their clients.
presumption of guilt like your law on anti-fencing. When you are
in possession of a property which was not brought through legal
Negligence of counsel is not a defense for the failure to file the
appellant’s brief within the reglementary period. Thus, we
means, which you know or should have known to have been
explained in Redeña v. Court of Appeals: stolen, you are supposed to be prima facie liable for fencing.
Now, that law has not been declared as unconstitutional because
In seeking exemption from the above rule, petitioner claims that he what the law creates is merely a prima facie presumption. It does
will suffer deprivation of property without due process of law on not destroy the presumption of innocence because presumption
account of the gross negligence of his previous counsel. To him, of innocence is also prima facie in effect because the state can
the negligence of his former counsel was so gross that it practically prove that you are not innocent of such crime. The same thing
resulted to fraud because he was allegedly placed under the
impression that the counsel had prepared and filed his appellant’s with the procedure on preliminary investigation or examination,
brief. He thus prays the Court reverse the CA and remand the when a complaint is processed in the investigation level, whether
main case to the court of origin for new trial. it be the prosecutor or any other authorized officer. The
determination of that investigating officer as to the guilt is only
Admittedly, this Court has relaxed the rule on the binding effect of prima facie. Meaning, they find probable cause or a well-founded
counsel’s negligence and allowed a litigant another chance to belief that the accused has committed the offense and therefore
present his case (1) where the reckless or gross negligence of
counsel deprives the client of due process of law; (2) when must be held for trial. That does not destroy the presumption
application of the rule will result in outright deprivation of the because it’s only a prima facie finding of liability. The state still
client’s liberty or property; or (3) where the interests of justice so has the burden in the first instance to prove that the accused has
require. None of these exceptions obtains here. committed the act and that the act is constitutive of a crime and
that the accused must therefore be held liable.
For a claim of counsel’s gross negligence to prosper, nothing short
of clear abandonment of the client’s cause must be shown. Here,
petitioner’s counsel failed to file the appellant’s brief. While this RIGHT TO BE HEARD PERSONALLY OR BY
omission can plausibly qualify as simple negligence, it does not COUNSEL
amount to gross negligence to justify the annulment of the
proceeding below. (Emphasis supplied.) This simply means the right to present your evidence. I often
would relate that to my personal experience with Atty. Gil dela
The right to appeal is not a natural right and is not part of due Banda. When we were still in the legal aid office we have this
process. It is merely a statutory privilege, and may be exercised
only in accordance with the law. The party who seeks to avail of accused who was charged with possessing and or pushing
the same must comply with the requirements of the Rules. Failing marijuana leaves one sack of that. The penalty was death. There
to do so, the right to appeal is lost. was still death penalty before. Since he was my supervising
lawyer, I was just a new lawyer then. We kept on arguing or
Strict compliance with the Rules of Court is indispensable for the discussing whether or not we should allow the accused to be
orderly and speedy disposition of justice. The Rules must be heard in person because the accused wanted to say his piece,
followed, otherwise, they will become meaningless and useless.
saying that if he will be allowed to testify, he will be able to
convince the judge that he did not commit the crime. The usual To be heard by counsel, well, there is that old saying, that a
thing with the legal aid office before, during our time, when it person may be convicted not because he is guilty but because he
comes to drugs or drug related cases, it’s always the does not know how to protect his innocence. Even the most
inadmissibility of the evidence because we were not there, we learned man in the law, if he is personally involved in litigation,
would not know what would have happened and while there may may not have the test of objectivity in proceeding with the case.
be reason to doubt as to the doing of the police officers, we have He might be too emotional about it. He may be too distracted to
no basis in fact to doubt what they say. So it’s their word against be able to properly try the case. Objections, I watch a portion of
the word of the police. But we had difficulty because there were, I this civil action in HBO and John Travolta was trying a case
think 4 occasions that we interviewed the accused, some in the against a seasoned lawyer. The seasoned lawyer is a teacher in
jail, some in the courthouse, switching his story 4 times also. So remedial law, particularly in evidence so there were clips of him
we said, ok should we present him or not? You know Sir Gil, he’s teaching. He was telling his student that you object. If you, by
a, not that I am not, but he was looking at the moral side of it. chance, slept during the trial, upon waking up what do you say?
Meaning, if you know that the accused is going to perjure himself, Objection, your honor! In any case, to be assisted by counsel, is
would you as an officer of the court participate in that actuation? different from the right to be assisted by counsel preferably of his
To allow a witness to state a falsehood and be an instrument in own choice under section 12. In the rights of the accused during
that falsehood. On the other hand, there’s a question of, again, trial, to be assisted by counsel, the court has the obligation to
either legal or moral, what authority do you have as a lawyer to inform the accused just like the investigating officer in the
prevent the accused from taking his constitutional right to be investigation under section 12 that he has the right to be
heard in person simply because you have your opinion that he is represented by counsel and if he cannot afford one, the state will
going to tell a lie? So, that’s the moral or legal dilemma. Finally, provide him with one. But that is the extent of the similarity
we said that we will file a motion for leave to file a motion for a between section 12 and section 14. Because in section 12, we
demurrer to evidence and file a demurrer and cross a bridge have already mentioned that the phrase “preferably of his own
when there is a bridge. Because, when you file a demurrer there choice” is found which is not found on section 14, the rational
is no defense evidence yet. So we did just that and try to put the being that it is already before a court or a judge. The right of the
question to be answered later hoping that the demurrer will be accused during trial is better protected because it is already in
granted. The demurrer was granted, and so, we did not cross the court. The judge is not there to convict the accused. The judge is
bridge because there was no bridge yet. The short of the long there to see that justice is delivered or administered. So, unlike in
story is that the accused was killed. You know the Davao Dog the investigation where the proceeding is out of court, the one
Squad. asking the question are the police officers that would be
witnesses against you, who have been the person who arrested
Ok, the question is, if the accused had the right to be heard by you, you must have to be given better protection. That’s why the
himself personally, again, there’s that moral or legal question, if choice of counsel is with that phrase “preferably the choice of the
you know that he is going to perjure himself would you put him in person to be prosecuted.
the stand? You ask the question, what made you conclude that
he is going to tell a falsehood? Was his first story the correct IMPORTANT: In any case “to be assisted by counsel” must have
story? The second, the third, the fourth? You can never know to be differentiated with the phrase “to be assisted by counsel
because you were never really there as much as the court was preferably of his own choice” under Sec. 12. In the rights of the
not there and also the prosecutors. So it leaves him to tell his accused during trial to be assisted by counsel, the court has the
story. Objectively, we have known in legal ethics, you take the obligation to inform him and just like the investigating officer in
case regardless of your opinion as to the innocence or guilt of the investigation under Section 12 that he has the right to be
person. At least, that’s what the book says. It’s different if you tell represented by counsel and if he cannot afford one, the
the person to tell a lie. But, with your set of questions, the State will provide him with one. But that is the extent of the
answers have been different in four occasions. While there may similarity between Section 12 and 14.
be suspicion that he is not telling the truth, the question is, which
truth? Your truth or his truth? Or which of those answers really In Section 12, we have already mentioned that the phrase
are true? And which are not? So, that is when he has to claim “preferably of his own choice” is found which is not found in
his right to be heard. Section 14. The reason being this is already for the court or the
judge. The rights of the accused during trial is better protected
after finishing 3 years in law school

because it is already in court. The Judge is not there to convict still on the right to be heard by counsel. I must have mentioned
the accused, the judge is there to see that justice is delivered or that the Supreme Court has promulgated a rule on limited law
administered. Unlike in an investigation where there is student practice. If you have finished your 3rd year in law school,
proceeding out of court, the one asking the questions are the you can perform the acts as if you are a lawyer provided you are
police officer, the same officers that would be witnesses against supervised by a member of the Philippine bar. This is to give
you or may have been the person who arrested you, they must legal representation for those who may not be able to afford legal
have to be given better protection as well as the choice of representation or there may have been too many cases already
counsel and so there is that phrase “preferably of his own handled by the PAO where a case of a person may not be
choice”. handled well. I would like to believe that new lawyers or law
students have a better grasp of the law or procedure although
What would happen here in reality is the judge will appoint a they may not have the experience; they have a better
counsel de officio. If the accused appears before the court understanding of the latest jurisprudence or the application of the
without any representation. The usual counsel de officio are law. It does not follow that if you have been in the practice for so
those found in court and those new practitioners, so that they will long that you have better commands. The experience that they
be given experience also. may have had may only be with respect to skill on trial but not
necessarily on the substantive aspect of the law or the correct
Supposedly, if you go by the technicality of it, the appointment of interpretation of the Rules of Court which may have decided
counsel de officio involves 2 matters: one, the competence of the recently. At most, old practitioners may have better delivery but it
counsel to represent the accused and second, the competence does not follow that when they talk a lot that they know about it.
on the case, on the complexity or nature of the offense. There is So, those who have finished their 3rd year in law school, not 3
a presumption that the lawyer knows the law and the procedure. years. In 4th year, there is really nothing much there, its just
But the complexity of the case may somehow change – that level review. In trial practice, what is important is the Rules of
of competence or skill of the lawyer. If the client or accused is Procedure because the substantive law, you can always go back
facing a death penalty case, would a new practitioner be in a to your office and study your case. In procedure, there is too little
better position than one who has the experience of trying these time while you are already in court to read. They say, just
cases? If that is the question, the Judge would be able to answer remember the basics in objecting in Evidence.
himself so that the counsel de officio would be properly
appointed. Second is that by the rules of court, when you are RIGHT TO BE INFORMED OF THE NATURE AND
appointed as counsel de officio, you are supposed to be paid by CAUSE OF ACCUSATION
the Supreme Court for the services you rendered. The Rules of
Court will not make it difficult for you to seek payment for your Now, the right to be informed of the nature and the causes of
services because of the reportorial requirement. The ROC – you accusation is normally satisfied between the period or stay of
will be paid so little and the reportorial requirement would require arraignment. During arraignment, the accusations is read to the
you to spend so much. In the case of People vs. Siongco, the accused and this must be read to him in a language he speaks
regular counsel of the accused here was a lawyer from the Public and understands because there must be meaningful transmission
Attorneys Office, however, when the PAO lawyer was absent, the of what the charges are with respect to the accused. If there is no
court appointed a counsel de officio to assist the accused for at prior arraignment, there is no valid proceeding. The arraignment
least 6 hearings and the accused later on complained that he must be…personally to the accused and the accused must also
was not my regular counsel. My regular counsel was the PAO personally enter his plea. However, if he refuses to enter a plea
lawyer and so my right to be heard by counsel has been violated. after the reading of the information, the court may enter a plea of
The SC said that there was no violation, there was no denial of not guilty; and he must be there in person. Unlike in the US as
the right to be heard by counsel because you have had legal we may have seen in some shows or movies…arraignment may
representation. The appointment of the counsel de officio does be dispensed with and the counsel may enter a plea.
not follow with that of Section 12 that it is preferably of his own
choice. There are 3 reasons why the information must have to be read:
The right to free legal assistance under Section 11 is in relation 1.) to furnish the accused of the charge and allow him to
to the right under Section 14. The free legal assistance here is prepare for his defense
2.) for the accused to avail of any conviction or acquittal

from any further prosecution, meaning, he will have to Ok, I was in a North Cotabato town a couple of weeks ago and
or he may be able to claim double jeopardy there was an arraignment and reading of the information. One of
3.) to inform the court of a sufficiency of information if it the local languages in the town is Ilocano so they were looking
warrants a conviction because before arraignment, we for somebody to interpret the information in Ilocano. Luckily, the
all know that the Prosecution can still amend the court employee knows how to speak Ilocano and he was able to
information whether in form or in substance. interpret/translate the information in Ilocano because the accused
does not know or cannot understand English as much as he
But after it is read, it can only be amended when it refers to form could speak and understand Ilocano. The problem there is:
and if substance, there must have to be the exercise of discretion
by the court in order to protect the rights of the rights of the What if that person is not a court employee? Could they just ask
accused. And normally, this is with respect to his rights against anybody from the public to act as interpreter? By the way, is that
double jeopardy. So if the information does not charge an an interpreter or a translator? What do they exactly do, do they
offense, then probably the defense can seek the quashal of the interpret or do they translate?
information. Again, this is to inform the court as to whether the
information is sufficient. If you translate, what do you do? – you interpret and when you
interpret, you translate.
In the case of People vs. Bartolini, the information did not
indicate the age of the victim. I think, it is a crime of rape. (Note: You must have read in the internet in the archives of the file of
It was a 2010 case, 626 SCRA 527, it was really a rape case and OJ Simpson – the killing of his spouse and of the lover. That was
the information did not indicate the age of the victim) The in the first time that we were at least in Philippine history being
question is: Is the defect fatal? The SC said: Yes, the defect is spot doing court room proceedings or case because the court
fatal because the accused upon reading the information must room proceedings were televised from start to finish and the
have been informed that he could possibly face the death Judge there, a Japanese American allowed that coverage to be
penalty. Again, age here is an essential element of the offense so done and so everybody who was interested in law follow those
to qualify it and make the penalty death. So, if that was not proceedings. There was a question on interpretation or
included in the information, as we all know that would never be translation raised because one the witnesses was a househelp
appreciated to qualify the offense and make death as the who was Mexican and apparently saw OJ going in or coming out
imposable penalty. because she was there…for the dogs of her employer. She was
testifying in Spanish or Mexican and there was a question on
G.R. No. 179498 August 3, 2010 whether what the court employee should do, to interpret or to
PEOPLE OF THE PHILIPPINES vs. translate. Because to translate is literally to transpose it from
RUSTICO BARTOLINI y AMPIS
English to Ilocano or Cebuano and vice-versa, so to translate is
Similar to (People vs.) Tagud, the qualifying circumstance of to give your understanding of the question or of the answer and it
relationship of BBB to appellant was specifically alleged and may give it another meaning. The Judge was saying you should
proven during the trial. Notably absent in the information, however, not translate, you should interpret. If you have seen those
is a specific averment of the victim’s age at the time the offense
against her was committed. Such an omission committed by the
proceedings, the stenograhers were using this machines
prosecutor is fatal in the imposition of the supreme penalty of “attached” to a CPU and the lawyers would automatically read
death against the offender. It must be borne in mind that the everything in English. Here, we don’t have those and what’s
requirement for complete allegations on the particulars of the worse, if you go to trial your English in the transcript of
indictment is based on the right of the accused to be fully informed
of the nature of the charges against him so that he may adequately
stenographic notes would be horrible.
prepare for his defense pursuant to the constitutional requirement
on due process, specially so if the case involves the imposition of There was one trial and I have this question, “Is it not that your
the death penalty in case the accused is convicted. Thus, even if motor vehicle is a Route 10 vehicle?” The case was reckless
the victim is below eighteen (18) years of age and the offender is
her parent, but these facts are not alleged in the information, or if
imprudence, a client’s vehicle has bumped along Ladislawa road.
only one (1) is so alleged such as what happened in the instant The thing was my client’s vehicle bumped that PUJ and the PUJ
case, their proof as such by evidence offered during trial cannot was Route 10, which supposedly should not pass that Buhangin
sanction the imposition of the death penalty. Road, it should be within downtown only. And so that PUJ was
plying that area which he was not supposed to do, he was

negligent – that was our defense. So when the driver was
testifying, I asked, “Is it not that your motor vehicle is a Route 10
vehicle?” Here comes the interpreter: “Tinuod ba nga ang imong
sakyanan daut-daut?”
&&
DUMANDAN, GAB
ILUSTRISIMO, ROGIE
TORRES, EGAY
The difference between a successful person and

others is not a lack of strength, not a lack of
knowledge, but rather a lack in will.
—Vince Lombardi
“It’s not whether you get knocked down, it’s

whether you get up.”
~Vince Lombardi
The significance of a man is not in what he attains

but in what he longs to attain.
~Kahilil Gibran
August 29, 2012 was a violation of the constitutional right to speedy trial, that there
was a delay from the arraignment to the actual pre trial. The SC
RIGHT OF THE ACCUSED TO A SPEEDY, applied the balancing of interest test between the right of the
IMPARTIAL AND PUBLIC TRIAL accused to speedy trial and the right of the State to prosecute.
(IMPORTANT)These four-fold factors in balancing the interest
are as follows:
Speedy Trial
1.) the delay ,
This includes the right of the parties to a free and impartial court 2.) the reason of the delay
or tribunal. The impartiality is not only required as a matter of 3.) the assertion or non-assertion of the right of speedy
procedure but the judge must also be impartial for which there is trial of the accused; and
a corresponding rule in the Rules of Court for mandatory 4.) the prejudice due to the delay or may have been
disqualification of judges by reason of conflicting interests and caused by the delay.
the voluntary grounds for their inhibition. There is no mandatory
ground if the judge may still be sought to be refused from hearing There is a BALANCE OF INTEREST… while the accused has
the case on the voluntary ground provision (of the Rules) on the the right to speedy trial to free himself from the anxiety and
assumption that judge can no longer be impartial in this case. expense so that this guilt or innocence will be determined to the
most reasonable time possible required to protect both the
The most that is asked with respect to the impartiality during the interest of the accused as well as the prosecution, the court shall
conduct of the trial is the behavior of Judges in relation to the note that balance using the four-fold factors mentioned.
proceedings. Ideally, though (the one) presiding in the conduct of
the hearing must have to be an innocent bystander with respect G.R. No. 173319 December 4, 2009
to the respective claims of the parties, nonetheless, the judge is FEDERICO MIGUEL OLBES vs. HON. DANILO A. BUEMIO
not also prohibited from asking clarificatory questions in order
that he may be clarified as to certain matters. But the line dividing Petitioner draws attention to the time gap of 105 days from his
what is clarificatory and what is helping the cause of one party is arraignment on February 12, 2003 up to the first pre-trial setting on May
very thin; this is where most motions to refuse answer … 28, 2003, and another gap of 148 days from the latter date up to the
because of the assumption or the notion that the judge asking second pre-trial setting on October 23, 2003 or for a total of 253 days - a
questions are actually helping a party in his cause or defense. clear contravention, according to petitioner, of the 80-day time limit from
arraignment to trial.
The right to speedy trial is given to the accused and it is
characterized as a trial that is (free) from any capricious/ It bears noting, however, that on his arraignment on February 12, 2003,
petitioner interposed no objection to the setting of the pre-trial to May 28,
unauthorized delay. This characterization however is not subject
2003 which was, as earlier stated, later declared a non-working day.
to hard and fast rule. There is no definite set of rules even if the Inarguably, the cancellation of the scheduled pre-trial on that date was
right to speedy trial act has been incorporated in the Rules of beyond the control of the trial court.
Court. We are aware that there is a law, the right of speedy trial
act, and there is an allowable number of days for the time of Petitioner argues, however, that the lapse of 253 days (from arraignment
filing, from the time of arraignment and from the time of the to October 23, 2003) was not justified by any of the excusable delays as
prosecution to present evidence and defense (vice versa) embodied in the time exclusions22 specified under Section 3 of Rule 119.
including the full presentation of respective rebuttal and answer The argument is unavailing.
to rebuttal by the parties. The case is thereafter submitted for
decision. The Rules of Court as well as the law itself have been In Solar Team Entertainment, Inc. v. Judge How, the Court stressed that
interpreted by the court to allow reasonable and justifiable the exceptions consisting of the time exclusions provided in the Speedy
delays. In the case of Olbes vs. Buemio, 607 SCRA 336, there Trial Act of 1998 reflect the fundamentally recognized principle that
was a total of 253 days from the time the accused was "speedy trial" is a relative term and necessarily involves a degree of
arraigned…or a lapse of 105 days and from the first pre-trial to flexibility. This was reiterated in People v. Hernandez, viz:
the actual trial conducted there was a lapse of 148 days, a total
of 253 days delayed. The claim of the accused (was ) that there
The right of the accused to a speedy trial is guaranteed under Sections A balancing test of applying societal interests and the rights of the
14(2) and 16, Article III of the 1987 Constitution. In 1998, Congress accused necessarily compels the court to approach speedy trial cases
enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act of on an ad hoc basis.
1998." The law provided for time limits in order "to ensure a speedy trial
of all criminal cases before the Sandiganbayan, [RTC], Metropolitan Trial In determining whether the accused has been deprived of his right
Court, Municipal Trial Court, and Municipal Circuit Trial Court." On to a speedy disposition of the case and to a speedy trial, four
August 11, 1998, the Supreme Court issued Circular No. 38-98, the factors must be considered: (a) length of delay; (b) the reason for
Rules Implementing R.A. No. 8493. The provisions of said circular were the delay; (c) the defendant’s assertion of his right; and (d)
adopted in the 2000 Revised Rules of Criminal Procedure. As to the time prejudice to the defendant.
limit within which trial must commence after arraignment, the 2000
Revised Rules of Criminal Procedure states:
The time limits set by the Speedy Trial Act of 1998 do not thus preclude
justifiable postponements and delays when so warranted by the
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions situation. To the Court, the reasons for the postponements and delays
of section 1(g), Rule 116 and the preceding section 1, for the first twelve- attendant to the present case reflected above are not unreasonable.
calendar-month period following its effectivity on September 15, 1998, While the records indicate that neither petitioner nor his counsel was
the time limit with respect to the period from arraignment to trial imposed notified of the resetting of the pre-trial to October 23, 2003, the same
by said provision shall be one hundred eighty (180) days. For the appears to have been occasioned by oversight or simple negligence
second twelve-month period, the time limit shall be one hundred twenty which, standing alone, does not prove fatal to the prosecution’s case.
(120) days, and for the third twelve-month period, the time limit shall be The faux pas was acknowledged and corrected when the MeTC recalled
eighty (80) days. the arrest warrant it had issued against petitioner under the mistaken
belief that petitioner had been duly notified of the October 23, 2003 pre-
R.A. No. 8493 and its implementing rules and the Revised Rules of trial setting.
Criminal Procedure enumerate certain reasonable delays as exclusions
in the computation of the prescribed time limits. They also provide that Reiterating the Court’s pronouncement in Solar Team Entertainment,
"no provision of law on speedy trial and no rule implementing the same Inc. that "speedy trial" is a relative and flexible term, Lumanlaw v.
shall be interpreted as a bar to any charge of denial of speedy trial as Peralta, Jr. summons the courts to maintain a delicate balance between
provided by Article III, Section 14(2), of the 1987 Constitution." Thus, in the demands of due process and the strictures of speedy trial on the one
spite of the prescribed time limits, jurisprudence continues to adopt the hand, and the right of the State to prosecute crimes and rid society of
view that the concept of "speedy trial" is a relative term and must criminals on the other.
necessarily be a flexible concept. In Corpuz v. Sandiganbayan, we held:
Applying the balancing test for determining whether an accused has
The right of the accused to a speedy trial and to a speedy disposition of been denied his constitutional right to a speedy trial, or a speedy
the case against him was designed to prevent the oppression of the disposition of his case, taking into account several factors such as the
citizen by holding criminal prosecution suspended over him for an length and reason of the delay, the accused’s assertion or non-assertion
indefinite time, and to prevent delays in the administration of justice by of his right, and the prejudice to the accused resulting from the delay,
mandating the courts to proceed with reasonable dispatch in the trial of the Court does not find petitioner to have been unduly and excessively
criminal cases. Such right to a speedy trial and a speedy disposition of a prejudiced by the "delay" in the proceedings, especially given that he
case is violated only when the proceeding is attended by vexatious, had posted bail.
capricious and oppressive delays. x x x
In the case of Apollo vs. Sandiganbayan, the SC reiterated that

While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how
the right of the State to prosecute its case in order to prosecute
long is too long in a system where justice is supposed to be swift, but criminal offenders is also a protected right. There must have to
deliberate. It is consistent with delays and depends upon circumstances. be also a balancing of interest of claims of the right of the
It secures rights to the accused, but it does not preclude the rights of accused to speedy trial and the right of the state to prosecute the
public justice. Also, it must be borne in mind that the rights given to the offenders of the state. there are 2 rights:
1. right of the accused
accused by the Constitution and the Rules of Court are shields, not 2. right of the state
weapons; hence, courts are to give meaning to that intent. Public Trial
The Right to Public Trial is not to be understood to (apply to)

everybody i.e. the public to observe the conduct of the trial.
Public trial is characterized as granting the person of the accused 100 km ordinary course of travel (rule). Before, we follow the
the right to have an open session and only when there is no 50 km radius rule. This was amended and it is now 100 km in the
secrecy in the conduct of the proceeding. There are several ordinary course of travel. If the person intended to be presented
exceptions to this: when the nature of testimony is delicate, then by reason of a subpoena resides outside or without (in the place
the public may be excluded or if the witness is a child witness. of 100 km in the ordinary course of travel rule), then the
Also, under the Rule 119, Sec. 21, the accused may ask for the subpoena may no longer be effective as to him and he can
exclusion of the public for any other reason. actually refuse to such subpoena. And he will not face any
contempt charges. - does not apply to public
Right to Confront Witnesses officials; only private ones
VIATORY RIGHTS
The right of the accused to meet the witnesses face to face
would include the right to cross-examine them. It has a two-fold Also in relation to subpoena is the so called viatory rights of
purpose : 1. to test the credibility of the witness ; 2. to observe witnesses—which refers to the right of a witness to refuse to
the demeanor of the witness when testifying, this is based on the honor the subpoena for valid and justifiable reason. The
principle that the evidence to be credible must not only be most common is one when he resides or is in a place more than
credible in itself but must also come from a credible witness. So 100kms. This would apply normally to private citizens and not to
in order to test the credibility of the witness the accused must public officials. Because if you are a public official witness, the
have the right to cross examine. Of course, there are some viatory rule does not apply. You can be compelled to be a
exceptions. One, from dying declarations. Also during preliminary witness by reason of your position or else you will be held in
investigation stage. We all know that even if there should be a contempt. The viatory rights can also be claimed by an ordinary
clarificatory hearing required by the investigating officer to be citizen witness. Let us say the expenses of his testimony or travel
conducted, the parties do not have the right to cross examine the to testify is not paid because that is always part of the obligation
other witness. During preliminary conference/investigation, if of the one requesting the issuance of subpoena to advance and
there are matters which they wish to ask ot the other party on the make his payments needed. Again the right merely includes the
matter under investigation, the question must have to be issuance of the subpoena. But as to the fees and expenses
coursed through a hearing officer or prosecutor. He can’t be relative to the issuance or service of the subpoena would be
asked directly because there is no right to cross-examine the another. That is not included in the right of the accused to a
witnesses of the respondent. compulsory processes.
Right to Secure the Attendance of Witnesses subpoena There is Rule 119, Sec. 14— a part of a right of the accused to
compulsory process. This is applicable to all but this is most
This would be in reference to right to compulsory process. There applicable to the accused in criminal case to secure the
is no question that the accused can seek the issuance of a appearance of a material witness. If a witness is not willing to
subpoena for the witness to testify in court for his for his defense. testify, the witness may be arrested and incarcerated if he does
That is his constitutional right, among others. No problem with not post bail until he will testify as he is so requested. The bail
the state because it has all the resources. It can even take care will not be discharged until he will testify in accordance to the
of the expenses of all its witnesses, even if the latter are living court order. The problem here is if you caused to arrest this
outside the 100km limit of their place of residence or office. But person and incarcerate her/him for refusing to testify, his
for the accused, he does not have the same right with that of the testimony may no longer be in your favor.
State. The problem is while the accused may have the right to
compulsory process that is the extent of his right. Under the rules TRIAL IN ABSENTIA
to issue subpoena, the party requesting for a witness to a
subpoena duces tecum requires some fees and expenses. Those It is a procedure provided for in the rules as well as in the
are not included in the right of the accused to compulsory Constitution with respect to the right of the accused to be
process. The accused may still have to shoulder the expenses present and in relation to he right of the state to prosecute the
for the issuance of the service order of the subpoena as well as criminal .The conduct and proceedings of the trial shall not be
the expense of the intended witnesses for the defense as made dependent upon the presence of the accused. We all know
requested. The rule of subpoena would be applicable only within that when the accused has not been arraigned, no proceedings
trial in absentia condition

can be validly made. But after the accused has been arraigned obligation to the client who is tried in absentia ends. But before
and in a hearing, the accused has been duly notified and his then or until then, the accused’s right to be heard through his
absence is unjustified the state may proceed even in his counsel will remain.
absence . Only when the three conditions are met that there be
trial in absentia. The most important is that there must have to be 4.) Right to speedy discharge in relation to right to counsel
a prior valid arraignment. When the accused is absent in a case is the same. It would still remain.
for example despite due notice, the court may exercise
discretion to hear the case today or transfer it in another day. But 5.) Right to speedy, impartial public trial. That would, with
if a case he would want to hear today in absentia that is totally respect to impartial public trial they would technically not be
valid because of the filing of the petition and the absence is not affected. With respect to speedy trial, there may be some effects
justified. Nonetheless, if the accused appear in the next schedule though it does not give the State the right or license to delay the
hearing, then there is no more trial in absentia as there is the proceedings for the trial. Then they must have to conduct trial
presence of the accused of course. However, if the accused consistent with the demands of speedy trial taking into
jumps bail there is the effect on his right to hear the proceedings consideration the fact of course that the accused has jumped bail
against him and every time the accused jumps bail or escapes or has escaped from prison.
from confinement the absence thereafter on account of the
jumping bail or the escape from confinement his absence is
unjustified and there will be trial in absentia. PRIVILIGE AGAINST SELF-INCRIMINATION
There are several questions ask with respect to rights of the The Privilege against Self-Incrimination under Section 17 is
accused in the constitution as well as those reflected in the rules based on two considerations: Consideration of Public Policy and
of court on due process. Is the due process is affected? The Consideration of Humanity.
answer is no. It will not be affected if the accused jumps bail and
he will be tried in absentia, the rights of the accused to due Public Policy because to compel a person to testify against
process will not be affected. Still the duty of the prosecution and himself will place him in the greatest temptation to perjure himself
of the court to ensure that the rights of the due process are because he has no other way out. He will be compelled under the
observed and accorded even in his absence. circumstances to lie about everything so that he will not be
placed in jail.
The presumption of innocence… the presumption is not simply
destroyed because the accused is tried in absentia. There is also The second is humanity: to prevent extorting evidence to convict
related principle in criminal law that plying is indicative of guilt , that person by his own testimony, by compulsion or duress. So
that the innocent stands while the guilty flees even if no one the State must be able to prove its case not because it has
pursues him , that principle does not automatically destroys the compelled somebody to provide evidence, but it must prove its
presumption of innocence of the accused. The prosecution has case based on available evidence.
the still 1st the burden to prove prima facie evidence of guilt of
the accused. Just because accused jumps bail or escapes Now, as we made mention in relation to the discussion of the
confinement does not make the accused guilty beyond right of the person under investigation, the privilege against self-
reasonable doubt .Actually THAT IS INDICATIVE OF GUILT BUT incrimination is claimable by any person who is asked an
NOT HE IS GUILTY. The right to be heard personally is waived incriminating question. An incriminating question is one the
because he not present and is tried in absencia but the right to answer to which would subject the person to a penal liability. If it
be heard by counsel is not affected, the counsel must still act as is civil or non-penal liability then that would not be considered as
his the counsel until the counsel is discharged. a self-incriminating question. If you joke about it, if you ask a
woman her age normally they would not tell her age because that
3.) The right to be heard personally. Of course that is would be self-incriminating. But that is not a self-incriminating
considered waived because he is no longer present because he question because being old is not a crime ☺ It would not
is tried in absentia. But the right to be heard by counsel is not produce a criminal liability. Only that would subject to a criminal
affected. The counsel must still act as his counsel until the liability be considered a self-incriminating question.
counsel is discharged. If the counsel is discharged then the
Now, traditionally, the privilege against self-incrimination is which if the matter or the “mechanical act” would require the use
applicable only to those which would be a result of the use of of one’s intelligence, the use of one’s mind or brain, then it does
physical or moral compulsion to extort communications or verbal not become a purely mechanical act.
confessions or admissions. So if there is use of duress, force, or
any other acts which may vitiate consent to secure the oral, The most common example is handwriting. When the issue in the
verbal confession or admission of a person that is what is usually criminal case involves handwriting, say falsification, it requires
covered by the privilege against self-incrimination. So that purely the signature, of course, you only falsify a signature. Forgery in
mechanical acts or any incriminating evidence which is not a our Revised Penal Code refers to bank notes, you make one and
product of a verbal or oral admission or confession are not make it appear as if it were a valid bank notes. You do not forge
covered. a signature. But outside of law school “i-forge na bai, i-forge na
bai. Sige i-forge nalang. But it is actually falsification. You make it
For example, in some old cases a person is required to undergo appear in Articles 171 and 172 of RPC that the person
medical examination for purposes of determining whether she is participated in the making of an act when in fact that should not
pregnant by reason of an extramarital affair or while a woman have been done.
undergoes a physical examination to determine such act of
pregnancy may be invasive. That is not covered by the privilege So when the issue in the criminal case is falsification whether a
because all she has to do would be to lie down there, not say signature or a writing and the accused is made to copy certain
anything, there is no oral admission or confession extorted by words and phrases to prove that his handwriting is similar to that
reason of the examination. in the questioned document. The Supreme Court has said that is
not a purely mechanical act because to copy a writing with his
Or in one case where a person was accused of robbery and own handwriting would require him to use his intelligence or use
during such robbery a shoe was left, a size 10 shoe. So that was of his brain.
one of the exhibits presented by the prosecution during trial and
the accused was asked to fit the shoe. If the shoe fits, convict. If So it would go with an act that an accused is required to… by the
the shoe does not fit, acquit. The claim of self-incrimination was police officers to reenact a crime. In reenactment, if the person is
not allowed because it is a purely mechanical act to fit the shoe. compelled, again there must be compulsion, to reenact a crime
then it may be covered by the privilege because the accused will
In the O.J. Simpson case as I mentioned last night, if you were have the right to refuse to answer the question requiring him to
familiar with that, one of the defense evidence was to let O.J. fit reenact the commission of the offense. Because if he really did
the leather glove; one piece of those gloves was left and was the act or crime, that he would have to recall what he had done
soaked in blood. So to make the presentation more dramatic, the with the use of his intelligence or his brain or his mind and it is
defense presented that and asked Mr. OJ Simpson to fit the not a purely mechanical act.
glove. And they used it in the closing argument because the
glove did not fit. Of course because it was leather, it was soaked The problem however with this privilege against self-incrimination
in blood and kept in the laboratory by the custodian. And if you although it is applicable to any person, in any proceedings
know when a leather is soaked in a liquid like blood, it will regardless of whether it is civil or criminal or administrative,
necessarily shrink and at that time OJ’s left hand— I think— just whether the person is the accused or party defendant maybe or
like Michael Jackson’s, was surprisingly bloated on that day. an ordinary witness is that this right is waivable immediately upon
Conveniently his hand was big enough. It was made bigger. And the fact that the question is answered. Unlike in say, rights under
then in the closing argument, the defense lead counsel said “If investigation even if you answered right then and there, even if
the glove did not fit, you must acquit.” And so they did. What you said I do not need a lawyer, but if such waiver is not valid in
would these ordinary laymen know about the leather glove being law you can still ask for its exclusion when it is presented in
soaked in blood? They would never, not that they would never, evidence.
they would not necessarily know that. So these are the
mechanical acts which are not covered by the privilege. But in the privilege against self-incrimination, to refuse to answer
under a claim of the privilege of an incriminating question, it must
However, today, there is some sort of a change in the strict have to be raised before the question is answered. Once the
application because of development in jurisprudence that to question is answered, it is automatically. You can not say Oopps!
Mali ako. Can I have it stricken off the record? In fact it can not violated in order not to put him in jeopardy or be penalized for
be done because you must have to claim it before it is answered. such compulsory admission or confession which he cannot
escape by reason of being invoked that would always or usually
That is why we said the difference between the privilege and the would grant that person some form of immunity from prosecution
right under Section 12 is that, in Section 12 you can have it either under the innocent rule or transactional rule.
excluded later. And in Section 17 you can not. You must refuse
to answer by claiming the privilege. Also in section 12, if there is The most common of TRANSACTIONAL IMMUNITY is that
a lawyer assisting you, the lawyer may very well that if it is the there is an agreement between that person and the investigating
investigation is conducted he may very well protect your rights by body or person that any testimony will be provided for the crime
preventing you from answering the question because there is a under investigation cannot be used against him. So there is an
lawyer assisting the confessant during an investigation. agreement. The most common of which is when the person of
the accused is discharged as a state witness. When can an
But in section 17, let us say, as made mention yesterday, if you accused be discharged as a state witness under our rules of
were to make an investigation in the company level and the court?
employee was not assisted by a counsel, he may not know of his
privilege against self-incrimination. He may be answering these There are several accused and he (one of them) does not appear
questions subjecting himself not only by answering administrative to be the most guilty; there is no other direct testimony that may
liability on account of his employment or by violation of company be utilized by the prosecution to prove the guilt of the accused.
rules and policy but he may open himself up to a criminal liability. And there is the requirement that the testimony of the State
Witness can be corroborated by other witness on certain material
So, for example, a cashier in a private company has been point. It is also required under the Rules of Court that the state
charged administratively of a violation of a fact that he has taken witness must have to execute an affidavit which would contain
some money she has received in trust for the company and this his testimony for which he must actually testify. If he does not
was for cashier’s violation of company’s rules and violation testify on that then it is not. If he refuses to testify based on the
against taking company property and when it is considering it terms of the discharge, the discharge will not be valid; he can still
may result to dismissal even if it were committed as a first be prosecuted and the transactional immunity cannot be claimed.
offense based on company’s rules. There are situations wherein the State Witness is discharged
only and eventually the prosecution may think that they may no
Now if the cashier answers that question: “did you take that? longer need the testimony of the State Witness. So if it was not
Yes. Do you admit how much money? Yes. And used it for your his fault that he was not able to testify, then, the transaction may
own benefit?” The cashier may not only be liable administratively, still be valid and the immunity still stands. But if the failure is
the cashier can be dismissed from employment and he can also based on his refusal, then, the transaction will be invalidated and
be subjected to a criminal liability. And the claim that he was not the discharge will not be applied.
afforded his Miranda warnings during that administrative
investigation will not prevent the filing of the criminal case nor the NOTE: The USE and FRUITS IMMUNITY, as the term suggests,
admission of his testimony during that administrative proceeding would simply exempt that person investigated, and who has been
because he was not actually investigated for a commission of an compelled to give incriminating answers, from the use of his
offense but for a commission of an act in violation of a company testimony and the fruits of his testimony against him. Meaning, if
rule. there are still other evidence which could be used to prove his
guilt, then, he may still be prosecuted and will not exempt him
from prosecution. The State will use other evidence that are
IMMUNITIES outside of what he has provided for the fruits of his testimony of
which he has been compelled to provide.
The final item would be the so-called immunities. In your outline,
there are two immunities stated. They are USE IMMUNITY and RIGHT TO SPEEDY DISPOSITION OF CASES
TRANSACTIONAL IMMUNITY. There are situations where a
person maybe compelled to testify and by reason of his In relation to your periods of deciding cases not only for the
compulsion to testify, his right against self-incrimination maybe Courts, but as well as for the administrative agencies. Now,
under the Rules of Court, how long in time is given to the the time prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.
investigating prosecutor to resolve cases filed in the prosecution
office and under preliminary investigation. How long? 30 days?
From the time the case is needed for resolution. It is clear under the foregoing provision that a criminal case may be
dismissed by the CA motu proprio and with notice to the appellant
if the latter fails to file his brief within the prescribed time. The
In Article 7, Section 18, if the Supreme Court hears a petition for phrase "with notice to the appellant" means that a notice must first
the questions on the sufficiency of factual basis for the be furnished the appellant to show cause why his appeal should
declaration of Martial Law or for the suspension of the privilege of not be dismissed.13
the writ of habeas corpus. How many days does the Supreme
Court have to decide the petition? 30 days from the filing of the In the case at bar, there is no showing that petitioner was served
with a notice requiring him to show cause why his appeal should
petition. And not from the time the case is submitted for decision. not be dismissed for failure to file appellant’s brief. The purpose of
such a notice is to give an appellant the opportunity to state the
And under Article 8, Section 15, there are several periods for the reasons, if any, why the appeal should not be dismissed because
Supreme Court, how long? 24 months. For the lower collegiate of such failure, in order that the appellate court may determine
whether or not the reasons, if given, are satisfactory.
courts, 12 months. For the Lower courts, 3 months from the time
the cases are submitted for resolution or decision.
Notwithstanding such absence of notice to the appellant, no grave
abuse of discretion was committed by the CA in considering the
We have learned that this period in the Constitution for the Court appeal abandoned with the failure of petitioner to file his appeal
to decide or issue a decision is considered mandatory with brief despite four (4) extensions granted to him and non-
respect to the judges or the justices to promulgate their decision; compliance to date. Dismissal of appeal by the appellate court
sans notice to the accused for failure to prosecute by itself is not
but are considered directory when it refers to the validity of the an indication of grave abuse. Thus, although it does not appear
decision, meaning, decisions rendered outside of these that the appellate court has given the appellant such notice before
mandatory periods do not make these decisions invalid. dismissing the appeal, if the appellant has filed a motion for
Nonetheless, they are mandatory against the judges or justices reconsideration of, or to set aside, the order dismissing the appeal,
in which he stated the reasons why he failed to file his brief on time
concerned. If they fail to comply with these periods, they shall be and the appellate court denied the motion after considering said
subjected to some form of administrative liability, from reprimand reasons, the dismissal was held proper. Likewise, where the
up to fines. You have come across several cases where the appeal was dismissed without prior notice, but the appellant took
judges are fined for failing to resolve the cases within the said no steps either by himself or through counsel to have the appeal
reinstated, such an attitude of indifference and inaction amounts to
mandated periods. his abandonment and renunciation of the right granted to him by
law to prosecute his appeal.
Now, you will notice in your outline, this case of DIMARUCUT
VERSUS PEOPLE OF THE PHILIPPINES. There was an Here, the Court notes the repeated non-observance by petitioner
abandonment of an appeal. The court still applied the rule on and his counsel of the reglementary periods for filing motions and
speedy disposition of justice even if the appeal had been perfecting appeal. While still at the trial stage, petitioner’s motion to
admit and demurrer to evidence was denied as it was not
abandoned. The court still resolved it, dismissed it, on seasonably filed (petitioner was granted fifteen (15) days from
consideration that there is still this right to speedy disposition of August 8, 2001 within which to file demurrer to evidence but filed
cases. his motion to dismiss only on September 4, 2001), in accordance
with Section 23, Rule 119 of the Revised Rules of Criminal
Procedure, as amended. Before the CA, petitioner and his counsel
DIMARUCOT vs. PEOPLE OF THE PHILIPPINES
filed no less than four (4) motions for extension to file brief, which
630 SCRA 456
was never filed nor attached in the motion for reconsideration of
the August 29, 2007 Resolution dismissing the appeal. The last
Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal extension given expired on June 6, 2007, without any brief
Procedure, as amended, provides: submitted by petitioner or his counsel. And even when he filed the
Omnibus Motion on May 8, 2008, still no appellant’s brief was
attached by petitioner. Neither did petitioner file any petition before
SEC. 8. Dismissal of appeal for abandonment or failure to
this Court questioning the validity of the August 29, 2007 resolution
prosecute. – The Court of Appeals may, upon motion of the
and the November 27, 2007 denial of his motion for
appellee or motu proprio and with notice to the appellant in either
reconsideration. The dismissal of his appeal having become final, it
case, dismiss the appeal if the appellant fails to file his brief within
was indeed too late in the day for petitioner to file the Omnibus

Motion on May 8, 2008, which was four (4) months after the finality The Constitution mandates that all cases or matters filed before all
of the resolution dismissing the appeal. lower courts shall be decided or resolved within 90 days from the
time the case is submitted for decision. Judges are enjoined to
Having been afforded the opportunity to seek reconsideration and dispose of the court’s business promptly and expeditiously and to
setting aside of the motu proprio dismissal by the CA of his appeal decide cases within the period fixed by law. Failure to comply with
for non-filing of the appeal brief, and with his subsequent inaction the mandated period constitutes a serious violation of the
to have his appeal reinstated after the denial of his motion for constitutional right of the parties to a speedy disposition of their
reconsideration, petitioner cannot impute error or grave abuse on cases – a lapse that undermines the people’s faith and confidence
the CA in upholding the finality of its dismissal order. Non- in the judiciary, lowers its standards and brings it to disrepute. This
compliance with the requirement of notice or show cause order constitutional policy is reiterated in Rule 3.05, Canon 3 of the Code
before the motu proprio dismissal under Section 8, paragraph 1 of of Judicial Conduct which requires a judge to dispose of the court’s
Rule 124 had thereby been cured. Under the circumstances, the business promptly and decide cases within the required periods.
petitioner was properly declared to have abandoned his appeal for
failing to diligently prosecute the same. In the present case, the subject cases had been submitted for
decision since October 12, 2005. As correctly pointed out by the
OCA, while the respondent judge attributed his failure to render a
decision to the heavy caseload in his sala, he did not ask for an
In this case of ANGELES VERSUS SEMPIO-DIY, the court here extension of time to decide the cases. This failure to decide within
also asked for several extensions because a Motion for the required period, given that he could have asked for an
extension, is inexcusable; it constitutes neglect of duty as well as
Reconsideration was not resolved within a period of six months. gross inefficiency that collectively warrant administrative sanction.
However, the Supreme Court admonished the judge’s concern
even if there were several extensions sought; the Court said that
the judge must still resolve such motion within a reasonable time
limit, 3 months. Unlike speedy trial, if there is a valid claim and the grant is also
valid and justified, it will be put to a stop to the criminal
A.M. No. RTJ-10-2248 September 29, 2010
prosecution. It means that the Court will grant the right of the
JUDGE ADORACION G. ANGELES vs. accused to speedy trial, will dismiss the case, and the dismissal
JUDGE MARIA ELISA SEMPIO DIY is always with prejudice. It would be considered as an
adjudication of the merits, and the accused is thereby freed. But
It appears that respondent has simply forgotten about the pending
motion for reconsideration in Criminal Case Nos. Q-95-61294 and
if all the evidences are in, the trial has already been terminated
Q-95-62690 after said cases became inactive due to the failure of and the only reason why there is no disposition yet is because
the defense to submit its reply. The realization of the blunder came the court has failed to resolve the case by failing to render a
only during the semi-annual inventory of the court’s cases. This decision or failing in to render a resolution on the motion for
situation could have been avoided had respondent adopted an
effective system of record management and organization of
reconsideration on account of a motion for reconsideration filed.
dockets to monitor the flow of cases for prompt and efficient This will not mean that if the right to speedy disposition of cases
dispatch of the court’s business. Elementary court management is claimed that that court will consider the case dismissed.
practice requires her to keep her own records or notes of cases
pending before her sala, especially those that are pending for more
than 90 days, so that she can act on them promptly and without
The only situation, as you may have noticed in all these cases on
delay. the speedy disposition of the cases you may have read, that will
result in the dismissal of the charges is when it is still on
The case of RAYMUNDO VERSUS ANDOY… the Summary reinvestigation stage.
Rules, BP 22 Case… the case was submitted for decision on
October 19, 2005 and a Motion for Reconsideration was filed on Take for example the old case of TATAD VERSUS
2006. The judge despite two motions to render judgment failed to SANDIGANBAYAN. When Tatad was investigated it took eleven
render a decision or resolution on the motion for reconsideration years for the investigation to be completed. And so when Tatad
after 3 years. The judge here was fined Php 20,000.00. asked for dismissal, the Sandiganbayan refused. However, the
Supreme Court granted the petition, and it caused the dismissal
A.M. No. MTJ-09-1738 October 6, 2010 of the case because there is no justifiable reason why the
(Formerly OCA I.P.I. No. 08-2033-MTJ) investigation by the investigating officer would determine whether
CIRILA S. RAYMUNDO
there is probable cause or well founded belief to charge
vs.
JUDGE TERESITO A. ANDOY

respondent in court. This is not a full-blown trial on the merits the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the
where the guilt or innocence of the accused is determined.
resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law.
So if there is such delay, again, the Supreme Court has used the Not only under the broad umbrella of the due process clause, but
FOUR FOLD FACTORS: the length of the delay in disposing the under the constitutional guarantee of "speedy disposition" of cases
case; the reason for such delay in disposing the case; the fact as embodied in Section 16 of the Bill of Rights (both in the 1973
and the 1987 Constitutions), the inordinate delay is violative of the
that the respondent has claimed or not claimed his right to petitioner's constitutional rights. A delay of close to three (3) years
speedy disposition of cases, and the prejudice that is caused by can not be deemed reasonable or justifiable in the light of the
the delay on the person of the respondent. The Supreme Court circumstance obtaining in the case at bar. We are not impressed
has applied the FOUR FOLD FACTORS to balance if whether by the attempt of the Sandiganbayan to sanitize the long delay by
indulging in the speculative assumption that "the delay may be due
the State has still the right to prosecute upon finding probable to a painstaking and gruelling scrutiny by the Tanodbayan as to
cause or should the accused be freed from the anxiety of criminal whether the evidence presented during the preliminary
prosecution despite the lapse and delay in resolving whether or investigation merited prosecution of a former high ranking
not there is probable cause to charge him in court. Again, when government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected.
there is already full presentation of evidence, the clam for speedy Secondly, three out of the five charges against the petitioner were
disposition of cases will not be resolved for dismissal. But if there for his alleged failure to file his sworn statement of assets and
is yet to be a formal charge or information in court, the delay will liabilities required by Republic Act No. 3019, which certainly did not
be or within the stage of the investigation level then the court involve complicated legal and factual issues necessitating such
"painstaking and gruelling scrutiny" as would justify a delay of
may grant the right to resolve the claim for speedy disposition of almost three years in terminating the preliminary investigation. The
cases which eventually dismiss the case. This must have to be other two charges relating to alleged bribery and alleged giving of
related to the provisional dismissal of cases, which we shall be unwarranted benefits to a relative, while presenting more
taking up later, based on double jeopardy. The same principle substantial legal and factual issues, certainly do not warrant or
justify the period of three years, which it took the Tanodbayan to
must still be applied in provisional dismissal. You remember this resolve the case.
TIME BAR RULE, right? The one year period. Does that change
the substantive law on presentation of offenses? The answer is
no. But under the TIME BAR RULE, the principle is that, if there !&
is failure to prosecute within that one or two years, there is a
disputable presumption that the State could no longer prove this
case and it therefore waived to prosecute the offender. The KINTANAR, LOVELY
rationale behind the TIME BAR RULE is the same with LIMBO-CABUHAT, VERNA
disposition of cases when the case is still under investigation. If
DINIAY, DONNI
indeed, there is a prima facie case or probable cause and well-
founded belief to charge accused in court, why take so long? It
does not need a full-blown trial on the merits. But the
investigating officer has to read and compare the complaint,
counter-affidavits and other pleadings. If there is so much
unjustified delay, then there is that presumption that the State You can only become truly accomplished at something you
waived its right to prosecute; and therefore it dismissed the love. Don’t make money your goal. Instead pursue the
criminal charges, and not the information itself as there is yet to things you love doing and then do them so well that people
be one. can’t take their eyes off of you.”
― Maya Angelou
G.R. No. 72335-39 March 21, 1988

FRANCISCO S. TATAD vs. SANDIGANBAYAN
“...kapag binisita ka ng idea, gana o inspirasyon,
We find the long delay in the termination of the preliminary
investigation by the Tanodbayan in the instant case to be violative kailangan mong itigil LAHAT ng ginagawa mo para
of the constitutional right of the accused to due process. lang di masayang ang pagkakataon. Walang “sandali
Substantial adherence to the requirements of the law governing lang” o “teka muna”. Dahil pag lumagpas ang
maikling panahong yon, kahit mag-umpog ka ng ulo

sa pader mahihirapan ka nang maghabol.”
― Bob Ong, Stainless Longganisa

would show that the penalty imposable under the said law was
The future belongs to those who believe in the placed there to compel, to make good the payment of the check,
beauty of their dreams. the check being paid for an outstanding obligation. The fact that
Eleanor Roosevelt the issuance of check was attended by fraud takes it away from
the protection of non-payment or non-imprisonment for non-
payment of civil debts and obligations because that would
August 30, 2012 substantively change the nature of the violation of a mere civil
obligation to one which would be criminal in character. As have
SUBSTANTIVE RIGHTS UNDER THE DUE been discussed therein the Supreme Court said that the
PROCESS CLAUSE gravamen of the offense is the introduction into the economy or
in circulation checks which are valueless or which would bounce
A. What acts cannot be criminalized or without which could not have been cashed upon presentment
or when it is presented for payment when it is due and
demandable. So it is not simply by reason of non-payment of a
Section 18.
No person shall be detained solely by reason of his political debt.
beliefs and aspirations. Lozano vs. Martinez (Dec. 18, 1986)
Mere beliefs and aspirations under Sec. 18 (1)… this is part of Facts: A motion to quash the charge against the petitioners for
freedom of political beliefs. This is actually a part of the general violation of the BP 22 was made, contending that no offense was
committed, as the statute is unconstitutional. Such motion was
discussion of due process as well as on the free speech and denied by the RTC. The petitioners thus elevate the case to the
expression. In relation to free speech on the so called freedom of Supreme Court for relief. The Solicitor General, commented that it
thought or freedom of thoughts, for so long as it remains in the was premature for the accused to elevate to the Supreme Court
realm of thought, no person should be penalized for such mere the orders denying their motions to quash. However, the Supreme
Court finds it justifiable to intervene for the review of lower court's
beliefs and aspirations. As we all know, once the thoughts are denial of a motion to quash.
converted into overt acts, these overt acts may be subjected to
reasonable regulations. Issue: Whether BP 22 transgresses the constitutional inhibition
against imprisonment for debt.
Non-imprisonment for non-payment of debts and other civil Held: The offense punished by BP 22 is the act of making and
obligations under Sec. 20 issuing a worthless check or a check that is dishonored upon its
presentation for payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or designed to
Section 20. No person shall be imprisoned for debt or non- coerce a debtor to pay his debt. The thrust of the law is to prohibit,
payment of a poll tax. under pain of penal sanctions, the making of worthless checks and
putting them in circulation.
This is largely traceable to the age of slavery in the US take note of the term - contractual debts
experience because the prohibition is based on coercive So is the same reason for the subsidiary imprisonment for non-
payment or non-payment of debt, either by cancellation of the payment of a fine. Under the Revised Penal Code the judgment
debtor or his being taken as a slave for failing to pay an honest imposed of penalizing the accused to pay a fine and if such fine
debt. It must be remembered however with respect to debts and may not be paid, subsidiary imprisonment may be imposed. That
civil obligations that the liability to pay the money or debt must be is not a violation of this Section 20 because the payment of a fine
one arising from contract which must constitute a debt, whether is not a payment of a contractual debt. It is supposed to be a
express or implied. And that payment or the act of compelling form of a penalty which if not paid can make the accused convict
payment must have to be by reason of a valid contract and not subjected to subsidiary imprisonment.
one which may have been entered through fraud or
misrepresentation. Acts which when done were innocent this discusses the
concept of ex post facto laws as well as bill of attainder
So this old case of Lozano vs. Martinez with respect to the under Section 22.
constitutionality of Batas Pambansa Bilang 22 while ostensibly it
Section 22. No ex post facto law or bill of attainder shall be Section 18.
enacted. xxx
No involuntary servitude in any form shall exist except as a
A bill of attainder technically involves a law which makes a punishment for a crime whereof the party shall have been duly
person liable for the crime defined therein without the need of a convicted.
judicial trial. Technically by history it is supposed to impose the
capital penalty. If it is less than the capital penalty it is supposed The first there is under Section 18 (2) that would be involuntary
to be called bills of pains and penalties not bills of attainder. But servitude. We all understand that involuntary servitude is allowed
in our jurisdiction there is not much distinction between the only when it is so provided for in the Constitution or by law. And
penalties imposable without need of judicial trial. If there is such these would cover only involuntary servitude based upon a lawful
a law it will be considered as a bill of attainder. order of the court. The other is when there is involuntary
servitude in the sense or in the form of compulsory military or civil
To distinguish it from the ex post facto law, a bill of attainder is training with respect to defense of the State. When we discussed
always ex post facto, meaning it is always applied retroactively the freedom of religion we discussed that matter of conscientious
to cover acts which when done were not supposed to be criminal objector, a person by reason of his freedom of conscience or
or punishable. Conversely however, not all ex post facto laws are thought or religion may object to such form of compulsory military
considered bill of attainders because the 6 most common listed service because this is disallowed by his religion. But
forms of ex post facto laws are not necessarily bill of attainders nonetheless that is a form of an involuntary service that the
because they do not impose a penalty without a judicial trial. Constitution would allow.
The 6 common instances of ex post facto laws are: Now similar with non-imprisonment for non-payment of debt, this
1. It criminalizes an act which when done was innocent; involuntary servitude was based on the anti-slavery provision in
2. It aggravates a crime; the American Constitution under its Thirteenth Amendment. The
3. It changes a penalty of a crime and increases it; 13th Amendment of the US Constitution prohibits or punished
4. One which alters legal rules of evidence requiring less acts of slavery. This technically ended the slavery period as
for conviction; practiced in the American jurisdiction. However when as mention
5. One which assumes civil rights or remedies but in if it is by reason of punishment for a crime upon a lawful order of
effect penalizes an innocent man; and the court where the accused has been duly convicted there may
6. Deprivation of some lawful protection such as former be a form of involuntary servitude. And when one is under
conviction, acquittal or amnesty. detention to serve the sentence this form of forced labor, the
chained gangs during the days of slavery have been reaming as
Now these 6 situations or instances must have to be applied rehabilitation. So when prisoners are compelled to perform work,
retroactively. Because if there is prospective application as it is they are not actually forced to work but are actually rehabilitated.
always presumed when there is a criminal statute passed by This is part of their rehabilitation in order to make them ready for
Congress, then this is not considered as ex post facto law their future reintegration into the society.
because the covered subjects or persons targeted by the law can
avoid being penalized under a new law which is applied Now the early cases on domestic service which are the usual
prospectively by refusing to commit the act or by non- form of involuntary servitude are before the enactment of the
performance of the act or omission covered by the said new law. Labor Code and its amendment particularly on the rights and
What makes it ex post facto in any of the 6 circumstances is benefits or privileges of helpers or house helpers. The common
when the law is applied retroactively and therefore there is no practice is that these house helpers if they would still have some
escape from liability from the targeted class of persons or debt from their employers they are made to work continuously
requirements. until their debts are paid. Under the Labor Code now as
amended in relation to the rights of house helpers that are not
What punishments cannot be imposed? supposed to be allowable. If the employer still has money claim
against the house helper or employee then the employee cannot
INVOLUNTARY SERVITUDE be forced to continue working because that is a form of
involuntary servitude.
special consideration for imposing the fine which will make it

EXCESSIVE FINES, CRUEL, DEGRADING AND grossly disproportionate to the offense having been committed
INHUMAN PUNISHMENTS and to the penalty to be imposed for that particular offense.
Section 19. The cruel, degrading and inhuman punishment refers to the form
1. Excessive fines shall not be imposed, nor cruel, or character of the penalty or how it is implemented rather than
degrading or inhuman punishment inflicted. Neither shall death the severity of the penalty. Acceptable in our jurisdiction would be
penalty be imposed, unless, for compelling reasons involving incarceration for certain periods as well as the capital penalty of
heinous crimes, the Congress hereafter provides for it. Any death death. Those per se are acceptable forms of penalties. But as to
penalty already imposed shall be reduced to reclusion perpetua. the character of form of that penalty or as to how the penalty is
implemented may make the penalty cruel, inhuman or degrading.
Now the form of punishments to make them excessive, cruel, Death now in the Philippines at least per law which has been
degrading or inhuman is not the type, kind of imposable suspended will be implemented by lethal injection. In some states
punishment which makes it excessive, cruel, degrading or in the US they still have this death penalty and most are by lethal
inhuman. There are acceptable forms of penalties like death for injection. I don’t think in China they have lethal injection, they
example. Death per se is not supposed to be cruel, degrading or have firing squad. You have to pay for the cost of the bullet that
inhuman. Or it should refer to a fine just because the fine is of is to be placed at the back of your head. So for them it is not
such amount that it should be considered to be per se as cruel, degrading or inhuman. And it is largely based on societies
excessive. With respect to the imposition of the fine, what makes and for those who probably would not believe in the propriety of
it excessive is when the penalty of fine must be flagrantly or the imposition of death penalty, death for them per se is not
grossly disproportionate to the offense no matter under what acceptable, it is cruel, degrading and inhuman. But there is a
circumstance the offense may be committed. debate whether death per se or it is the manner that death
penalty is supposed to be imposed.
Differently stated, if there is no public interest consideration in the
imposition of the fine and therefore the imposed fine or the fine In one case the Supreme Court said that if it is supposed to be
as imposed by law which may be imposed by the court is so considered cruel, degrading and inhuman, it must be one that
grossly disproportionate then the fine maybe excessive. But by involves torture, lingering death or something barbaric or
reason of certain considerations of public interest, more common barbarous. It is the severity with respect to the implementation of
example would be price control laws or for example special the penalty imposed. Imprisonment, we have accepted it that
protection for special kinds of people like special protection to there are ranges, and there is a range that even what we know
children under Republic Act 7610. You may have noticed that in as reclusion perpetua. How long is reclusion perpetua? Better
7610 the imposed penalties of incarceration as well as fines are than cadena perpetua which we know as marriage. ☺
so much increased. Even the recommendation for bail, places
7610 under heinous offenses, where the normal PROTECTION AGAINST DOUBLE JEOPARDY
recommendations with the Department of Justice is P1,000 for
every year of imprisonment has been provided for by law, in 7610 Section 21. No person shall be twice put in jeopardy of
places it under heinous offenses the recommended bail is punishment for the same offense. If an act is punished by a law
normally placed at P10,000.00 for every year of service. So for and an ordinance, conviction or acquittal under either shall
slapping a child which is supposed to be slight physical injuries constitute a bar to another prosecution for the same act.
where there may be no warrant of arrest issued, if it is under
7610 it becomes a minimum of prision mayor. That is a special There are two basic situations contemplated, the same act and
law because of the intent of Congress to protect special, in this the same offense. The same act rule or the same offense rule
case children. So absent any of these special circumstances are the two situations contemplated under Section 21. The same
affecting the imposition of a fine that it will be greatly act, which is the 2nd sentence actually, when an act is punished
disproportionate and in the language in another case it is by a statute and an ordinance, the prosecution, conviction or
“flagrantly and plainly oppressive that shocks the moral senses of acquittal in one constitutes a bar to another prosecution. This is
the community”, then it will be considered as excessive. Again it to prevent from being harassed or punished twice for the same
is not the value as imposed but it should be based on lack of any act. It’s easy to understand, one act is punished by a national law
or statute and the other is by a local ordinance. So that if one is valid indictment in a court with competent jurisdiction with the
prosecuted, convicted or acquitted in one, in either the law or the case has been dismissed without the express consent of the
ordinance, then that person may no longer be charged again for accused or that the accused have been convicted or acquitted.
the same act in relation to the other. This has been provided as And then the second requisite would be that the accused is
the second situation contemplated in the double jeopardy rule charge for the same offense.
because the original context of the double jeopardy protection
only covers the same offense rule. Under the same offense rule, When we say that there is a court of competent jurisdiction,
if a person is charged before a statute in an ordinance it could obviously the simplest test there is on the penalty ranges. But
never fall under the same offense rule because both laws are not because of the Supreme Court circulars on other special courts,
enacted by the same legislative body. One is by a local council there are some cases which would discuss that if this should
and the other is by a statue and normally they do not have the have been tried in a special court, even in the same RTC that
same elements or one is not necessarily included in the other or court which is not designated as a special court where that case
vice versa and therefore there could be no protection from being or information should have been filed would be considered that
prosecuted twice for the same act. Now that has been added on the court has no jurisdiction, so the first jeopardy will never
again as part of the double jeopardy protection. attach. So, again while ordinarily the penalty range is
determinative of whether the court has jurisdiction or not, there
Now with respect to the same offense rule, an act must be are special instances by reason of Supreme Court circulars in
punished by the same statute or of different statutes but are relation to existing laws that special courts re designated to
considered of the same offense. Of the same statutes or of handle special kinds of cases.
different statutes but they are considered to be falling under the
term same offense. The reason for this is to prevent from being When is information considered sufficient in form and substance?
harassed or punished twice for the same offense not for the If just like in your Criminal Procedure the information is sufficient
same act. Now invariably you have come across a lot of cases to convict the accused. Meaning there is at least a prima facie
involving double jeopardy and the requisites of double jeopardy recitation of facts in the information which is sufficient to afford a
would range from 3 to 5 to 6, depending on the decision of the conviction. So that if conversely the information is totally
Supreme Court. But to put in simpler terms, the requisites of defective in form and substance even if the accused pleads guilty
double jeopardy are as simple as: thereto, the accused cannot be convicted of any crime simply
1. The first jeopardy must have attached; and because the information charges no offense.
2. The accused is charged for the same offense.
Now, with respect to the case being dismissed without the
Those are the simplest requisites of when the double jeopardy expressed consent of the accused, that would accept of two
protection would be claimable. The first jeopardy has attached exceptions.
and he is charged again for the same offense. But when should
the first jeopardy attach? This is when the decisions of the The first would be when the accused invokes his right to speedy
Supreme Court would put on all those 5 or 6 conditions as trial. Of course when the accused files a motion to dismiss
depending on who wrote the decision. So, invoking his right to speedy trial that is with his consent. But
1. there must have to be a court of competent jurisdiction; nevertheless because we all know that the court grants the
2. that there is a valid information sufficient in form and dismissal because of the valid claim of right to speedy trial, it is
substance; considered an adjudication on the merits, the accused is
3. that the accused must have been validly arraigned; – considered acquitted and first jeopardy will attach.
meaning there is a valid entry of plea
4. that the case has been terminated, dismissed or the The second situation is when the accused files a demurrer to
accused have been convicted or acquitted; (and then evidence. We all know that after the presentation of the
they put on the next) prosecution’s evidence, the accused may ask within five days
5. that the accused is charged for the same offense therefrom motion for leave to review to evidence and file
thereafter within ten days from the grant the demurrer to
But if we try to look into when is it considered that the first evidence, simply asking the court that based on the prosecution’s
jeopardy have attached, it simply would require that there is a evidence, the evidence cannot be sufficient to prove his guilt
beyond reasonable doubt. If the court grants it even if the

dismissal is sought by the accused, it is considered an Now the exceptions to the application of the claim of double
adjudication on the merits, the accused considered acquitted and jeopardy:
therefore first jeopardy will attach. 1. Supervening fact. In the supervening fact, it
presupposes that the graver offense was or has developed as a
When the second offense is filed, when is it considered that it is supervening fact after the first jeopardy had attached. Now there
filed for the same offense? are three cases here in your outline: Melo vs. People, People vs.
One, it is literally for the same offense. City Court and People vs. Yorac.
The second case is literally the same as that of the first. When
the second case is an attempt of the crime subject of the first In this case of Melo vs. People, it involved the supervening fact
case. doctrine. So for example the accused was charged with
Third, when the second case is a frustration of the crime subject attempted homicide, he immediately pleaded guilty but the victim
of the first case. was not yet discharged from the hospital, even if the accused has
Next, when the second offense is necessarily included in the already pleaded guilty and thereafter died of the same injuries he
crime subject of the first offense. So necessarily included, sustained which was then present when the accused was
meaning all of the elements in the second case constitutes some charged and was convicted of attempted homicide. Will the case
of the elements of the first case. for consummated homicide now be allowable or would it be
barred by reason of double jeopardy protection? The answer is it
Good example would be second case is homicide, first case is should be allowed because of the concept or the doctrine of
murder. And conversely if the second offense necessarily supervening fact.
includes that of the first case. Some of the elements in the
second case constitute all of the elements of the first case. MELO VS. PEOPLE
The rule of identity does not apply when the

And under the Rules of Court, when there is a valid plea of second offense was not in existence at the time of the first
guilty to a lesser offense. Under the present rules now, the plea prosecution, for the simple reason that in such case, there is no
of guilt to a lesser offense is subject to two conditions: possibility for the accused, during the first prosecution, to be
1. There must have to be the express consent of the convicted for an offense that was then inexistent. Thus, where the
accused was charged with physical injuries and after conviction,
private offended party and of the prosecutor. That of the private the injured person dies, the charged for homicide against the same
offended party can be dispensed with if that private offended accused does not put him twice in jeopardy.
party fails to appear during the pre-trial but generally, his consent
must have to be sought also when there is a plea of guilt to a
lesser offense. In a later case, the SC, the case of People vs. Yorac, the SC did
2. The second requisite which is the more important not apply the supervening fact doctrine because the victim was
requisite is that the lesser offense must necessarily be connected mauled and he was hit in different parts of his body including his
or included in the offense charged. Prior to this amendment in the head but the initial medical examination showed that his injuries
Rules of Criminal Procedure, you can plead guilty to any lower will heal or there is only a 10-day period for him to heal or to be
offense. There is no requirement that the lower offense must be out of his regular confinement(?) for which he was only charged
included in the original offense as charged. So you were charged with slight physical injuries. Not more than 10 days, slight
before with say rape, you can plead guilty to the felony of physical injuries. The accused upon arraignment has pleaded
trespass to dwelling or illegal whatever. Now it must necessarily guilty and was sentenced accordingly. However, when the victim
be included in the offense charged. was still in the hospital had undergone another medical
examination. And found that under the second medical
So if you are charged say of murder, can you plead guilty to a examination that the victim was actually suffering from or has
lesser offense of physical injuries? So the question is is physical suffered from severe head concussion which if not attended may
injuries necessarily included in murder? Is it? Pitik nimo ang result to his death. There was actually a crack which was not
mata, naigo, nilakay, naa may lansang, homicide. Okay, for so seen before when he underwent his first medical examination. So
long as the lesser offense is necessarily included in the original they filed this time another case for frustrated murder and the SC
offense as charged then you can.
said that this is not a supervening fact. The injury was there for which reason we are constrained to apply the general rule of
before, however, it was not discovered and so the double jeopardy.”
Motions for reconsiderations or appeals. Generally, if there is an

2. Second exception now has been provided for by the
acquittal, there is no motion for reconsideration or appeal
rules, the facts constituting the graver offense became known or
allowed. Well there is always an exception from that general rule,
were discovered only after the filing of the former information.
if there is a denial of due process on the part of the State. When
the State is precluded by reason of grave abuse of discretion
I think that they put it in a very simple term that there is a filing of
from publicly trying the accused in proving his guilt, the trial court
a former information. It should have been that after the first
supposed to be ousted of its jurisdiction. And the people or
jeopardy could have attached. Filing an information and there
prosecution may therefore seek a review of the dismissal order or
must have to be arraignment at least of the accused. At the very
acquittal order by the trial court.
least. Just the same when it could not be a supervening fact, the
fact constituting graver offense was discovered or was made
There is one case here in your outline, the case of Flores vs.
known to him only after the first information.
Montemayor. This case involves a BIR Regional Director in
Region IV who was charged with the Presidential Anti-Graft
3. When there is an invalid plea of guilt to a lesser
Commission (PAGC) for failing to include in his SALN 3 motor
offense.
vehicles (an Expedition, Land Cruiser and a Galant) and so he
PEOPLE VS. YORAC (1971)
was charged administratively in the PAGC and the PAGC
recommended to the Office of the President that he be removed
Rodrigo Yorac was prosecuted for frustrated murder arising from service. Before the Office of the President was able to
allegedly from having assaulted, attacked, and hit with a piece of promulgate its decision, another complaint was filed before the
wood the offended party, for which he had been previously tried
and sentenced for slight physical injuries, his plea being one of
Office of the Ombudsman for administrative liability as well as
guilt. The later information for frustrated murder was based on a criminal liability for unexplained wealth. Now, we all know that the
second medical certificate after the lapse of one week from the Office of the Ombudsman under RA 6770 has two primary
former previously given by the same physician who, apparently, functions with respect to malfeasance, misfeasance,
was much more thorough the second time, to the effect that the
victim did suffer a greater injury than was at first ascertained. The
nonfeasance or other feasances like other public officers and
lower court, considering that there was no, supervening fact that employees and administratively, they can hear, try, and impose
would negate the defense of double jeopardy, sustained the administrative liabilities and penalties but with respect to criminal
motion to quash. liability, they can only conduct preliminary investigation. They
Issue: Whether the defendant, who had already been convicted of
could not impose any penalties.
slight physical injuries before the City Court of Bacolod for injuries
inflicted upon Lam Hock, and had served sentence therefore, may Side story about a lawyer applying with the Office of the
be prosecuted anew for frustrated murder for the same act Ombudsman and he was asked to decide a criminal case. He
committed against the same person.
decided guilty. Lesson: The Office of the Ombudsman is not
Held: If after the first prosecution “a new fact supervenes on which empowered to find public officers guilty.
defendant may be held liable, resulting in altering the character of
the crime and giving rise to a new and distinct offense, “the Atty. Montemayor raised basically that question of whether or not
accused cannot be said to be in second jeopardy if indicted for the
the investigation subjecting him to another investigation with the
new offense.”
Office of the Ombudsman violates his right or privilege against or
We attribute the new finding of fracture, which evidently his protection against double jeopardy. The SC said no because
lengthened the period of healing of the wound, to the very the elements of double jeopardy are not present. When he was
superficial and inconclusive examination made on December 10,
charged, found liable in the Office of the President, that was for
1956. Had an X-ray examination been taken at the time, the
fracture would have certainly been disclosed. The wound causing an administrative liability. Even if he were to be charged again in
the delay in healing was already in existence at the time of the first the Office of the Ombudsman administratively, double jeopardy
examination, but said delay was, caused by the very superficial will not apply because double jeopardy protection is only
examination then made. As we have stated, we find therefore that applicable in criminal prosecutions. With respect to the criminal
no supervening fact had occurred which justifies the application of
the rule in the case of Melo vs. People and People vs. Manolong charge in the Office of the Ombudsman where he was made to

undergo or his case was processed under the power of the discussed under Section 18 of Article 7 is the appropriate remedy
Ombudsman to conduct criminal investigation, the SC said still to inquire into all matter of involuntary restraint and to leave such
double jeopardy does not apply because preliminary investigation person therefrom. It is sometimes used as the most efficient and
is not part of trial. Jeopardy attaches when there is a valid effective way and expeditious way to leave a person from any
complaint or information in a court of competent jurisdiction form of involuntary or unlawful restraint. The principle purpose
sufficient in form and substance in the information and the here is to set the individual to liberty. Some would ask why not
accused has pleaded guilty and the case has been dismissed, file a petition for writ? The problem is in bail petitions, it is usually
accused has been acquitted or convicted. applicable only when the person is based under custody by
reason of a criminal violation. There are instances where a
When the case is subjected or processed to PI in any person is detained and there is no criminal charge and the most
investigating body, if the investigator says there is no case, there effective way to go(?) there is to file a petition for a writ of habeas
is no prima facie case and therefore the case is dismissed, corpus.
question: can it be filed again? Will double jeopardy apply?
This is also used as a post-conviction remedy where the
On the first question: can it be filed again? It depends. If there incarceration or continued incarceration of the petitioner is
are new evidence probably it can be re-filed but if the argument is supposed to be without any legal basis either because the
that it cannot be filed because there is violation of double accused has already served his full sentence or that the accused
jeopardy, that should not apply because PI, the results of the PI should benefit from any reduction of period of incarceration by
is of the same result as the accused has been acquitted or reason of a law which is beneficial to him or the decision of the
convicted or the case is dismissed against him after an SC on the same term of imprisonment which is beneficial to him.
information which is sufficient in form and substance has been As to the excess, there is no more legal justification for the
filed in the court of competent jurisdiction. PI is never part of trial. continued incarceration of the accused. The accused cannot go
Perhaps if your normal argument with respect to the fact that it to court, go back to that court which has convicted him because
could not be re-filed, is that it is now as to the parties the law once the accused starts to serve sentence, everything is finished,
between them. If you have like did not file for a motion for a the court is ousted of jurisdiction. The court cannot entertain
motion for reconsideration, did not seek further review on appeal, anymore anything because that accused has already started
then it becomes final. The dismissal becomes final and it may be serving sentence, the proceedings is considered to have become
constitutive of res adjudicata between the parties, you can argue final already. So if he wishes to be relieved from further
on that line. But definitely you cannot argue that to re-file it would incarceration because of the beneficial law or decision of the SC
violate your privilege or protection against double jeopardy. he must have to file a petition for habeas corpus as a post-
conviction remedy.
Double jeopardy; elements. Double jeopardy attaches only (1)
upon a valid indictment, (2) before a competent court, (3) after This does not however… there’s this case here of Fletcher vs.
arraignment, (4) when a valid plea has been entered, and (5) Director of Bureau, the petitioner here contends that he should
when the defendant was convicted or acquitted, or the case was be released from detention because he has already served the
dismissed or otherwise terminated without the express consent of minimum of the indeterminate sentence imposed by law. He said
the accused. None of these requisites applies where the that his continued incarceration has no legal basis already.
Ombudsman only conducted a preliminary investigation of the Remember that under the Indeterminate Sentence Law, while an
same criminal offense against the respondent public officer. The accused can be released as a parolee, released on parole, there
dismissal of a case during preliminary investigation does not is yet to be a determination to be made whether indeed you are
constitute double jeopardy, preliminary investigation not being eligible for parole. It is not automatic. So that one cannot file a
part of the trial. Hon. Waldo Q. Flores, et al v. Atty. Antonio F. petition for habeas corpus simply because he has supposedly
Montemayor, G.R. No. 170146, June 8, 2011. serve the minimum sentence under the ISL. There must have to
be a determination by the Parole Board whether that person is
WRIT OF HABEAS CORPUS eligible or not eligible for parole.
Then the final items here in your outline would be the privilege of
the writ of habeas corpus. The writ of habeas corpus as we have
Fletcher vs. Director of Bureau (2009) tempts and lures us, it is the desire to fall, against
which, terrified, we defend ourselves.”
F: Petitioner Martin Gibbs Fletcher seeks his release from prison in
~Milan Kundera, The Unbearable Lightness of Being
this petition for the issuance of the writ of habeas corpus. He
claims that his prison sentence of 12 to 17 years was commuted
by then President Fidel V. Ramos to nine to 12 years. Since he
had already served 14 years, three months and 12 days, including
his good conduct allowance, his continued imprisonment is illegal.
H: Petitioner is not entitled to the issuance of the writ.

The writ of habeas corpus extends to all cases of illegal
confinement or detention by which any person is deprived of his
liberty. However, Section 4, Rule 102 of the Rules of Court
provides:
Sec. 4. When writ not allowed or discharge authorized. – If it
appears that the person to be restrained of his liberty is in the
custody of an officer under process issued by a court or
judge; or by virtue of a judgment or order of a court of record,
and that court or judge had jurisdiction to issue the process,
render the judgment, or make the order, the writ shall not be
allowed; or if the jurisdiction appears after the writ is allowed, the
person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment. (emphasis
supplied)
Plainly stated, the writ obtains immediate relief for those who have
been illegally confined or imprisoned without sufficient cause. The
writ, however, should not be issued when the custody over the
person is by virtue of a judicial process or a valid judgment.
Right to bail is not impaired, even the writ is suspended and

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

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

someday to suffer vertigo. What is vertigo? Fear of
falling? No, Vertigo is something other than fear of
falling. It is the voice of the emptiness below us which

This case of Manila Electric Company somehow made the

August 31, 2012 comparison that both these Writ of Amparo and Habeas Data are
anchored on those basic or two situations contemplated: extra-
legal killing and enforced disappearances or threats of them
being committed.
Writ of Amparo and Writ of Habeas Data as
distinguished from Writ of Habeas Corpus
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and
RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM
IMPORTANT DISTINCTIONS G.R. No. 184769. October 5, 2010
In Habeas Corpus, the subject of this petition is any form of By respondent’s allegation, petitioners’ unlawful act and omission
consisting of their continued failure and refusal to provide her with
involuntary restraint or detention. details or information about the alleged report which MERALCO
purportedly received concerning threats to her safety and security
In Writ of Amparo, it involves a violation, or a threatened violation amount to a violation of her right to privacy in life, liberty and
of the right to life, liberty or security. security, correctible by habeas data. Respondent thus prayed for
the issuance of a writ commanding petitioners to file a written
return x x x
In Habeas Data, it is a violation, or a threatened violation of the
right to privacy, life, liberty or security by those engaged in SC: Respondent’s plea that she be spared from complying with
gathering and collecting, or storing data or information. MERALCO’s Memorandum directing her reassignment to the
Alabang Sector, under the guise of a quest for information or data
allegedly in possession of petitioners, does not fall within the
The respondent in Habeas Corpus would be any private or public province of a writ of habeas data.
person, same with Amparo.
Section 1 of the Rule on the Writ of Habeas Data provides:
In Habeas Data, private or public person but he must have to be Section 1. Habeas Data. – The writ of habeas data is a remedy
tasked with gathering, collecting, or storing data or information. available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of
In Habeas Corpus, the respondent must show cause to the court a public official or employee or of a private individual or entity
engaged in the gathering, collecting or storing of data or
why the person detained must not be released. There must have information regarding the person, family, home and
to be a legal justification for the continued detention. The correspondence of the aggrieved party.
respondent must show to the court the victim designated in the
writ. The habeas data rule, in general, is designed to protect by means
of judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a
With respect to the writ of Amparo, the respondent/respondents forum to enforce one’s right to the truth and to informational
must show what actions or steps were taken to determine the privacy, thus safeguarding the constitutional guarantees of a
name or whereabouts of the aggrieved party, the identity of person’s right to life, liberty and security against abuse in this age
of information technology.
persons responsible.
It bears reiteration that like the writ of amparo, habeas data was
While in Habeas Data, the respondents must show what data or conceived as a response, given the lack of effective and available
information has been gathered or protected by this court, and remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address
what steps or action were taken to ensure the security or violations of or threats to the rights to life, liberty or security as a
confidentiality of the data or information. remedy independently from those provided under prevailing Rules.
Now, both the Writ of Amparo and the Writ of Habeas Data, as Manila Electric Company case does not actually say what are the
discussed in this case of Manila Electric Company versus matters actually covered, like the Writ of Habeas Data, unlike in
Rosario Gopez Lim, 632 SCRA 195 (2010), are both based on a the case of Tapuz vs. del Rosario and this case of Secretary vs.
reaction of the court to so-called extra-legal killing and enforced Manalo (568 SCRA 1), the Supreme Court was able to explain
disappearances or threats thereof. what the so-called Writ of Amparo should or would lie on.

several armed soldiers wearing white shirts, fatigue pants and

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

HELD: No. Respondent’s plea that she be spared from complying
on. The practice may be known but the practice is not part of the
with MERALCO’s Memorandum directing her reassignment to the
standard operating procedure. This is like your spy; no one would Alabang Sector, under the guise of a quest for information or data
actually admit they have done it. allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.
I don’t know if you are familiar with Republic Act 9595 the Anti-
Section 1 of the Rule on the Writ of Habeas Data provides:
photo and Voyeurism Act of 2009. This republic act penalizes Section 1. Habeas Data. – The writ of habeas data is a remedy
the act of taking a photograph or video recording of, well the available to any person whose right to privacy in life, liberty or
law says, naked body, female breasts, private parts, private area, security is violated or threatened by an unlawful act or omission of
(Sir M: “I don’t know what that is”.) and the violation of ones a public official or employee or of a private individual or entity
engaged in the gathering, collecting or storing of data or
right to privacy or expectation, reasonable expectation to information regarding the person, family, home and
privacy. So that probably means that if you were in a room and correspondence of the aggrieved party.
you were doing a private act, whatever that private act is, and The habeas data rule, in general, is designed to protect by means
you take the photograph or a video of your partner without his or of judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a
her consent, that would be punishable under this law. And the forum to enforce one’s right to the truth and to informational
subsequent copying and distribution of these would also be privacy, thus safeguarding the constitutional guarantees of a
punishable. Now I raise the matter because, if you were the person’s right to life, liberty and security against abuse in this age
object of that sex photograph or “sex video scandal” can you file of information technology.
a petition to the court for a Writ of Habeas Data? That your It bears reiteration that like the writ of amparo, habeas data was
partner, a private person, has collected gathered and stored conceived as a response, given the lack of effective and available
information against you which would violate your right to privacy remedies, to address the extraordinary rise in the number of
of life, because your limbs were shown, or perhaps of security. killings and enforced disappearances. Its intent is to address
violations of or threats to the rights to life, liberty or security as a
Can you do that? remedy independently from those provided under prevailing Rules.
This Manila Electric Company case involves an employee who Castillo v. Cruzunderscores the emphasis laid down in Tapuz v.
has supposed to have been subject of a transfer order because del Rosario that the writs of amparo and habeas data will NOT
issue to protect purely property or commercial concerns nor when
of a complaint. He filed a petition for a Writ of Habeas Data, the grounds invoked in support of the petitions therefor are vague
wanting to get a copy of that complaint. The Manila Electric or doubtful.[16] Employment constitutes a property right under the
Company refused him. And so this case reached the court context of the due process clause of the Constitution.
because the court granted it. The Supreme Court said that just
like the Writ of Amparo, this covers what is supposed to be within That should end our discussion. ☺
the ambit of right to life, right to liberty and right to security. It
does not include purely, or those which involve property rights or !"
those filed for commercial, amorphous or uncertain grounds.
Since employment is a property right, the Wirt of Habeas Data is CALIZO, RUBY
not applicable when it pertains to the employee. The data LINOG, HANNAH
collected, gathered and stored must have to be in relation to your
right to privacy in life, liberty and security.
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO

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

such writ where an employer decides to transfer her workplace on
the basis of copies of an anonymous letter posted therein ─
imputing to her disloyalty to the company and calling for her to
leave, which imputation it investigated but fails to inform her of the
details thereof?
“Nalaman kong hindi pala exam na may

passing rate ang buhay. Hindi ito multiple
choice, identification, true or false, enumeration,
o fill-in-the-blanks na sinasagutan, kundi essay
na isinusulat araw-araw. Huhusgahan ito hindi
base sa kung tama o mali ang sagot, kundi base
sa kung may kabuluhan ang mga naisulat o
wala. Allowed ang erasures.” ☺
― Bob Ong, ABNKKBSNPLAKo?!


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CONSTITUTIONAL LAW REVIEW

THE MONTEJO LECTURES

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

Eminent domain can be delegated not only to LGUs but also to

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

In the grant of rights, privileges, and concessions covering

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

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

“The study of law can be disappointing at times, a

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

Facts: On December 3, 1992, City Mayor Alfredo S. Lim

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COMMITTED A REVERSIBLE ERROR IN DECLARING

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GIVERO, KATRINA “KONGKONG”

“Always remember, your focus

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executive departments, and extend to all actions of a state denying

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The last 2 requisites for the issuance of a search warrant would

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In the present case, the assailed search warrant failed to described

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The NBI’s test-buy yielded positive results for violations of BP 33.

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The applications shall be personally endorsed by the heads of

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For illegal gambling for example, if there is a raid for illegal

Is the evidence of illegality just by looking at money immediately

In some old cases involving piracy, or video piracy, this case of

What is so illegal for possessing a television set? Or a video

Gambling, the same, normally the money or monies are always

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PEOPLE OF THE PHILIPPINES vs. ZENAIDA BOLASA Y

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thereat the presence of the alleged "rebel" soldiers. The

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1. If a person is arrested by bonds person, the bonds

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

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August 8, 2012 when public safety or order requires

Hence, the petition for review is DENIED.

Facts: The usual law in point with respect to privacy of communications

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are not actually a form of censorship because they can be shown

The Dangerous Tendency Test: when there is a state interest !"

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