can work. [White Light Corporation, et al v.
City of Manila
SECTION 1, ARTICLE III
“Life, liberty and property”
No person shall be deprived of life, liberty or property without due
process of law, nor shall any person without due process of law nor
shall any person be denied the equal protection of the laws.
BILL OF RIGHTS:
It is a guarantee that there are certain areas of a person’s life,
liberty and property which governmental power may not touch. All
the powers of the government are limited by the Bill of rights.
INHERENT POWERS OF THE STATE:
The inherent power of the state are (1) police power, (2)
power of eminent domain and (3) power of taxation. These
power belong to the very essence of government and without them,
no government can exist. A constitution can only define and delimit
them and allocate their exercise among various government
agencies. A constitution does not grant them.
POLICE POWER:
 It is the inherent and plenary power of the state which enables
it to prohibit all that is hurtful to the comfort, safety and
welfare of society. [Ermita-Malate Hotel and Motel Operators
Association, Inc. v. Mayor of Manila (1967)]
 Scope and Limitations:
o Covers public health, public moral, public safety and
public welfare.
o In order to promote the general welfare, the state
may interfere with personal liberty with property
and with business and occupation. Persons may be
subjected to all kinds of restraints and burdens, in
order to secure the general comfort health and
prosperity of the state and to this fundamental aim
of our Government, the rights of the individual are
subordinated. [Ortigas and Co., Limited Partnership
v. Feati Bank and Trust Co. (1979)]
 Police Power cannot be bargained away through treaty or
contract. [Ichong v. Hernandez (1957)]
 Police power prevails over contracts. [PNB v. Office of the
 President (1996)]
 Taxation may be used as an implement of police power [Lutz
v. Araneta (1955); Tiu v. Videogram Regulatory Board (1987);
 LIMITATION:
o The limit to police power is reasonability. The Court
looks at the test of reasonability to decide whether it
encroaches on the right of an individual. So long as
legitimate means can reasonably lead to create that
end, it is reasonable. [Morfe v. Mutuc (1968)]
TEST OF REASONABILITY
Tests for Validity of Exercise of Police Power
(1) Lawful Subject:
Interest of the general public (as distinguished from a
particular class required exercise). This means that the activity
or property sought to be regulated affects the general welfare.
[Taxicab Operators v. Board of Transportation (1982)]
(2) Lawful Means:
Means employed are reasonably necessary for the
accomplishment of the purpose, and are not unduly oppressive.
[Tablarin v. Gutierrez (1987)]
(3) Least Restrictions of Individual Rights:
It must also be evident that no other alternative for the
accomplishment of the purpose less intrusive of private rights
(2009)]
VALIDITY OF ADMINISTRATIVE ORDER REGARDING MINE
LEASES/AGREEMENTS:
The SC upheld the validity of Administrative Orders which
converted existing mine leases and other mining agreements into
production-sharing agreements within one year from effectivity.
The subject sought to be governed by the AOs are germane to the
object and purpose of E.O. 279 and that mining leases or
agreements granted by the State are subject to alterations through
a reasonable exercise of police power of the State. [Miners
Association of the Philippines v. Factoran (1995)]
ILLUSTRATIONS ON THE EXERCISE OF POLICE POWER
General Welfare v. Property rights. – RA 9257, the Expanded
Senior Citizens Act of 2003, is a legitimate exercise of police
power. Administrative Order No. 177 issued by the Department of
Health, providing that the 20% discount privilege of senior
citizens shall not be limited to the purchase of unbranded generic
medicine but shall extend to both prescription and non-
prescription medicine, whether branded or generic, is valid.
[Carlos Superdrug Corporation v. DSWC et al. (2007)]
National Security v. Property Rights. – Police power and national
security: SC upheld the constitutionality of RA 1180 (An Act to
Regulate the Retail Business) which sought to nationalize the
retail trade business by prohibiting aliens in general from
engaging directly or indirectly in the retail trade.
“The disputed law was enacted to remedy a real actual threat and
danger to national economy posed by alien dominance and
control of the retail business; the enactment clearly falls within
the scope of the police power of the State, thru which and by
which it protects its own personality and insures its security and
future.”
[Ichong v. Hernandez (1957)]
Police power, public safety: The Court identified police power as
a dynamic agency, suitably vague and far from precisely defined,
rooted in the conception that men in organizing the state and
imposing upon its government limitations to safeguard
constitutional rights did not intend to enable an individual citizen
or a group of citizens to obstruct unreasonably the enactment of
such salutary measures calculated to communal peace, safety,
good order, and welfare. According to the Court, a heavy burden
lies in the hands of the petitioner who questions the state’s
police power if it was clearly intended to promote public safety.
[Agustin v. Edu, (1979)]
Public Morals v. Property rights and Right to privacy.
Ermita Malate Hotel and Motel Operations Assoc. assails the
constitutionality of Ordinance No. 4760. The mantle of protection
associated with the due process guaranty does not cover
petitioners. This particular manifestation of a police power
measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on
conjecture and unsupported by anything of substance There is no
question that the challenged ordinance was precisely enacted to
minimize certain practices hurtful to public morals. [Ermita-
Malate Motel and Motel Operators Assn. v. City Mayor of Manila
(1967)]
This case churned out three standards for judicial review: the
strict scrutiny test for laws dealing with freedom of the mind and
curtailment of political process and the rational basis standard of
review for economic legislation. A third standard was created
known as the immediate scrutiny for evaluating standards based
on gender and legitimacy.
The SC applied strict scrutiny because the ordinance restricts
patrons’ right to liberty. Legitimate sexual behavior, which is
constitutionally protected, will be unduly curtailed by the
ordinance. Apart from the right to privacy, the ordinance also
proscribes other legitimate activities most of which are grounded
on the convenience of having a place to stay during the short
1
intervals between travels. [White Light Corporation, et al v. City of
Manila (2009)]
Limitations when police power is delegated:
(1) Express grant by law [e.g. Secs. 16, 391, 447, 458 and
468, R.A. 7160, for LGUs]
(2) Limited within its territorial jurisdiction [for local government
units]
(3) Must not be contrary to law.
EMINENT DOMAIN
The power of eminent domain is the inherent right of
the State to condemn private property to public use upon payment
of just compensation. It is also known as the power of
expropriation. It is well settled that eminent domain is an inherent
power of the state that need not be granted even by the
fundamental law. Sec. 9, Art. III merely imposes a limit on the
government’s exercise of this power. [Republic v Tagle (1998)].
REQUISITES:
For the state’s power of eminent domain to apply, the
property must be (1) private property (2) there is a genuine
necessity and must be proven, (3) there is a public use ; (4) the
property owner has been paid for just compensation and the taking
is under a due process. (Manapat vs CA, 2007)
PRIVATE PROPERTY
Private property already devoted to public use cannot be
expropriated by a delegate of legislature acting under a general
grant of authority. [City of Manila v. Chinese
Community (1919)]
Generally, all private property capable of ownership may be
expropriated, except money and chooses in action.
[Republic v. PLDT (1969)]
A chose in action is a proprietary right in personam, such as debts
owned by another person, a share in a joint-stock company, or a
claim for damages in tort; it is the right to bring an action to
recover a debt, money or thing [Black’s
Law Dictionary]
TAKING
The exercise of the power of eminent does not always
result in the taking or appropriation of title to the expropriated
property; it may only result in the imposition of a burden upon the
owner of the condemned property, without loss of title or possession.
[National Power Corporation v. Gutierrez (1991)]
REQUISITES FOR A VALID TAKING:
(1) The expropriator must enter a private property
(2) Entry must be for more than a momentary period
(3) Entry must be under warrant or color of legal authority
(4) Property must be devoted to public use or otherwise
informally appropriated or injuriously affected
(5) Utilization of the property must be in such a way as to
oust the owner and deprive him of beneficial enjoyment of the
property. [Republic v. Castellvi (1974)]
DUE PROCESS
Hearing or procedure for determination of propriety of
the expropriation or the reasonableness of the compensation must
be provided. [Belen v. CA (1991)]
EXPANSIVE CONCEPT OF “PUBLIC USE”
The idea that "public use" means "use by the public" has
been discarded. At present, whatever may be beneficially employed
for the general welfare satisfies the requirement of public use. [Heirs
of Juancho Ardona vs. Reyes (1983)]
That only a few benefits from the expropriation does not diminish
its public-use character, inasmuch as pubic use now includes the
broader notion of indirect public benefit or advantage [Filstream
International vs. CA (1998)]
PAGE 2
Private bus firms, taxicab fleets, roadside restaurants, and other
private businesses using public streets and highways do not
diminish in the least bit the public character of expropriations for
roads and streets. The lease of store spaces in underpasses of
streets built on expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively to private
airlines and shipping companies are still for public use. The
expropriation of private land for slum clearance and urban
development is for a public purpose even if the developed area is
later sold to private homeowners, commercial firms,
entertainment and service companies, and other private
concerns. [Heirs of Ardona vs. Reyes (1983)]
JUST COMPENSATION
It is the just and complete equivalent of the loss which the
owner of the thing expropriated has to suffer by reason of the
expropriation.
Full and fair equivalent of the property taken; it is the fair market
value of the property. [Province of Tayabas vs. Perez (1938)]
⟴ State Immunity from Suit (1989)
No. 13: A property owner filed an action directly in court against
the Republic of the Philippines seeking payment for a parcel of
land which the national government utilized for a road widening
project.
(1) Can the government invoke the doctrine of non-suitability of
the state?
(2) In connection with the preceding question, can the property
owner garnish public funds to satisfy his claim for payment?
Explain your answers.
⟴ SUGGESTED ANSWERS:
(1) No, the government cannot invoke the doctrine of state of
immunity from suit. As held in Ministerio vs. Court of First
Instance of Cebu, 40 SCRA 464, when the government
expropriates property for public use without paying just
compensation, it cannot invoke its immunity from the suit.
Otherwise, the right guaranteed in Section 9, Article III of the
1987 Constitution that private property shall not be taken for
public use without just compensation will be rendered
nugatory.
(2) No, the owner cannot garnish public funds to satisfy his claim
for payment, Section 7 of Act No. 3083 prohibits execution
upon any judgment against the government. As held in
Republic vs. Palacio, 23 SCRA 899, even if the government may
be sued, it does not follow that its properties may be seized
under execution.
DETERMINATION
Just compensation is the fair value of the property as
between one who receives and one who desires to sell, fixed at the
time of the actual taking by the government. This rule holds true
when the property is taken BEFORE the filing of expropriation suit,
and even if it is the property owner who brings the action for
compensation. The nature and character of land at the time of its
taking is the principal criterion for determining how much just
compensation should be given to the landowner.
In determining just compensation, ALL FACTS as to the
condition of the property and its surroundings, its improvements
and capabilities, should be considered (EPZA vs Dulay, 59603,
1987)
PERSON TO DETERMINE
Determination of just compensation is a judicial function.
[National Power Corporation vs. Sps. Florimon V. Lleto, et al.,
(2012)]
Presidential Decrees merely serve as guide/factors for the courts
in determining just compensation [EPZA vs. Dulay, 148 SCRA 305]
Findings of court appointed commissioners regarding the
determination of just compensation are not binding to courts
[Republic v. Santos (1986); Republic (MECS) v. IAC (1990)]
The court may substitute its own estimate of the value of the
property only for valid reasons: (a) the commissioners have
applied illegal principles to the evidence submitted to them; (b)
they have disregarded a clear preponderance of evidence; or (c)
where the amount allowed is either grossly inadequate or
excessive. [National Power Corporation v. De la Cruz (2007)]
WHEN DETERMINED
General: At the time of the filing of the case
Exception: If the value of the property increased because of the
use to which the expropriator has put it, the value is that of the
time of the taking. [NAPOCOR v. CA (1996)]
Legal interest: 6%, time when payment is due to actual payment
⟴ Eminent Domain; Legal Interest (1993)
No, 5: In expropriation proceedings: 1) What legal interest should
be used in the computation of interest on just compensation?
⟴ SUGGESTED ANSWERS:
As held in National Power Corporation vs. Angas. 208 SCRA 542, in
accordance with Article 2209 of the Civil Code, the legal interest
should be SIX per cent (6%) a year. Central Bank Circular No. 416,
which increased the legal interest to twelve percent (12%) a year
is not applicable to the expropriation of property and is limited to
loans, since its issuance is based on Presidential Decree No, 116,
which amended the Usury Law.
⟴ Eminent Domain; Non-observance of the policy of
"all or none" (2000)
No VIII. Madlangbayan is the owner of a 500 square meter lot
which was the birthplace of the founder of a religious sect who
admittedly played an important role in Philippine history and
culture. The National Historical Commission (NHC) passed a
resolution declaring it a national landmark and on its
recommendation the lot was subjected to expropriation
proceedings. This was opposed by Madlangbayan on the following
grounds: a) that the lot is not a vast tract; b) that those to be
benefited by the expropriation would only be the members of the
religious sect of its founder, and c) that the NHC has not initiated
the expropriation of birthplaces of other more deserving
historical personalities. Resolve the opposition raised by
Madlangbayan.
⟴ SUGGESTED ANSWERS:
The arguments of Madlangbayan are not meritorious. According to
Manosca v. Court of Appeals, 252 SCRA 412 (1996), the power of
eminent domain is not confined to expropriation of vast tracts of
the land. The expropriation of the lot to preserve it as the
birthplace of the founder of the religious sect because of his role in
Philippine history and culture is for a public purpose, because
public use is no longer restricted to the traditional concept. The
fact that the expropriation will benefit the members of the
religious sect is merely incidental. The fact that other birthplaces
have not been expropriated is likewise not a valid basis for
opposing the expropriation. As held in J.M. Tuason and Company,
Inc. v. Land Tenure Administration, 31 SCRA 413 (1970), the
expropriating authority is not required to adhere to the policy of
"all or none".
⟴ Eminent Domain; Power to Exercise (2005)
(10-2) The Sangguniang Bayan of the Municipality of Santa, Ilocos
Sur passed Resolution No. 1 authorizing its Mayor to initiate a
petition for the expropriation of a lot owned by Christina as site
for its municipal sports center. This was approved by the Mayor.
However, the Sangguniang Panlalawigan of Ilocos Sur
disapproved the Resolution as there might still be other available
lots in Santa for a sports center.
PAGE 3
Nonetheless, the Municipality of Santa, through its Mayor, filed a
complaint for eminent domain. Christina opposed this on the
following grounds:
1 the Municipality of Santa has no power to expropriate;
2 Resolution No. 1 has been voided since the Sangguniang
Panlalawigan disapproved it for being arbitrary; and
3 the Municipality of Santa has other and better lots for that
purpose. Resolve the case with reasons. (5%)
⟴ SUGGESTED ANSWERS:
a) Under Section 19 of R.A. No. 7160, the power of eminent domain
is explicitly granted to the municipality, but must be exercised
through an ordinance rather than through a resolution.
(Municipality ofParanaque v. V.M. Realty Corp., G.R. No. 127820,
July 20, 1998)
b) The Sangguniang Panlalawigan of Ilocos Sur was without the
authority to disapprove Resolution No. 1 as the municipality
clearly has the power to exercise the right of eminent domain and
its Sangguniang Bayan the capacity to promulgate said resolution.
The only ground upon which a provincial board may declare any
municipal resolution, ordinance or order invalid is when such
resolution, ordinance or order is beyond the powers conferred
upon the council or president making the same. Such is not the
situation in this case. (Moday v. Court of Appeals, G.R. No. 107916,
February 20, 1997)
c) The question of whether there is genuine necessity for the
expropriation of Christina's lot or whether the municipality has
other and better lots for the purpose is a matter that will have to be
resolved by the Court upon presentation of evidence by the parties
to the case.
⟴ Eminent Domain; Public Use (1987)
No. XVI: In January 1984, Pasay City filed expropriation
proceedings against several landowners for the construction of an
aqueduct for flood control in a barangay. Clearly, only the
residents of that barangay would be benefited by the project. As
compensation, the city offered to pay only the amount declared by
the owners in their tax declarations, which amount was lower
than the assessed value as determined by the assessor. The
landowners oppose the expropriation on the grounds that:
(a) the same is not for public use; and
(b) assuming it is for public use, the compensation must be based
on the evidence presented in court and not, as provided in
presidential decrees prescribing payment of the value stated in
the owner's tax declarations or the value determined by the
assessor, whichever is lower. If you were judge, how would you
rule on the issue? Why?
⟴ SUGGESTED ANSWERS:
(a) The contention that the taking of private property for the
purpose of constructing an aqueduct for flood control is not for
public use" is untenable- The idea that "PUBLIC USE" means
exclusively use by the public has been discarded. As long as the
purpose of the taking is public, the exercise of power of eminent
domain is justifiable. Whatever may be beneficially employed for
the general welfare satisfies the requirement of public use. (Heirs
of Juancho Ardona v. Reyes, 123 SCR A 220 (1983))
(b) But the contention that the Presidential Decrees providing that
in determining just compensation the value stated by the owner in
his tax declaration or that determined by the assessor, whichever is
lower, in unconstitutional is correct. In EPZA v. Dulay. G.R. No.
59603, April 29, 1987, it was held that this method prescribed for
ascertaining just compensation constitutes an impermissible
encroachment on the prerogatives of courts. It tends to render
courts inutile in a matter which, under the Constitution, is reserved
to them for final determination. For although under the decrees
the courts still have the power to determine just compensation,
their task is reduced to simply determining the lower value of the
property as declared either by the owner or by the assessor. "JUST
COMPENSATION" means the value of the property at the time of
the taking. Its determination requires that all facts as to the
condition of the property and its surroundings and its
improvements and capabilities must be considered, and this can
only be done in a judicial proceeding.
⟴ Eminent Domain; Socialized Housing (1996)
No. 4 - The City of Pasig initiated expropriation proceedings on a
one-hectare lot which is part of a ten-hectare parcel of land
devoted to the growing of vegetables. The purpose of the
expropriation is to use the land as a relocation site for 200 families
squatting along the Pasig river. a) Can the owner of the property
oppose the expropriation on the ground that only 200 out of the
more than 10,000 squatter families in Pasig City will benefit from
the expropriation? Explain. b) Can the Department of Agrarian
Reform require the City of Pasig to first secure authority from said
Department before converting the use of the land from
agricultural to housing?
⟴ SUGGESTED ANSWERS:
a) No, the owner of the property cannot oppose the expropriation
on the ground that only 200 out of more than 10,000 squatter
families in Pasig City will benefit from the expropriation. As held in
Philippine Columbian Association vs. Pants, 228 SCRA 668, the
acquisition of private property for socialized housing is for public
use and the fact that only a few and not everyone will benefit from
the expropriation does not detract from the nature of the public
use.
b) No, the Department of Agrarian Reform cannot require Pasig
City to first secure authority from it before converting the use of
the land from agricultural to residential. According to Province of
Camarines Sur vs. Court of Appeals, 222 SCRA 173, there is no
provision in the Comprehensive Agrarian Reform Law which
subjects the expropriation of agricultural lands by local
government units to the control of the Department of Agrarian
Reform and to require approval from the Department of Agrarian
Reform will mean that it is not the local government unit but the
Department of Agrarian Reform who will determine whether or
not the expropriation is for a public use.
⟴ Eminent Domain; Writ of Possession (1993)
No, 5: In expropriation proceedings: Can the judge validly
withhold issuance of the writ of possession until full payment of
the final value of the expropriated property?
⟴ SUGGESTED ANSWERS:
No, the judge cannot validly withhold the issuance of the writ of
possession until full payment of the final value of the expropriated
property. As held in National Power Corporation vs. Jocson, 206
SCRA 520. it is the rninisterial duty of the Judge to issue the writ of
possession upon deposit of the provisional value of the
expropriated property withthe National or Provincial Treasurer.
EFFECT OF DELAY
Just compensation means not only the correct amount to
be paid to the owner of the land but also payment within a
reasonable time from its taking [Eslaban v. De Onorio (2001)]
General rule on delay of payment:
For non-payement, the remedy is the demand of payment of the
fair market value of the property and not the recovery of
possession of the expropriated lots. [Republic of the Philippines v.
Court of Appeals (2002); Reyes v. National Housing Authority
(2003)]
Exception:
When the government fails to pay just compensation within five
years from the finality of the judgment in the expropriation
proceedings, the owners concerned shall have the right to recover
possession of their property.
[Republic of the Philippines v. Vicente Lim (2005)]
ABANDONMENT OF INTENDED USE AND RIGHT OF
REPURCHASE
If the expropriator (government) does not use the
property for a public purpose, the property reverts to the owner in
fee simple. [Heirs of Moreno vs. Mactan-Cebu International Airport
(2005)]
MISCELLANEOUS APPLICATION “TAKING” UNDER SOCIAL
JUSTICE CLAUSE
Agrarian Reform (Art. XIII, Sec. 4):This provision is an
exercise of the police power of the State through eminent domain
PAGE 4
(Association of Small Landowners vs. Secretary of Agrarian Reform)
as it is a means to regulate private property.
Retention limits prescribed by the Comprehensive Agrarian
Reform Law is also form of taking under the power of eminent
domain. The taking contemplated is not a mere limitation on the
use of the land, but the surrender of the title to and physical
possession of the excess and all beneficial rights accruing to the
owner in favor of the beneficiary. [Sta. Rosa Realty & Development
Corp. v. Court of Appeals (2001)]
SPECIFICALLY (LGUs, Sec. 19, Local Government Code)
(1) Ordinance by a local legislature council is enacted
authorizing local chief executive to exercise eminent domain,
(2) For public use, purpose or welfare or for the benefit of
the poor and of the landless,
(3) Payment of just compensation,
(4) Valid and definite offer has been previously made to
owner of the property sought to be expropriated but such offer
was not accepted [Municipality of Parañaque vs. VM Realty
(1998)]
Who may exercise the power?
Those that may exercise such power are the Congress and
by delegation, the President, administrative bodies, local
government units, and even private enterprises performing public
services may exercise the power of eminent domain.
Congress - political question
Delegate
a. Grant of special authority for special purpose- political question
b. Grant of general authority- justiciable question [City of Manila v.
Chinese Community of Manila (1919)]
When the power is exercised by the legislature, the question of
necessity is generally a political question. [Municipality of
Meycauyan, Bulacan v. Intermediate Appellate Court (1988)]
The RTC has the power to inquire into the legality of the exercise
of the right of eminent domain and to determine whether there is
a genuine necessity for it. [Bardillon v. Barangay Masili of
Calamba, Laguna (2003)]
WHO HAS JURISDICTION? ------ Regional Trial Court
While the value of the property to be expropriated is
estimated in monetary terms – for the court is duty bound to
determine the amount of just compensation to be paid for the
property – it is merely incidental to the expropriation suit
[Barangay San Roque, Talisay, Cebu v. Heirs of Francisco Pastor
(2000)
The issuance of a writ of possession becomes ministerial upon the
(1) filing of a complaint for expropriation sufficient in form and
substance, and (2) upon deposit made by the government of the
amount equivalent to 15% of the fair market value of the property
sought to be expropriated per current tax declaration. [Biglang-
Awa v. Judge Bacalla (2000); Bardillon v. Barangay Masili of
Calamba, Laguna (2003)]
SCOPE AND LIMITATIONS
All Private Property capable of ownership may be expropriated,
except money and choses in action. Even services may be subject
to eminent domain. [Republic v.
PLDT (1969)]
Exercise of right to eminent domain is strictly construed against
the State or its agent because such right is necessarily in
derogation of private rights. [Jesus is Lord
Christian School Foundation v. Municipality of Pasig (2005)]
NECESSITY
The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public character.
Government may not capriciously or arbitrarily choose which
private property should be expropriated. [Lagcao v. Judge Labra
(2004)]
WHEN IS THERE TAKING IN THE CONSTITUTIONAL CASE?
When the owner is deprived of his proprietary rights
there is taking of private property. It may include (1) diminution
in value; (2) prevention of ordinary use; (3) deprivation of
beneficial use.
In Didipio Earth Savers Multipurpose Association (DESAMA) v.
Gozun (2006), examples were (a) trespass without actual
eviction; (b) material impairment of the value; (c) prevention of
the ordinary uses (e.g. easement).
But anything taken by virtue of police power is not compensable
(e.g. abatement of a nuisance), as usually property condemned
under police power is noxious [DESAMA v. Gozun (2006)]
⟴ Police Power; Abatement of Nuisance (2004) :
QUESTION: (9-b) The City of San Rafael passed an
ordinance authorizing the City Mayor, assisted by the police,
to remove all advertising signs displayed or exposed to public
view in the main city street, for being offensive to sight or
otherwise a nuisance. AM, whose advertising agency owns
and rents out many of the billboards ordered removed by the
City Mayor, claims that the City should pay for the destroyed
billboards at their current market value since the City has
appropriated them for the public purpose of city
beautification. The Mayor refuses to pay, so AM is suing the
City and the Mayor for damages arising from the taking of his
property without due process nor just compensation. Will
AM prosper? Reason briefly.
⟴ SUGGESTED ANSWERS:
The suit of AM will not prosper. The removal of the billboards is
not an exercise of the power of eminent domain but of police power
(Churchill v. Rafferty, 32 Phil. 580 [19150- The abatement of a
nuisance in the exercise of police power does not constitute taking
of property and does not entitle the owner of the property involved
to compensation. (Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343
[1989]).
Examples from Jurisprudence:
(1) The imposition of an aerial easement of right-of-way was held
to be taking. The exercise of the power of eminent domain
does not always result in the taking or appropriation of title to
the expropriated property; it may also result in the imposition
of a burden upon the owner of the condemned property,
without loss of title or possession. [NPC v. Gutierrez (1991)]
(2) May include trespass without actual eviction of the owner,
material impairment of the value of the property or
prevention of the ordinary uses for which the property was
intended. [Ayala de Roxas v. City of Manila (1907)]
(3) A municipal ordinance prohibiting a building which would
impair the view of the plaza from the highway was likewise
considered taking. [People v. Fajardo
(1958)]
When the State exercises the power of eminent domain in the
implementation of its agrarian reform program, the constitutional
provision which governs is Section 4, Article XIII of the
Constitution. Notably, this provision also imposes upon the State
the obligation of paying the landowner compensation for the land
taken, even if it is for the government’s agrarian reform purposes.
[Land Bank of the Philippines v. Honeycomb Farms Corporation
(2012)]
⟴ The National Power and Grid Corporation (NPGC), a
government entity involved in power generation distribution, had
its transmission lines traverse some fields belonging to
Farmerjoe. NPGC did so without instituting any expropriation
proceedings. Farmerjoe, not knowing any better, did not
immediately press his claim for payment until after ten years later
when a son of his took up Law and told him that he had a right to
claim compensation. That was then the only time that Farmerjoe
earnestly demanded payment. When the NPGC ignored him, he
instituted a case for payment of just compensation. In defense,
NPGC pointed out that the claim had already prescribed since
under its Charter it is clearly provided that “actions for damages
must be filed within five years after the rights of way,
transmission lines, substations, plants or other facilities shall
PAGE 5
have been established and that after said period, no suit shall be
brought to question the said rights of way, transmission lines,
substations, plants or other facilities.” If you were the lawyer of
Farmerjoe, how would you protect and vindicate the rights of
your client?
⟴ SUGGESTED ANSWERS:
As held in NATIONAL POWER CORPORATION v. SPOUSES
BERNARDO AND MINDALUZ SALUDARES G. R. No. 189127, April
25, 2012; the right to recover just compensation is enshrined in no
less than our Bill of Rights, which states in clear and categorical
language that private property shall not be taken for public use
without just compensation (Section 9, Article III, Constitution). This
constitutional mandate cannot be defeated by statutory
prescription. Thus, It would be a confiscatory act on the part of the
government to take the property of respondent spouses for a public
purpose and deprive them of their right to just compensation, solely
because they failed to institute inverse condemnation proceedings
within five years from the time the transmission lines were
constructed.
⟴ Eminent Domain; Socialized Housing (2009)
No.XVII. Filipinas Computer Corporation (FCC), a local
manufacturer of computers and computer parts, owns a
sprawling plant in a 5,000-square meter lot in Pasig City. To
remedy the city’s acute housing shortage, compounded by a
burgeoning population, the Sangguniang Panglungsod authorized
the City Mayor to negotiate for the purchase of the lot. The
Sanggunian intends to subdivide the property into small
residential lots to be distributed at cost to qualified city residents.
But FCC refused to sell the lot. Hard pressed to find a suitable
property to house its homeless residents, the city filed a
complaint for eminent domain against FCC.
If FCC hires you as lawyer, what defense or defenses would you
set up in order to resist the expropriation of the property?
Explain.
⟴ SUGGESTED ANSWERS:
a. No prior valid and definite offer was made
b. The expropriation is for socialized housing therefore it must
comply with the order of preference of the land to be acquired and
the mode of acquisition. Under the law regarding expropriation for
socialized housing, private lands is the last in line and the
expropriation proceeding is last resorted to if all other modes of
acquisition has already been exhausted. Order of expropriation for
socialized housing:
1. Government lands
2. Alienable lands of the public domain
3. Unregistered, abandoned or idle lands
4. Lands within the declared areas for priority development,
zonal improvement program sites, slum improvement and
resettlement sites which have not yet been acquired
5. BLISS sites which have not yet been acquired
6. Privately owned lands
The mode of expropriation is subject to 2 conditions:
a. It shall be resorted to only when the other modes of
acquisition have been exhausted; and
b. Parcels owned by small property owners are exempt from
such acquisition. Small property owners are owners of residential
lands with an area not more than 300 sq.m. in highly urbanized
cities and not more than 800 sq.m. in other urban areas; and they
do not own residential property other than the same.
TAXATION
 It is the enforced proportional contributions from persons
and property, levied by the State by virtue of its sovereignty,
for the support of the government and for all public needs.
It is as broad as the purpose for which it is given.
 The main purpose are (1) to raise revenue, (2) Tool for
regulation and Protection/power to keep alive
 Tax for special purpose [Sec. 29 (3), Art. VI]: Treated as a
special fund and paid out for such purpose only; when
purpose is fulfilled, the balance, if any shall be transferred to
the general funds of the Government. [See: Osmena v. Orbos
(1993)]
Scope and Limitation Progressive system of taxation: The rate increases as the tax base
General Limitations: increases, with basis as social justice. Taxation as an instrument
(1) Power to tax exists for the general welfare; should be exercised for a more equitable distribution of wealth
only for a public purpose
(2) Might be justified as for public purpose even if the immediate Delegated tax legislation: Congress may delegate lawmaking
beneficiaries are private individuals authority when the Constitution itself specifically authorizes it.
(3) Tax should not be confiscatory: If a tax measure is so
unconscionable as to amount to confiscation of property, the SIMILARITIES AND DIFFERENCES
Court will invalidate it. But invalidating a tax measure must be
exercised with utmost caution, otherwise, the State’s power to SIMILARITIES (NACHURA)
legislate for the public welfare might be seriously curtailed (1) Inherent in the State (Exercised even without need of express
(4) Taxes should be uniform and equitable [Sec. 28(1), Art. constitutional grant)
VI] (2) Necessary and indispensable (State cannot be effective
without them)
Judicial review for unconscionable and unjust tax amounting to (3) Method by which state interferes with private property
confiscation of property (4) Presuppose equivalent compensation
The legislature has discretion to determine the nature, object, (5) Exercised primarily by the legislature
extent, coverage, and situs of taxation. But where a tax measure
becomes so unconscionable and unjust as to amount to POLICE POWER EMINENT TAXATION
confiscation of property, courts will not hesitate to strike it down, DOMAIN
for despite all its plenitude, the power to tax cannot override COMPENSATION
constitutional prescriptions. [Tan v. del Rosario (1994)] None Just None
(The altruistic compensation (The protection
Specific Limitations: feeling that one (Full and fair given and public
(1) Uniformity of taxation has contributed equivalent of the improvements
General Rule: simply geographical uniformity, meaning it to the public property taken) instituted by the
operates with the same force and effect in every place where good required. State because of
the subject of it is found. [NACHURA]) these taxes
[NACHURA])
Exception: Rule does not prohibit classification for purposes of USE OF PROPERTY
taxation, provided the ff requisites are met: Not Appropriated for Use taxing power
(SNAGAE) appropriated for public use as an implement
(a) standards used are Substantial and Not Arbitrary public use for the
(b) if the classification is Germane to achieve the legislative attainment of a
purpose legitimate police
(c) if that classification Applies to both present and future objective—to
conditions, other circumstances being equal regulate a
(d) applies Equally to members of the same class. [Pepsi Cola v. business or trade
City of Butuan (1968)]. OBJECTIVE
Property taken Earn revenue for
(2) Tax Exemptions: for public use; it the government
No law granting any tax exemption shall be passed without the is not necessarily
concurrence of a majority of all the Members of Congress [Sec. noxious
28 (4), Art. VI] COVERAGE
Liberty and Property rights Property rights
A corollary power but must be for a public purpose, uniform and Property only only
equitable and in conformity with the equal protection clause

Tax exemptions are granted gratuitously and may be revoked at

POLICE POWER V. EMINENT DOMAIN
will, except when it was granted for valuable consideration
Primary Purpose: Police Power- for general comfort, health
and prosperity; Eminent Domain- for public use
May either be constitutional or statutory:
If statutory, it has to have been passed by majority of all
Note: In the exercise of police power, the deprivation of the use of
the members of Congress [Sec. 28 (4), Art. VI]
the property may be total, but it will not constitute compensable
taking if nobody else acquires use of the property or any interest
Constitutional exemptions [sec. 28(3), Art. VI]
therein. [Dipidio Earth-Savers Multipurpose Association v. Gozun
Requisite: Exclusive Use
(2006)]
(a) Educational institutions (both profit and non-profit used
actually, directly and exclusively for educational purposes):
Parties Exercising the Power: Police Power- only by the
Benefits redound to students, but only applied to property
government; Eminent Domain- may be exercised by
taxes and not excise taxes
private entities
(b) Charitable institutions: Religious and charitable institutions
give considerable assistance to the State in the improvement
POLICE POWER V.TAXATION
of the morality of the people and the care of the indigent and
Primary Purpose: Police Power- to regulate; Taxation
the handicapped
Power- to raise revenue
(c) Religious property: Charitable Institutions, churches, and
parsonages or convents appurtenant thereto, mosques, non-
Note: if regulation is the primary purpose, the fact that revenue is
profit cemeteries, and all lands, buildings and improvements,
incidentally raised does not make the imposition
actually, directly and exclusively used
a tax. [Gerochi v. Department of Energy (2007)]
for religious, charitable or educational purposes REQUISITES
FOR VALID EXERCISE
Basis: Police Power- self-preservation and self-protection;
Taxation Power: Life Blood Theory
Equal protection clause: taxes should be uniform (persons or
DELEGATION OF POLICE POWER
things belonging to the same class shall be taxed at the same rate)
LEGISLATURE:
and equitable (taxes should be apportioned among the people
Police power is lodged primarily in the national
according to their ability to pay)
legislature.

EXECUTIVE

PAGE 6
 By virtue of a valid delegation of legislative power, it may
also be exercised by the president, administrative bodies, and law
making bodies of LGUs. [Sec. 16, R.A. 7160]
...this power is limited only by the Acts of Congress and those
fundamentals principles which lie at the foundation of all
republican forms of government. While an Act of the Legislature
which is obviously and undoubtedly foreign to any of the
purposes of the police power and interferes with the ordinary
enjoyment of property would, without doubt, be held to be
invalid.[Churchill and Tait v. Rafferty (1915)]
Rep. Act No. 7924 does not grant the MMDA with police power, let
alone legislative power, and all its functions are administrative in
nature. [MMDA v. Bel-Air Village Association (2000)]
⟴ The MMDA is authorized to confiscate a driver’s
license in the enforcement of traffic regulations.(0.5%)
⟴ SUGGESTED ANSWERS:
False. Since Republic Act No. 7924 does not grant the
Metropolitan manila Development Authority to enact ordinances,
the grant to it by Section 5(f) of Republic Act No. 7924 of the power
to confiscate driver’s license without the need of any other law is an
authorized exercise
EMINENT DOMAIN
The general power to exercise the right of eminent
domain must not be confused with the right to exercise it in a
particular case.
The power of the legislature to confer, upon municipal corporations
and other entities within the State, general authority to exercise the
right of eminent domain cannot be questioned by the courts, but
that general authority of municipalities or entities must not be
confused with the right to exercise it in particular instances.
The moment the municipal corporation or entity attempts to
exercise the authority conferred, it must comply with the
conditions accompanying the authority. The necessity for
conferring the authority upon a municipal corporation to exercise
the right of eminent domain is admittedly within the power of the
legislature.
But whether or not the municipal corporation or entity is
exercising the right in a particular case under the conditions
imposed by the general authority is a question which the courts
have the right to inquire into. [City of Manila v. Chinese Community
of Manila (1919)]
As Exercised By Congress As Exercised By Delegates
Extent of Power
Pervasive and Can only be as broad as
allencompassing the enabling law and the
conferring authorities want
it to be
Question of Necessity
Political question Justiciable question. RTC
has to determine whether
there is a genuine necessity
for its exercise, as well as
what the property’s value
is.
If not justiciable, there’s
grant of special authority
for special purpose
Re: Private Property
Delegate cannot
expropriate private
property already devoted
to public use
⟴ Ordinances; Validity; Gambling Prohibition (1995):
No. 4: 2. PAGCOR decided to operate a casino in Tacloban City
under authority of P.D. No. 1869. It leased a portion of a building
belonging to Ellen McGuire renovated and equipped it in
preparation for its inauguration. The Sangguniang Panlungsod of
Tacloban City enacted an ordinance prohibiting the operation of
casinos in the City and providing penalty for its violation. Ellen
PAGE 7
McGuire and PAGCOR assailed the validity of the ordinance in
court. How would you resolve the issue? Discuss fully.
⟴ SUGGESTED ANSWERS:
The ordinance should be declared invalid. As held in Magtajas
vs. Pryce Properties Corporation. Inc., 234 SCRA 255. such an
ordinance contravenes Presidential Decree No. 1869, which
authorizes the Philippine Amusement and Gaming Corporation to
operate casinos within the territorial Jurisdiction of the Philippines,
because it prevents the said corporation from exercising the power
conferred on it to operate a casino in Tacloban City. The power of
Tacloban City to suppress gambling and prohibited games of chance
excludes of chance permitted by law. Implied repeals are not
favored. (Basco v. PAGCOR)
⟴ Police Power; Prohibition of Gambling (2009)
To address the pervasive problem of gambling, Congress is
considering the following options: (1) prohibit all forms of
gambling; (2) allow gambling only on Sundays; (3) allow gambling
only in government-owned casinos; and (4) remove all
prohibition against gambling but impose a tax equivalent to 30%
on all winnings
(a) If Congress chooses the first option and passes the
corresponding law absolutely prohibiting all forms of gambling,
can the law be validly attacked on the ground that it is an invalid
exercise of police power? Explain your answer
⟴ SUGGESTED ANSWERS:
Yes. Although the Congress has the plenary power to
enact law and interfere with the personal liberty and property in
order to promote the general welfare, the exercise of police power
is subject to 2 test: 1. Lawful subject – refers to the interest of the
General Public requiring the interference of the State and 2. Lawful
means – refers to the reasonable means employed necessary for the
accomplishment of its objective and not duly oppressive upon
individuals. Basis of the exercise of police power: (1) Sic utere tuo
et alienum non laedas – use your property so that you do not injure
that of another (2) Salus populi est suprema lex – the welfare of the
people is the highest law
⟴ (b) If Congress chooses the last option and
passes the corresponding law imposing a 30% tax on all winnings
and prizes won from gambling, would the law comply with the
constitutional limitations on the exercise of the power of taxation?
⟴ SUGGESTED ANSWERS:
NO. Because the lawful means is not reasonably necessary
for the accomplishment of its objective. It adds more burden upon
individuals.
TAXATION
(1) legislature (primarily)
(2) local legislative bodies [Sec. 5, Art. X]
(3) President (to a limited extent, when granted delegated tariff
powers under Sec. 28 (2) Art. VI
BILL OF RIGHTS
The Bill of Rights is designed to preserve the ideals of
liberty, equality and security "against the assaults of opportunism,
the expediency of the passing hour, the erosion of small
encroachments, and the scorn and derision of those who have no
patience with general principles." (Justice Cardozo, Nature of
Judicial Process, 90-93; Tanada and Fernando, Constitution of the
Philippines, 1952 ed., 71.) [Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc. (1973)]
In the pithy language of Mr. Justice Robert Jackson, the purpose of
the Bill of Rights is to withdraw "certain subjects from the
vicissitudes of political controversy, to place them beyond the reach
of majorities and officials, and to establish them as legal principles
to be applied by the courts. One's rights to life, liberty and property,
to free speech, or free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to a vote; they
depend on the outcome of no elections." [West Virginia State Board
of Education v. Barnette, 319 U.S. 624, 638]
APPLICABILITY
Sec. 2, Art. III shall apply only against law officials or people
working as agents of government concerned about being able to
procure evidence. [People v. Marti (1991)]
Sec. 3 of Art. XIII of the Constitution requires the State to give full
protection to labor. We cannot be faithful to this duty if we give no
protection to labor when the violator of its rights happens to be
private parties like private employers. A private person does not
have a better right than the government to violate an employee's
right to due process. To be sure, violation of the particular right of
employees to security of tenure comes almost always from their
private employers. [Serrano v. NLRC (2000)]
BILL OF RIGHTS VS ARTICLE XIII ON SOCIAL JUSTICE:
The bill of rights focuses on civil and political rights
whereas Article XIII focuses on social and economical rights.
Moreover, the guarantees in Bill of rights are generally self-
implementing while Article XIII requires implementing legislations.
⟴ Police Power; Zoning Ordinance vs. Non-
Impairment of Contracts (1989)
No. 12: Pedro bought a parcel of land from Smart Corporation, a
realty firm engaged in developing and selling lots to the public.
One of the restrictions in the deed of sale which was annotated in
the title is that the lot shall be used by the buyer exclusively for
residential purposes. A main highway having been constructed
across the subdivision, the area became commercial in nature. The
municipality later passed a zoning ordinance declaring the area as
a commercial bank building on his lot. Smart Corporation went to
court to stop the construction as violative of the building
restrictions imposed by it. The corporation contends that the
zoning ordinance cannot nullify the contractual obligation
assumed by the buyer. Decide the case.
⟴ SUGGESTED ANSWERS:
The case must be dismissed. As held in Ortigas and
Company, Limited Partnership vs. FEATIi Bank and Trust Company,
94 SCRA 533, such a restriction in the contract cannot prevail over
the zoning ordinance, because the enactment of the ordinance is a
valid exercise of police power. It is hazardous to health and comfort
to use the lot for residential purposes, since a highway crosses the
subdivision and the area has become commercial.
⟴ Police Power; Zoning Ordinance vs. Non-
Impairment of Contracts (2001
No XVIII In the deeds of sale to, and in the land titles of
homeowners of a residential subdivision in Pasig City, there are
restrictions annotated therein to the effect that only residential
houses or structures may be built or constructed on the lots.
However, the City Council of Pasig enacted an ordinance amending
the existing zoning ordinance by changing the zone classification
in that place from purely residential to commercial. "A", a lot
owner, sold his lot to a banking firm and the latter started
constructing a commercial building on the lot to house a bank
inside the subdivision. The subdivision owner and the
homeowners' association filed a case in court to stop the
construction of the building for banking business purposes and to
respect the restrictions embodied in the deed of sale by the
subdivision developer to the lot owners, as well as the annotation
in the titles. If you were the Judge, how would you resolve the
case?
⟴ SUGGESTED ANSWERS:
If I were the judge, I would dismiss the case. As held in
Ortigas and Company Limited Partnership vs. FEATI Bank and
Trust Company. 94 SCRA 633 (1979), the zoning ordinance is a
valid exercise of police power and prevails over the contractual
stipulation restricting the use of the lot to residential purposes.
⟴ Ordinance Validity; Regulation of Disco Pubs (2010)
No. XXI The Sangguniang Panlungsod of Pasay City passed an
ordinance requiring all disco pub owners to have all their
hospitality girls tested for the AIDS virus. Both disco pub owners
and the hosptitality girls assailed the validity of the ordinance for
being violative of their constitutional rights to privacy and to
freely choose a calling or business. Is the ordinance valid?
⟴ SUGGESTED ANSWERS:
PAGE 8
The ordinance is a valid exercise of police power. The
right to privacy yields to certain paramount rights of the public
and defers to the exercise of police power. The ordinance is not
prohibiting the disco pub owners and the hospitality girls from
pursuing their calling or business but is merely regulating it.
(Social Justice Society vs. Dangerous Drugs Board, 570 SCRA 410
[2008]). This ordinance is a valid exercise of police power, because
its purpose is to safeguard public health. (Beltran vs. Secretary of
Health, 476 SCRA 168 [2005])
b) If the court grants the City’s prayer for expropriation, but the
City delays payment of the amount determined by the court as just
compensation, can FCC recover the property from pasig city?
⟴ SUGGESTED ANSWERS:
Yes. As a general rule, non-payment of just
compensation does not entitle the landowner to recover possession
of the expropriated lots. Instead legal interest on just compensation
should be paid (National Power Corporation vs.Henson, 300 SCRA
751 [1998]). However, in cases where the government failed to pay
the just compensation within 5 years from the FINALITY OF THE
JUDGMENT in the expropriation proceedings, the owners
concerned shall have the right to recovery possession of their
property (Republic vs. Lim, 462 SCRA 265 [2005]).
(c) Suppose the expropriation succeeds, but the city decides to
abandon its plan to subdivide the property for residential
purposes having found much bigger lot, can FCC legally demand
that it be allowed to repurchase the property from the city of
Pasig? Why or why not?
⟴ SUGGESTED ANSWERS:
It depends. The property owner’s right to repurchase
the property depends upon the character of the title acquired by
the expropriator, ie., if the land is expropriated for a particular
purpose with the condition that when that purpose is ended or
abandoned, the property shall revert to the former owner, then the
former owner can reacquire the property (Heirs of Timoteo Moreno
vs. Mactan-Cebu International Airport Authority, 413 SCRA 502
[2003]). But if there is no such condition the owner cannot
repurchase because the judgment in the expropriation case grants
title to the lot in fee simple to the REPUBLIC.
DUE PROCESS
A law which hears before it condemns, which proceeds
upon inquiry and renders judgment only after trial” [Darthmouth
College v. Woodward, 4 Wheaton 518] Life includes the right of an
individual to his body in its completeness, free from dismemberment,
and extends to the use of God-given faculties which make life
enjoyable [Justice Malcolm, Philippine Constitutional Law, pp.
320321; See Buck v. Bell, 274 US 200]’
Generally it is part of the sporting idea of fair play to hear
"the other side" before an opinion is formed or a decision is made by
those who sit in judgment.” [Ynot v. IAC (1987)]. It covers any
governmental action which constitutes a deprivation of some
person's life, liberty, or property.
MINIMUM REQUIREMENT:
There must be due notice, opportunity to be heard and to
persons who would be affected by the order or act contemplated.
NOTED EXCEPTIONS TO DUE PROCESS
In such instances, previous judicial hearing may be
omitted without violation of due process in view of: 1) the nature
of the property involved; or 2) the urgency of the need to
protect the general welfare from a clear and present danger.
RELATIVITY OF DUE PROCESS
The concept of due process is flexible for not all situations
calling for procedural safeguards call for the same kind of
procedure. [Secretary of Justice v. Lantion (2000)] However, this
flexible does not mean that judges are at large to apply it to any and
all relationships. Its flexibility is in its scope once it has been
determined that some process is due; it is a recognition that not all
situations calling for procedural safeguards call for the same kind
of procedure. [Morrissey v. Brewer (1972)]
 ⟴ Due Process; Absence of Denial (1999) 2) No, Stevie was not denied due process simply because the
No VIII - B. On April 6, 1963, Police Officer Mario Gatdula was
complainants, the prosecutor, and the hearing officers were all
charged by the Mayor with Grave Misconduct and Violation of Law
subordinates of the Commissioner of the Bureau of Immigration
before the Municipal Board. The Board investigated Gatdula but
and Deportation. In accordance with the ruling in Erianger &
before the case could be decided, the City charter was approved.
Galinger, Inc. vs. Court of Industrial Relations, 110 Phil. 470, the
The City Fiscal, citing Section 30 of the city charter, asserted that
findings of the subordinates are not conclusive upon the
he was authorized thereunder to investigate city officers and
Commissioners, who have the discretion to accept or reject them.
employees. The case against Gatdula was then forwarded to him,
What is important is that Stevie was not deprived of his right to
and a re-investigation was conducted. The office of the Fiscal
present his own case and submit evidence in support thereof, the
subsequently recommended dismissal. On January 11, 1966, the
decision is supported by substantial evidence, and the
City Mayor returned the records of the case to the City Fiscal for
commissioners acted on their own independent consideration of
the submission of an appropriate resolution but no resolution was
the law and facts of the case, and did not simply accept the views of
submitted. On March 3, 1968, the City Fiscal transmitted the
their subordinates in arriving at a decision.
records to the City Mayor recommending that final action thereon
be made by the City Board of Investigators (CBI). Although the CBI
did not conduct an investigation, the records show that both the
PROCEDURAL AND SUBSTANTIVE DUE PROCESS
Municipal Board and the Fiscal's Office exhaustively heard the
case with both parties afforded ample opportunity to adduce their
PROCEDURAL DUE PROCESS
evidence and argue their cause. The Police Commission found
Procedural due process is that aspect of due process which
Gatdula guilty on the basis of the records forwarded by the CBI.
serves as a restriction on actions of judicial and quasi-judicial
Gatdula challenged the adverse decision of the Police Commission
agencies of the government. It refers to the method or manner by
theorizing that he was deprived of due process.
which a law is enforced.
Questions: Is the Police Commission bound by the findings of the
Concerns with government action on established process when it
City Fiscal? Is Gatdula's protestation of lack or nonobservance of
makes intrusion into the private sphere
due process well-grounded? Explain your answers. (4%)
⟴ SUGGESTED ANSWERS: SUBSTANTIVE DUE PROCESS
The Police Commission is not bound by the findings of the City Substantive due process looks to whether there is a
Fiscal. In Mangubat v. de Castro, 163 SCRA 608, it was held that the sufficient justification for the government’s action. It is an aspect
Police Commission is not prohibited from making its own findings of due process which serves as a restriction on the law-making
on the basis of its own evaluation of the records. Likewise, the and rule making power of the government.
protestation of lack of due process is not well-grounded, since the
hearings before the Municipal Board and the City Fiscal offered The law itself, not merely the procedures by which the law would
Gatdula the chance to be heard. There is no denial of due process if be enforced, should be fair, reasonable, and just. It guarantees
the decision was rendered on the basis of evidence contained in the against the arbitrary power even when exercised according to
record and disclosed to the parties affected. proper forms and procedure.

⟴ Due Process; Deportation (1994)
No. 9: A complaint was filed by Intelligence agents of the Bureau
of Immigration and Deportation (BID) against Stevie, a German
national, for his deportation as an undesirable alien. The
Immigration Commissioner directed the Special Board of Inquiry
to conduct an Investigation. At the said Investigation, a lawyer
from the Legal Department of the BID presented as witnesses the
three Intelligence agents who filed the complaint. On the basis of
the findings, report and recommendation of the Board of Special
Inquiry, the BID Commissioners unanimously voted for Stevie's
deportation. Stevie's lawyer questioned the deportation order 1)
On the ground that Stevie was denied due process because the BID
Commissioners who rendered the decision were not the ones who
received the evidence, in violation of the "He who decides must
hear" rule. Is he correct? 2) On the ground that there was a
violation of due process because the complainants, the prosecutor
and the hearing officers were all subordinates of the BID
Commissioners who rendered the deportation decision. Is he
correct?
⟴ SUGGESTED ANSWERS:
1) No, Stevie is not correct. As held in Adamson A Adamson, Inc. vs.
Amores, 152 SCRA 237, administrative due process does not
require that the actual taking of testimony or the presentation of
evidence before the same officer who will decide the case. In
American Tobacco Co. v. Director of Patents, 67 SCRA 287, the
Supreme Court has ruled that so long as the actual decision on the
merits of the cases is made by the officer authorized by law to
decide, the power to hold a hearing on the basis of which his
decision will be made can be delegated and is not offensive to due
process. The Court noted that: "As long as a party is not deprived of
his right to present his own case and submit evidence in support
thereof, and the decision is supported by the evidence in the record,
there is no question that the requirements of due process and fair
trial are fully met. In short, there is no abrogation of responsibility
on the part of the officer concerned as the actual decision remains
with and is made by said officer. It is, however, required that to
give the substance of a hearing, which is for the purpose of making
determinations upon evidence the officer who makes the
determinations must consider and appraise the evidence which
justifies them.
PAGE 9
⟴ Due Process; Procedural vs. Substantive (1999)
No VIII - A. Give examples of acts of the state which infringe the
due process clause:
1. in its substantive aspect and (1%)
2. in its procedural aspect? (1%)
⟴ SUGGESTED ANSWERS:
1.) A law violates substantive due process when it is unreasonable
or unduly oppressive. For example, Presidential Decree No. 1717,
which cancelled all the mortgages and liens of a debtor, was
considered unconstitutional for being oppressive. Likewise, as
stated in Ermita-Malate Hotel and Motel Operators Association,
Inc. v. City Mayor of Manila, 20 SCRA 849, a law which is vague so
that men of common intelligence must guess at its meaning and
differ as to its application violates substantive due process. As held
in Tanada v. Tuvera, 146 SCRA 446, due process requires that the
law be published.
2.) In State Prosecutors v. Muro, 236 SCRA 505, it was held that the
dismissal of a case without the benefit of a hearing and without
any notice to the prosecution violated due process. Likewise, as
held in People v. Court of Appeals, 262 SCRA 452, the lack of
impartiality of the judge who will decide a case violates procedural
due process.
REQUIREMENTS:
Laws which interfere with life, liberty or property satisfy
substantive due process when there is a lawful object i.e. the
interests of the public in general (as distinguished from those of a
particular class) require the intervention of the State, and Lawful
means i.e. means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive on
individuals. [US v. Toribio, (1910)]
Publication of laws is part of substantive due process. [Tañada v.
Tuvera (1986)]
⟴ Due Process; Notice by Publication (1988)
No. 9: Macabebe, Pampanga has several barrios along the
Pampanga river. To service the needs of their residentst the
municipality has been operating a ferry service at the same river,
for a number of years already. Sometime in 1987, the municipality
was served a copy of an order from the Land Tansportation
Franchising and Regulatory Board (LTFRB), granting a certificate
of public convenience to Mr. Ricardo Macapinlac, a resident of
Macabebe, to operate ferry service across the same river and
between the same barrios being serviced presently by the
municipality's ferry boats. A check of the records of the
application of Macapinlac shows that the application was filed
some months before, set for hearing, and notices of such hearing
were published in two newspapers of general circulation in the
town of Macabebe, and in the province of Pampanga. The
municipality had never been directly served a copy of that notice
of hearing nor had the Sangguniang Bayan been requested by
Macapinlac for any operate. The municipality immediately filed a
motion for reconsideration with the LTFRB which was denied. It
went to the Supreme Court on a petition for certiorari to nullify
the order granting a certificate of public convenience to
Macapinlac on two grounds:
1 Denial of due process to the municipality;
2 For failure of Macapinlac to secure approval of the Sangguniang
Bayan for him to operate a ferry service in Macabebe, Resolve the
two points in the petition with reasons.
⟴ SUGGESTED ANSWERS:
The petition for certiorari should be granted,
1. As a party directly affected by the operation of the ferry service,
the Municipality of Macabebe, Pampanga was entitled to be
directly notified by the LTFRB of its proceedings relative to
Macapinlac's application, even if the Municipality had not notified
the LTFRB of the existence of the municipal ferry service. Notice by
publication was not enough. (Municipality of Echague v. Abellera,
146 SCRA 180 (1986)).
2. Where a ferry operation lies entirely within the municipality, the
prior approval of the Municipal government is necessary. ....
⟴ Due Process; Substantive (2003)
2003 No XII - The municipal council of the municipality of Guagua,
Pampanga, passed an ordinance penalizing any person or entity
engaged in the business of selling tickets to movies or other public
exhibitions, games or performances which would charge children
between 7 and 12 years of age the full price of admission tickets
instead of only one-half of the amount thereof. Would you hold the
ordinance a valid exercise of legislative power by the
municipality? Why?
⟴ SUGGESTED ANSWERS:
The ordinance is void. As held in Balacuit v. Court of First
Instance of Agusan del Norte. 163 SCRA 182 [1988], the
ordinance is unreasonable. It deprives the sellers of the tickets of
their property without due process. A ticket is a property right
and may be sold for such price as the owner of it can obtain.
There is nothing pernicious in charging children the same price
as adults.
⟴ Due Process; PPA-Pilots (2001):
The Philippine Ports Authority (PPA) General Manager issued an
administrative order to the effect that all existing regular
appointments to harbor pilot positions shall remain valid only up
to December 31 of the current year and that henceforth all
appointments to harbor pilot positions shall be only for a term of
one year from date of effectivity, subject to yearly renewal or
cancellation by the PPA after conduct of a rigid evaluation of
performance. Pilotage as a profession may be practiced only by
duly licensed individuals, who have to pass five government
professional examinations. The Harbor Pilot Association
challenged the validity of said administrative order arguing that it
violated the harbor pilots' right to exercise their profession and
their right to due process of law and that the said administrative
order was issued without prior notice and hearing. The PPA
countered that the administrative order was valid as it was issued
in the exercise of its administrative control and supervision over
harbor pilots under PPA's legislative charter, and that in issuing
the order as a rule or regulation, it was performing its executive
or legislative, and not a quasi-Judicial function.
PAGE 10
Q: Due process of law is classified into two kinds namely,
procedural due process and substantive due process of law. Was
there, or, was there no violation of the harbor pilots' right to
exercise their profession and their right to due process of law?
⟴ SUGGESTED ANSWERS:
YES. The right of the harbor pilots to due process was
violated. Am held in Corona vs. United Harbor Pilots Association of
the Philippines, 283 SCRA 31 (1997) pilotage as a profession is a
property right protected by the guarantee of due process. The pre-
evaluation cancellation of the licenses of the harbor pilots every
year is unreasonable and violated their right to substantive due
process. The renewal is dependent on the evaluation after the
licenses have been cancelled. The issuance of the administrative
order also violated procedural due process, since no prior public
hearing was conducted. As hold in Commissioner of Internal
Revenue vs. Court of Appeals, 261 SCRA 237 (1998), when a
regulation is being issued under the quasi-legislative authority of
an administrative agency, the requirements of notice, hearing and
publication must be observed.
⟴ Due Process; Provisional Order (1991):
No 7 - On 29 July 1991. the Energy Regulatory Board (ERB), in
response to public clamor, issued a resolution approving and
adopting a schedule for bringing down the prices of petroleum
products over a period of one (1) year starting 15 August 1991,
over the objection of the oil companies which claim that the period
covered is too long to prejudge and foresee. Is the resolution valid?
⟴ SUGGESTED ANSWERS:
No, the resolution is invalid, since the Energy
Regulatory Board issued the resolution without a hearing. The
resolution here is not a provisional order and therefore it can only
be issued after appropriate notice and hearing to affected parties.
The ruling in Philippine Communications Satellite Corporation vs.
Alcuaz, 180 SCRA 218, to the effect that an order provisionally
reducing the rates which a public utility could charge, could be
issued without previous notice and hearing, cannot apply.
⟴ Due Process; Radio Station (1987)
No. XIV: In the morning of August 28, 1987, during the height of
the fighting at Channel 4 and Camelot Hotel, the military closed
Radio Station XX, which was excitedly reporting the successes of
the rebels and movements towards Manila and troops friendly to
the rebels. The reports were correct and factual. On October 6,
1987, after normalcy had returned and the Government had full
control of the situation, the National Telecommunications
Commission, without notice and hearing, but merely on the basis
of the report of the military, cancelled the franchise of station XX.
Discuss the legality of:
(b) The cancellation of the franchise of the station on October 6,
1987.
⟴ SUGGESTED ANSWERS:
The cancellation of the franchise of the station on
October 6, 1987, without prior notice and hearing, is void. As held in
Eastern Broadcasting Corp. (DYRE) v. Dans, 137 SCRA 647 (1985),
the cardinal primary requirements in administrative proceedings
(one of which is that the parties must first be heard) as laid down in
Ang Tibay v. CIR, 69 Phil. 635 (1940) must be observed in closing a
radio station because radio broadcasts are a form of
constitutionally-protected expression.
⟴ Due Process; Public School Teachers (2002:
No X - Ten public school teachers of Caloocan City left their
classrooms to join a strike, which lasted for one month, to ask for
teachers' benefits. The Department of Education, Culture and
Sports charged them administratively, for which reason they were
required to answer and formally investigated by a committee
composed of the Division Superintendent of Schools as Chairman,
the Division Supervisor as member and a teacher, as another
member. On the basis of the evidence adduced at the formal
investigation which amply established their guilt, the Director
rendered a decision meting out to them the penalty of removal
from office. The decision was affirmed by the DECS Secretary and
the Civil Service Commission. On appeal, they reiterated the
arguments they raised before the administrative bodies, namely:
(b) They were deprived of due process of law as the Investigating
Committee was improperly constituted because it did not include
a teacher in representation of the teachers' organization as
required by the Magna Carta for Public School Teachers (R.A. No.
4670, Sec. 9).
⟴ SUGGESTED ANSWERS:
The teachers were deprived of due process of law. Under
Section 9 of the Magna Carta for Public School Teachers, one of the
members of the committee must be a teacher who is a
representative of the local, or in its absence, any existing provincial
or national organization of teachers. According to Fabella v. Court
of Appeals, 283 SCRA 256 (1997), to be considered the authorized
representative of such organization, the teacher must be chosen by
the organization itself and not by the Secretary of Education,
Culture and Sports. Since in administrative proceedings, due
process requires that the tribunal be vested with jurisdiction and
be so constituted as to afford a person charged administratively a
reasonable guarantee of impartiality, if the teacher who is a
member of the committee was not appointed in accordance with
the law, any proceeding before it is tainted with deprivation of
procedural due process.
⟴ Due Process; Urgent Public Need (1987):
No. II: The Manila Transportation Company applied for upward
adjustment of its rates before the Transportation Regulatory Board.
Pending the petition, the TRB, without previous hearing, granted a
general nationwide provisional increase of rates. In another Order,
TRB required the company to pay the unpaid supervisory fees
collectible under the Public Service Law. After due notice and
hearing, on the basis of the evidence presented by Manila
Transportation Company and the Oppositors, TRB issued an Order
reducing the rates applied for by one-fourth. Characterize the
powers exercised by the TRB in this case and determine whether
under the present constitutional system the Transportation
Regulatory Board can be validly conferred the powers exercised by
it in issuing the Orders given above.
⟴ SUGGESTED ANSWERS:
The orders in this case involve the exercise of judicial
function by an administrative agency, and therefore, as a general
rule, the cardinal primary rights enumerated in Ang Tibay v. CIR,
69 Phil. 635 (1940) must be observed. In Vigart Electric Light Co, v.
PSC, 10 SCRA 46 (1964) it was held that a rate order, which applies
exclusively to a particular party and is predicated on a finding of
fact, partakes of the nature of a quasi-judicial, rather than
legislative, function. The first order, granting a provisional rate
increase without hearing, is valid if justified by URGENT PUBLIC
NEED, such as increase in the cost of fuel. The power of the Public
Service Commission to grant such increase was upheld in several
cases. (Silva v. Ocampo, 90 Phil. 777 (1952); Halili v. PSC, 92 Phil.
1036(1953)) The second order requiring the company to pay
unpaid supervisory fees under the Public Service Act cannot be
sustained. The company has a right to be heard, before it may be
ordered to pay. (Ang Tibay v. CIR, 69 Phil. 635 (1940)) The third
order can be justified. The fact that the TRB has allowed a
provisional rate increase does not bind it to make the order
permanent if the evidence later submitted does not justify increase
but, on the contrary, warrants the reduction of rates.
⟴ Due Process; Provisional Order (1991)
No 7 - On 29 July 1991. the Energy Regulatory Board (ERB), in
response to public clamor, issued a resolution approving and
adopting a schedule for bringing down the prices of petroleum
products over a period of one (1) year starting 15 August 1991,
over the objection of the oil companies which claim that the period
covered is too long to prejudge and foresee. Is the resolution valid?
⟴ SUGGESTED ANSWERS:
No, the resolution is invalid, since the Energy Regulatory Board
issued the resolution without a hearing. The resolution here is not
a provisional order and therefore it can only be issued after
appropriate notice and hearing to affected parties. The ruling in
Philippine Communications Satellite Corporation vs. Alcuaz, 180
SCRA 218, to the effect that an order provisionally reducing the
rates which a public utility could charge, could be issued without
previous notice and hearing, cannot apply.
CONSTITUTIONAL VS STATUTORY DUE PROCESS
PAGE 11
Both Constitutional and Statutory due process has
procedural and substantive due process.
In terms of source, the basis of constitutional due process
is the Constitution while in Statutory due process is the labor code.
In terms of purpose, constitutional due process protects
individual against government and assures him of his right in
criminal, civil and administrative proceedings while in statutory due
process, protects employees from being unjustly terminated without
just cause after notice and hearing.
The effect of which in constitutional due process, is that the
government action is deemed void while in statutory due process
does not void action but the court provides for other remedies.
There are three reasons why violation by the employer of the
notice requirement cannot be considered a denial of due process
resulting in the nullity of the employee's dismissal or layoff:
(1) The Due Process Clause of the Constitution is a limitation on
governmental powers. It does not apply to the exercise of
private power, such as the termination of employment under
the Labor Code.
(2) Notice and hearing are required under the Due Process Clause
before the power of organized society are brought to bear
upon the individual. This is obviously not the case of
termination of employment under Art. 283.
(3) The employer cannot really be expected to be entirely an
impartial judge of his own cause. [Serrano v. NLRC (2000)]
⟴ Due Process; Meeting vs. Hearing (1999)
No VIII - C. On November 7, 1990, nine lawyers of the Legal
Department of Y Bank who were all under Fred Torre, sent a
complaint to management accusing Torre of abusive conduct and
mismanagement. Furnished with a copy of the complaint, Torre
denied the charges. Two days later, the lawyers and Torre were
called to a conference in the office of the Board Chairman to give
their respective sides of the controversy. However, no agreement
was reached thereat. Bank Director Romulo Moret was tasked to
look further into the matter. He met with the lawyers together
with Torre several times but to no avail.
Moret then submitted a report sustaining the charges of the
lawyers. The Board Chairman wrote Torre to inform him that the
bank had chosen the compassionate option of "waiting" for Torre's
resignation. Torre was asked, without being dismissed, to turn
over the documents of all cases handled by him to another official
of the bank but Torre refused to resign and requested for a "full
hearing". Days later, he reiterated his request for a "full hearing",
claiming that he had been "constructively dismissed". Moret
assured Torre that he is "free to remain in the employ of the bank"
even if he has no particular work assignment. After another
request for a "full hearing" was ignored, Torre filed a complaint
with the arbitration branch of NLRC for illegal dismissal. Reacting
thereto, the bank terminated the services of Torre.
Questions:
(a) Was Torre "constructively dismissed" before he filed his
complaint?
(b) Given the multiple meetings held among the bank officials, the
lawyers and Torre, is it correct for him to say that he was not given
an opportunity to be heard? Explain your answers.
⟴ SUGGESTED ANSWERS:
a) Torre was constructively dismissed, as held in Equitable Banking
Corporation v. National Labor Relations Commission, 273 SCRA
352. Allowing an employee to report for work without being
assigned any work constitutes constructive dismissal.
b) Torre is correct in saying that he was not given the chance to be
heard. The meetings in the nature of consultations and conferences
cannot be considered as valid substitutes for the proper observance
of notice and hearing.
HIERARCHY OF RIGHTS
 When the Bill of Rights also protects property rights, the
primacy of human rights over property rights is recognized.
Because these freedoms are “delicate and vulnerable, as well as
supremely precious in our society” and the “threat of sanctions may
deter their exercise almost as potently as the actual application of
sanctions,” they “need breathing space to survive,” permitting
government regulation only “with narrow specificity.” [Philippine
Blooming Mills Employees Organization v. Philippine Blooming
Mills Co., Inc (1973)]
If the liberty involved were freedom of the mind or the person,
the standard for the validity of governmental acts is much more
rigorous and exacting, but where the liberty curtailed affects at
the most rights of property, the permissible scope of regulatory
measure is wider. [Ermita Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila (1967)]
⟴ In the valid exercise of management prerogative
consistent with the company's right to protect its economic
interest, it may prohibit its employees from:
⟴ SUGGESTED ANSWERS:
Marrying employees of competitor companies.
⟴ Human Rights; Civil and Political Rights (1996)
No. 1: 1) Distinguish civil rights from political rights and give an
example of each right. 2) What are the relations of civil and
political rights to human rights? Explain.
⟴ SUGGESTED ANSWERS:
1) The term "CIVIL RIGHTS" refers to the rights secured by the
constitution of any state or country to all its Inhabitants and not
connected with the organization or administration of government,
[Black, Handbook of American Constitutional Law, 4th ed., 526.)
POLITICAL RIGHTS consist in the power to participate, directly or
indirectly, in the management of the government. Thus, civil rights
have no relation to the establishment, management or support of
the government. (Anthony vs. Burrow, 129 F 783). pCIVIL RIGHTS
extend protection to all inhabitants of a state, while POLITICAL
RIGHTS protect merely its citizens.
Examples of civil rights are the rights against involuntary
servitude, religious freedom, the guarantee against unreasonable
searches and seizures, liberty of abode, the prohibition against
imprisonment for debt, the right to travel, equal protection, due
process, the right to marry, right to return to this country and right
to education. Examples of political rights are the right of suffrage,
the right of assembly, and the right to petition for redress of
grievances.
2) Human rights are broader in scope than civil and political rights.
They also include social, economic, and cultural rights. Human
rights are inherent in persons from the fact of their humanity.
Every man possesses them everywhere and at all times simply
because he is a human being. On the other hand, some civil and
political rights are not natural rights. They exist because they are
protected by a constitution or granted by law. For example, the
liberty to enter into contracts is not a human right but is a civil
right.
VOID-FOR-VAGUENESS DOCTRINE
⟴ OVERBREADTH DOCTRINE VS. VOID FOR
VAGUENESS (2012)
No. VIII. (a) What is the doctrine of "overbreath"? In what
context can it be correctly applied? Not correctly applied?
Explain (5%)
⟴ SUGGESTED ANSWERS:
A statute is overbroad when a governmental purpose to
control or prevent activities constitutionally subject to state
regulations is sought to be achieved by means which sweep
unnecessarily broadly and invade the area of protected freedom. It
applies both to free speech cases and penal statutes. However, a
facial challenge on the ground of overbreadth can only be made in
free speech cases because of its chilling effect upon protected
speech. A facial challenge on the ground of overbreadth is not
applicable to penal statutes, because in general they have an in
terrorem effect. (Southern Hemisphere Engagement Network, Inc.
vs. Anti-Terrorism Council, 632 SCRA 146.) (NOTE: The word
PAGE 12
“overbreath” should read “overbreadth” because breath has no limit
especially if it is bad breath.)
What is the doctrine of "void for vagueness"? In what context can
it be correctly applied? Not correctly applied? Explain (5%)
⟴ SUGGESTED ANSWERS:
A statute is vague when it lacks comprehensible
standards that men of common intelligence that guess at its
meaning and differ as to its application. It applies to both free
speech cases and penal statutes. However, a facial challenge on the
ground of vagueness can be made only in free speech cases. It does
not apply to penal statutes. (Southern Hemisphere Engagement
Network, Inc. vs. Anti-Terrorism Council, 632 SCRA 146.)
⟴ Overbreadth Doctrine vs. Void for Vagueness (2010)
No. XXIV. Compare and contrast: “Overbreadth” doctrine
from void-for vagueness doctrine.
⟴ SUGGESTED ANSWERS:
While the overbreadth doctrine decrees that a
governmental purpose may not be achieved by means in a statute
which sweep unnecessary broadly and thereby invades the area of
protected freedom a statute is void for vagueness when it forbids or
requires the doing of an act in terms so vague that men of common
intelligence cannot necessarily guess at its meaning and differ as to
its application. (Estrada vs. Sandiganbayan, 369 vs. SCRA 394
[2001]).
⟴ Overbreadth doctrine decrees that governmental
purpose may not be achieved by means which sweeps
unnecessarily broadly and thereby invade the area of protected
freedoms.
⟴ SUGGESTED ANSWERS:
“Void for vagueness doctrine" which holds that "a law
is facially invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application, violates the first
essential of due process of law.
EQUAL PROTECTION
Equal protection requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed.
The guarantee means that no person or class of persons
shall be denied the same protection of laws which is enjoyed by
other persons or other classes in like circumstances. [City of Manila
v. Laguio (2005) citing Ichong v. Hernandez (1957)]
Scope
The scope of equal protection clause covers not only
natural and juridical persons but also extends to artificial persons
such as corporation.
REQUISITES FOR VALID CLASSIFICATION – 4 PRONGED TEST
For equal protection clause to apply, there must be (1)
substantial distinction which make real differences; (2) must be
germane to the purpose of law; (3) must not be limited to existing
conditions only and (4) applies equally to ALL members of the same
class. [People v. Cayat (1939)]
EXAMPLES OF VALID CLASSIFICATION
All classifications made by law are generally presumed to
be valid unless shown otherwise by petitioner. [Lacson v. Executive
Secretary (1999)]
ALIENS
General Rule: The general rule is that a legislative act may not
validly classify the citizens of the State on the basis of their
origin, race or parentage.
Exceptions:
(1) In times of great and imminent danger
(2) Political rights
(3) Privileges connected with public domain, public works or
natural resources of the state.
 The Court upheld the Retail Trade Nationalization Law claim his spouse as a dependent to obtain increased quarter
despite the objection that it violated the equal protection clause, allowance, regardless of whether the wife is actually dependent on
because there exists real and actual, positive and fundamental him, while denying the same right to a servicewoman unless her
differences between an alien and a national. [Ichong v. Hernandez husband was in fact dependent on her for over one half of his
(1957)] support. (Frontierro v Richardson, 411 U.S. 687 (1973); Accord
Craig, v. Boren, 429 U.S. 190 (1976) (providing for sale of beer to
males under 21 and to females under 18); Reed v. Reed. 404 U.S. 71
⟴ Equal Protection; Alien Employment (1989) (1971) (preference given to men over women for appointment as
No 18: An ordinance of the City of Manila requires every alien
administrators of estates invalid).
desiring to obtain employment of whatever kind, including casual
and part-time employment, in the city to secure an employment
(b) In addition to the Equal Protection Clause, the 1987
permit from the City Mayor and to pay a work permit fee of P500.
Constitution now requires the State to "ensure the fundamental
Is the ordinance valid?
equality before the law of women and men" (Art II, Sec. 14) and to
⟴ SUGGESTED ANSWERS: provide them with "such facilities and opportunities that will
No, the ordinance is not valid. In Villegas vs. Hiu Chiong enhance their welfare and enable them to realize their full
Tsai Pao Ho, 86 SCRA 270, it was held that such an ordinance potential in the service of the nation." (Art. XIII, Sec. 14). These
violates equal protection. It failed to consider the valid substantial provisions put in serious doubt the validity of PD 97 limiting the
differences among the aliens required to pay the fee. The same practice of marine profession to males.
among it being collected from every employed alien, whether he is
casual or permanent, part-time or full-time. The ordinance also
violates due process, because it does not contain any standard to
guide the mayor in the exercise of the power granted to him by the
⟴ Equal Protection; Invidious Discrimination (1987)
No. 10: "X", a son of a rich family, applied for enrolment
ordinance. Thus, it confers upon him unrestricted power to allow or
with the San Carlos Seminary in Mandaluyong, Metro Manila.
prevent an activity which is lawful per se.
Because he had been previously expelled from another seminary
for scholastic deficiency, the Rector of San Carlos Seminary denied
FILIPINO FEMALE DOMESTICS WORKING ABROAD
the application without giving any grounds for the denial. After "X"
They are a class by themselves because of the special
was refused admission, the Rector admitted another applicant,
risks to which their class was exposed. [Phil Association of Service
who is the son of a poor farmer who was also academically
Exporters v. Drilon (1988)]
deficient.
LAND-BASED V. SEA-BASED FILIPINO OVERSEAS WORKERS
(a) Prepare a short argument citing rules, laws, or constitutional
There is dissimilarity as to work environment, safety,
provisions in support of "X's" motion for reconsideration of the
danger to life and limb, and accessibility to social, civil and spiritual
denial of his application.
activities. [Conference of Maritime Manning Agencies v. POEA
(1995)] ⟴ SUGGESTED ANSWERS:
The refusal of the seminary to admit "X" constitutes
invidious discrimination, violative of the Equal Protection Clause
⟴ Equal Protection; Invidious Discrimination (1987) (Art. III, Sec. 1) of the Constitution. The fact, that the other
No. VI: Marina Neptunia, daughter of a sea captain and sister to
applicant is the son of a poor farmer does not make the
four marine officers decided as a child to follow in her father's
discrimination any less invidious since the other applicant is also
footsteps. In her growing up years she was as much at home on
academically deficient. The reverse discrimination practiced by the
board a boat as she was in the family home by the sea. In time she
seminary cannot be justified because unlike the race problem in
earned a Bachelor of Science degree in Marine Transportation,
America, poverty is not a condition of inferiority needing redress.
major in Navigation and Seamanship. She served her
apprenticeship for a year in a merchant marine vessel registered
QUALIFICATION FOR ELECTIVE OFFICE
for foreign trade and another year on a merchant marine vessel
Disqualification from running in the same elective office
registered for coastwise trade. But to become a full-fledged
from which he retired of a retired elective provincial/municipal
marine officer she had to pass the appropriate board
official who has received payment of retirement benefits and who
examinations before she could get her professional license and
shall have been 65 y.o. at the commencement of the term of office to
registration. She applied in January 1986 to take examination for
which he seeks to be elected is valid. [Dumlao v. Comelec (1980)]
marine officers but her application was rejected for the reason
that the law Regulating the Practice of Marine Profession in the
Philippines (Pres. Dec. No. 97 (1973) ) specifically prescribes that
ELECTION OFFICIALS V. OTHER MUNICIPAL OFFICIALS
"No person shall be qualified for examination as marine officer
RA 8189 (Voters’ Registration Act) prohibits election
unless he is:
officers from holding office in a particular city or municipality for
more than four (4) years. The classification is germane to the law
Marina feels very aggrieved over the denial and has come to you
since the risk sought to be addressed is cheating during elections.
for advice. She wants to know:
[De Guzman v. COMELEC (2000)]
(1) Whether the Board of Examiners had any plausible or legal
basis for rejecting her application in 1986. Explain briefly.
OFFICE OF THE OMBUDSMAN
(2) Whether the 1987 Constitution guarantees her the right to
Allowing the Ombudsman to start an investigation based
admission to take the coming January 1988 marine officers
on an anonymous letter does not violate EP clause. The Office of the
examinations. Explain and cite relevant provisions.
Ombudsman is different from other investigatory and prosecutory
⟴ SUGGESTED ANSWERS: agencies of government because those subject to its jurisdiction are
(a) The disqualification of females from the practice public officials who, through official pressure and influence, can
of marine profession constitutes as invidious discrimination quash, delay or dismiss investigations against them. [Almonte v.
condemned by the Equal Protection Clause of that Constitution Vasquez (1995)]
(Art. IV, Sec. 1) In the
United States, under a similar provision, while earlier decisions of PRINT V. BROADCAST MEDIA
the Supreme Court upheld the validity of a statute prohibiting There are substantial distinctions between the two to
women from bartending unless she was the wife or daughter of a warrant their different treatment under BP 881
male owner (Goesart v. Cleary, 335 U.S. 464 (1948) and denying to [Telecommunications and Broadcast Attorneys of the Phil v.
women the right to practice law (Bradwell v. State, 83 U.S. (16 COMELEC (1998)]
Wall) 130 (1873), recent decisions have invalidated statutes or
regulations providing for differential treatment of females based
on nothing stereotypical and inaccurate generalizations. The Court
held that "classification based on sex, like classifications based
⟴ Due Process; Media Coverage during Hearing (1996)
No 2: At the trial of a rape case where the victim complainant was
upon race, alienage, or national origin, are inherently suspect, and
a well known personality while the accused was a popular movie
must therefore be subjected to strict judicial scrutiny." Accordingly,
star, a TV station was allowed by the trial judge to televise the
the Court invalidated a statute permitting a male serviceman to

PAGE 13
 entire proceedings like the O.J. Simpson trial. The accused
objected to the TV coverage and petitioned the Supreme Court to
prohibit the said coverage. As the Supreme Court, how would you
rule on the petition? Explain.
⟴ SUGGESTED ANSWERS:
The Supreme Court should grant the petition. In its Resolution
dated October 22, 1991, the Supreme Court prohibited live radio
and television coverage of court proceedings to protect the right of
the parties to due process, to prevent the distraction of the
participants in the proceedings, and in the last analysis to avoid a
miscarriage of justice.
STANDARDS FOR JUDICIAL REVIEW
⟴ The Gay, Bisexual and Transgender Youth Association
(GBTYA), an organization of gay, bisexual, and transgender
persons, filed for accreditation with the COMELEC to join the
forthcoming party-list elections. The COMELEC denied the
application for accreditation on the ground that GBTYA espouses
immorality which offends religious dogmas. GBTY A challenges
the denial of its application based on moral grounds because it
violates its right to equal protection of the law.
What are the three (3) levels of test that are applied in equal
protection cases? Explain. (3%)
⟴ SUGGESTED ANSWERS:
The three kinds of tests applied in equal protection cases, as
introduced in the case of Serrano vs Gallant Maritime are:
a. Strict Scrutiny Test –This test is triggered
when a fundamental constitutional right is limited by a law. It is
which a legislative classification which impermissibly interferes
with the exercise of a fundamental right or operates to a peculiar
disadvantage of a suspect class is presumed unconstitutional. The
burden is upon the government to prove that the classification is
necessary to achieve a compelling state interest and that it is the
least restrictive means to protect such interest.
This is used in cases involving classifications based on race,
national origin, religion, alienage, denial of right to vote, interstate
migration, access to courts and other rights recognized as
fundamental
b. Immediate or middle-tier scrutiny test – the court accepts the
articulated purpose of the legislation but it closely scrutinizes the
relationship between the classification and the purpose based on a
spectrum of standards, by gauging the extent to which
constitutionally guaranteed rights depend upon the affected
individual interest. It requires government to show that the
challenged classification serves as an important state interest and
that the classification is at least substantially related to serving
that interest. This applies to suspect classification like gender or
illegitimacy.
C. Rational basis scrutiny – here, there should be a reasonable
relation to the government’s purpose. In the case of Williamson v
Lee Optical, when there is an evil at hand for correction and the
particular legislative measure was a rational way to correct it. This
test is mostly applicable for economic legislations.
NOTE: it is important that when the government attaches a
morally irrelevant and negative significance to a difference
between the advantaged and the disadvantaged.
Which of the three (3) levels of test should be applied to the
present case? Explain.
⟴ SUGGESTED ANSWERS:
The Rational Basis Test should be applied to the
present case. In our jurisdiction, the Supreme Court declared that
the standard of analysis of equal protection challenges is the
rational basis test. Jurisprudence has affirmed that if a law neither
burdens a fundamental right nor targets a suspect class, the
classification shall be upheld as long as it bears a rational
relationship to some legitimate end. In the case at bar, in so far as
the party-list system is concerned, GBTYA is similarly situated as all
other groups which are running for a party-list seat in Congress
(Ang Ladlad v. COMELEC).
This case churned out three standards for judicial review: the
strict scrutiny test for laws dealing with freedom of the mind and
PAGE 14
curtailment of political process and the rational basis standard of
review for economic legislation. A third standard was created
known as the immediate scrutiny for evaluating standards based
on gender and legitimacy.
The SC applied strict scrutiny because the ordinance restricts
patrons’ right to liberty. Legitimate sexual behavior, which is
constitutionally protected, will be unduly curtailed by the
ordinance. Apart from the right to privacy, the ordinance also
proscribes other legitimate activities most of which are grounded
on the convenience of having a place to stay during the short
intervals between travels. [White Light Corporation, et al v. City of
Manila (2009)]
4 PRONGED TEST OF VALID CLASSIFICATION:
For equal protection clause to apply, there must be (1) substantial
distinction which make real differences; (2) must be germane to the
purpose of law; (3) must not be limited to existing conditions only
and (4) applies equally to ALL members of the same class. [People v.
Cayat (1939)]
Alternative thought: BERNAS (and Prof. De Vera) opines that in
Serrano v. Gallant Maritime, the Court seems to imply that the Test
of Valid Classification is to be applied under the Rational Basis
standard. Note that in Serrano, where the Court applied Strict
Scrutiny, the Test of Valid Classification was mentioned but not
applied. Note however that the Serrano levels of scrutiny have not
been reapplied as of this writing. This issue has not yet been
clarified.
⟴ Right to Liberty; Presentability of Policemen
(2008)
No. VI. The Philippine National Police (PNP) issued a circular to all
its members directed at the style and length of male police officers’
hair, sideburns and moustaches, as well as the size of their
waistlines. It prohibits beards, goatees, and waistlines over 38
inches, except for medical reason. Some police officers questioned
the validity of the circular, claiming that it violated their right to
liberty under the Constitution. Resolve the controversy.
⟴ SUGGESTED ANSWERS:
Although the National Police is civilian in character, it
partakes of some of the characteristics of military life, thus
permitting the imposition of reasonable measures for discipline,
uniformity in behavior and presentableness. The circular does not
go beyond what is reasonable and therefore passes the test of due
process (Gudani vs. Senga, G.R. No. 170165, Aug. 15, 2006). In Kelly
vs. Johnson, 425 US 238 (1976), the US Supreme Court said that the
regulations of personal appearance of policemen could be justified
so long as there was a rational connection between the regulation
and the promotional safety of persons and property. The requisite
connection was present since the government had a legitimate
interest in policemen’s appearances so that they would: (1) be
readily recognizable to the public and (2) feel a sense of “esprit de
corps” that comes from being similar.
⟴ Equal Protection; Subsidiary Imprisonment (1989)
No. 4: "X" was sentenced to a penalty of 1 year and 5 months of
prision correctional and to pay a fine of P8,000.00, with subsidiary
imprisonment in case of solvency. After serving his prison term,
"X" asked the Director of Prisons whether he could already be
released. "X" was asked to pay the fine of P5,000.00 and he said he
could not afford it, being an indigent. The Director informed him
he has to serve an additional prison term at the rate of one day per
eight pesos in accordance with Article 39 of the Revised Penal
Code, The lawyer of "X" filed a petition for habeas corpus
contending that the further incarceration of his client for unpaid
fines violates the equal protection clause of the Constitution.
Decide.
⟴ SUGGESTED ANSWERS:
(1) The petition should be granted, because Article 39 of the
Revised Penal Code is unconstitutional. In Tate vs. Short, 401 U.S.
395, the United States Supreme Court held that imposition of
subsidiary imprisonment upon a convict who is too poor to pay a
fine violates equal protection, because economic status cannot
serve as a valid basis for distinguishing the duration of the
 imprisonment between a convict who is able to pay the fine and a
convict who is unable to pay it.
(2) On the other hand, in United States ex rel. Privitera vs. Kross,
239 F Supp 118, it was held that the imposition of subsidiary
imprisonment for inability to pay a fine does not violate equal
protection, because the punishment should be tailored to fit the
individual, and equal protection does not compel the eradication of
every disadvantage caused by indigence. The decision was affirmed
by the United States Circuit Court of Appeals in 345 F2d 533, and
the United States Supreme Court denied the petition for certiorari
in 382 U.S. 911. This ruling was adopted by the Illinois Supreme
Court in People vs. Williams, 31 ALR3d 920.
⟴ Equal Protection; Responsible Parenthood (2007):
No.II. The City Mayor issues an Executive Order declaring that the
city promotes responsible parenthood and upholds natural family
planning. He prohibits all hospitals operated by the city from
prescribing the use of artificial methods of contraception,
including condoms, pills, intrauterine devices and surgical
sterilization. As a result, poor women in his city lost their access
to affordable family planning programs. Private clinics, however,
continue to render family planning counsel and devices to paying
clients.
(a) Is the Executive Order in any way constitutionally infirm?
⟴ SUGGESTED ANSWERS:
The Executive Order is constitutionally infirm. Under the
1987 Constitution, the State shall defend the right of spouses to
establish a family in accordance with their religious convictions and
the demands of responsible parenthood. (Art. XV, Sec. 3[1]). By
upholding natural family planning and prohibiting city hospitals
from prescribing artificial methods of contraception, the Mayor is
imposing his religious beliefs on spouses who rely on the services of
city hospitals. This clearly violates the above section of the
Constitution.
Moreover, the 1987 Constitution states that no person
shall be denied the equal protection of the laws. (Art. III, Sec. 1).
The Constitution also provides that the state shall promote a just
and dynamic social order that will ensure the prosperity and
independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full
employment, a rising standard of living and an improved quality of
life for all. (Art. II, Section 9). The loss of access of poor city women
to family planning programs is discriminatory and creates suspect
classification. It also goes against the demands of social justice as
enshrined in the immediately preceding provision.
⟴ (c) May the Commission on Human Rights order the
Mayor to stop the implementation of the Executive
Order? Explain.
⟴ SUGGESTED ANSWERS:
No, the power of the Commission on Human Rights (CHR) is
limited to factfinding investigations. Thus, it cannot issue an
“order to desist” against the mayor, inasmuch as the order
prescinds from an adjudicatory power that CHR does not
possess. (Simon v. Commission on Human Rights, G.R. No.
100150, January 5, 1994; Cariño v. Commission on Human
Rights, G.R. No. 96681, December 2, 1991.)
IN RELATION TO ARTICLE II, SECTION 14
⟴ Women (2000): No IX. b) What are the provisions of the
Constitution on women? (2%)
⟴ SUGGESTED ANSWERS:
b) The following are the provisions of the Constitution on women:
1) "It (the State) shall equally protect the life of the mother and the
life of the unborn from conception." (Section 12, Article II)
2) The State recognizes the role of women in nation-building, and
shall ensure the fundamental equality before the law of women and
men." (Section 14, Article II)
3) "The State shall protect working women by providing safe and
healthful working conditions, taking into account their maternal
functions, and such faculties and opportunities that will enhance
PAGE 15
their welfare and enable them to realize their full potential in the
service of the nation." (Section 14, Article XIII)
SECTION 2, ARTICLE III
“search and seizures”
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable and no search
warrant or warrant of arrest shall issue
EXCEPT upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce
and particularly describing the place to be searched and the
persons or things to be seized.
FUNDAMENTAL PROTECTION:
The fundamental protection given by the search and seizure
clause is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to
issue search warrants or warrants of arrest.
NATURE
It may be waived expressly or impliedly only by the person
whose right is invaded, not by one who is not duly authorized to
effect such waiver. [People v. Damaso (1992)]
APPLICABILITY:
The right applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the
law. The protection cannot extend to acts committed by private
individuals so as to bring them within the ambit of alleged
unlawful intrusion by the government. [People v. Marti (1991); See
also Yrasuegui v. Philippine Airlines (2008)]
⟴ Searches and Seizures; search made by a private
citizen (1993)
No. 4: Larry was an overnight guest in a motel. After he checked
out the following day, the chambermaid found an attache case
which she surmised was left behind by Larry. She turned it over to
the manager who, to determine the name and address of the
owner, opened the attache case and saw packages which had a
peculiar smell and upon squeezing felt like dried leaves. His
curiosity aroused, the manager made an opening on one of the
packages and took several grams of the contents thereof. He took
the packages to the NBI, and in the presence of agents, opened the
packages, the contents of which upon laboratory examination,
turned out to be marijuana flowering tops, Larry was
subsequently found, brought to the NBI Office where he admitted
ownership of the attache case and the packages. He was made to
sign a receipt for the packages. Larry was charged in court for
possession of prohibited drugs. He was convicted. On appeal, he
now poses the following issues:
1) The packages are inadmissible in evidence being the product of
an illegal search and seizure.
2) Neither is the receipt he signed admissible, his rights under
custodial investigation not having been observed.
⟴ SUGGESTED ANSWERS:
On the assumption that the issues were timely raised the answers
are as follows:
1) The packages are admissible in evidence. The one who
opened the packages was the manager of the motel without
any interference of the agents of the National Bureau of
Investigation. As held in People vs. Marti, 193 SCRA 57, the
constitutional right against unreasonable searches and
seizures refers to unwarranted intrusion by the government
and does not operate as a restraint upon private individuals.
2) The receipt is not admissible in evidence According to the
ruling in People vs. Mirantes 209 SCRA 179, such receipt is in
effect a extrajudicial confession of the commission of a
offense. Hence, if it was signed without theassistance of
counsel, in accordance with Section 12(3), Article IV of the
Constitution, it is inadmissible in evidence. [People v. Duhan,
142 SCRA 100 (1986)].
What constitutes a reasonable or unreasonable search and
seizure in any particular case is purely a judicial question,
determinable from a consideration of the circumstances involved.
[Valmonte v. De Villa (1989)]
SCOPE
Generally, it protects all persons including aliens but are
limited to artificial person such as company. [Bache and Co. Inc v.
Ruiz (1971)].
WARRANT REQUIREMENT: PURPOSE:
(1)Search Warrant- to gain evidence to convict
(2) Warrant of Arrest- to acquire jurisdiction
Must refer to one specific offense. [Asian Surety v. Herrera, (1973);
Castro v. Pabalan (1976)]
The Dangerous Drugs Act of 1972 is a special law that deals
specifically with dangerous drugs which are subsumed into
“prohibited” and “regulated” drugs, and defines and penalizes
categories of offenses which are closely related or which belong
to the same class or species; thus, one search warrant may be
validly issued for several violations thereof [People v. Dichoso
(1993)]. The doctrine was reiterated in People v. Salanguit(2001).
REQUISITES
(1) Existence of probable cause
Existence of Probable Cause: Such facts and
circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed by the
person sought to be arrested. [Webb v. De Leon (1995)]
(2) Determination of probable cause personally by the judge.
Determination of probable cause personally by the judge as to
warrant of arrest:
(1) On the basis of the witnesses’ personal knowledge of the
facts they are testifying to.
(2) The arrest warrant must describe particularly the
person to be seized.
(a) By stating the name of the person to be arrested.
(b) If not known, then a “John Doe warrant” may be issued,
with some descriptio persona that will enable the officer to
identify the accused.
(3) The just must, before issuing the warrant, personally examine
in the form of searching questions and answers, in writing
and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the
record their own sworn statements, together with the
affidavits submitted. [Rule 126, Sec. 5, ROC]
(4) If the judge is satisfied of the existence of facts upon which the
application is based or that there is probable cause to believe
that they exist, he shall issue the warrant, which must be
substantially in the form prescribed by these Rules. [Rule 126,
Sec. 6, ROC]
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence
of probable cause.
In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is notrequired to
personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall:
(1)Personally evaluate the report and the supporting documents
submitted by the fiscal regarding the existence of probable cause
and, on the basis thereof, issue a warrant of arrest; or
(2)If he finds no probable cause, he may disregard the fiscal's report
and require the submission of supporting affidavits of witnesses to
aid him in arriving at a conclusion as to the existence of probable
cause.[Beltran v. Makasiar (1988)]
(5) On the basis of their personal knowledge of the facts they are
testifying to.
(6) The warrant must describe particularly the place to be
searched and the persons or things to be seized.
Requirement is primarily meant to enable the law enforcers
serving the warrant to —(1) readily identify the properties to be
seized and thus prevent them from seizing the wrong items; and
(2) leave said peace officers with no discretion regarding the
PAGE 16
articles to be seized and thus prevent unreasonable searches and
seizures. [People v. Tee (2003)]
⟴ Due Process; Suspension of Driver's License (1992):
No, 3; Congress is considering a law against drunken driving.
Under the legislation, police authorities may ask any driver to take
a "breathalyzer test", wherein the driver exhales several times
into a device which can determine whether he has been driving
under the influence of alcohol. The results of the test can be used,
in any legal proceeding against him. Furthermore, declaring that
the issuance of a driver's license gives rise only to a privilege to
drive motor vehicles on public roads, the law provides that a
driver who refuses to take the test shall be automatically subject
to a 90-day suspension of his driver's license, Cite two [2] possible
constitutional objections to this law. Resolve the objections and
explain whether any such infirmities can be cured.
⟴ SUGGESTED ANSWERS:
Possible objections to the law are that requiring a driver to
take the breathalyzer test will violate his right against self-
incrimination, that providing for the suspension of his driver's license
without any hearing violates due process, and that the proposed law
will violate the right against unreasonable searches and seizures,
because it allows police authorities to require a drive to take the
breathalyzer test even if there is no probable cause
⟴ Sworn Statement; (2008 Bar)
⟴ SUGGESTED ANSWERS:
The sworn statement is not admissible in evidence because
it was taken without informing him of his custodial rights and
without the assistance of counsel which should be independent and
competent and preferably of the choice of the accused (People v.
Januario,G.R. No. 98252, February 7, 1997).
PLACE TO BE SEARCHED
The search warrant issued to search petitioner’s
compound for unlicensed firearms was held invalid for failing to
describe the place with particularity, considering that the
compound was made up of 200 buildings, 15 plants, 84 staff houses,
1 airstrip etc. spread out over 155 hectares. [PICOP v. Asuncion
(1999)]
⟴ Search Warrant; Application; Venue (2012)
No.VI. A PDEA asset/informant tipped the PDEA Director
Shabunot that a shabu laboratory was operating in a house at Sta.
Cruz, Laguna, rented by two (2) Chinese nationals, Ho Pia and Sio
Pao. PDEA Director Shabunot wants to apply for a search warrant,
but he is worried that if he applies for a search warrant in any
Laguna court, their plan might leak out.
(a) Where can he file an application for search warrant?
⟴ SUGGESTED ANSWERS:
PDEA Director Shabunot may file an application for search
warrant in any court within the judicial region where the crime was
committed. (Rule 126, Sec.2[b])
(b) What documents should he prepare in his application for
search warrant? (2%)
⟴ SUGGESTED ANSWERS:
He should prepare a petition for issuance of a search warrant
and attach therein sworn statements and affidavits.
(c) Describe the procedure that should be taken by the judge on
the application. (2%
⟴ SUGGESTED ANSWERS:
The judge must, before issuing the warrant, examine personally
in the form of searching questions and answers, in writing and
under oath, the complainant and the witnesses he may produce on
facts personally known to them and attach to the record their
sworn statements, together with the affidavits submitted. (Rule
126, Sec.5, Rules of Court). If the judge is satisfied of the existence
of facts upon which the application is based or that there is
probable cause to believe that they exist, he shall issue the warrant,
which must be substantially in the form prescribed by the Rules.
(Rule 126, Sec.6, Rules of Court).
Suppose the judge issues the search warrant worded in this way:
PEOPLE OF THE PHILIPPINES Plaintiff -versus- Criminal Case
No. 007 for Violation of R.A. 9165 Ho Pia and Sio Pao, Accused.
x- - - - - - - - - - - - - - - - - - - - - -x
TO ANY PEACE OFFICER
Greetings:
It appearing to the satisfaction of the undersigned after
examining under oath PDEA Director shabunot that there is
probable cause to believe that violations of Section 18 and 16 of
R.A. 9165 have been committed and that there are good and
sufficient reasons to believe that Ho Pia and Sio Pao have in their
possession or control, in a two (2) door apartment with an iron
gate located at Jupiter St., Sta. Cruz, Laguna, undetermined
amount of "shabu" and drug manufacturing implements and
paraphernalia which should be seized and brought to the
undersigned, You are hereby commanded to make an immediate
search, at any time in the day or night, of the premises above
described and forthwith seize and take possession of the
abovementioned personal property, and bring said property to
the undersigned to be dealt with as the law directs. Witness my
hand this 1st day of March, 2012.
(signed)
Judge XYZ
(D) Cite/enumerate the defects, if any, of the search warrant.
⟴ SUGGESTED ANSWERS:
(1) The search warrant failed to particularly describe the place to
be searched and the things to be seized (Rule 126, Sec.4, Rules of
Court).
(2) The search warrant commanded the immediate search, at any
time in the day or night. The general rule is that a search warrant
must be served in the day time (Rule 126, Sec.8, Revised Rules on
Criminal Procedure), or that portion of the twenty-four hours in
which a man‟s person and countenance are distinguishable (17 C.J.
1134). By way of exception, a search warrant may be made at
night when it is positively asserted in the affidavit that the
property is on the person or in the place ordered to be searched
(Alvares vs. CFI of Tayabas, 64 Phil. 33). There is no showing that
the exception applies.
(e) Suppose the search warrant was served on March 15, 2012 and
the search yielded the described contraband and a case was filed
against the accused in RTC, Sta. Cruz, Laguna and you are the
lawyer of Sio Pao and Ho Pia, what will you do? (3%)
⟴ SUGGESTED ANSWERS:
If I were the lawyer of Sio Pao and Ho Pia, I would file a Motion
to Quash the search warrant for having been served beyond its
period of validity. (Rule 126, Sec. 14, Rules of Court). A search
warrant shall be valid only for ten (10) days from its date.
Thereafter, it shall be void. (Rule 126, Sec.10, Revised Rules of
Court).
(f) Suppose an unlicensed found in plain view by the searchers and
the warrant was ordered quashed, should the court order the
return of the same to the Chinese nationals?
⟴ SUGGESTED ANSWERS:
No, the court should not order the return of the unlicensed
armalite because it is contraband or illegal per se. (PDEA vs.
Brodett, G.R. No. 196390, September 28, 2011). The possession of an
unlicensed armalite found in plain view is mala prohibita. The same
should be kept in custodial legis.
DESCRIPTION OF PLACE/ THINGS
The description of the property to be seized need not be
technically accurate or precise. Its nature will vary according to
whether the identity of the property is a matter of concern. The
description is required to be specific only in so far as the
circumstances will allow. [Kho v. Judge Makalintal (1999)]
A search warrant may be said to particularly describe the things
to be seized when the description therein is as specific as the
circumstances will ordinarily allow. [People v. Rubio (1932)] or
when the description expresses a conclusion of fact, not of law, by
which the warrant officer may be guided in making the search and
seizure; or when the tings described are limited to those which
bear direct relation to the offense for which the warrant is being
issued. [Bache and Co. v. Ruiz (1971)]
⟴ A search warrant was issued for the purpose of
looking for unlicensed firearms in the house of Ass-asin, a
notorious gun for hire. When the police served the warrant, they
PAGE 17
also sought the assistance of barangay tanods who were assigned
to look at other portions of the premises around the house. In a
nipa hut thirty (30) meters away from the house of Ass-asin, a
Barangay tanod came upon a kilo of marijuana that was wrapped
in newsprint. Hetook it and this was later used by the authorities
to charge Ass-asin with illegal possession of marijuana. Ass-asin
objected to the introduction of such evidence claiming that it was
illegally seized. Is the objection of Ass-asin valid?
⟴ SUGGESTED ANSWERS:
The objection is valid.
The search warrant specifically designates or describes the
house as the place to be searched. Incidentally, the marijuana was
seized by the Barangay Tanods thirty (30) meters away from the
house of the accused.Since the confiscated items were found in a
place other than the one described in the search warrant, it can be
considered as fruits of an invalid warrantless search, the
presentation of which as an evidence is a violation of petitioner’s
constitutional guaranty against unreasonable searches and
seizure(Ruben Del Castillo v. People of the Philippines, G.R. No.
185128, January 30, 2012).Besides, the search is also illegal
because the marijuana confiscated in the nipa hut was wrapped in
a newsprint. Therefore, the same cannot be considered validly
seized in plain view (Abraham Miclat v. People of the Philippines,
G.R. No. 176077, August 31, 2011).
DESCRIPTION OF PERSONS SEARCHED
Search warrant is valid despite the mistake in the name
of the persons to be searched. The authorities conducted
surveillance and test-buy ops before obtaining the search warrant
and subsequently implementing it. They had personal knowledge
of the identity of the persons and the place to be searched,
although they did not specifically know the names of the accused.
[People v. Tiu Won Chua (2003)]
A John Doe search warrant is valid. There is nothing to prevent
issue and service of warrant against a party whose name is
unknown. [People v. Veloso (1925)]
John Doe Warrant:
HOWEVER: WHERE Warrants issued against 50 John
Does, none of whom the witnesses could identify, were
considered as “general warrants” and thus void. [Pangandaman v.
Casar (1988)]
GENERAL WARRANT:
Generally is it is considered as a general warrant when it
(1) does not describe with particularly the things subject of the
search and seizure and (2) where probable cause has not been
properly established. This is considered as a void warrant. [Nolasco
v. Paño. (1985)]
Exception to General Warrants: General descriptions will not
invalidate the entire warrant if other items have been particularly
described. [Uy v. BIR (2000)]
CONDUCT OF THE SEARCH
No search of a house, room, or any other premises shall
be made except in the presence of the lawful occupant thereof or
any member of his family or in the absence of the latter, 2 witnesses
of sufficient age and discretion residing in the same locality. [Sec. 8,
Rule 126, ROC]
FORCIBLE ENTRY JUSTIFIED
Occupants of the house refused to open the door despite
the fact that the searching party knocked several times, and the
agents saw suspicious movements of the people inside the house.
[People v. Salanguit (2001)]
UNLAWFUL SEARCH
Police officers arrived at appellant’s residence and
“sideswiped” (sinagi) appellant’s car (which was parked outside)
to gain entry into the house. Appellant’s son, who is the only one
present in the house, opened the door and was immediately
handcuffed to a chair after being informed that they are
policemen with a warrant to search the premises. [People v. Benny
Go (2003)]
WARRANTLESS SEARCHES
GEN. RULE: “The essential requisite of probable cause must still be
satisfied before a warrantless search and seizure can be lawfully
conducted.” In these cases, probable cause (warrantless searches)
must be “based on reasonable ground of suspicion or belief that a
crime has been committed or is about to be committed.” [People v.
Aruta (1998)]
N.B. In Aruta, the standards for probable cause are different from
those required for the issuance of warrants. Aruta implies that the
reasonableness of a warrantless search is determined by the (1)
information received and used as a basis for the search, and (2)
additional factors and circumstances. The two, taken together,
constitute the probable cause which justifies warrantless searches
and seizures. [Aruta, supra]
WAIVER THE RIGHT AGAINST UNREASONABLE SEARCH:
That the person voluntarily and intelligently waived his right
against unreasonable search such as (1) there must appear the right
exists, (2) person involved had actual/constructive knowledge of the
existence of such rights; (3) said person had an actual interest to
relinquish the rights; (4) waiver is limited only to the arrest.
Such waiver does not extend to search made as an incident
thereto or to any subsequent seizure of evidence found in the search.
[People v. Peralta (2004)]
BURDEN OF PROOF
It is the State that has the burden of proving, by clear and
convincing evidence, that the necessary consent was obtained and
that it was voluntarily and freely given [Caballes v. Court of Appeals
(2002)].
WARRANTLESS SEARCHES RECOGNIZED BY JURISPRUDENCE
Quick Look [People v. Aruta, supra]
(1) Search incident to a lawful arrest
a Section 13, Rule 126
b Section 5, Rule 113
(2) Plain view doctrine
(3) Search of a moving vehicle
(4) Consented search
(5) Customs search
(6) Stop and frisk
(7) Exigent and emergency circumstances
(8) Visual search at checkpoints – not among those enumerated in
People v. Aruta, but also recognized as an exception to the
warrant requirement by Aniag v. COMELEC (1994) and
Valmonte v. De Villa (1989, 1990)
SEARCH INCIDENT TO A LAWFUL ARREST
A person lawfully arrested may be searched for dangerous
weapons or anything which may be used as proof of the commission
of an offense, without a search warrant. [Sec. 13, Rule 126, Rules of
Court]
The provision is declaratory in the sense that it is confined to the
search, without a search warrant, of a person who had been
arrested.
It is also a general rule that, as an incident of an arrest, the place
or premises where the arrest was made can also be searched
without a search warrant. In this case, the extent and
reasonableness of the search must be decided on its own facts
and circumstances.
What must be considered is the balancing of the individual’s right
to privacy and the public’s interest in the prevention of crime and
the apprehension of criminals. [Nolasco v. Pano (1985)]
Test for validity
(1) Item to be searched was within the arrester’s custody;
(2) Search was contemporaneous with the arrest
Under the Rules of Court, a person charged with an offense may
be searched for dangerous weapons or anything which may be
used as proof of the commission of the offense. As an incident of
an arrest, the premises where the arrest was made can also be
searched without search warrant. [Nolasco v. Cruz Paño (1985)]
PAGE 18
In this Motion for Partial Reconsideration of the 1985 decision, the
petitioners submit that a warrantless search can be justified only
if it is an incident to a lawful arrest and that since Aguilar was not
lawfully arrested, a search without warrant could not be made.
[Nolasco v. Paño on M.R. (1987)]
An “arrest being incipiently illegal, it logically follows that the
subsequent search was similarly illegal.” [People v. Aruta, supra]
Section 5, Rule 113: A police officer or PRIVATE person may,
WITHOUT A WARRANT, ARREST A PERSON:
(a) when, IN HIS PRESENCE, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense
(b) when an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) when the person to be arrested is a prisoner who has excaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or
has escaped while being transferred from one confinement to
another.
In case falling under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 122, Section 7.
⟴ Search and Seizure; Warrantless Search (2010)
No. XII. A witnessed two hooded men with baseball bats enter the
house of their next door neighbor B. after a few seconds, he heard
B shouting, “Huwag Pilo babayaran kita agad.” Then A saw the two
hooded men hitting B until the latter fell lifeless. The assailants
escaped using a yellow motorcycle with a fireball sticker on it
toward the direction of an exclusive village nearby. A reported the
incident to PO1 Nuval. The following day, PO1 Nuval saw the
motorcycle parked in the garage of a house at Sta. Ines Street
inside the exclusive village. He inquired with the caretaker as to
who owned the motorcycle. The caretaker named the brothers
Pilo and Ramon Maradona who were then outside the country.
PO1 Nuval insisted on getting inside the garage. Out of fear, the
caretaker allowed him. PO1 Nuval took 2 ski masks and 2 bats
beside the motorcycle. Was the search valid? What about the
seizure? Decide with reasons. (4%)
⟴ SUGGESTED ANSWERS:
The warrantless search and seizure was not valid. It was
not made as an incident to a lawful warrantless arrest. (People vs.
Baula, 344 SCRA 663 [2000]). The caretaker had no authority to
waive the right of the brothers Pilo and Ramon Maradona to waive
their right against unreasonable search and seizure. (People vs.
Damaso, 212 SCRA 547 [1992].) the warrantless seizure of the ski
masks and bats cannot be justified under the plain view doctrine,
because they were seized after invalid intrusion in to the house.
(People vs. Bolasa, 321 SCRA 459[1999]).
⟴ Particularity of place to be searched and things to be
seized; Plain view situation
The search warrant authorized the seizure of "undetermined
quantity of shabu." During the service of the search warrant, the
raiding team also recovered a kilo of dried marijuana leaves
wrapped in newsprint. The accused moved to suppress the
marijuana leaves as evidence for the violation of Section 11 of the
Comprehensive Dangerous Drugs Act of 2002 since they were not
covered by the search warrant. The State justified the seizure of
the marijuana leaves under the "plain view" doctrine. There was
no indication of whether the marijuana leaves were discovered
and seized before or after the seizure of the shabu. If you are the
judge, how would you rule on the motion to suppress? (2008 Bar)
⟴ SUGGESTED ANSWERS:
The motion to suppress filed by the accused should be granted.
The search warrant violates the constitutional and statutory
requirement that it should particularly describe the person or things
to be seized (Sec. 2, Art. 3, 1987 Constitution; Sec. 2, Rule 126). The
“plain view” doctrine cannot be invoked because the marijuana
leaves were wrapped in newsprint. Besides the marijuana leaves are
not the subject of the search warrant.
⟴ The information for illegal possession
of firearm filed against the accused specifically alleged that he had
no license or permit to possess the calibre .45 pistol mentioned
therein. In its evidence-in-chief, the prosecution established the
fact that the subject firearm was lawfully seized by the police from
the possession of the accused that is, while the pistol was tucked
at his waist in plain view, without the accused being able to
present any license or permit to possess the firearm. The
prosecution on such evidence rested its case and within a period
of five days therefrom, the accused filed a demurrer to evidence,
in sum contending that the prosecution evidence has not
established the guilt of the accused beyond reasonable doubt and
so prayed that he be acquitted of the offense charged. The trial
court denied the demurrer to evidence and deemed the accused
as having waived his right to present evidence and submitted the
case for judgment on the basis of the prosecution evidence. In due
time, the court rendered judgment finding the accused guilty of
the offense charged beyond reasonable doubt and accordingly
imposing on him the penalty prescribed therefore. Is the judgment
of the trial court valid and proper? Reason (2001, 2004 Bar)
⟴ SUGGESTED ANSWERS:
Yes. The judgment of the trial court is valid. The accused did not
ask for leave to file the demurrer to evidence. He is deemed to have
waived his right to present evidence (Sec. 23, Rule 119; People v.
Flores, G.R. 106581, March 3, 1997). However, the judgment is not
proper or is erroneous because there was no showing from the proper
office that the accused has a permit to own or possess the firearm,
which is fatal to the conviction of the accused (Mallari v. Court of
Appeals,G.R. No. 110569, December 9, 1996)
⟴ A was killed by B during a quarrel over a hostess in a
nightclub. Two days after the incident, and upon complaint of the
widow of A, the police arrested B without a warrant of arrest and
searched his house without a search warrant.
a. Can the gun used by B in shooting A, which was seized during
the search of the house of B, be admitted in evidence?
⟴ SUGGESTED ANSWERS:
No. The gun seized during the search of the house of B
without a search warrant is not admissible in evidence (Sec. 2 and
3[2], Art. III, 1987 Constitution). Moreover, the search was not an
incident to a lawful arrest of a person under Sec. 13, Rule 126.
b. Is the arrest of B legal?
⟴ SUGGESTED ANSWERS:
No. A warrantless arrest requires that the crime has in fact just
been committed and the police arresting has personal knowledge of
facts that the person to be arrested has committed it (Sec. 5, Rule
113). Here, the crime has not just been committed since a period of
two days had already lapsed, and the police arresting has no such
personal knowledge because he was not present when the incident
happened (Go v. Court of Appeals, G.R. No. 101837, February 11,
1992).
c. Under the circumstances, can B be convicted of homicide? (1997
Bar)
⟴ SUGGESTED ANSWERS:
Yes. The gun is not indispensable in the conviction of A because
the court may rely on testimonial or other evidence.
SEARCH OF MOVING VEHICLES
Securing a search warrant is not practicable since the
vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought [Papa v. Mago (1968)]
⟴ An informer told the police that a Toyota Car with plate
ABC 134 would deliver an unspecified quantity of ecstacy in
Forbes Park, Makati City. The officers whom the police sent to
watch the Forbes Park gates saw the described car and flagged it
down. When the driver stopped and lowered his window, an
officer saw a gun tucked on the driver's waist. The officer asked
the driver to step out and he did. When an officer looked inside the
PAGE 19
car, he saw many tablets strewn on the driver's seat. The driver
admitted they were ecstacy. Is the search valid?
⟴ SUGGESTED ANSWERS:
Yes, the police acted based on reliable information and the fact that
an officer
⟴ Jurisdiction; Complex Crimes (2013)
No.VIII. On his way to the PNP Academy in Silang, Cavite on board
a public transport bus as a passenger, Police Inspector Masigasig
of the Valenzuela Police witnessed an on-going armed robbery
while the bus was traversing Makati. His alertness and training
enabled him to foil the robbery and to subdue the malefactor. He
disarmed the felon and while frisking him, discovered another
handgun tucked in his waist. He seized both handguns and the
malefactor was later charged with the separate crimes of robbery
and illegal possession of firearm.
A) Where should Police Inspector Masigasig bring the felon for
criminal processing? To Silang, Cavite where he is bound; to
Makati where the bus actually was when the felonies took place;
or back to Valenzuela where he is stationed? Which court has
jurisdiction over the criminal cases? (3%)
⟴ SUGGESTED ANSWERS:
Police Inspector Masigasig should bring the felon to the
nearest police station or jail in Makati City where the bus actually
was when the felonies took place. In cases of warrantless arrest, the
person arrested without a warrant shall be forthwith delivered to
the nearest police station or jail and shall be proceeded against in
accordance with section 7 of Rule 11 (Section 113, Rules of Criminal
Procedure). Consequently, the criminal case for robbery and illegal
possession of firearms can be filed in Regional Trial Court of Makati
City or on any of the places of departure or arrival of the bus.
B) May the charges of robbery and illegal possession of firearm be
filed directly by the investigating prosecutor with the appropriate
court without a preliminary investigation? (4%)
⟴ SUGGESTED ANSWERS:
Yes. Since the offender was arrested in flagrante delicto
without a warrant of arrest, an inquest proceeding should be
conducted and thereafter a case may be filed in court even without
the requisite preliminary investigation. Under Section 6, Rule 112,
Rules of Criminal Procedure, when a person is lawfully arrested
without a warrant involving an offense which requires a
preliminary investigation, the complaint or information may be
filed by a prosecutor without a need of such investigation provided
an inquest has been conducted in accordance with existing rules.
CONSENTED SEARCH
VOLUTARILY SUBMITS TO SEARCH OR CONSENTS TO HAVE
IT MADE OF HIS PERSON
It was ruled that the right to be secure from unreasonable search
may be waived. Waiver may be express or implied. When one
voluntarily submits to a search or consents to have it made of his
person / premises, he is precluded from later complaining [People v.
Kagui Malasugui (1936)].
⟴ Searches and Seizures; Waiver of Consent (1989
No. 7: Pursuing reports that great quantities of prohibited drugs
are being smuggled at nighttime through the shores of Cavite, the
Southern Luzon Command set up checkpoints at the end of the
Cavite coastal road to search passing motor vehicles. A 19-year old
boy, who finished fifth grade, while driving, was stopped by the
authorities at the checkpoint. Without any objection from him, his
car was inspected, and the search yielded marijuana leaves hidden
in the trunk compartment of the car. The prohibited drug was
promptly seized, and the boy was brought to the police station for
questioning. Was the search without warrant legal?
⟴ SUGGESTED ANSWERS:
Yes. The requirement of probable cause differs from case to case. In
this one, since the police agents are confronted with large-scale
smuggling of prohibited drugs, existence of which is of public
knowledge, they can set up checkpoints at strategic places, in the
same way that of in a neighborhood a child is kidnapped, it is lawful
to search cars and vehicles leaving the neighborhood or village: This
situation is also similar to warrantless searches of moving vehicles
 in customs area, which searches have been upheld. (Papa vs. Mago,
22 SCRA 857 (1968). The rule is based on practical necessity.
⟴ Searches and Seizures; Valid Warrantless Search
(2000):
a) Crack officers of the Anti-Narcotics Unit were assigned on
surveillance of the environs of a cemetery where the sale and use
of dangerous drugs are rampant. A man with reddish and glassy
eyes was walking unsteadily moving towards them but veered
away when he sensed the presence of policemen. They
approached him, introduced themselves as police officers and
asked him what he had clenched in his hand. As he kept mum, the
policemen pried his hand open and found a sachet of shabu, a
dangerous drug. Accordingly charged in court, the accused
objected to the admission in evidence of the dangerous drug
because it was the result of an illegal search and seizure. Rule on
the objection. (3%) b) What are the instances when warrantless
searches may be effected? (2%)
⟴ SUGGESTED ANSWERS:
a) The objection is not tenable. In accordance with
Manalili v. Court of Appeals, 280 SCRA 400 (1997). since
the accused had red eyes and was walking unsteadily
and the place is a known hang-out of drug addicts, the
police officers had sufficient reason to stop the accused
and to frisk him. Since shabu was actually found during
the investigation, it could be seized without the need for
a search warrant.
b) A warrantless search may be effected in the following
cases: a) Searches incidental to a
c) lawful arrest: b) Searches of moving vehicles; c)
Searches of prohibited articles in plain view: d)
Enforcement of customs law; e) Consented searches; f)
Stop and frisk (People v. Monaco, 285 SCRA 703
[1998]); Routine searches at borders and ports of entry
(United States v. Ramsey, 431 U.S. 606 [1977]); and h)
Searches of businesses in the exercise of visitorial
powers to enforce police regulations (New York v.
Burger, 482 U.S. 691 (1987]).
PLAIN VIEW DOCTRINE:
APPLICABILITY:
The plain view doctrine is usually applied where a police
officer is not searching for evidence against the accused, but
nonetheless inadvertently comes across an incriminating object. The
extension of the original justification is legitimate only where it is
immediately apparent to the police that they have evidence before
them; the plain view doctrine may not be used to extend a general
exploratory search from one object to another until something
incriminating at last emerges. (People vs Musa)
An object is in “plain view” if the object itself is plainly exposed to
sight. Where the seized object is inside a closed package, the
object is not in plain view and, therefore, cannot be seized without
a warrant. However, if the package proclaims its contents,
whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the content are in plain
view, and may be seized. [Caballes v. Court of Appeals (2002)]
If the package is such that it contains prohibited articles, then the
article is deemed in plain view. [People v. Nuevasm (2007)]
⟴ Particularity of place to be searched and things to be
seized; Plain view situation
The search warrant authorized the seizure of "undetermined
quantity of shabu." During the service of the search warrant, the
raiding team also recovered a kilo of dried marijuana leaves
wrapped in newsprint. The accused moved to suppress the
marijuana leaves as evidence for the violation of Section 11 of the
Comprehensive Dangerous Drugs Act of 2002 since they were not
covered by the search warrant. The State justified the seizure of
the marijuana leaves under the "plain view" doctrine. There was
no indication of whether the marijuana leaves were discovered
and seized before or after the seizure of the shabu. If you are the
judge, how would you rule on the motion to suppress? (2008 Bar)
PAGE 20
⟴ SUGGESTED ANSWERS:
The motion to suppress filed by the accused should be
granted. The search warrant violates the constitutional and
statutory requirement that it should particularly describe the
person or things to be seized (Sec. 2, Art. 3, 1987 Constitution;
Sec. 2, Rule 126). The “plain view” doctrine cannot be invoked
because the marijuana leaves were wrapped in newsprint.
Besides the marijuana leaves are not the subject of the search
warrant.
⟴ Searches and Seizures; Incidental to Valid Search
(1990)
No. 9; Some police operatives, acting under a lawfully issued
warrant for the purpose of searching for firearms in the House of
X located at No. 10 Shaw Boulevard, Pasig, Metro Manila, found,
instead of firearms, ten kilograms of cocaine.
(1) May the said police operatives lawfully seize the cocaine?
Explain your answer.
(2) May X successfully challenge the legality of the search on the
ground that the peace officers did not inform him about his right
to remain silent and his right to counsel? Explain your answer.
(3) Suppose the peace officers were able to find unlicensed
firearms in the house in an adjacent lot, that is. No, 12 Shaw
Boulevard, which is also owned by X. May they lawfully seize the
said unlicensed firearms? Explain your answer.
⟴ SUGGESTED ANSWERS:
(1) Yes, the police operatives may lawfully seize the cocaine,
because it is an item whose possession is prohibited by law, it was in
plain view and it was only inadvertently discovered in the course of
a lawful search. The possession of cocaine is prohibited by Section 8
of the Dangerous Drugs Act. As held in Magoncia v. Palacio, 80 Phil.
770, an article whose possession is prohibited by law may be seized
without the need of any search warrant if it was discovered during
a lawful search. The additional requirement laid down in Roan v.
Gonzales, 145 SCRA 687 that the discovery of the article must have
been made inadvertently was also satisfied in this case.
(2) No, X cannot successfully challenge the legality of the search
simply because the peace officers did not inform him about his right
to remain silent and his right to counsel. Section 12(1), Article III of
the 1987 Constitution provides: "Any person under investigation for
the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent
counsel preferably of his own choice." As held in People v. Dy, 158
SCRA 111. For this provision to apply, a suspect must be under
investigation. There was no investigation involved in this case.
(3) The unlicensed firearms stored at 12 Shaw Boulevard may
lawfully be seized since their possession is illegal. As held in
Magoncia a Palacio, 80 Phil. 770, when an individual possesses
contraband (unlicensed firearms belong to this category), he is
committing a crime and he can be arrested without a warrant and
the contraband can be seized.
⟴ Searches and Seizures; Visual Search (1992)
No. 5: During the recent elections, checkpoints were set up to
enforce the election period ban on firearms. During one such
routine search one night, while looking through an open window
with a flashlight, the police saw firearms at the backseat of a car
partially covered by papers and clothes. Antonio, owner and
driver of the car in question, was charged for violation of the
firearms ban.
A. Are the firearms admissible in evidence against him? Explain.
B. If, upon further inspection by the police, prohibited drugs
were found inside the various compartments of Antonio's car,
can the drugs be used in evidence against Antonio if he is
prosecuted for possession of prohibited drugs? Explain.
⟴ SUGGESTED ANSWERS:
a) Yes, the firearms are admissible in evidence, because they were
validly seized. In Valmonte vs. De Villa, 178 SCRA 211 and 185
SCRA 665, the Supreme Court held that checkpoints may be set up
to maintain peace and order for the benefit of the public and
checkpoints are a security measure against unauthorized firearms.
Since the search which resulted in the discovery of the firearms was
 limited to a visual search of the car, it was reasonable. Because of
the ban on firearms, the possession of the firearms was prohibited.
Since they were found in plain view in the course of a lawful search,
in accordance with the decision in Magancia vs. Palacio, 80 Phil.
770, they are admissible in evidence.
b) No, the drugs cannot be used in evidence against Antonio if he is
prosecuted for possession of prohibited drugs. The drugs were
found after a more extensive search of the various compartments of
the car. As held in Valmonte vs. De Villa, 185 SCRA 665, for such a
search to be valid, there must be a probable cause. In this case,
there was no probable cause, as there was nothing to indicate that
Antonio had prohibited drugs inside the compartments of his car.
When can evidence "in plain view" be seized without need of a
search warrant? Explain. (2%)
⟴ SUGGESTED ANSWERS:
Evidence in plain view can be seized without need of search
warrant if the following elements are present:
(1) There was a prior valid intrusion based on the valid
warrantless arrest in which the police were legally present
pursuant of their duties;
(2) The evidence was inadvertently discovered by the police who
had the right to be where they were;
(3) The evidence must be immediately apparent; and
(4) Plain view justified seizure of the evidence without further
search. (Del Rosario vs. People, 358 SCRA 372.)
⟴ Arrest; Warrantless Arrests & Searches (2007)
No.VI. (a) On his way home, a member of the Caloocan City police
force witnesses a bus robbery in Pasay City and effects the arrest
of the suspect. Can he bring the suspect to Caloocan City for
booking since that is where his station is? Explain briefly. (5%)
⟴ SUGGESTED ANSWERS:
No, the arresting officer may not take the arrested suspect from
Pasay City to Caloocan City. The arresting officer is required to
deliver the person arrested without a warrant to the nearest police
station or jail (Rule 112, Sec. 5, 2000 Rules of Criminal Procedure).
To be sure, the nearest police station or jail is in Pasay City where
the arrest was made, and not in Caloocan City.
(b) In the course of serving a search warrant, the police find an
unlicensed firearm. Can the police take the firearm even if it is not
covered by the search warrant? If the warrant is subsequently
quashed, is the police required to return the firearm? Explain
briefly. (5%)
⟴ SUGGESTED ANSWERS:
Yes, the police may take with him the “unlicensed” firearm
although not covered by the search warrant. Possession of an
“unlicensed firearm” is a criminal offense and the police officer
may seize an article which is the “subject of an offense.” Thus us
especially so considering that the “unlicensed firearm” appears to
be in “plain view” of the police officer when the conducted the
search. Even if the warrant was subsequently quashed, the police
are not mandated to return the “unlicensed firearm.” The quashal
of the search warrant did not affect the validity of the seizure of
the “unlicensed firearm.” Moreover, returning the firearm to a
person who is not otherwise allowed by law to possess the same
would be tantamount to abetting a violation of the law.
STOP AND FRISK SEARCHES
There should be a genuine reason to “stop-and-frisk in the light of
the police officer’s experience and surrounding conditions to
warrant a belief that the person detained has weapons concealed.
[Malacat v. CA (1997), citing Terry v. Ohio]
Police officer has a right to stop a citizen on street and pat him for
a weapon in the interest of protecting himself from the person
with whom he was dealing was not armed.
Scope: Outer clothing for concealed weapon, etc.
Test: WON a reasonably prudent man in the circumstances would
be warranted in the belief that his safety of that of others was in
danger [Terry v. Ohio, 392 U.S.(1968)].
PAGE 21
The police officer should properly introduce himself and make
initial inquiries, approach and restrain a person who manifests
unusual and suspicious conduct, in order to check the latter’s
outer clothing for possibly concealed weapons. The apprehending
police officer must have a genuine reason, in accordance with the
police officer’s experience and the surrounding conditions, to
warrant the belief that the person to be held has weapons or
contraband concealed about him [People v. Sy Chua (2003)].
⟴ Using the description of the supplier of shabu
given by persons who had been arrested earlier for selling it, the
police conducted a surveillance of the area indicated. When they
saw a man who fitted the description walking from the apartment
to his car, they approached and frisked him and he did not object.
The search yielded an unlicensed gun tucked on his waist and
shabu in his car. Is the search valid?
⟴ SUGGESTED ANSWERS:
No, the man did not manifest any suspicious behavior that would
give the police sufficient reason to search him.
⟴ As he was entering a bar, Arnold — who was
holding an unlit cigarette in this right hand — was handed a match
box by someone standing near the doorway. Arnold unthinkingly
opened the matchbox to light his cigarette and as he did so, a
sprinkle of dried leaves fell out, which the guard noticed. The
guard immediately frisked Arnold, grabbed the matchbox, and
sniffed its contents. After confirming that the matchbox contained
marijuana, he immediately arrested Arnold and called in the
police. At the police station, the guard narrated to the police that
he personally caught Arnold in possession of dried marijuana
leaves. Arnold did not contest the guard’s statement; he
steadfastly remained silent and refused to give any written
statement. Later in court, the guard testified and narrated the
statements he gave the police over Arnold’s counsel’s objections.
While Arnold presented his own witnesses to prove that his
possession and apprehension had been set-up, he himself did not
testify. The court convicted Arnold, relying largely on his
admission of the charge by silence at the police investigation and
during trial. From the constitutional law perspective, was the
court correct in its ruling?
⟴ SUGGESTED ANSWERS:
The court was wrong in relying on the silence of Arnold during
the police investigation and during the trial. Under Article III,
Section 12 of the 1987 Constitution, he had the right to remain
silent. His silence cannot be taken as a tacit admission, otherwise,
his right to remain silent would be rendered nugatory.
Considering that his right against self-incrimination protects his
right to remain silent, he cannot be penalized for exercising it
(People v. Galvez, G.R. No. 157221, March 30, 2007, 519 SCRA
521).
CUSTOMS SEARCH
Searches of vessel and aircraft for violation of immigration and
smuggling laws [Papa v. Mago (1968)].
When accused checked in his luggage as passenger of a plane, he
agreed to the inspection of his luggage in accordance with
customs laws and regulations, and thus waived any objection to a
warrantless search [People v.
Gatward (1997)].
EXIGENT AND EMERGENCY CIRCUMSTANCES
The raid and seizure of firearms and ammunition at the height of
the 1989 coup-de-etat, was held valid, considering the exigent and
emergency situation. The military operatives had reasonable
ground to believe that a crime was being committed, and they had
no opportunity to apply for a search warrant from the courts
because the latter were closed. Under such urgency and exigency,
a search warrant could be validly dispersed with [People v. de
Gracia (1994)].
⟴ Declaration; State of National Emergency
On February 24, 2006, President Gloria Macapagal-Arroyo issued
Proclamation No. 1017 declaring a state of national emergency. Is
this Proclamation constitutional? Explain. (2.5%)
⟴ SUGGESTED ANSWERS:
The proclamation is constitutional insofar as it constitutes a call by
the President for the AFP to prevent or suppress lawless violence as
this is sustained by Section 18, Article VII of the Constitution.
However, PP 1017's provisions giving the President express or
implied power (1) to issue decrees; (2) to direct the AFP to enforce
obedience to all laws even those not related to lawless violence as
well as decrees promulgated by the President; and (3) to impose
standards on media or any form of prior restraint on the press, are
ultra vires and unconstitutional. Likewise, under Section 17, Article
XII of the Constitution, the President, in the absence of legislation,
cannot take over privately-owned public utilities and businesses
affected with the public interest (David v. Arroyo, G.R. No. 171396,
May 3, 2006).
During the effectivity of this Proclamation, Gener, Lito and Bong
were arrested by the police for acts of terrorism. Is the arrest
legal? Explain. (2.5%)
⟴ SUGGESTED ANSWERS:
The arrest, apparently done without a valid warrant, is illegal.
However, a warrantless arrest would be valid if those accused are
caught committing crimes en flagrante delicto. On the other hand,
if the arrest is made pursuant to a valid warrant, then it is lawful.
The term "acts of terrorism" has not been legally defined and made
punishable by Congress. No law has been enacted to guide the law
enforcement agents, and eventually the courts, to determine the
limits in making arrests for the commission of said acts of
terrorism (David v. Arroyo, G.R. No. 171396, May 3, 2006).
VISUAL SEARCH AT CHECKPOINTS
“Stop and search” without a warrant at military or police
checkpoints, which has been declared not to be illegal per se so
long as it is required by exigencies of public order and conducted
in a way least intrusive to motorists [Valmonte v. de Villa (1989)].
For a mere routine inspection, the search is normally permissible
when it is limited to a mere visual search, where the occupants are
not subjected to physical or body search. On the other hand, when
the vehicle is stopped and subjected to an extensive search, it
would be constitutionally permissible only If the officers
conducting the search had reasonable or probable cause to
believe, before the search, that either the motorist is a law
offender or they will find the instrumentality or evidence
pertaining to a crime in the vehicle to be searched[Caballes v.
Court of Appeals (2002); People v. Libnao (2003)].
PROPERTIES SUBJECT TO SEIZURE
Generally a search warrant may be issued for the search
and seizure of personal property with (1) Property subject of an
offense; (2) Stolen or embezzled property and other proceeds or
fruits of an offense (3) Used or intended to be used as a means of
committing an offense [Sec. 2 Rule 126, ROC]
It is not necessary that the property to be searched or seized
should be owned by the person against whom the warrant is
issued; it is sufficient that the property is within his control or
possession [Burgos v. Chief of Staff (1984)].
⟴ Searches and Seizures; Warrants of Arrest (1991):
No. 8: On the basis of a verified report and confidential
information that various electronic equipment, which were
illegally imported into the Philippines, were found in the bodega
of the Tikasan Corporation located at 1002 Binakayan St., Cebu
City, the Collector of Customs of Cebu issued, in the morning of 2
January 1988, a Warrant of Seizure and Detention against the
corporation for the seizure of the electronic equipment. The
warrant particularly describes the electronic equipment and
specifies the provisions of the Tariff and Customs Code which
were violated by the importation. The warrant was served and
implemented in the afternoon of 2 January 1988 by Customs
policemen who then seized the described equipment. The
inventory of the seized articles was signed by the Secretary of the
Tikasan Corporation. The following day, a hearing officer in the
PAGE 22
Office of the Collector of Customs conducted a hearing on the
confiscation of the equipment.
Two days thereafter, the corporation filed with the Supreme Court
a petition for certiorari, prohibition and mandamus to set aside
the warrant, enjoin the Collector and his agents from further
proceeding with the forfeiture hearing and to secure the return of
the confiscated equipment, alleging therein that the warrant
issued is null and void for the reason that, pursuant to Section 2 of
Article III of the 1987 Constitution, only a judge may issue a search
warrant. In his comment to the petition, the Collector of Customs,
through the Office of the Solicitor General, contends that he is
authorized under the Tariff and Custom Code to order the seizure
of the equipment whose duties and taxes were not paid and that
the corporation did not exhaust administrative remedies. Should
the petition be granted? Decide
⟴ SUGGESTED ANSWERS:
The petition should not be granted. Under Secs. 2205 and
2208 of the Tariff and Customs Code, customs officials are
authorized to enter any warehouse, not used as dwelling, for the
purpose of seizing any article which is subject to forfeiture. For this
purpose they need no warrant issued by a court. As stated in
Viduya vs. Berdiago, 73 SCRA 553. for centuries the seizure of
goods by customs officials to enforce the customs laws without
need of a search warrant has been recognized.
⟴ Search & Seizure; Warrantless Search (2010)
No.VII. As Cicero was walking down a dark alley one midnight, he
saw an "owner-type jeepney" approaching him. Sensing that the
occupants of the vehicle were up to no good, he darted into a
corner and ran. The occupants of the vehicle − elements from the
Western Police District − gave chase and apprehended him. The
police apprehended Cicero, frisked him and found a sachet of 0.09
gram of shabu tucked in his waist and a Swiss knife in his secret
pocket, and detained him thereafter. Is the arrest and body-search
legal?
⟴ SUGGESTED ANSWERS:
The arrest and body-search was legal. Cicero appears to be
alone “walking down the dark alley” and at midnight. There
appears probable cause for the policemen to check him,
especially when he darted into a corner (presumably also dark)
and run under such circumstance. Although the arrest came after
the body search where Cicero was found with shabu and a Swiss
knife, the body-search is legal under the “Terry search” rule or
the “stop and frisk” rule. And because the mere possession, with
animus, of dangerous drug (the shabu) is a violation of the law
(R.A. 9165), the suspect is in a continuing state of committing a
crime while he is illegally possessing the dangerous drug, thus
making the arrest tantamount to an arrest in flagrante: so the
arrest is legal and correspondingly, the search and seizure of the
shabu and the concealed knife may be regarded as incident to a
lawful arrest.
⟴ XVII. Hercules was walking near a police station when a
police officer signaled for him to approach. As soon as Hercules
came near, the police officer frisked him but the latter found no
contraband. The police officer told Hercules to get inside the
police station. Inside the police station, Hercules asked the police
officer, "Sir, may problema po ba?" Instead of replying, the police
officer locked up Hercules inside the police station jail.
a.) What is the remedy available to Hercules to secure his
immediate release from detention? (2%)
b.) If Hercules filed with the Ombudsman a complaint for
warrantless search, as counsel for the police officer, what defense
will you raise for the dismissal of the complaint? (3%)
c.) If Hercules opts to file a civil action against the police officer,
will he have a cause of action? (3%)
⟴ SUGGESTED ANSWERS:
a) The remedy available to Hercules to secure his immediate
release from detention is a petition for writ of habeas corpus.
Under Rule 102, the writ of habeas corpus is available in cases of
illegal detention. Section 5 of Rule 102 provides that a court or
judge authorized to grant the writ must, when the petition therefor
is presented and it appears that the writ ought to issue, grant the
same forthwith, and immediately thereupon the clerk of court shall
issue the writ or in case of emergency, the judge may issue the writ
under his own hand and may depute any officer or person to serve
it. The court or judge before whom the writ is returned must
immediately proceed to hear and examine the return. (Section 12,
Rule 102).
b) I will raise the defense that the warrantless search was
authorized as a “stop and frisk.” “Stop and frisk” is the right of a
police officer to stop a citizen on the street, interrogate him and pat
him for weapons and contraband whenever he observes unusual
conduct which leads him to conclude that criminal activity may be
afoot. (Terry v. Ohio, 392 U.S. 1).
c) Yes Hercules will have a cause of action. Under Article 32(4) of
the Civil Code, any public officer who violates the right of a person
to freedom from arbitrary or illegal detention shall be liable to the
latter for damages. The action to recover damages is an
independent civil action. Here Hercules was illegally detained as
there was no probable cause to arrest him without warrant.
COMPARISON OF PROCEDURES IN OBTAINING SEARCH
WARRANTS AND ARREST WARRANTS
When warrant of arrest may issue – (a) By the Regional Trial
Court – Within ten (10) days from the filing of the complaint or
information, the judge shall personally evaluate the resolution of
the prosecutor and its supporting evidence. He may immediately
dismiss the case if the evidence on record clearly fails to establish
probable cause.
If he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused has already been
arrested pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence [Note: This is not found
in the procedure for a search warrant.] within five (5) days from
notice and the issue must be resolved by the court within thirty
(30) days from the filing of the complaint of information. [Rule
112, Sec. 6]
Requisites for issuing search warrant – A search warrant shall
not issue except upon probable cause in connection with one
specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witness he may produce, and particularly describing the place to
be searched and the things to be seized which may be anywhere
in the Philippines. [Rule 126, Sec. 4]
REQUISITES OF A VALID WARRANTLESS ARREST [RULE 113,
SEC. 5, RULES ON CRIMINAL PROCEDURE]
(1) When in his presence, the person to be arrested has
committed, is actually committing, or is attempting to
commit an offense; (in flagrante delicto)
Rebellion is a continuing offense. Therefore a rebel may be
arrested without a warrant at any time of the day or the night as
he is deemed to be in the act of committing rebellion. [Umil v.
Ramos (1991)]
Though kidnapping with serious illegal detention is deemed a
continuing crime, it can be considered as such only when the
deprivation of liberty is persistent and continuing from one place
to another. [Parulan v. Dir of Prisons (1968)]
Hot Pursuit: The arrest of the accused inside his house following
hot pursuit of the person who committed the offense in flagrante
was held valid. [People v. De Lara (1994)]
Buy-Bust: A buy-bust operation is a valid in flagrante arrest. The
subsequent search of the person arrested and the premises within
his immediate control is valid as an incident to a lawful arrest.
[People v. Hindoy (2001)]
Exception to buy-bust: Instead of arresting the suspect after the
sale in a buy-bust op, the officer returned to the police
headquarters and filed his report. It was only in the evening that
PAGE 23
he, without warrant, arrested the suspect at his house where
dried marijuana leaves were found and seized. This is unlawful
arrest. [People v. Rodrigueza (1992)]
FRUIT OF POISONOUS TREE:
⟴ Offer of Evidence; Fruit of a Poisonous Tree (2009)
No.VI. Arrested in a buy-bust operation, Edmond was brought to
the police station where he was informed of his constitutional
rights. During the investigation, Edmond refused to give any
statement. However, the arresting officer asked Edmond to
acknowledge in writing that six (6) sachets of “shabu” were
confiscated from him. Edmond consented and also signed a receipt
for the amount of P3,000, allegedly representing the “purchase
price of the shabu.” At the trial, the arresting officer testified and
identified the documents executed and signed by Edmond.
Edmond’s lawyer did not object to the testimony. After the
presentation of the testimonial evidence, the prosecutor made a
formal offer of evidence which included the documents signed by
Edmond. Edmond’s lawyer object to the admissibility of the
document for being the fruit of the poisoned tree. Resolve the
objection with reasons. (3%)
⟴ SUGGESTED ANSWERS:
The objection to the admissibility of the documents which
the arresting officer asked Edmond to sign without the benefit of
counsel, is well-taken. Said documents having been signed by the
accused while under custodial investigation, imply an “admission”
without the benefit of counsel, that the shabu came from him and
that the P3,000,00 was received by him pursuant to the illegal
selling of the drugs. Thus, it was obtained by the arresting officer in
clear violation of Sec. 12 (3), Art. III of the 1987 Constitution,
particularly the right to be assisted by counsel during custodial
investigation. Moreover, the objection to the admissibility of the
evidence was timely made, i.e., when the same is formally offered.
⟴.
In a buy-bust operation, the police operatives arrested the accused
and seized from him a sachet of shabu and an unlicensed firearm.
The accused was charged in two Informations, one for violation of
the “Dangerous Drug Act”, as amended, and another for illegal
possession of firearms. The accused filed an action for recovery of
the firearm in another court against the police officers with an
application for the issuance of a writ of replevin. He alleged in his
complaint that he was a military informer who had been issued a
written authority to carry said firearm. The police officers moved
to dismiss the complaint on the ground that the subject firearm
was in custodia legis. The court denied the motion and instead
issued the writ of replevin.
a. Was the seizure of the firearm valid?
⟴ SUGGESTED ANSWERS:
Yes. The seizure of the firearm was valid because it was seized in the
course of a valid arrest in a buybust operation (Secs. 12 and 13, Rule
126). A search warrant was not necessary (People v. Salazar, G.R.
No. 98060, January 27, 1997).
b. Was the denial of the motion to dismiss proper? (2003 Bar)
⟴ SUGGESTED ANSWERS:
NO. The denial of the motion to dismiss was not proper. The court
had no authority to issue the writ of replevin whether the firearm
was in custodia legis or not. The motion to recover the firearm
should be filed in the court where the criminal action is pending.
(2) When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it;
Requisites:
(1) Offense had JUST been committed;
(2) Person making the arrest has probable cause to believe based
on personal knowledge.
Note: There must be a large measure of immediacy between the
time the offense is committed and the time of the arrest. If there
was an appreciable lapse of time between arrest and commission imposing an additional qualification. Criminals subjected to RDT
of crime, warrant of arrest must be secured. [Nachura] would violate their right against self-incrimination. [SJS v.
Dangerous Drugs Board (2008)]
Warrantless arrest of accused for selling marijuana 2 days after he
escaped is invalid. [People v. Kimura (2004)]
SECTION 3, ARTICLE III
The warrantless arrest only 3 hours after the killing was held valid “Privacy of Communication”
since personal knowledge was established as to the fact of death (1) GEN: The privacy of communication and correspondence
and facts indicating that the accused killed the victim. [People v. slicehall be inviolable
Gerente (1993)] EXN: upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law.
Personal Knowledge: Experience of an officer which gives the idea
that there is probable cause that the person caught is responsible. (2) Any evidence obtained in violation of this or the preceding
It has been ruled that “personal knowledge of facts” in arrests section shall be inadmissible for any purpose in any procedure.
without a warrant must be based on probable cause, which means
an actual belief or reasonable grounds of suspicion. [Cadua v.
Court of Appeals (1999)]
PRIVATE AND PUBLIC COMMUNICATIONS
There is no personal knowledge when the commission of a crime
REQUISITES OF EXISTENCE OF PRIVACY RIGHT
and identity of the accused were merely furnished by an
(1) Subjective: A person has exhibited an actual expectation of
informant, or when the location of the firearm was given by the
privacy; and
wife of the accused. It is not enough that there is reasonable
(2) Objective: The expectation be one that society is prepared to
ground to believe that the person to be arrested has committed a
recognize as reasonable. [Pollo v. Constantino- David (2011)
crime. That a crime has actually been committed is an essential
citing the Concurring Opinion of Justice Harlan in Katz v. US
precondition. [People v. Burgos (1986)]
(1967)]
(3) When the person to be arrested is a prisoner who has
INTRUSION, WHEN ALLOWED:
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
(1) By lawful order of the court
case is pending, or has escaped while being transferred
from one confinement to another
Probable cause in Sec. 2, Art. III should be followed for the court
to allow intrusion. Particularity of description is needed for
Additional Exceptions (Not in the Rules):
written correspondence, but if the intrusion is done through
(1) When the right is voluntarily waived (estoppel).
wire-taps and the like, there is no need to describe the content.
(2) Violent insanity.
However, identity of the person or persons whose
communication is to be intercepted, and the offense or offenses
Appellant is estopped from questioning the illegality of the arrest
sought to be prevented, and the period of the authorization
when he voluntarily submitted himself to the jurisdiction of the
given can be specified.
court by entering a plea of not guilty and by participating in the
trial. [People v. Salvatierra (1997)]
(2) When public safety or public order requires otherwise, as
may be provided by law.
Failure to raise the question of admissibility during the trial is
waiver of the right to assert inadmissibility on appeal. [Manalili v.
Intrusion has to be based upon a non-judicial government
CA (1997)]
official’s assessment that public safety and order demands such
intrusion, limited to the provisions of law. To hold otherwise
Scope of Waiver: Waiver is limited to the illegal arrest.
would be to opt for a government of men, and not of laws.
It does not extend to the search made as an incident
thereto, or the subsequent seizure of evidence allegedly found
Public order and safety is defined as the security of human lives,
during the search [People v. Peralta (2004]]
liberty and property against the activities of invaders,
insurrectionist and rebels. [1971 Constitutional Convention,
ADMINISTRATIVE ARRESTS
Session of November 25, 1972]
General Rule: Only the judge has the power to issue a warrant
after the proper procedure has been duly taken.
FORMS OF CORRESPONDENCE COVERED
(1) letters
Exceptions:
(2) messages
(3) telephone calls
(1) In cases of deportation of illegal and undesirable aliens, whom
(4) telegrams, and the like [Bernas]
the Presidentor the Commissioner of Immigration may order
arrested, following a final order of deportation,for the purpose
TESTS OF REASONABLE EXPECTATION OF PRIVACY:
of deportation. [Salazar v. Achacoso (1990)]
(1) Whether by his conduct, an individual has exhibited an
expectation of privacy;
(2) Warrant of arrest may be issued by administrative authorities
(2) Whether such expectation is one that society recognizes as
only for the purpose of carrying out a final finding of a
reasonable. [Ople v. Torres (1998)]
violation of law and not for the sole purpose of investigation
or prosecution. It may be issued only after the proceeding has
N.B. The Court in KMU v. Director-General held that Ople v. Torres
taken place as when there is already a final decision of the
is not an authority on the right to privacy, essentially on the
administrative authorities.
ground that the privacy discussion in Ople is obiter dictum. [See
KMU v. Director-General (2006)] Nevertheless, the Ople testhas
DRUG, ALCOHOL AND BLOOD TESTS
been reapplied by cases such as Sabio v. Gordon (2006) and is
The Court held that Randomized Drug Testing (RDT) for
essentially the same as the test in Pollo v. Constantino-David, infra.
students and employees does not violate the right to privacy in the
Constitution. Students do not have rational expectation of
A legitimate expectation of privacy requires. — (1) a subjective
privacy since they are minors and the school is in loco parentis.
expectation (i.e. demonstrated actual, personal expectation of
Employees and students in universities, on the other hand,
privacy); and (2) an objective expectation (i.e. an expectation that
voluntarily subject themselves to the intrusion because of their
society would recognize). [Pollo v. Constantino-David (2011)]
contractual relation to the company or university.
Other imports from Jurisprudence:
However, it is unconstitutional to subject candidates for public
Anti-Wire Tapping Act (RA 4200), clearly and unequivocably
office and criminals to RDT. The Constitution clearly provides the
makes it illegal for any person, not authorized by all the parties to
requirements for candidates, and adding RDT would amount to

PAGE 24
any private communication, to secretly record such
communications by means of a tape recorder. The law does not
make any distinction. [Ramirez v. CA (1995)]
An extension telephone is not among the devices enumerated in
Sec. 1 of RA 4200. There must be either a physical interruption
through a wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the spoken
words. The telephone extension in this case was not installed for
that purpose. It just happened to be there for ordinary office use.
[Ganaan v. IAC (1986)]
⟴ Privacy of Communication (2009)
No.VI. In criminal prosecution for murder, the prosecution
presented, as witness, an employee of the Manila Hotel who
produced in court a videotape recording showing the heated
exchange between the accused and the victim that took place at
the lobby of the hotel barely 30 minutes before the killing. The
accused objects to the admission of the videotape recording on the
ground that it was taken without his knowledge or consent, in
violation of his right to privacy and the Anti-Wire Tapping law.
Resolve the objection with reasons.
⟴ SUGGESTED ANSWERS:
The objection should be overruled. What the law prohibits is the
overhearing, intercepting, and recording of private
communication. Since the exchange of heated words was not
private, its videotape recording is not prohibited (Navarro vs.
Court of Appeals, 313 SCRA 153 [1999]).
No. 8: While serving sentence in Muntinlupa for the crime of theft,
"X" stabbed dead one of his guards, "X" was charged with murder.
During his trial, the prosecution introduced as evidence a letter
written in prison by "X" to his wife tending to establish that the
crime of murder was the result of premeditation. The letter was
written voluntarily. In the course of inspection, it was opened and
read by a warden pursuant to the rules of discipline of the Bureau
of Prisons and considering its contents, the letter was turned over
to the prosecutor. The lawyer of "X" objected to the presentation
of the letter and moved for its return on the ground that it violates
the right of "X" against unlawful search and seizure. Decide.
⟴ SUGGESTED ANSWERS:
The objection of the lawyer must be sustained, Section 3(1), Article
IV of the 1987 Constitution provides:
"The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court, or when public
safety or order requires otherwise as prescribed by law."
There was no court order which authorized the warden to read the
letter of "X". Neither is there any law specifically authorizing the
Bureau of Prisons to read the letter of "X", Under Section 3(1),
Article III of the 1987 Constitution, to interfere with any
correspondence when there is no court order, there must be a law
authorizing it in the interest of public safety or order. The ruling of
the United States Supreme Court in the case of Stroud vs. United
States, 251 U.S. 15 is not applicable here, because Section 3(1),
Article III of the 1987 Constitution has no counterpart in the
American Constitution. Hence, in accordance with Section 3(2),
Article III of the 1987 Constitution, the letter is inadmissible in
evidence.

⟴ Privacy of Communication (2001)

No XII - "A" has a telephone line with an extension. One day, "A" E.O. 424 (s. 2005), adopting a unified multi-purpose ID system for
was talking to "B" over the telephone. "A" conspired with his government, does not violate the right to privacy because it (1)
friend "C", who was at the end of the extension line listening to narrowly limits the data that can be collected, recorded, and
"A's" telephone conversation with "B" in order to overhear and released compared to existing ID systems, and (2) provides
tape-record the conversation wherein "B" confidentially admitted safeguards to protect the confidentiality of the data collected.
that with evident premeditation, he (B) killed "D" for having [KMU v. Director- General (2006)]
cheated him in their business partnership. "B" was not aware that
the telephone conversation was being tape-recorded. In the An intrusion into the privacy of workplaces is valid if it conforms
criminal case against "B" for murder, is the tape-recorded to the standard of reasonableness. Under this standard, both
conversation containing his admission admissible in evidence? inception and scope of intrusion must be reasonable.
Why? (5%) (1) Justified at inception: if there are reasonable grounds for
⟴ SUGGESTED ANSWERS: suspecting that it will turn up evidence that the employee is
guilty of work-related misconduct.
The tape-recorded conversation is not admissible in evidence. As
held in Salcedo-Ortanez vs. Court of Appeals, 235 SCRA 111 (1994).
Republic Act No. 4200 makes the tape-recording of a telephone Query Habeas Data
conversation done without the authorization of all the parties to over the place where the data
the conversation, inadmissible in evidence. In addition, the taping or information is gathered,
of the conversation violated the guarantee of privacy of collected or stored, at the
communications enunciated in Section 3, Article III of the option of the petitioner.
Constitution. (2) Supreme Court, Court of
Appeals, Sandiganbayan
when the action concerns
public data files of
⟴ Privacy of Correspondence (1998) government offices.
No VII. - The police had suspicions that Juan Samson, member of How much is the docket or No docket and other lawful
the subversive New Proletarian Army, was using the mail for filing fees for the petition? fees shall be required from an
propaganda purposes in gaining new adherents to its cause. The indigent petitioner. The
Chief of Police of Bantolan, Lanao del Sur ordered the Postmaster petition of the indigent shall
of the town to intercept and open all mail addressed to and coming be docketed and acted upon
from Juan Samson in the interest of the national security. Was the immediately, without
order of the Chief of Police valid? (5%) prejudice to subsequent
⟴ SUGGESTED ANSWERS: submission of proof of
No, the order of the Chief of Police is not valid, because there is no indigency not later than 15
law which authorizes him to order the Postmaster to open the days from the filing of the
letters addressed to and coming from Juan Samson. An official in petition.
the Executive Department cannot interfere with the privacy of Instead of having the hearing Yes. It can be done when the
correspondence and communication in the absence of a law in open court, can it be done respondent invokes the
authorizing him to do so or a lawful order of the court. Section in chambers? defense that the release of the
3(1), Article III of the Constitution provides: data or information in
"The privacy of communication and correspondence shall question shall compromise
be inviolable except upon lawful order of the court, or when public national security or state
safety or order requires otherwise as prescribed by law." secrets, or when the data or
information cannot be
divulged to the public due to
its nature or privileged
⟴ Privacy of Correspondence; Jail (1989)
character.

PAGE 25
What is the writ of habeas
data?
What rule governs petitions
for and the issuance of a writ
of habeas data?
What is the SC’s basis in
issuing the Rule?
When does the Rule take
effect?
Who may file a petition for the
issuance of a writ of habeas
data?
(1) Remedy the preceding
(2) Available to any person paragraph.
(3) Whose right to life,
liberty, and Where can the petition be (1) Regional Trial Court
security filed? (a) where the petitioner or
(4) has been violated or is respondent resides,
threatened with violation (b) or that which has
(5) By an unlawful act or jurisdiction
omission
(6) of a public official or Scope of intrusion is reasonable: if measures used in the search
employee, or of a private are reasonable related to the search’s objectives, and it is not
individual or entity highly intrusive. [Pollo, supra]
(7) Engaged in the gathering,
collecting or storing of Right may be invoked against the wife who went to the clinic of
data or information her husband and there took documents consisting of private
regarding the person, communications between her husband and his alleged paramour.
family, home and [Zulueta v. Court of Appeals, 253 SCRA 699(1996)]
correspondence of the
aggrieved party. N.B. While Zulueta seems to be an exception to the State Action
The Rule on the Writ of Requirement, Zulueta’s application of the exclusionary rulehas
Habeas Data (A.M. No. 08-1- only been cited once but to a state action.]
16-SC), which was approved
by the SC on 22 January 2008. See also: R.A. No. 10173, Data Privacy Act (2012)
That Rule shall not diminish,
increase or modify WRIT OF HABEAS DATA
substantive rights. The right to informational privacy, as a specific component of the
right to privacy, may yield to an overriding legitimate state
[Constitution, Art. VIII, Sec. interest. [Gamboa v. P/Ssupt. Marlou C. Chan (2012)]
5[5]].
The Rule takes effect on 2
February 2008, following its
⟴ What is the writ of habeas data?
publication in three (3) ⟴ SUGGESTED ANSWERS:
newspapers of general A writ of habeas data is a remedy available to any
circulation. persons whose right to privacy in life, liberty, or security is
(1) The aggrieved party. violated or threatened with violation by unlawful act or omission
(2) However, in cases of of a public official or employee, or of a private individual or entity
extralegal killings and engaged in the gathering, collecting, or storing of data or
enforced information regarding the person, family, home and
disappearances, the correspondence of the aggrieved party.
petition may be filed by
(a) Any member of the ⟴ No.XX. Azenith, the cashier of Temptation Investments,
immediate family of Inc. (Temptation, Inc.) with principal offices in Cebu City, is equally
the aggrieved party, hated and loved by her co-employees because she extends cash
namely: the spouse, advances or "vales " to her colleagues whom she likes. One
children and parents; morning, Azenith discovers an anonymous letter inserted under
or the door of her office threatening to kill her. Azenith promptly
(b) Any ascendant, reports the matter to her superior Joshua, who thereupon
descendant or conducts an internal investigation to verify the said threat.
collateral relative of Claiming that the threat is real, Temptation, Inc. opts to transfer
the aggrieved party Azenith to its Palawan Office, a move she resists in view of the
within the fourth civil company’s refusal to disclose the results of its investigation.
degree of Decrying the move as a virtual deprivation of her employment,
consanguinity or Azenith files a petition for the issuance of a writ of habeas data
affinity, in default of before the Regional Trial Court (RTC) to enjoin Temptation, Inc.
those mentioned in from transferring her on the ground that the company’s refusal to
the preceding provide her with a copy of the investigation results compromises
paragraph. her right to life, liberty and privacy. Resolve the petition. Explain.

Who may file a petition for
the issuance of a writ of
habeas data?
(3) The aggrieved party.
(4) However, in cases of
extralegal killings and
enforced
disappearances, the
petition may be filed by
(a) Any member of the
immediate family of
the aggrieved party,
namely: the spouse,
children and parents;
or
(b) Any ascendant,
descendant or
collateral relative of
the aggrieved party
within the fourth civil
degree of
consanguinity or
affinity, in default of
those mentioned in
⟴ SUGGESTED ANSWERS:
Azenith‟s petition for the issuance of a writ of habeas data must
be dismissed as there is no showing that her right to privacy in life,
liberty, or security is violated or threatened by an unlawful act or
omission. Neither was the company shown to be engaged in the
gathering, collecting nor storing of data or information regarding
the person, family, home and correspondence of the aggrieved
party (Sec. 1, Rule on the Writ of Habeas Data)
SECTION 4, ARTICLE III
“Freedom of speech”
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceable to
assemble and petition the government for redress of grievance.
PROTECTS:
1. Free of speech
2. Of expression
3. Of the press

PAGE 26
4. Right of the people peaceable to assemble and petition the
government for redress of grievance
CONCEPT AND SCOPE BASIS
No person shall be detained solely by reason of his political beliefs
and aspirations. [Art. III, Sec. 18(1)]
All are indispensable to the “uninhibited, robust and wide open
debate in the free marketplace of ideas.” [Abrams v. US (1919)]
While indeed, the news item subject of the present case might
have ruffled the sensitivities of plaintiff, this Court however
believes that the alleged defamatory articles fall within the
purview of a qualifiedly privileged matter, and that therefore, it
cannot be presumed to be malicious. The onus of proving malice
is accordingly shifted to the plaintiff, that is, that he must prove
that the defendants were actuated by ill-will in what they caused
to be printed and published, with a design to carelessly or
wantonly injure the plaintiff. [U.S. v. Bustos (1909)]
Components
Speech, expression, and press include:
(1) Written or spoken words (recorded or not)
(2) Symbolic speech (e.g. wearing armbands as symbol of protest)
Violation of the Hotel’s Grooming Standards by labor union and
unprotected speech. [NUWHRAIN-APL-IUF Dusit Hotel Nikko
Chapter v. CA (2008)]
(3) Movies
PEOPLE POWER:
⟴ Phil Con 87; People Power (2003)
No I -Is "people power" recognized by the 1987 Constitution?
Explain fully.
⟴ SUGGESTED ANSWERS:
"People power" is recognized in the Constitution. Article III, Section
4 of the 1987 Constitution guarantees the right of the people
peaceable to assemble and petition the government for redress of
grievances.
Article VI, Section 32 of the 1987 Constitution requires Congress to
pass a law allowing the people to directly propose and enact laws
through initiative and to approve or reject any act or law or part
of it passed by Congress or a local legislative body.
Article XIII, Section 16 of the 1987 Constitution provides that the
right of the people and their organizations to participate at all
levels of social, political, and economic decision-making shall not
be abridged and that the State shall, by law, facilitate the
establishment of adequate consultation mechanisms.
Article XVII, Section 2 of the 1987 Constitution provides that
subject to the enactment of an implementing law, the people may
directly propose amendments to the Constitution through
initiative.
SECTION 18, ARTICLE III
PROTECTED FREEDOM
(1) No person shall be detained solely by reason of his political
beliefs and aspirations
(2) No involuntary servitude in any form shall exist as punishment
for a crime whereof the part shall have been duly convicted
Scope of Protected Freedoms
Any and all modes of protection are embraced in the
guaranty. It is reinforced by Sec. 18(1), Art. 3.
PRIOR RESTRAINT (CENSORSHIP) - CONCEPT
Censorship conditions the exercise of freedom of
expression upon the prior approval of the government.
⟴ SUGGESTED ANSWERS:
The censor serves therefore as the political, moral, social and
it constitutes a prior restraint on freedom of expression. Such a
artistic arbiter for the people, usually applying only his own
limitation is valid only in exceptional cases, such as where the
subjective standards in determining what is good and what isnot.
purpose is to prevent actual obstruction to recruitment of service or
PAGE 27
General rules:
(1) Any system of prior restraints of expression comes to the
Court bearing a heavy presumption against its
constitutionality, giving the government a heavy burden to
show justification for the imposition of such restraint. [New
York v. United States (1971)]
(2)There need not be total suppression. Even restriction of
circulation constitutes censorship. [Grosjean v. American Press
Co., 297 US 233]
Examples of Unconstitutional Prior Restraint
(1) COMELEC prohibition against radio commentators or
newspaper columnists from commenting on the issues
involved in a scheduled plebiscite [Sanidad v. COMELEC
(1990)]
(2) Arbitrary closure of a radio station [Eastern Broadcasting v.
Dans (1985)]; or even when there is a legal justification, such
as lack of mayor’s permit [Newsounds Broadcasting Network
Inc. v. Dy (2009)]
(3) COMELEC resolution prohibiting the posting of decals and
stickers in mobile units like cars and other moving vehicles
[Adiong v. COMELEC (1992)]
(4) Search, padlocking and sealing of the offices of newspaper
publishers (We Forum) by military authorities [Burgos v. Chief
of Staff, supra]
(5) An announcement of a public figure to prohibit the media to
issue a specific kind of statement [Chavez v. Gonzales (2006)]
Examples of Constitutional Prior Restraint:
(1) Law which prohibits, except during the prescribed election
period, the making of speeches, announcements or
commentaries for or against the election of any candidate for
office [Gonzales v. COMELEC (1969)]
(2) Prohibition on any person making use of the media to sell or
to give free of charge print space or air time for campaign or
other political purposes except to the COMELEC.
Ratio: police power of State to regulate media for purpose of
ensuring equal opportunity, time and space for political
campaigns. [National Press Club v. COMELEC (1992); Osmena v.
COMELEC (1998)]
(3) Movie censorship: the power of the MTCRB can be exercised
only for purposes of reasonable classification, not censorship.
[NACHURA citing Gonzalez v. Katigbak (1985) and Ayer v.
Judge Capulong (1988)]
(4) Near v. Minnesota, (1931):
(a) When a nation is at war, many things that might be said in
time of peace are such a hindrance to its effort that their
utterance will not be endured so long as men fight and that
no court could regard them as protected by any
constitutional right
(b) Actual obstruction to the government’s recruiting service
or the publication of the sailing dates of transports or the
number and location of troops
(c) Obscene publications
(d) Incitements to acts of violence and the overthrow
by force of orderly government
⟴
No. 16: The Secretary of Transportation and Communications has
warned radio station operators against selling blocked time, on
the claim that the time covered thereby are often used by those
buying them to attack the present administration. Assume that the
department implements this warning and orders owners and
operators of radio stations not to sell blocked time to interested
parties without prior clearance from the Department of
Transportation and Communications. You are approached by an
interested party affected adversely by that order of the Secretary
of Transportation and Communications. What would you do
regarding that ban on the sale of blocked time?
I would challenge its validity in court on the ground that
the sailing dates of transports or the number and location of troops,
or for the purpose of enforcing the primary requirements of decency
or the security of community life. (Near v. Minnesota, 283 U.S, 697
(1931)). Attacks on the government, on the other hand, cannot
justify prior restraints. For as has been pointed out, "the interest of
society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the
conduct of public men is a scalpel in the case of free speech. The
sharp incision of its probe relieves the abscesses of officialdom. Men
in public life may suffer under a hostile and an unjust accusation;
the wound can be assuaged with the balm of a clear conscience,"
(United States v Bustos, 37 Phil. 741 (1918)).
The parties adversely affected may also disregard the regulation as
being on its face void. As has been held, "any system of prior
restraints of expression comes to the court bearing a heavy
presumption against its constitutional validity," and the
government "thus carries a heavy burden of showing justification
for the imposition of such a restraint." (New York Times Co. v.
United States, 403 U.S. 713 (1971)).
The usual presumption of validity that inheres in
legislation is reversed in the case of laws imposing prior restraint
on freedom of expression.
⟴ Freedom of the Press; Prior Restraint (2009)
No.XV. The KKK Television Network (KKKTV) aired the
documentary, "Case Law: How the Supreme Court Decides,"
without obtaining the necessary permit required by P.D. 1986.
Consequently, the Movie and Television Review and Classification
Board (MTRCB) suspended the airing of KKK-TV programs.
MTRCB declared that under P.D. 1986, it has the power of prior
review over all television programs, except "newsreels" and
programs "by the Government", and the subject documentary
does not fall under either of these two classes. The suspension
order was ostensibly based on Memorandum Circular No. 98-17
which grants MTRCB the authority to issue such an order. KKK-TV
filed a certiorari petition in court, raising the following issues:
(a) The act of MTRCB constitutes "prior restraint" and violates the
constitutionally guaranteed freedom of expression; (3%)
⟴ SUGGESTED ANSWERS:
The contention of KKK-TV is not tenable. The prior
restraint is a valid exercise of police power. Television is a medium
which reaches even the eyes and ears of children (Iglesia ni Cristo vs.
Court of Appeals, 259 SCRA 529 [1996]).
SUBSEQUENT PUNISHMENT Concept:
Freedom of speech includes freedom after speech. Without this
assurance, the citizen would hesitate to speak for fear he might be
provoking the vengeance of the officials he has criticized (chilling
effect).
If criticism is not to be conditioned on the government’s consent,
then neither should it be subject to the government’s subsequent
chastisement.
Examples of Valid Subsequent Restraints:
(1) Libel. Every defamatory imputation is presumed to be
malicious. [Alonzo v. CA (1995)]
Exceptions:
(a) private communication in the performance of any legal,
moral or social duty
(b) fair and true report of any judicial, legislative or other
official proceedings
(2) Obscenity. The determination of what is obscene is a judicial
function. [Pita v. CA (1989)]
(3) Contempt for criticism/publications tending to impede,
obstruct, embarrass or influence the courts in
administering justice in a pending suit or proceeding (sub
judice) [People v. Alarcon (1939)]
(4) Imputation of irregularities in the judiciary must strike a
balance between the right to free press and the reputation of
PAGE 28
judges. A reporter is prohibited from recklessly disregarding a
private reputation without any bona fide effort to ascertain
the truth thereof [In Re: Emil Jurado (1995)]
(5) Right of students to free speech in school premises must not
infringe on the school’s right to discipline its students [Miriam
College Foundation v. CA (2000)]
Exceptions:
(1) Fair comment on matters of public interest. Fair comment
is that which is true or, if false, expresses the real opinion
of the author based upon reasonable degree of care and on
reasonable grounds.
(2) Criticism of official conduct is given the widest latitude. [US
v. Bustos (1918)]
⟴ Right to Assembly; Permit Application; Freedom Parks
The Samahan ng mga Mahihirap (SM) filed with the Office of the
City Mayor of Manila an application for permit to hold a rally on
Mendiola Street on September 5, 2006 from 10:00 a.m. to 3:00
p.m. to protest the political killings of journalists. However, the
City Mayor denied their application on the ground that a rally at
the time and place applied for will block the traffic in the San
Miguel and Quiapo Districts. He suggested the Liwasang Bonifacio,
which has been designated a Freedom Park, as venue for the rally.
1. Does the SM have a remedy to contest the denial of its
application for a permit? (2.5%)
⟴ SUGGESTED ANSWERS:
Yes, SM has a remedy. Under B.P. Big. 880 (The Public
Assembly Act of 1985), in the event of denial of the application for a
permit, the applicant may contest the decision in an appropriate
court of law. The court must decide within twenty-four (24) hours
from the date of filing of the case. Said decision may be appealed to
the appropriate court within forty-eight (48) hours after receipt of
the same. In all cases, any decision may be appealed to the Supreme
Court (Bayan Muna v. Ermita, G.R. No. 169838, April 25, 2006)
Does the availability of a Freedom Park justify the denial of SM's
application for a permit? (2.5%)
⟴ SUGGESTED ANSWERS:
No, the availability of a freedom park does not justify the
denial of the permit. It does imply that no permits are required for
activities in freedom parks. Under B.P. Big. 880, the denial may be
justified only if there is clear and convincing evidence that the public
assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health (Bayan
Muna v. Ermita, G.R. No. 169838, April 25, 2006).
3. Is the requirement to apply for a permit to hold a rally a prior
restraint on freedom of speech and assembly? (2.5%)
⟴ SUGGESTED ANSWERS:
No, the requirement for a permit to hold a rally is not a prior
restraint on freedom of speech and assembly. The Supreme Court has
held that the permit requirement is valid, referring to it as regulation
of the time, place, and manner of holding public assemblies, but not
the content of the speech itself. Thus, there is no prior restraint, since
the content of the speech is not relevant to the regulation (Bayan
Muna v. Ermita, G.R. No. 169838, April 25, 2006).
4. Assuming that despite the denial of SM's application for a
permit, its members hold a rally, prompting the police to arrest
them. Are the arrests without judicial warrants lawful? (2.5%)
⟴ SUGGESTED ANSWERS:
The arrests are unlawful. What is prohibited and penalized
under Sec. 13 (a) and 14 (a) of B.P. Big 880 is "the holding of any public
assembly as defined in this Act by any leader or organizer without
having first secured that written permit where a permit is required
from the office concerned x x x Provided, however, that no person can
be punished or held criminally liable for participating in or attending
an otherwise peaceful assembly." Thus, only the leader or organizer
of the rally without a permit may be arrested without a warrant while
the members may not be arrested, as they cannot be punished or held
 criminally liable for attending the rally. However, under Section 12
thereof, when the public assembly is held without a permit where a
permit is required, the said public assembly may be peacefully
dispersed.
⟴ Declaration; State of National Emergency (Q1-2006)
On February 24, 2006, President Gloria Macapagal-Arroyo issued
Proclamation No. 1017 declaring a state of national emergency. Is
this Proclamation constitutional? Explain. (2.5%)
⟴ SUGGESTED ANSWERS:
The proclamation is constitutional insofar as it
constitutes a call by the President for the AFP to prevent or suppress
lawless violence as this is sustained by Section 18, Article VII of the
Constitution. However, PP 1017's provisions giving the President
express or implied power (1) to issue decrees; (2) to direct the AFP
to enforce obedience to all laws even those not related to lawless
violence as well as decrees promulgated by the President; and (3) to
impose standards on media or any form of prior restraint on the
press, are ultra vires and unconstitutional. Likewise, under Section
17, Article XII of the Constitution, the President, in the absence of
legislation, cannot take over privately-owned public utilities and
businesses affected with the public interest (David v. Arroyo, G.R. No.
171396, May 3, 2006).
During the effectivity of this Proclamation, Gener, Lito and Bong
were arrested by the police for acts of terrorism. Is the arrest
legal? Explain. (2.5%)
⟴ SUGGESTED ANSWERS:
The arrest, apparently done without a valid warrant, is illegal.
However, a warrantless arrest would be valid if those accused are
caught committing crimes en flagrante delicto. On the other hand,
if the arrest is made pursuant to a valid warrant, then it is lawful.
The term "acts of terrorism" has not been legally defined and made
punishable by Congress. No law has been enacted to guide the law
enforcement agents, and eventually the courts, to determine the
limits in making arrests for the commission of said acts of
terrorism (David v. Arroyo, G.R. No. 171396, May 3, 2006).
CONTENT-BASED AND CONTENT-NEUTRAL REGULATIONS
CONTENT-BASED RESTRICTIONS
The regulation is based on the subject matter of the utterance or
speech.
Freedom of Expression and National Security Where a
fictitious suicide photo and letter were published in newspapers
of general circulation expressing disappointments of the Roxas
administration and instructing a fictitious wife to teach their
children to burn pictures of the President, SC held that such act
constitutes inciting to sedition.
It suggests or incites rebellious conspiracies or riots and tends to
stir up the people against the constituted authorities, or to
provoke violence from opposition groups who may seek to silence
the writer, which is the sum and substance of the offense under
consideration. [Espuelas v. People (1951)]
Freedom of Expression and Libel
National community standard as basis of what is
defamatory Not belonging to a royal house does not constitute
libel. In a community like ours which is both republican and
egalitarian, such an ascription, whether correct or not, cannot be
defamatory. It is to the standards of the national community, not
to those of the region that a court must refer especially where a
newspaper is national in reach and coverage. [Bulletin Publishing
v. Noel (1988)]
Report of official conduct is privileged and covered by press freedom
Where the defamation is alleged to have been directed at a
group/class, it is essential that the statement must be so sweeping
or all-embracing as to apply to every individual in that group
or class, or sufficiently specific so that each individual in the class
or group can prove that the defamatory statement specifically
pointed to him, so that he can bring the action separately, if need
be. [Newsweek v. IAC (1986)]
PAGE 29
As the size of these groups increases, the chances for members of
such groups to recover damages on tortious libel become elusive.
This principle is said to embrace two important public policies:
(1) Where the group referred to is large, the courts presume that
no reasonable reader would take the statements as so literally
applying to each individual member; and
(2) The limitation on liability would satisfactorily safeguard
freedom of speech and expression, as well as of the press,
effecting a sound compromise between the conflicting
fundamental interests involved in libel cases. [MVRS v. Islamic
Da’Wah Council of the Phil (2003)]
⟴ Freedom of the Press; Actual Malice (2004)
(5-a) The STAR, a national daily newspaper, carried an exclusive
report stating that Senator XX received a house and lot located at
YY Street, Makati, in consideration for his vote cutting cigarette
taxes by 50%. The Senator sued the STAR, its reporter, editor and
publisher for libel, claiming the report was completely false and
malicious. According to the Senator, there is no YY Street in
Makati, and the tax cut was only 20%. He claimed one million
pesos in damages. The defendants denied "actual malice,"
claiming privileged communication and absolute freedom of the
press to report on public officials and matters of public concern. If
there was any error, the STAR said it would publish the correction
promptly. Is there "actual malice" in STAR'S reportage? How is
"actual malice" defined? Are the defendants liable for damages?
⟴ SUGGESTED ANSWERS:
Since Senator XX is a public person and the questioned imputation
is directed against him in his public capacity, in this case actual
malice means the statement was made with knowledge that it was
false or with reckless disregard of whether it was false or not
(Borja v. Court of Appeals, 301 SCRA 1 /1999). Since there is no
proof that the report was published with knowledge that it is false
or with reckless disregard of whether it was false or not, the
defendants are not liable for damage.
⟴ Presidential Immunity from Suit (1997)
No. 13: Upon complaint of the incumbent President of the
Republic, "A" was charged with libel before the Regional Trial
Court. "A" moved to dismiss the information on the ground that
the Court had no jurisdiction over the offense charged because the
President, being immune from suit, should also be disqualified
from filing a case against "A" in court. Resolve the motion.
⟴ SUGGESTED ANSWERS:
The motion should be denied according to Soliven us. Makasiar, 167
SCRA 393, the immunity of the President from suit is personal to the
President. It may be invoked by the President only and not by any
other person.
Actual Malice Standard for Public Officials and Matters of
Public Interest
Even if the defamatory statement is false, no liability can
attach if it relates to official conduct, unless the public official
concerned proves that the statement was made with actual
malice— that is, with knowledge that it was false or with reckless
disregard of whether it was false or not. [Vasquez v. CA (1999)
citing New York Times v. Sullivan (1964)]
⟴.
No liability can attach to a false, defamatory statement if it relates
to official conduct, unless the public official concerned proves that
the statement was with knowledge that it was false or with
reckless disregard of whether it was false or not. This is known as
what rule?
⟴ SUGGESTED ANSWERS:
Actual malice rule. In this rules, even if the defamatory
statement is false, no liability can attach if it relates to official
conduct, UNLSS the public official concerned proves that the
statement was made with ACTUAL MALICE, that is, WITH
KNOWLEDGE that it was false or with reckless disregard of
whether it was FALSE OR NOT. (Vasquez vs CA, 314 SCRA 460)
SC ADMINISTRATIVE CIRCULAR NO. 08-2008
Implements a rule of preference for the imposition of
fine only rather than imprisonment in libel suits.

Freedom of Expression and the Right to Privacy
Being a public figure does not automatically destroy in
toto a person’s right to privacy. The right to invade a person’s
privacy to disseminate public info does not extend to a fictional
representation of a person, no matter how public a figure he/she
may be. [Lagunzad v. Soto (1979)]
Freedom of speech and expression includes freedom to
film and produce motion pictures and to exhibit them. The fact
that such film production is a commercial activity is not a
disqualification for availing of freedom of speech and expression.
The right to privacy cannot be invoked to resist publication and
dissemination of matter of public interest. The intrusion is no
more than necessary to keep the film a truthful historical account.
Enrile is a public figure because of his participation as a principal
actor in the culminating events of the EDSA revolution. [Ayer
Productions v. Capulong (1988)]
Freedom of Expression and the Administration of Justice
Due to the delay in the disposition of his original case,
Cabansag asked for help from the President through a letter
addressed to the Presidential Complaints and Actions
Commission (PCAC). He was charged for contempt because such
complaint should have been raised to the Secretary of Justice or
SC instead.
SC ruled that for his act to be contemptuous, the danger
must cause a serious imminent threat to the administration of
justice. It cannot be inferred that such act has "a dangerous
tendency" to belittle the court or undermine the administration of
justice for the writer merely exercised his constitutional right to
petition the government for redress of a legitimate grievance.
[Cabansag v. Fernandez (1957)]
⟴ application duly filed on a given date can, after two (2) days from
⟴ SUGGESTED ANSWERS:
Freedom of Expression and Obscenity
Determination
1. Community standard:
Pictures depicting native inhabitants in their
native dresses as they appear and live in their native
homelands are not obscene or indecent. The pictures in
question merely depict persons as they actually live,
without attempted presentation of persons in unusual
postures or dress. The aggregate judgment of the
Philippine community, the moral sense of all the people
in the Philippines, would not be shocked by photographs
of this type. [People v. Kottinger (1923)]
A hula-hula dance portraying a life of a widow who lost her
guerrilla husband cannot be considered protected speech if the
audience, about a hundred customers, were howling and
shouting, “sigue muna, sigue nakakalibog” (go ahead first, go
ahead, it is erotic), during the performance. [People v. Aparici
(1955)]
CONTENT-NEUTRAL RESTRICTIONS
Regulations on the incidents of speech— time, place and manner.
Freedom of Assembly
The right to freedom of speech and to peaceably
assemble, and petition the government for redress of grievances
are fundamental personal rights of the people guaranteed by the
constitutions of democratic countries. City or town mayors are
not conferred the power to refuse to grant the permit, but only the
discretion in issuing the permit to determine or specify the streets
or public places where the parade may pass or the meeting may
be held. [Primicias v. Fugoso (1948)]
PAGE 30
Absent any clear and present danger of a substantive evil,
peaceable assembly in public places like streets or parks
cannot be denied. [J.B.L. Reyes v. Bagatsing (1983)]
The Calibrated Pre-emptive Response (CPR), insofar as it would
purport to differ from or be in lieu of maximum tolerance, is NULL
and VOID.
CPR serves no valid purpose if it means the same thing as
maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if it means
something else. Accordingly, what is to be followed is and should
be that mandated by the law itself, namely, maximum tolerance.
B.P. 880 not unconstitutional
B.P. No. 880 is not an absolute ban of public assemblies but a
restriction that simply regulates the time, place and manner of the
assemblies. The law is not vague or overbroad. There is, likewise,
no prior restraint, since the content of the speech is not relevant
to the regulation. A fair and impartial reading of B.P. No. 880 thus
readily shows that it refers to all kinds of public assemblies that
would use public places.
Freedom Parks
B.P. 880 provides that every city and municipality must set aside
a freedom park within six months from the law’s effectivity in
1985. Section 15 of the law provides for an alternative forum
through the creation of freedom parks where no prior permit is
needed for peaceful assembly and petition at any time. Without
such alternative forum, to deny the permit would in effect be to
deny the right to peaceably assemble.
Permit Application
There is a need to address the situation adverted to by petitioners
where mayors do not act on applications for a permit and when
the police demand a permit and the rallyists could not produce
one, the rally is immediately dispersed.
In such a situation, as a necessary consequence and part of
maximum tolerance, rallyists who can show the police an
said date, rally in accordance with their application without the
need to show a permit, the grant of the permit being then
presumed under the law, and it will be the burden of the
authorities to show that there has been a denial of the application,
in which case the rally may be peacefully dispersed following the
procedure of maximum tolerance prescribed by the law. [Bayan v.
Ermita (2006)]
Freedom of Association and Self-Organization
Proscription of Terrorist Organizations, Association, or Group of
Persons. – Any organization, association, or group of persons
organized for the purpose of engaging in terrorism, or which,
although not organized for that purpose, actually uses the acts to
terrorize mentioned in this Act or to sow and create a condition of
widespread and extraordinary fear and panic among the populace
in order to coerce the government to give in to an unlawful
demand shall, upon application of the Department of Justice
before a competent Regional Trial Court, with due notice and
opportunity to be heard given to the organization, association, or
group of persons concerned, be declared as a terrorist and
outlawed organization, association, or group of persons by the
said Regional Trial Court. [Sec. 17,
Human Security Act]
EXCEPTION:
The right to associate is not absolute. [People v. Ferrer (1972)]
a. The right to self-organization shall not be denied to
government employees. [Art. IX-B, Sec. 2(5)]
b. The right of the people, including those employed in
the public and private sectors, to form unions,
associations, or societies for purposes not contrary
to law shall not be abridged. [Art. III, Sec. 8]
c. It shall guarantee the rights of all workers to self-
organization, collective bargaining and
negotiations, and peaceful concerted activities,
 including the right to strike in accordance with law.
They shall be entitled to security of tenure, humane
conditions of work, and a living wage. They shall
also participate in policy and decision-making
processes affecting their rights and benefits as may
be provided by law. [Art. XIII, Sec. 3(2), par. 2]
FACIAL CHALLENGES AND THE OVERBREADTH DOCTRINE
General Rule: A party can question the validity of a statute only if,
as applied to him, it is unconstitutional.
Exception: Facial Challenges:
A facial challenge is allowed to be made to a
vague statute and to one which is overbroad because of
possible “chilling effect” upon protected speech. The
theory is that “[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society
of constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own conduct could not be
regulated by a statute drawn with narrow specificity.”
The possible harm to society in permitting some unprotected
speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of
overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very
existence, and, if facial challenge is allowed for this reason alone,
the State may well be prevented from enacting laws against
socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.[Concurring
Opinion of Justice Mendoza in Estrada v. Sandiganbayan (2001)]
OVERBREADTH DOCTRINE
A governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area
of protected freedoms.
A plain reading of PP 1017 shows that it is not primarily
directed to speech, rather it covers a spectrum of conduct. It is a
call upon the AFP to prevent or suppress all forms of lawless
violence. Facial challenge on the ground of overbreadth is a very
strong medicine. Petitioners did not show that there is no instance
when PP1017 may be valid. [David vs. Arroyo (2006)]
2 FORMULAS TO DETERMINE CONFLICTING RIGHTS OF
FREEDOM OF EXPRESSION AND INDEPENDENCE OF
JUDICIARY:
In the case of CABANSAG v FERNANDEZ, supreme court
has been confronted with a clash of 2 FUNDAMENTAL RIGHTS
which lie at the bottom of the state’s democratic institution namely
the independence of the judiciary the right to petition the
government for redress of grievance and the FREEDOM OF
THE PRESS.
In this same case, the Supreme Court had come up with 2
theoretical formulas attempting to draw the proper constitutional
boundary between freedom of expression and independence of the
judiciary. This is the dangerous tendency test and the clear and
present danger test.
DANGEROUS TENDENCY TEST
If the words uttered create a dangerous tendency of an
evil which the State has the right to prevent, then such words are
punishable. [Cabansag v. Fernandez (1957)]
It is sufficient if the natural tendency and the probable effect of the
utterance were to bring about the substantive evil that the
legislative body seeks to prevent. [People v. Perez(1956)]
PAGE 31
CLEAR AND PRESENT DANGER TEST
The question in every case is whether the words used
are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a
question of proximity and degree. [Schenck v. United States
(1919)]
This rule requires that “the danger created must not only be clear
and present but also traceable to the ideas expressed”. [Gonzales
v. COMELEC (1969)]
Note: This test has been adopted by the Philippine SC lock, stock
and barrel and is the test most applied to cases re: freedom of
expression.
BALANCING OF INTEREST TEST - applies when 2 conflicting
interest does NOT involve NATIONAL SECURITY CRIMES
When a particular conduct is regulated in the interest of
public order, and the regulation results in an indirect, conditional
and partial abridgement of speech, the duty of the courts is to
determine which of the two conflicting interests demands greater
protection. [American Communications Assoc. v. Douds, 339 US
282]
The test is applied when two legitimate values not involving
national security crimes compete.[Gonzales v. COMELEC (1969)]
⟴.
Nationwide protests have erupted over rising gas prices, including
disruptive demonstrations in many universities, throughout the
country. The Metro Manila State University, a public university,
adopted a university-wide circular prohibiting public mass
demonstrations and rallies within the campus. Offended by the
circular, militant students spread word that on the following
Friday, all students were to wear black T-shirts as a symbol of
their protest both against high gas prices and the university ban
on demonstrations. The effort was only moderately successful,
with around 30% of the students heeding the call. Nonetheless,
university officials were outraged and compelled the student
leaders to explain why they should not be expelled for violating
the circular against demonstrations.
The student leaders approached you for legal advice. They
contended that they should not be expelled since they did not
violate the circular, their protest action being neither a
demonstration nor a rally since all they did was wear black T-
shirts. What would you advise the students? (6%)
⟴ SUGGESTED ANSWERS:
The wearing of black shirts is an exercise of freedom of expression
and not necessarily freedom of assembly. Regardless of the
distinction, in both cases, the Constitutional guaranty includes
freedom from prior restraint and freedom from subsequent liability.
There are three tests to determine whether or not there was valid
government interference: (1) dangerous tendency rule; (2)
balancing of interest test; and (3) clear and present danger test. In
the Philippine jurisdiction, we adhere to the clear and present
danger test (ABS-CBN Broadcasting Corp. vs. Comelec, G.R. No.
133486, Jan. 28, 2000). This test simply means that there is clear and
present danger of a substantive evil which the State has the right to
prevent. Applying the clear and present danger test, the protest
conducted by the students was only moderately successful and the
wearing of black shirts was neither tumultuous nor disruptive. Thus,
the substantive evil which the school authorities were trying to
suppress did not even occur. Therefore, the prohibition imposed by
the circular violates freedom from prior restraint while the threat of
expulsion by the school authorities violates freedom from
subsequent liability.
DIRECT INCITEMENT TEST
The constitutional guarantees of free speech and free press do not
permit a State to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite
or produce such action.
[Brandenburg v. Ohio (395 U.S. 444)]
Political discussion even among those opposed to the present
administration is within the protective clause of freedom of
speech and expression. The same cannot be construed as
subversive activities per se or as evidence of membership in a
subversive organization. [Salonga v. Cruz
Paño(1986)]
GRAVE-BUT-IMPROBABLE DANGER TEST
To determine the clear and present danger of the utterances
bringing about the evil which that legislature has the power to
punish, "In each case [courts] must ask whether the gravity of the
'evil,' discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger." In this case, an attempt
to overthrow the Government by force is a sufficient evil for
Congress to prevent. It is the existence of the conspiracy which
creates the danger. [Dennis v. US (1951)]
MILLER TEST (CCA-SL) To
determine obscenity:
(1) Whether the average person, applying Contemporary
Community standards would find that the work, taken as a
whole, Appeals to prurient interest
(2) Whether the work depicts or describes in a patently offensive
way, sexual conduct Specifically defined by the applicable
state law
(3) Whether the work, taken as a whole, Lacks serious, literary,
artistic, political, or scientific value [Miller v. CA
(1973) also applied in Fernando v. CA (2006)]
O’ BRIEN TEST (C-GUN)
To determine whether Content- Based or Content-
Neutral:
(1) If it is within the Constitutional power of the Government
(2) If it furthers an important or substantial Government interest
(3) If the Government interest is Unrelated to the suppression of
free expression
(4) If the incidental restriction is No greater than is essential to
the furtherance of that interest
COMELEC banned the publication of surveys 15 and 7 days prior
to election concerning national and local candidates, respectively.
The SC held that this regulation is contentbased because applying
the 3rd prong of the O-Brien Test, it actually suppresses a whole
class of expression, while allowing the expression of opinion
concerning the same subject matter by other opinion takers. The
prohibition may be for a limited time, but the curtailment of the
right of expression is direct, absolute, and substantial. [SWS v.
COMELEC (2001)]
STATE REGULATION OF DIFFERENT TYPES OF MASS MEDIA
(1) The ownership and management of mass media shall be
limited to citizens of the Philippines, or to corporations,
cooperatives or associations, wholly-owned and managed by such
citizens.
The Congress shall regulate or prohibit monopolies in commercial
mass media when the public interest so requires. No
combinations in restraint of trade or unfair competition therein
shall be allowed.
(2) The advertising industry is impressed with public
interest, and shall be regulated by law for the protection of
consumers and the promotion of the general welfare.
Only Filipino citizens or corporations or associations at least
seventy per centum of the capital of which is owned by such
citizens shall be allowed to engage in the advertising industry.
The participation of foreign investors in the governing body of
entities in such industry shall be limited to their proportionate
share in the capital thereof, and all the executive and managing
officers of such entities must be citizens of the Philippines. [Art.
XVI, Sec. 11(1)]
PAGE 32
The Court pronounced that the freedom of broadcast media is
lesser in scope than the press because of their pervasive presence
in the lives of people and because of their accessibility to children.
MOVIE CENSORSHIP
When MTRCB rated the movie, “Kapit sa Patalim” as fit “For Adults
Only”, SC ruled that there was no grave abuse of discretion.
Censorship is allowable only under the clearest proof of a clear
and present danger of a substantive evil to public safety, morals,
health or any other legitimate public interest:
(1) There should be no doubt what is feared may be traced to the
expression complained of.
(2) Also, there must be reasonable apprehension about its
imminence. It does not suffice that the danger is only
probable. [Gonzales v. Kalaw-Katigbak (1985)]
Limited intrusion into a person’s privacy is permissible when that
person is a public figure and the information sought to be
published is of a public character.
What is protected is the right to be free from unwarranted
publicity, from the wrongful publicizing of the private affairs of an
individual which are outside the realm of public concern. [Ayer
Productions v. Capulong, supra]
TELEVISION CENSORSHIP
P.D. 1986 gave MTRCB the power to screen, review and examine
all television programs.
By the clear terms of the law, the Board has the power to “approve,
delete, or prohibit the exhibition and/or television broadcasts of
television programs. The law also directs the Board to apply
contemporary Filipino culture values as standard to determine
those which are objectionable for being immoral, indecent,
contrary to law and/or good customs injurious to the prestige of
the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of a violence or of a wrong
or a crime.
The law gives the Board the power to screen, review and examine
ALL “television programs” whether religious, public affairs, news
documentary, etc. (Ubilex non distinguit nec distinguere de bemos-
when the law does not make any exception, courts may not except
something
therefrom). [Iglesia ni Cristo v. CA (1996)]
Also, notwithstanding the fact that freedom of religion has been
accorded a preferred status, Iglesiani Cristo’s program is still not
exempt from MTRCB’s power to review. Freedom of expression
and of the press has not been
declared of preferred status. [MTRCB v. ABS-CBN (2005)]
On the program of Dating Daan, Soriano made crude remarks like
“lihitimong anak ng demonyo, sinungaling, etc.” MTRCB
preventively suspended him and his show. SC held that the State
has a compelling interest to protect the minds of the children who
are exposed to such materials. [Soriano v. Laguardia (2009)]
The SC could not compel TV stations and radio stations, being
indispensable parties, to give UNIDO free air time as they were
not impleaded in this case. UNIDO must seek a contract with these
TV stations and radio stations at its own expense. [UNIDO v.
COMELEC (1981)]
The television camera is a powerful weapon which intentionally
or inadvertently can destroy an accused and his case in the eyes
of the public.
Considering the prejudice it poses to the defendant’s right to due
process as well as to the fair and orderly administration of justice,
and considering further that the freedom of the press and the
right of the people to information may be served and satisfied by
less distracting, degrading and prejudicial means, live radio and
television coverage of the court proceedings shall not be allowed.
No video shots or photographs shall be permitted during the trial
proper.Video footages of court hearings for news purposes shall
be limited and restricted. [Secretary of
Justice v. Sandiganbayan (2001)]
RADIO CENSORSHIP
The SC does not uphold claim that Far Eastern had no right to
require the submission of the manuscript. It is the duty of Far
Eastern to require the submission of a manuscript as a
requirement in broadcasting speeches.
Besides, laws provide for such actions:
Act 8130. Franchise for Far Eastern; radio to be open to the
general public but subject to regulations
Comm. Act 98. Sec. of Interior and/or the Radio Board is
empowered to censor what is considered “neither moral,
educational or entertaining, and prejudicial to public interest.”
The Board can forfeit the license of a broadcasting station.
Sec. of the Interior, Dept. Order 13. Requires submission of daily
reports to Sec. of Interior/Radio Board re: programs before airing.
For speeches, a manuscript or short gist must be submitted.
[Santiago v. Far Eastern Broadcasting
(1941)]
Strict rules have also been allowed for radio because of its
pervasive quality and because of the interest in the protection of
children. [FCC v. Pacifica Foundation (1978)]
COMMERCIAL SPEECH
Commercial speech is unprotected speech. Commercial
advertising in the U.S. has been accorded First Amendment
protection but not in the same level of protection given to political
speech. One case set down the requirements for protection of
commercial speech:
(1) speech must not be false, misleading or proposing an illegal
activity;
(2) government interest sought to be served by regulation must
be substantial;
(3) the regulation must advance government interest; and
(4) the regulation must not be overbroad. [Bernas]
PRIVATE V. GOVERNMENT SPEECH
Parliamentary immunity guarantees the members the freedom of
expression without fear of being made responsible in criminal or
civil actions before courts or forum outside of Congress. But this
does not protect them from responsibility from the legislative
body. The members may nevertheless be questioned in Congress
itself.
For unparliamentary conduct, members of the Congress have
been, or could be censured, committed to prison, even expelled by
the votes of their colleagues. [Osmeña v.
Pendatun (1960)]
HECKLER’S VETO
An attempt to limit unpopular speech. For example, an unpopular
group wants to hold a rally and asks for a permit. The government
isnot allowed to refuse the permit based upon the beliefs of the
applicants. But the government can deny the permit, reasoning
that it isnot because the government disapproves of the group's
message, it is just afraid that so many people will be outraged that
there might be violent protests. Under the Free Speech Clause of
Sec. 4 Art. III, the government may not silence speech based on the
reaction (or anticipated reaction) of a hostile audience, unless
there is a "clear and present danger" of grave and imminent harm,
which isnot easy to prove.
SECTION 5, ARTICLE III
No shall be made respecting an establishment of religion or
prohibiting the free exercise thereof. The free exercise and
enjoyment religious profession and worship, without discrimination
or preference, shall forever be allowed. No religious test shall be
requires for the exercise of civil or political rights.
NON-ESTABLISHMENT CLAUSE
PAGE 33
CONCEPT
The clause prohibits excessive government entanglement with,
endorsement or disapproval of religion [Victoriano v. Elizalde
Rope Workers Union (1974); Lynch v. Donnelly, 465 US 668 (1984)
O'Connor, J., concurring); Allegheny County v. Greater Pittsburg
ACLU (1989)]
BASIS
Rooted in the separation of Church and State [Sec. 2(5), Art. IX-C;
Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti]
ACTS NOT PERMITTED BY NON-ESTABLISHMENT CLAUSE (1)
Prayer and Bible-reading in public schools [Engel v.
Vitale (1967); Abington School District v. Schemp (1963)]
(2) Financial subsidy for parochial schools[Lemon vs. Kurtzman
(1971)]
(3) Religious displays in public spaces: Display of granite
monument of 10 commandments in front of a courthouse is
unconstitutional for being unmistakably non-secular.
[Glassroth vs. Moore, 335 F.3d 1282 (11th Cir. 2003)]
(4) Mandatory religious subjects or prohibition of secular subjects
(evolution) in schools [Epperson vs. Arkansas (1968)]
(5) Mandatory bible reading in school (a form of preference for
belief over non-belief) [School District vs. Schempp (1963)]
(6) Word “God” in the Pledge of Allegiance: religious vs atheist
students [Newdow vs. US (2003)]
ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE
Constitutionally created
(1) Tax exemption
Charitable institutions, churches and personages or
convents appurtenant thereto, mosques, non-profit cemeteries, and
all lands, buildings, and improvements, actually, directly, and
exclusively used for religious, charitable, or educational purposes
shall be exempt from taxation. [Art. VI, Sec. 28 (3)]
(2) Operation of sectarian schools
Educational institutions, other than those established
by religious groups and mission boards, shall be owned solely
by citizens of the Philippines or corporations or associations at
least sixty per centum of the capital of which is owned by such
citizens… [Art. XIV, Sec. 4(2)]
(3) Religious instruction in public schools
At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to their children
or wards in public elementary and high schools within the regular
class hours by instructors designated or approved by the religious
authorities of the religion to which the children or wards belong,
without additional cost to the Government. [Art. XIV, Sec. 3(3)]
The government promotes the full growth of the faculties of every
child. For this purpose, the government will establish, whenever
possible:
(1) Schools in every barrio, municipality and city where optional
religious instruction shall be taught as part of the curriculum
at the option of the parent or guardian. xxx [Art. 359, Civil
Code]
PUBLIC AID TO RELIGION:
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to
the armed forces, or to any penal institution, or government
orphanage or leprosarium.[Art. VI, Sec. 29(2)]
Jurisprudence
Religious activities with secular purpose/character.— Postage
stamps depicting Philippines as the site of a significant religious
event – promotes Philippine tourism [Aglipay vs. Ruiz, (1937)]
Government sponsorship of town fiestas. – has secular character
[Garces vs. Estenzo (1981)]
Book lending program for students in parochial schools. – benefit
to parents and students [Board of Education vs.
Allen, 392 U.S. 236]
Display of crèche in a secular setting – depicts origins of the
holiday [Lynch vs. Donnely (1984)]
Financial support for secular academic facilities(i.e library and
science center) in parochial schools – has secular use
[Tilton vs. Richardson (403 U.S. 672)]
Exemption from zoning requirements to accommodate unique
architectural features of religious buildings i.e Mormon’s tall
pointed steeple [Martin vs. Corporation of the
Presiding Bishop (434 Mass. 141)]
FREE EXERCISE CLAUSE DUAL ASPECT
(1)Freedom to believe - absolute
(2)Freedom to act on one’s belief – subject to regulation LAWS
AND ACTS JUSTIFIED UNDER FREE EXERCISE CLAUSE (1)
Exemption from flag salute in school [Ebralinag vs. Division
Superintendent of Schools of Cebu (1993)]
(2) Freedom to propagate religious doctrines The power to tax the
exercise of the privilege is the power to control or suppress its
enjoyment [American Bible Society vs. City of Manila (1957)]
(3) Exemption from union shop
Congress acted merely to relieve persons of the burden
imposed by union security agreements.
(4) Non-disqualification of religious leaders from local
government office [Pamil v. Teleron (1978)]
Dean Pangalangan: There should be no distinction between
ordinary believer and the Pope; if the former can hold office, why
not the latter.
(5) Working hours from 7:30am to 3:30pm without break during
Ramadan [Re: Request of Muslim Employees in
the Different Courts of Iligan City (2005)]
(6) Exemption from administrative charge on immorality
Cohabiting with a married man with church sanction
evidenced by a document of “Declaration of Pledging
Faithfulness” [Estrada v. Escritor (2003)]
⟴ Distinguish fully between the "free exercise of religion
clause" and the “non-establishment of religion clause".
⟴ SUGGESTED ANSWERS:
B. The freedom of exercise of religion entails the right to believe,
which is absolute, and the right to act on one’s belief , which is
subject to regulation. As a rule , the freedom of exercise of
religion can be restricted only if there is a clear and present
danger of a substantive evil which the state has the right to
prevent. (iglesia ni cristo vs. Court of appeals, 259 scra 529.)
The non-establishment clause implements the principle of
separation of church and state. The state cannot set up a church.
Pass laws that aid one religion, and all religions, prefer one
religion over another force or influence a person to go to or
remain away from church against his will, of force him to profess
a belief or disbelief in any religion. (everson vs. Board of
education, 330 u.s 1.)
BENEVOLENT NEUTRALITY DOCTRINE
Gives room for accommodating religion, holding that the wall is
instead meant to protect the church from the state. It allows
interaction between the church and state, but is strict re: state
action, which would threaten the integrity of religious
commitment.
The breach in the wall between church and state is allowed in
order to uphold religious liberty, which is the integral purpose of
the religion clauses. The purpose of accommodation is to remove
the burden on a person’s exercise of his religion.
PAGE 34
Although morality contemplated in laws is secular, benevolent
neutrality could allow for accommodation of morality based on
religion, provided it does not offend
compelling state interests. [Estrada v. Escritor (2003)]
TESTS CLEAR AND PRESENT DANGER
Used for religious speech
In orderto justify restraint the court must determine whether the
expression presets a clear and present danger ofany substantive
evil, which the state has a right toprevent. [American Bible Society
v City of Manila (1957) citing Tañada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 297]
⟴ The Gangnam Style’s Witnesses (whose tenets are
derogatory to the Catholic Church), applied for a permit to use the
public plaza and kiosk to hold their religious meeting on the
occasion of their founding anniversary. Mayor Lebron allowed
them to use the north-western part of the plaza but not the kiosk
(which is a few meters away from the Catholic church). Members
of the Gangnam Style Witnesses claim that the act of Mayor Lebron
is a violation of their freedom of assembly and religion. Is this
correct?
⟴ SUGGESTED ANSWERS:
No, because historical experience shows that peace and order
may be disturbed whenever two opposing religious groups or
beliefs expound their dogmas;(Ignacio vs Dela Cruz)
BENEVOLENT NEUTRALITY-COMPELLING STATE INTEREST
Under the Benevolent Neutrality doctrine, this is the proper test
where conduct arising from religious belief is involved.
(1) Has the gov’t action created a burden on the free exercise?
Court must look into sincerity (but not truth) of belief.
(2) Is there a compelling state interest to justify the infringement?
(3) Are the means to achieve the legitimate state objective the
least intrusive? [Escritor, supra]
CONSCIENTIOUS OBJECTOR
Ground for exemption from compulsory military service;
expanded version provides exemption even to those who object
war based on non-religious beliefs i.e. non-theist
Criteria:
(1) There must be belief in God or a parallel belief occupying a
central place in the believer’s life
(2) Religion must involve a moral code transcending individual
belief; cannot be purely subjective
(3) Demonstrable sincerity in belief must be shown, but court
cannot inquire into its truth or reasonableness [United States
v. Seeger, 380 U.S. 163 (1965)]
(4) There must be some associational ties. [Estrada v.
Escritor (2003)]
SECTION 6, ARTICLE III
(1)GEN: The liberty of abode and of changing the same within the
limits prescribed by law shall not
be impaired
EXN: upon lawful order of the court.
(2) GEN: Neither shall the right to travel be impaired
EXN: in the interest of national security, public safety or public
health as may be provided by law.
"Liberty" as understood in democracies, is not license; it is
"Liberty regulated by law."
LIMITATIONS WHO MAY IMPAIR AND WHEN RIGHTS
MAY BE CURTAILED
Liberty of abode
Who: courts (lawful order)
When: within limits prescribed by law
The executive of a municipality does not have the right to force
citizens of the Philippine Islands to change their domicile from
one locality to another. [Villavicencio vs. Lukban (1919)]
LIBERTY OF ABODE:
⟴ Liberty of Abode; Limitations (1998)
No VIII - Juan Casanova contracted Hansen's disease (leprosy)
with open lesions. A law requires that lepers be isolated upon
petition of the City Health Officer. The wife of Juan Casanova wrote
a letter to the City Health Officer to have her formerly philandering
husband confined in some isolated leprosarium. Juan Casanova
challenged the constitutionality of the law as violating his liberty
of abode. Will the suit No, the suit will not prosper. Section 6,
Article III of the Constitution provides: "The liberty of abode and
of changing the same within the limits prescribed by law shall not
be impaired except upon lawful order of the court."
The liberty of abode is subject to the police power of the State.
Requiring the segregation of lepers is a valid exercise of police
power. In Lorenzo us. Director of Health. 50 Phil 595, 598, the
Supreme Court held: "Judicial notice will be taken of the fact that
leprosy is commonly believed to be an infectious disease tending
to cause one afflicted with it to be shunned and excluded from
society, and that compulsory segregation of lepers as a means of
preventing the spread of the disease is supported by high scientific
authority. "prosper? [5%]
⟴ SUGGESTED ANSWERS:
No, the suit will not prosper. Section 6, Article III of the
Constitution provides: "The liberty of abode and of changing the
same within the limits prescribed by law shall not be impaired
except upon lawful order of the court." The liberty of abode is
subject to the police power of the State. Requiring the segregation
of lepers is a valid exercise of police power. In Lorenzo us. Director
of Health. 50 Phil 595, 598, the Supreme Court held:
"Judicial notice will be taken of the fact that leprosy is
commonly believed to be an infectious disease tending to
cause one afflicted with it to be shunned and excluded
from society, and that compulsory segregation of lepers
as a means of preventing the spread of the disease is
supported by high scientific authority."
⟴ Liberty of Abode; Temporary (1996)
No 2: The military commander-in charge of the operation against
rebel groups directed the inhabitants of the island which would be
the target of attack by government forces to evacuate the area and
offered the residents temporary military hamlet. Can the military
commander force the residents to transfer their places of abode
without a court order? Explain.
⟴ SUGGESTED ANSWERS:
No, the military commander cannot compel the residents to
transfer their places of abode without a court order. Under Section
6, Article III of the Constitution, a lawful order of the court is
required before the liberty of abode and of changing the same can
be impaired.
⟴ Liberty of Abode; Right to Travel (2012)
No. I. Mr. Violet was convicted by the RTC of Estafa. On appeal, he
filed with the Court of Appeals a Motion to Fix Bail for Provisional
Liberty Pending Appeal. The Court of Appeals granted the motion
and set a bail amount in the sum of Five (5) Million Pesos, subject
to the conditions that he secure "a certification/guaranty from the
Mayor of the place of his residence that he is a resident of the area
and that he will remain to be a resident therein until final
judgment is rendered or in case he transfers residence, it must be
with prior notice to the court". Further, he was ordered to
surrender his passport to the Division Clerk of Court for
safekeeping until the court orders its return.
(a) Mr. Violet challenges the conditions imposed by the Court of
Appeals as violative of his liberty of abode and right to travel.
Decide with reasons. (5%)
⟴ SUGGESTED ANSWERS:
PAGE 35
The right to change abode and the right to travel are not absolute.
The liberty of changing abode may be unpaired upon order of the
court. The order of the Court of Appeals is lawful, because purpose
is to ensure that the accused will be available whenever his
presence is required. He is not being prevented from changing its
abode. He is merely being required to inform the Court of Appeals if
he does. (Yap vs. Court of Appeals, 358 SCRA 564.)
(b) Are "liberty of abode" and "the right travel" absolute rights?
Explain. What are the respective exception/s to each right if any?
⟴ SUGGESTED ANSWERS:
The liberty of abode and the right to travel are not absolute. The
liberty of abode and changing it can be imposed within the limits
prescribed by law upon lawful order of the court. The right to travel
may be unpaired in the interest of national security, public safety, or
public health as may be provided by law. (Section 6, Article III of the
Constitution.) in addition, the court has the inherent power to restrict
the right of an accused who has pending criminal case to travel
abroad to maintain its jurisdiction over him. (Santiago vs. Vasquez,
217 SCRA 633.)
RIGHT TO TRAVEL
Who: courts (lawful order) or by the appropriate executive officer.
When: in the interest of national security (Human Security Act),
public safety or public health (quarantine)
Relocation of Manguinaes, a nomadic people, is a proper restraint
to their liberty. It is for their advancement in civilization and so
that material prosperity may be assured. [Rubi vs. Provincial
Board (1919)]
Restraint on right to travel of accused on bail is allowed to avoid
the possibility of losing jurisdiction if accused travels abroad.
[Manotok vs. CA (1986)]
RIGHT TO TRAVEL WATCH LIST ORDER
Issued against accused in criminal cases (irrespective of
nationality in RTC or below), any person with pending case in DOJ
⟴ Right to Travel; Order of Arrest (1991)
No. 6: Mr. Esteban Krony, a Filipino citizen, is arrested for the
crime of smuggling. He posts bail for his release. Subsequently, he
jumps bail and is about to leave the country when the Department
of Foreign Affairs (DFA) cancels his passport. He sues the DFA,
claiming violation of his freedom to travel, citing the new
provision in the Bill of Rights of the 1987 Constitution, to wit:
"Neither shall the right to travel be impaired except in the interest
of national security, public safety, or public health, as may be
provided by law. Decide the case.
⟴ SUGGESTED ANSWERS:
The case should be dismissed. Any person under an order of arrest
is under restraint and therefore he can not claim the right to
travel. If he is admitted to bail his freedom of movement is confined
within the country. Therefore, if he subsequently jumps bail, he
cannot demand passport which in effect will facilitate his escape
from the country; he is in fact liable to be arrested anytime. Indeed,
the right to travel under the Constitution presupposes that the
individual is under no restraint such as that which would follow
from the fact that one has a pending criminal case and has been
placed under arrest.
HOLD-DEPARTURE ORDER
Issued against accused in criminal cases (irrespective of
nationality in courts below RTC), aliens (defendant, respondent,
witness in pending civil or labor case), any person motu proprio
by Sec of Justice or request of heads of dept’s, ConComm,
Congress, or SC
Both orders are issued by Secretary of Justice [Department
Circular no. 41, June 7, 2010].
RETURN TO ONE’S COUNTRY
Right to return to one's country, a distinct right under
international law, is independent from although related to the
right to travel.
The President has the power (residual/implied) to impair the
right to return when such return poses threats to the government.
[Marcos v. Manglapus (1989)]
SECTION 7, ARTICLE III
The right of the people to information on matters of public concern
shall be recognized. Access to official records and to documents and
papers pertaining to official acts, transactions or decisions, as well
as to government research data use as basis for policy development
shall be afforded the citizen subject to such limitations as may be
provided by law.
Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest. [Art. II, Sec. 28]
The State shall provide the policy environment for the full
development of Filipino capability and the emergence of
communication structures suitable to the needs and aspirations
of the nation and the balanced flow of information into, out of, and
across the country, in accordance with a policy that respects the
freedom of speech and of the press. [Art. XVI, Sec. 10]
⟴ incurred for each Member." (Section 20. Article VI)
Which one is NOT a recognized limitation to the right to
information on matters of public concern:
⟴ SUGGESTED ANSWERS:
Section 7, Article III of Constitution
⟴ Transparency; Matters of Public Interest (1989)
No. 3: Does the 1987 Constitution provide for a policy of
transparency in matters of public interest? Explain.
⟴ SUGGESTED ANSWERS:
Yes, the 1987 Constitution provides for a policy of transparency in
matters of public interest. Section 28, Article II of the 1987
Constitution provides:
1 "Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full disclosure of all its
transactions involving public interest,"
2 Section 7, Article III of the 1987 Constitution states: "The right of
the people to information on matters of public concern shall be
recognized, Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well
as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law."
3 Section 20, Article VI of the 1987 Constitution reads: "The records
and books of account of the Congress shall be preserved and be
open to the public in accordance with law, and such books shall be
audited by the Commission on Audit which shall publish annually
an itemized list of amounts paid to and expenses incurred for each
member."
4 Under Section 17, Article XI of the 1987 Constitution, the sworn
statement of assets, liabilities and net worth of the President, the
Vice- President, the Members of the Cabinet, the Congress, the
Supreme Court, the Constitutional Commission and other
constitutional offices, and officers of the armed forces with general
or flag rank filed upon their assumption of office shall be disclosed
to the public in the manner provided by law.
PAGE 36
1 Section 21, Article XII of the Constitution declares: "Information
on foreign loans obtained or guaranteed by the government shall
be made available to the public."
2. As held in Valmonte vs. Belmonte, G.R. No. 74930, Feb. 13, 1989,
these provisions on public disclosures are intended to enhance the
role of the citizenry in governmental decision-making as well as in
checking abuse in government.
⟴ Transparency; Matters of Public Interest (2000)
No V. State at least three constitutional provisions reflecting the
State policy on transparency in matters of public interest. What is
the purpose of said policy? (5%)
⟴ SUGGESTED ANSWERS:
The following are the constitutional provisions reflecting the State
policy on transparency I matters of public interest:
1. "Subject to reasonable conditions prescribe by law, the State
adopts and Implements a policy of full public disclosure of all its
transactions involving public interest." (Section 28, Article II)
2. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded to citizen, subject to such
limitations as may be provided by law." (Section 7, Article III)
3. The records and books of accounts of the Congress shall be
preserved and be open to the public in accordance with law, and
such books shall be audited by the Commission on Audit which shall
publish annually an itemized list of amounts paid to and expenses
4. The Office of the Ombudsman shall have the following powers,
functions, and duties: XXX
XXX
(6) Publicize matters covered by its investigation when
circumstances so warrant and with due prudence," (Section 12,
Article XI)
5. "A public officer or employee shall, upon assumption of office,
and as often as thereafter may be required by law, submit a
declaration under oath of his assets, liabilities, and net worth. In
the case of the President, the Vice President, the Members of the
Cabinet, the Congress, the Supreme Court, the Constitutional
Commissions and other constitutional offices, and officers of the
armed forces with general or flag rank, the declaration shall be
disclosed to the public in the manner provided by law." (Section 17,
Article XI)
6. "Information on foreign loans obtained or guaranteed by the
Government shall be made available to the public." (Section 21
Article XII) As explained In Valmonte v. Belmonte, 170 SCRA 256
(1989), the purpose of the policy is to protect the people from abuse
of governmental power. If access to information of public concern
is denied, the postulate "public office is a public trust" would be
mere empty words. {Note: The examinee should be given full credit
if he gives any three of the abovementioned provisions.}
POLICY OF FULL PUBLIC DISCLOSURE V. RIGHT TO
INFORMATION [See IDEALS v. PSALM (2012)]
Policy Of Full Public Right To Info On Matters
Disclosure Of Public Concern
Art. II, Sec. 28 Art. III, Sec. 7
MATTER
All transactions involving public Matters of public concern.
interest; Broad scope, embraces
any mater contained in official
communications and public
documents of the government
agency.
DEMAND TO ACCESS
 Demand or request required to
gain access (IDEALS)
WHAT IS ASSERTED
DUTY TO DISCLOSE of the RIGHT Public Concern: no exact
TO ACCESS INFO. gov’t, pursuant definition and adjudicated by
to the policy See below for the courts on a case-by-case
documents of full public basis; but examples abound in
disclosure specifically under jurisprudence (e.g. peace
scope negotiations, board exams,
PCGG compromise agreements
civil service matters)
SCOPE OF RIGHT TO ACCESS INFORMATION
Essence: matters of public concern
(1) Official records Includes the names of nominees of party-lists
because ultimately, the individual members and not the party
list itself will sit in Congress [Bantay Republic v. COMELEC
(2007)]
(2) Documents pertaining to official acts Includes negotiations
leading to the consummation of the transaction. Otherwise,
the people can never exercise the right if no contract is
consummated, or if one is consummated, it may be too late for
the public to expose its defects. Limited to definite
propositions, see below. [Chavez v. PEA and Amari (2002)]
(3) Gov’t research data used as basis for policy development
LIMITATIONS
Restrictions to the right to information may be:
(1) Based on kinds of information
Exempted information:
(a) Privileged information rooted in separation of powers
(b) Information of military and diplomatic secrets
(c) Information affecting national security
(d) Information on investigations of crimes by law enforcers
before prosecution [Chavez v. PEA and Amari, supra]
(e) Offers exchanged during diplomatic negotiations
[Akbayan v. Aquino (2008)]
(2) Based on access:
(a) opportunity to inspect and copy records at his expense.
[Chavez v. PEA and Amari, supra]
(b) not the right to compel custodians of official records to
prepare lists, summaries and the like. [Valmonte v.
Belmonte (1989)]
Based on reasonable regulation for the convenience of and for
order in the office that has custody of the documents.[Baldoza v.
Dimaano (1976)] . Discretion does not carry with it the authority
to prohibit access, inspection, examination, or
(3) copying.[Lantaco v. Llamas (1981)]
(4) Based on Availability
(5) Right available only to citizens
PUBLICATION OF LAWS AND REGULATIONS
General: Full publication is a condition for law’s effectivity.
Scope: All statutes [includes those of local application and private
laws], presidential decrees and executive orders by President
acting under power either directly conferred by the Constitution
or validly delegated by the legislature, and administrative rules
and regulations for implanting existing laws, charter of a city,
circulars by Monetary Board Internal regulations and letter of
instructions concerning guidelines for subordinates and not the
public are not included
Effectivity: Fifteen days after publication unless a different
effectivity date is fixed by the legislature [Tañada v. Tuvera
(1986)]
ACCESS TO COURT RECORDS
SECTION 1. Court personnel shall not disclose to any
unauthorized person any confidential information acquired by
PAGE 37
them while employed in the judiciary, whether such information
came from authorized or unauthorized sources.
Confidential information means information not yet made a
matter of public record relating to pending cases, as well as
information not yet made public concerning the work of any
justice or judge relating to pending cases, including notes, drafts,
research papers, internal discussions, internal memoranda,
records of internal deliberations and similar papers.
The notes, drafts, research papers, internal discussions, internal
memoranda, records of internal deliberations and similar papers
that a justice or judge uses in preparing a decision, resolution or
order shall remain confidential even after the decision, resolution
or order is made public. [Canon II Confidentiality Code of Conduct
for Court Personnel (AM No. 03-06-13-SC)]
DECISIONS ARE MATTERS OF PUBLIC CONCERN AND
INTEREST.
Pleadings and other documents filed by parties to a case need not
be matters of public concern or interest. They are filed for the
purpose of establishing the basis upon which the court may issue
an order or a judgment affecting their rights and interest.
Access to court records may be permitted at the discretion and
subject to the supervisory and protective powers of the court, after
considering the actual use or purpose for which the request for
access is based and the obvious prejudice to any of the
parties.[Hilado, et al v. Judge (2006)]
RIGHT TO INFORMATION RELATIVE TO GOVERNMENT
CONTRACT NEGOTIATIONS
The constitutional right to information includes official
information on on-going negotiations before a final contract. The
information, however, must constitute definite propositions by
the government, and should not cover recognized exceptions.
[Chavez v. Philippine Estate
Authority (2002)]
Definite propositions: While evaluation of bids or proposals is on-
going, there are no “official acts, transactions, or decisions.”
However, once the committee makes an official recommendation,
there arises a definite proposition. From this moment, the public’s
right to information attaches, and any citizen can assail the non-
proprietary information leading to such definite prop. [Chavez v.
PEA, supra]
The limitations recognized to the right of information are:
(1) National security matter including state secrets regarding
military and diplomatic matters, intergovernment exchanges
prior to the conclusion of treaties and executive agreements.
(2) Trade secrets and banking transactions
(3) Criminal Matters
(4) Other confidential matters. [Neri v. Senate (2008) citing Chavez
v. President Commission on Good Government]
⟴ Right to Information; Matters of Public Concern
(2009)
No. XIV. The Philippine Government is negotiating a new security
treaty with the United States which could involve engagement in
joint military operations of the two countries’ armed forces. A
loose organization of Filipinos, the Kabataan at Matatandang
Makabansa (KMM) wrote the Department of Foreign Affairs (DFA)
and the Department of National Defense (DND) demanding
disclosure of the details of the negotiations, as well as copies of the
minutes of the meetings. The DFA and the DND refused,
contending that premature disclosure of the offers and counter-
offers between the parties could jeopardize ongoing negotiations
with another country. KMM filed suit to compel disclosure of the
negotiation details, and be granted access to the records of the
meetings, invoking the constitutional right of the people to
information on matters of public concern.
(A)Decide with reasons. (3%)
⟴ SUGGESTED ANSWERS:
The petition of KMM must be denied. Diplomatic negotiations are
privileged in order to encourage a frank exchange of exploratory
 ideas between the parties by shielding the negotiations from
public view (Akbayan Citizens Action Party vs. Aquino, 558 SCRA
468 [2008]).
(b) Will your answer be the same if the information sought by
KMM pertains to contracts entered into by the Government in its
proprietary or commercial capacity? Why or why not? (3%)
⟴ SUGGESTED ANSWERS:
KKM is entitled to have access to information pertaining to
government contracts entered into by the Government in the
exercise of its proprietary commercial capacity. The right to
information under the Constitution does not exclude contracts of
public interest and are not privileged (Section 7, Article III of the
Constitution; Valmonte vs. Belmonte, 170 SCRA 256 [1989]).
DIPLOMATIC NEGOTIATIONS
Diplomatic secrets (Diplomatic Negotiations Privilege): Secrecy of
negotiations with foreign countries is not violative of the right to
information. Diplomacy has a confidential nature. While the full
text [of the JPEPA] may not be kept perpetually confidential, it is
in line with the public interest that the offers exchanged during
negotiations continue to be privileged information. Furthermore,
the information sought includes docs produced and
communicated by a party external to the PHL gov’t. However, such
privilege is merely presumptive, and will not apply to all cases.
[Akbayan v. Aquino (2008)]
COURT HEARINGS
Right of accused over right to public information:
With the possibility of losing not only the precious
liberty but also the very life of an accused, it behooves all to make
absolutely certain that an accused receives a verdict solely on the
basis of a just and dispassionate judgment, a verdict that would
come only after the presentation of credible evidence testified to
by unbiased witnesses unswayed by any kind of pressure,
whether open or subtle, in proceedings that are devoid of
histrionics that might detract from its basic aim to ferret veritable
facts free from improper influence, and decreed by a judge with
an unprejudiced mind unbridled by running emotions or
passions. [Re: Request for Live Radio-TV Coverage of the Trial in the
Sandiganbayan of the Plunder Cases against former President
Joseph Ejercito Estrada, Secretary of Justice Hernando Perez v.
Joseph Ejercito Estrada, A.M. No. 00-1-4-03-SC, June 29, 2001]
SECTION 8, ARTICLE III
“RIGHT OT ASSOCIATION”
The right of the people, including those employed in the public and
private sectors, to form unions, associations or societies for purposes
not contrary to law shall not be abridged.
The right to self-organization shall not be denied to government
employees. [Art. IX—B, Sec. 2(5)]
xxx. It shall guarantee the rights of all workers to self organization,
collective bargaining and negotiations, and peaceful concerted
activities, including the right to strike in accordance with law.
They shall be entitled to security of tenure, humane conditions of
work, and a living wage. They shall also participate in policy and
decision-making processes affecting their rights and benefits as
may be provided by law. [Art. XIII, Sec. 3]
Origin: Malolos Constitution
Interpretation of “for purposes not contrary to law”: same as clear
and present danger rule, only such may justify abridgement to the
right to form association or society. [Gonzales v. COMELEC (1969)]
Scope: The right is recognized as belonging to people whether
employed or unemployed, and whether employed in the
government or in the private sector. Includes the right to unionize
The State does not infringe on the fundamental right to form
lawful associations when it leaves to citizens the power and
PAGE 38
liberty to affiliate or not affiliate with labor unions. [Victoriano v.
Elizalde (1974)]
Every group has a right to join the democratic process, association
itself being an act of expression of the member’s belief, even if the
group offends the sensibilities of the majority. Any restriction to
such requires a compelling state interest to be proven by the
State. [Ang Ladlad LGBT Party v. COMELEC (2010)]
FREEDOM TO ASSOCIATION:
The freedom of association presupposes a freedom not to
associate. An organization may remove a member if:
(1) It is engaged in some form of expression, whether public or
private
(2) The forced inclusion of a member would significantly affect the
organization’s ability to advocate public or private viewpoints
[Boy Scouts of America v. Dale
(2000)]
Does not include the right to compel others to form an association.
But there may be situations in which, by entering into a contract,
one may also be agreeing to join an association. [Bernas]
If a land buyer who buys a lot with an annotated lien that the lot
owner becomes an automatic member of a homeowners’
association thereby voluntarily joins the
association. [Bel-Air Village Association v. Diokno (1989)]
Note: Right to association and right to unionize of government
employees do not include the right to strike. [SSS Employees
Association v. CA (1989)]
⟴ Right to Assembly; Public Teachers (2000)
No XII - Public school teachers staged for days mass actions at the
Department of Education, Culture and Sports to press for the
immediate grant of their demand for additional pay. The DECS
Secretary issued to them a notice of the illegality of their
unauthorized action, ordered them to immediately return to work,
and warned them of imposable sanctions. They ignored this and
continued with their mass action. The DECS Secretary issued
orders for their preventive suspension without pay and charged
the teachers with gross misconduct and gross neglect of duty for
unauthorized abandonment of teaching posts and absences
without leave.
a) Are employees in the public sector allowed to form unions? To
strike? Why? (3%)
b) The teachers claim that their right to peaceably assemble and
petition the government for redress of grievances has been
curtailed. Are they correct? Why?
⟴ SUGGESTED ANSWERS:
a) Section 8, Article III of the Constitution allows employees in the
public sector to form unions. However, they cannot go on strike. As
explained in Social Security System Employees Association v. Court
of Appeals. 175 SCRA 686 [1989], the terms and conditions of their
employment are fixed by law. Employees in the public sector
cannot strike to secure concessions from their employer.
b. The teachers cannot claim that their right to peaceably
assemble and petition for the redress of grievances has been
curtailed. According to Bangalisan v. Court of Appeals. 276 SCRA
619 (1997), they can exercise this right without stoppage of
classes.
⟴ Right to Assembly; Public Teachers (2002)
No X - Ten public school teachers of Caloocan City left their
classrooms to join a strike, which lasted for one month, to ask for
teachers' benefits.
The Department of Education, Culture and Sports charged them
administratively, for which reason they were required to answer
and formally investigated by a committee composed of the
Division Superintendent of Schools as Chairman, the Division
Supervisor as member and a teacher, as another member. On the
basis of the evidence adduced at the formal investigation which
amply established their guilt, the Director rendered a decision
meting out to them the penalty of removal from office. The
 decision was affirmed by the DECS Secretary and the Civil Service compensation, transfer to public ownership utilities and other
Commission. On appeal, they reiterated the arguments they raised private enterprises to be operated by the government. [Art. XII,
before the administrative bodies, namely: Sec. 18]

(a) Their strike was an exercise of their constitutional right to The State shall, by law, undertake an agrarian reform program
peaceful assembly and to petition the government for redress of founded on the right of farmers and regular farmworkers who are
grievances. landless, to own directly or collectively the lands they till or, in the
case of other farmworkers, to receive a just share of the fruits
⟴ SUGGESTED ANSWERS: thereof.
(a) According to De la Cruz v. Court of Appeals, 305 SCRA 303
(1999), the argument of the teachers that they were merely
To this end, the State shall encourage and undertake the just
exercising their constitutional right to peaceful assembly and to
distribution of all agricultural lands, subject to such priorities and
petition the government for redress of grievance cannot be
reasonable retention limits as the Congress may prescribe, taking
sustained, because such rights must be exercised within reasonable
into account ecological, developmental, or equity considerations,
limits. When such rights were exercised on regular school days
and subject to the payment of just compensation.
instead of during the free time of the teachers, the teachers
committed acts prejudicial to the best interests of the service.
In determining retention limits, the State shall respect the right of
small landowners. The State shall further provide incentives for
voluntary land-sharing. [Art. XIII, Sec. 4]
LABOR UNIONISM
The State shall, by law, and for the common good, undertake, in
LEGAL PERSONALITY AS PRE-CONDITION FOR EFFECTIVE
cooperation with the private sector, a continuing program of
ASSOCIATION ACTION
urban land reform and housing which will make available at
The right to form associations does not necessarily
affordable cost, decent housing and basic services to under-
include the right to be given legal personality. However, if the law
privileged and homeless citizens in urban centers and resettlement
itself should make possession of legal personality a precondition
areas.
for effective associational action, involved would be not just the
right to have legal personality but also the right to be an
It shall also promote adequate employment opportunities to such
association. [Philippine Association of Free Labor Unions v.
citizens. In the implementation of such program the State shall
Secretary of Labor (1969)]
respect the rights of small property owners. [Art. XIII, Sec. 9]
ELIGIBILITY TO JOIN, ASSIST OR FORM UNION EXPRESSLY
The National assembly may authorize, upon payment of just
DENIED BY LAW
compensation, the expropriation of private lands to be subdivided
The right of association of managerial employees is
into small lots and conveyed at cost to
denied because of Article 245 of the Labor Code which provides
deserving citizens. [Art. XIV, Sec. 13]
that managerial employees are not eligible to join, assist or form
any labor organization. This is because Art III Sec 8 is subject to
the condition that its exercise is for the purposes not contrary to
EMINENT DOMAIN
law. [United Pepsi-Cola Supervisory Union (UPSU) v. Laguesma
The power of eminent domain is the inherent right of
(1998)]
the State to condemn private property to public use upon payment
of just compensation. It is also known as the power of
COMMUNIST AND SIMILAR ORGANIZATIONS
expropriation. It is well settled that eminent domain is an inherent
The basic guidelines for prosecution under the Anti-
power of the state that need not be granted even by the
Subversion Act, are the following elements for the crime to be
fundamental law. Sec. 9, Art. III merely imposes a limit on the
established:
government’s exercise of this power. [Republic v Tagle (1998)].
(1) In case of subversive organizations other than the CPP:
REQUISITES:
(a) that the purpose of the organization is to overthrow the
For the state’s power of eminent domain to apply, the
present Government of the Philippines and to establish in this
property must be (1) private property (2) there is a genuine
country a totalitarian regime under the domination of a
necessity and must be proven, (3) there is a public use ; (4) the
foreign power;
property owner has been paid for just compensation and the taking
(b) that the accused joined such organization; and (c) that he did
is under a due process. (Manapat vs CA, 2007)
so knowingly, willfully and by overt acts; and (2) In the case
of the CPP:
PRIVATE PROPERTY
(a) that the CPP continues to pursue the objectives which led
Private property already devoted to public use cannot be
Congress in 1957 to declare it to be an organized conspiracy
expropriated by a delegate of legislature acting under a general
for the overthrow of the Government by illegal means for the
grant of authority. [City of Manila v. Chinese
purpose of placing the country under the control of a foreign
Community (1919)]
power;
(b) that the accused joined the CPP; and
Generally, all private property capable of ownership may be
(c) that he did so willfully, knowingly and by overt acts.
expropriated, except money and chooses in action.
[People v. Ferrer (1972)]
[Republic v. PLDT (1969)]
INTEGRATED BAR OF THE PHILIPPINES
A chose in action is a proprietary right in personam, such as debts
Compulsory membership of a lawyer in the integrated
owned by another person, a share in a joint-stock company, or a
bar of the Philippines does not violate the constitutional
claim for damages in tort; it is the right to bring an action to
guarantee. [In Re: Edillon (1978)]
recover a debt, money or thing [Black’s
Law Dictionary]

SECTION 9, ARTICLE III
Private property shall not be taken for public use without just
compensation.
NOTE: IN RELATION TO SECTION 1, ARTICLE III, 1987
CONSTITUTION.
The State may, in the interest of national welfare or defense,
establish and operate vital industries and, upon payment of just
TAKING
The exercise of the power of eminent does not always
result in the taking or appropriation of title to the expropriated
property; it may only result in the imposition of a burden upon the
owner of the condemned property, without loss of title or possession.
[National Power Corporation v. Gutierrez (1991)]
REQUISITES FOR A VALID TAKING:
(6) The expropriator must enter a private property
(7) Entry must be for more than a momentary period

PAGE 39
 (8) Entry must be under warrant or color of legal authority
(9) Property must be devoted to public use or otherwise
informally appropriated or injuriously affected
(10) Utilization of the property must be in such a way as to
oust the owner and deprive him of beneficial enjoyment of the
property. [Republic v. Castellvi (1974)]
DUE PROCESS
Hearing or procedure for determination of propriety of
the expropriation or the reasonableness of the compensation must
be provided. [Belen v. CA (1991)]
EXPANSIVE CONCEPT OF “PUBLIC USE”
The idea that "public use" means "use by the public" has
been discarded. At present, whatever may be beneficially employed
for the general welfare satisfies the requirement of public use. [Heirs
of Juancho Ardona vs.s Reyes (1983)]
That only a few benefits from the expropriation does not diminish
its public-use character, inasmuch as pubic use now includes the
broader notion of indirect public benefit or advantage [Filstream
International vs. CA (1998)]
Private bus firms, taxicab fleets, roadside restaurants, and other
private businesses using public streets and highways do not
diminish in the least bit the public character of expropriations for
roads and streets. The lease of store spaces in underpasses of
streets built on expropriated land does not make the taking for a
private purpose. Airports and piers catering exclusively to private
airlines and shipping companies are still for public use. The
expropriation of private land for slum clearance and urban
development is for a public purpose even if the developed area is
later sold to private homeowners, commercial firms,
entertainment and service companies, and other private
concerns. [Heirs of Ardona vs. Reyes (1983)]
JUST COMPENSATION
It is the just and complete equivalent of the loss which the
owner of the thing expropriated has to suffer by reason of the
expropriation.
Full and fair equivalent of the property taken; it is the fair market
value of the property. [Province of Tayabas vs. Perez (1938)]
⟴ State Immunity from Suit (1989)
No. 13: A property owner filed an action directly in court against
the Republic of the Philippines seeking payment for a parcel of
land which the national government utilized for a road widening
project.
(1) Can the government invoke the doctrine of non-suitability of
the state?
(2) In connection with the preceding question, can the property
owner garnish public funds to satisfy his claim for payment?
Explain your answers.
⟴ SUGGESTED ANSWERS:
(3) No, the government cannot invoke the doctrine of state of
immunity from suit. As held in Ministerio vs. Court of First
Instance of Cebu, 40 SCRA 464, when the government
expropriates property for public use without paying just
compensation, it cannot invoke its immunity from the suit.
Otherwise, the right guaranteed in Section 9, Article III of the
1987 Constitution that private property shall not be taken for
public use without just compensation will be rendered
nugatory.
(4) No, the owner cannot garnish public funds to satisfy his claim
for payment, Section 7 of Act No. 3083 prohibits execution
upon any judgment against the government. As held in
Republic vs. Palacio, 23 SCRA 899, even if the government may
be sued, it does not follow that its properties may be seized
under execution.
DETERMINATION
Just compensation is the fair value of the property as
between one who receives and one who desires to sell, fixed at the
time of the actual taking by the government. This rule holds true
PAGE 40
when the property is taken BEFORE the filing of expropriation suit,
and even if it is the property owner who brings the action for
compensation. The nature and character of land at the time of its
taking is the principal criterion for determining how much just
compensation should be given to the landowner.
In determining just compensation, ALL FACTS as to the
condition of the property and its surroundings, its improvements
and capabilities, should be considered (EPZA vs Dulay, 59603,
1987)
PERSON TO DETERMINE
Determination of just compensation is a judicial function.
[National Power Corporation vs. Sps. Florimon V. Lleto, et al.,
(2012)]
Presidential Decrees merely serve as guide/factors for the courts
in determining just compensation [EPZA vs. Dulay, 148 SCRA 305]
Findings of court appointed commissioners regarding the
determination of just compensation are not binding to courts
[Republic v. Santos (1986); Republic (MECS) v. IAC (1990)]
The court may substitute its own estimate of the value of the
property only for valid reasons: (a) the commissioners have
applied illegal principles to the evidence submitted to them; (b)
they have disregarded a clear preponderance of evidence; or (c)
where the amount allowed is either grossly inadequate or
excessive. [National Power Corporation v. De la Cruz (2007)]
WHEN DETERMINED
General: At the time of the filing of the case
Exception: If the value of the property increased because of the
use to which the expropriator has put it, the value is that of the
time of the taking. [NAPOCOR v. CA (1996)]
Legal interest: 6%, time when payment is due to actual payment
⟴ Eminent Domain; Legal Interest (1993)
No, 5: In expropriation proceedings: 1) What legal interest should
be used in the computation of interest on just compensation?
⟴ SUGGESTED ANSWERS:
As held in National Power Corporation vs. Angas. 208 SCRA 542, in
accordance with Article 2209 of the Civil Code, the legal interest
should be SIX per cent (6%) a year. Central Bank Circular No. 416,
which increased the legal interest to twelve percent (12%) a year
is not applicable to the expropriation of property and is limited to
loans, since its issuance is based on Presidential Decree No, 116,
which amended the Usury Law.
⟴ Eminent Domain; Non-observance of the policy of
"all or none" (2000)
No VIII. Madlangbayan is the owner of a 500 square meter lot
which was the birthplace of the founder of a religious sect who
admittedly played an important role in Philippine history and
culture. The National Historical Commission (NHC) passed a
resolution declaring it a national landmark and on its
recommendation the lot was subjected to expropriation
proceedings. This was opposed by Madlangbayan on the following
grounds: a) that the lot is not a vast tract; b) that those to be
benefited by the expropriation would only be the members of the
religious sect of its founder, and c) that the NHC has not initiated
the expropriation of birthplaces of other more deserving
historical personalities. Resolve the opposition raised by
Madlangbayan.
⟴ SUGGESTED ANSWERS:
The arguments of Madlangbayan are not meritorious. According to
Manosca v. Court of Appeals, 252 SCRA 412 (1996), the power of
eminent domain is not confined to expropriation of vast tracts of
the land. The expropriation of the lot to preserve it as the
birthplace of the founder of the religious sect because of his role in
Philippine history and culture is for a public purpose, because
 public use is no longer restricted to the traditional concept. The
fact that the expropriation will benefit the members of the
religious sect is merely incidental. The fact that other birthplaces
have not been expropriated is likewise not a valid basis for
opposing the expropriation. As held in J.M. Tuason and Company,
Inc. v. Land Tenure Administration, 31 SCRA 413 (1970), the
expropriating authority is not required to adhere to the policy of
"all or none".
⟴ Eminent Domain; Power to Exercise (2005)
(10-2) The Sangguniang Bayan of the Municipality of Santa, Ilocos
Sur passed Resolution No. 1 authorizing its Mayor to initiate a
petition for the expropriation of a lot owned by Christina as site
for its municipal sports center. This was approved by the Mayor.
However, the Sangguniang Panlalawigan of Ilocos Sur
disapproved the Resolution as there might still be other available
lots in Santa for a sports center.
Nonetheless, the Municipality of Santa, through its Mayor, filed a
complaint for eminent domain. Christina opposed this on the
following grounds:
1 the Municipality of Santa has no power to expropriate;
2 Resolution No. 1 has been voided since the Sangguniang
Panlalawigan disapproved it for being arbitrary; and
3 the Municipality of Santa has other and better lots for that
purpose. Resolve the case with reasons. (5%)
⟴ SUGGESTED ANSWERS:
a) Under Section 19 of R.A. No. 7160, the power of eminent domain
is explicitly granted to the municipality, but must be exercised
through an ordinance rather than through a resolution.
(Municipality ofParanaque v. V.M. Realty Corp., G.R. No. 127820,
July 20, 1998)
b) The Sangguniang Panlalawigan of Ilocos Sur was without the
authority to disapprove Resolution No. 1 as the municipality
clearly has the power to exercise the right of eminent domain and
its Sangguniang Bayan the capacity to promulgate said resolution.
The only ground upon which a provincial board may declare any
municipal resolution, ordinance or order invalid is when such
resolution, ordinance or order is beyond the powers conferred
upon the council or president making the same. Such is not the
situation in this case. (Moday v. Court of Appeals, G.R. No. 107916,
February 20, 1997)
c) The question of whether there is genuine necessity for the
expropriation of Christina's lot or whether the municipality has
other and better lots for the purpose is a matter that will have to be
resolved by the Court upon presentation of evidence by the parties
to the case.
⟴ Eminent Domain; Public Use (1987)
No. XVI: In January 1984, Pasay City filed expropriation
proceedings against several landowners for the construction of an
aqueduct for flood control in a barangay. Clearly, only the
residents of that barangay would be benefited by the project. As
compensation, the city offered to pay only the amount declared by
the owners in their tax declarations, which amount was lower
than the assessed value as determined by the assessor. The
landowners oppose the expropriation on the grounds that:
(a) the same is not for public use; and
(b) assuming it is for public use, the compensation must be based
on the evidence presented in court and not, as provided in
presidential decrees prescribing payment of the value stated in
the owner's tax declarations or the value determined by the
assessor, whichever is lower. If you were judge, how would you
rule on the issue? Why?
⟴ SUGGESTED ANSWERS:
(a) The contention that the taking of private property for the
purpose of constructing an aqueduct for flood control is not for
public use" is untenable- The idea that "PUBLIC USE" means
exclusively use by the public has been discarded. As long as the
purpose of the taking is public, the exercise of power of eminent
domain is justifiable. Whatever may be beneficially employed for
the general welfare satisfies the requirement of public use. (Heirs
of Juancho Ardona v. Reyes, 123 SCR A 220 (1983))
PAGE 41
(b) But the contention that the Presidential Decrees providing that
in determining just compensation the value stated by the owner in
his tax declaration or that determined by the assessor, whichever is
lower, in unconstitutional is correct. In EPZA v. Dulay. G.R. No.
59603, April 29, 1987, it was held that this method prescribed for
ascertaining just compensation constitutes an impermissible
encroachment on the prerogatives of courts. It tends to render
courts inutile in a matter which, under the Constitution, is reserved
to them for final determination. For although under the decrees
the courts still have the power to determine just compensation,
their task is reduced to simply determining the lower value of the
property as declared either by the owner or by the assessor. "JUST
COMPENSATION" means the value of the property at the time of
the taking. Its determination requires that all facts as to the
condition of the property and its surroundings and its
improvements and capabilities must be considered, and this can
only be done in a judicial proceeding.
⟴ Eminent Domain; Socialized Housing (1996)
No. 4 - The City of Pasig initiated expropriation proceedings on a
one-hectare lot which is part of a ten-hectare parcel of land
devoted to the growing of vegetables. The purpose of the
expropriation is to use the land as a relocation site for 200 families
squatting along the Pasig river. a) Can the owner of the property
oppose the expropriation on the ground that only 200 out of the
more than 10,000 squatter families in Pasig City will benefit from
the expropriation? Explain. b) Can the Department of Agrarian
Reform require the City of Pasig to first secure authority from said
Department before converting the use of the land from
agricultural to housing?
⟴ SUGGESTED ANSWERS:
a) No, the owner of the property cannot oppose the expropriation
on the ground that only 200 out of more than 10,000 squatter
families in Pasig City will benefit from the expropriation. As held in
Philippine Columbian Association vs. Pants, 228 SCRA 668, the
acquisition of private property for socialized housing is for public
use and the fact that only a few and not everyone will benefit from
the expropriation does not detract from the nature of the public
use.
b) No, the Department of Agrarian Reform cannot require Pasig
City to first secure authority from it before converting the use of
the land from agricultural to residential. According to Province of
Camarines Sur vs. Court of Appeals, 222 SCRA 173, there is no
provision in the Comprehensive Agrarian Reform Law which
subjects the expropriation of agricultural lands by local
government units to the control of the Department of Agrarian
Reform and to require approval from the Department of Agrarian
Reform will mean that it is not the local government unit but the
Department of Agrarian Reform who will determine whether or
not the expropriation is for a public use.
⟴ Eminent Domain; Writ of Possession (1993)
No, 5: In expropriation proceedings: Can the judge validly
withhold issuance of the writ of possession until full payment of
the final value of the expropriated property?
⟴ SUGGESTED ANSWERS:
No, the judge cannot validly withhold the issuance of the writ of
possession until full payment of the final value of the expropriated
property. As held in National Power Corporation vs. Jocson, 206
SCRA 520. it is the rninisterial duty of the Judge to issue the writ of
possession upon deposit of the provisional value of the
expropriated property withthe National or Provincial Treasurer.
EFFECT OF DELAY
Just compensation means not only the correct amount to
be paid to the owner of the land but also payment within a
reasonable time from its taking [Eslaban v. De Onorio (2001)]
General rule on delay of payment:
For non-payement, the remedy is the demand of payment of the
fair market value of the property and not the recovery of
possession of the expropriated lots. [Republic of the Philippines v.
Court of Appeals (2002); Reyes v. National Housing Authority
(2003)]
Exception:
When the government fails to pay just compensation within five
years from the finality of the judgment in the expropriation
proceedings, the owners concerned shall have the right to recover
possession of their property.
[Republic of the Philippines v. Vicente Lim (2005)]
ABANDONMENT OF INTENDED USE AND RIGHT OF
REPURCHASE
If the expropriator (government) does not use the
property for a public purpose, the property reverts to the owner in
fee simple. [Heirs of Moreno vs. Mactan-Cebu International Airport
(2005)]
MISCELLANEOUS APPLICATION “TAKING” UNDER SOCIAL
JUSTICE CLAUSE
Agrarian Reform (Art. XIII, Sec. 4):This provision is an
exercise of the police power of the State through eminent domain
(Association of Small Landowners vs. Secretary of Agrarian Reform)
as it is a means to regulate private property.
Retention limits prescribed by the Comprehensive Agrarian
Reform Law is also form of taking under the power of eminent
domain. The taking contemplated is not a mere limitation on the
use of the land, but the surrender of the title to and physical
possession of the excess and all beneficial rights accruing to the
owner in favor of the beneficiary. [Sta. Rosa Realty & Development
Corp. v. Court of Appeals (2001)]
SPECIFICALLY (LGUs, Sec. 19, Local Government Code)
(5) Ordinance by a local legislature council is enacted
authorizing local chief executive to exercise eminent domain,
(6) For public use, purpose or welfare or for the benefit of
the poor and of the landless,
(7) Payment of just compensation,
(8) Valid and definite offer has been previously made to
owner of the property sought to be expropriated but such offer
was not accepted [Municipality of Parañaque vs. VM Realty
(1998)]
Who may exercise the power?
Those that may exercise such power are the Congress and
by delegation, the President, administrative bodies, local
government units, and even private enterprises performing public
services may exercise the power of eminent domain.
Congress - political question
Delegate
a. Grant of special authority for special purpose- political question
b. Grant of general authority- justiciable question [City of Manila v.
Chinese Community of Manila (1919)]
When the power is exercised by the legislature, the question of
necessity is generally a political question. [Municipality of
Meycauyan, Bulacan v. Intermediate Appellate Court (1988)]
The RTC has the power to inquire into the legality of the exercise
of the right of eminent domain and to determine whether there is
a genuine necessity for it. [Bardillon v. Barangay Masili of
Calamba, Laguna (2003)]
WHO HAS JURISDICTION? ------ Regional Trial Court
While the value of the property to be expropriated is
estimated in monetary terms – for the court is duty bound to
determine the amount of just compensation to be paid for the
property – it is merely incidental to the expropriation suit
[Barangay San Roque, Talisay, Cebu v. Heirs of Francisco Pastor
(2000)
The issuance of a writ of possession becomes ministerial upon the
(1) filing of a complaint for expropriation sufficient in form and
substance, and (2) upon deposit made by the government of the
amount equivalent to 15% of the fair market value of the property
sought to be expropriated per current tax declaration. [Biglang-
PAGE 42
Awa v. Judge Bacalla (2000); Bardillon v. Barangay Masili of
Calamba, Laguna (2003)]
SCOPE AND LIMITATIONS
All Private Property capable of ownership may be expropriated,
except money and choses in action. Even services may be subject
to eminent domain. [Republic v.
PLDT (1969)]
Exercise of right to eminent domain is strictly construed against
the State or its agent because such right is necessarily in
derogation of private rights. [Jesus is Lord
Christian School Foundation v. Municipality of Pasig (2005)]
NECESSITY
The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public character.
Government may not capriciously or arbitrarily choose which
private property should be expropriated. [Lagcao v. Judge Labra
(2004)]
WHEN IS THERE TAKING IN THE CONSTITUTIONAL CASE?
When the owner is deprived of his proprietary rights
there is taking of private property. It may include (1) diminution
in value; (2) prevention of ordinary use; (3) deprivation of
beneficial use.
In Didipio Earth Savers Multipurpose Association (DESAMA) v.
Gozun (2006), examples were (a) trespass without actual
eviction; (b) material impairment of the value; (c) prevention of
the ordinary uses (e.g. easement).
But anything taken by virtue of police power is not compensable
(e.g. abatement of a nuisance), as usually property condemned
under police power is noxious [DESAMA v. Gozun (2006)]
⟴ Police Power; Abatement of Nuisance (2004) :
QUESTION: (9-b) The City of San Rafael passed an
ordinance authorizing the City Mayor, assisted by the police,
to remove all advertising signs displayed or exposed to public
view in the main city street, for being offensive to sight or
otherwise a nuisance. AM, whose advertising agency owns
and rents out many of the billboards ordered removed by the
City Mayor, claims that the City should pay for the destroyed
billboards at their current market value since the City has
appropriated them for the public purpose of city
beautification. The Mayor refuses to pay, so AM is suing the
City and the Mayor for damages arising from the taking of his
property without due process nor just compensation. Will
AM prosper? Reason briefly.
⟴ SUGGESTED ANSWERS:
The suit of AM will not prosper. The removal of the billboards is
not an exercise of the power of eminent domain but of police power
(Churchill v. Rafferty, 32 Phil. 580 [19150- The abatement of a
nuisance in the exercise of police power does not constitute taking
of property and does not entitle the owner of the property involved
to compensation. (Association of Small Landowners in the
Philippines, Inc. v. Secretary of Agrarian Reform, 175 SCRA 343
[1989]).
Examples from Jurisprudence:
(4) The imposition of an aerial easement of right-of-way was held
to be taking. The exercise of the power of eminent domain
does not always result in the taking or appropriation of title to
the expropriated property; it may also result in the imposition
of a burden upon the owner of the condemned property,
without loss of title or possession. [NPC v. Gutierrez (1991)]
(5) May include trespass without actual eviction of the owner,
material impairment of the value of the property or
prevention of the ordinary uses for which the property was
intended. [Ayala de Roxas v. City of Manila (1907)]
(6) A municipal ordinance prohibiting a building which would
impair the view of the plaza from the highway was likewise
considered taking. [People v. Fajardo
(1958)]
When the State exercises the power of eminent domain in the
implementation of its agrarian reform program, the constitutional
provision which governs is Section 4, Article XIII of the
Constitution. Notably, this provision also imposes upon the State
the obligation of paying the landowner compensation for the land
taken, even if it is for the government’s agrarian reform purposes.
[Land Bank of the Philippines v. Honeycomb Farms Corporation
(2012)]
⟴ The National Power and Grid Corporation (NPGC), a
government entity involved in power generation distribution, had
its transmission lines traverse some fields belonging to
Farmerjoe. NPGC did so without instituting any expropriation
proceedings. Farmerjoe, not knowing any better, did not
immediately press his claim for payment until after ten years later
when a son of his took up Law and told him that he had a right to
claim compensation. That was then the only time that Farmerjoe
earnestly demanded payment. When the NPGC ignored him, he
instituted a case for payment of just compensation. In defense,
NPGC pointed out that the claim had already prescribed since
under its Charter it is clearly provided that “actions for damages
must be filed within five years after the rights of way,
transmission lines, substations, plants or other facilities shall
have been established and that after said period, no suit shall be
brought to question the said rights of way, transmission lines,
substations, plants or other facilities.” If you were the lawyer of
Farmerjoe, how would you protect and vindicate the rights of
your client?
⟴ SUGGESTED ANSWERS:
As held in NATIONAL POWER CORPORATION v. SPOUSES
BERNARDO AND MINDALUZ SALUDARES G. R. No. 189127, April
25, 2012; the right to recover just compensation is enshrined in no
less than our Bill of Rights, which states in clear and categorical
language that private property shall not be taken for public use
without just compensation (Section 9, Article III, Constitution). This
constitutional mandate cannot be defeated by statutory
prescription. Thus, It would be a confiscatory act on the part of the
government to take the property of respondent spouses for a public
purpose and deprive them of their right to just compensation, solely
because they failed to institute inverse condemnation proceedings
within five years from the time the transmission lines were
constructed.
⟴ Eminent Domain; Socialized Housing (2009)
No.XVII. Filipinas Computer Corporation (FCC), a local
manufacturer of computers and computer parts, owns a
sprawling plant in a 5,000-square meter lot in Pasig City. To
remedy the city’s acute housing shortage, compounded by a
burgeoning population, the Sangguniang Panglungsod authorized
the City Mayor to negotiate for the purchase of the lot. The
Sanggunian intends to subdivide the property into small
residential lots to be distributed at cost to qualified city residents.
But FCC refused to sell the lot. Hard pressed to find a suitable
property to house its homeless residents, the city filed a
complaint for eminent domain against FCC.
If FCC hires you as lawyer, what defense or defenses would you
set up in order to resist the expropriation of the property?
Explain.
⟴ SUGGESTED ANSWERS:
a. No prior valid and definite offer was made
b. The expropriation is for socialized housing therefore it must
comply with the order of preference of the land to be acquired and
the mode of acquisition. Under the law regarding expropriation for
socialized housing, private lands is the last in line and the
expropriation proceeding is last resorted to if all other modes of
acquisition has already been exhausted. Order of expropriation for
socialized housing:
1. Government lands
2. Alienable lands of the public domain
3. Unregistered, abandoned or idle lands
4. Lands within the declared areas for priority development,
zonal improvement program sites, slum improvement and
resettlement sites which have not yet been acquired
5. BLISS sites which have not yet been acquired
6. Privately owned lands
The mode of expropriation is subject to 2 conditions:
a. It shall be resorted to only when the other modes of
acquisition have been exhausted; and
PAGE 43
b. Parcels owned by small property owners are exempt from
such acquisition. Small property owners are owners of residential
lands with an area not more than 300 sq.m. in highly urbanized
cities and not more than 800 sq.m. in other urban areas; and they
do not own residential property other than the same.
SECTION 10, ARTICLE III
CONTRACT CLAUSE
No law impairing the obligation of contracts shall be passed.
APPLICATION OF THE CONTRACT CLAUSE
Impairment is anything that diminishes the efficacy of the
contract. [Clements v. Nolting (1922)]
REQUISITES:
(1) Substantial impairment
(a) change the terms of legal contract either in time or mode of
performance
(b) impose new conditions
(c) dispenses with expressed conditions
(d) authorizes for its satisfaction something different from that
provided in the terms
(2) Affects rights of parties with reference to each other, and not
with respect to non-parties. [Philippine Rural Electric
Cooperatives Association v. Secretary, DILG
(2003)]
CONTEMPORARY APPLICATION OF THE CONTRACT CLAUSE
WHEN NON-IMPAIRMENT CLAUSE PREVAILS:
(1) against power of taxation
(2) regulation on loans
New regulations on loans making redemption of property sold on
foreclosure stricter are not allowed to apply retroactively. [Co v.
Philippine National Bank (1982)]
WHEN NON-IMPAIRMENT CLAUSE YIELDS:
(1) Invalid exercise of police power i.e zoning regulation [Presley
v. Bel-Air Village Association (1991)], premature campaign ban
[Chavez v. COMELEC (2004)], liquidation of a chartered bank
[Philippine Veterans Bank Employees Union v. Philippine
Veterans Bank (1990)]
(2) Statute that exempts a party from any one class of taxes
(3) Against freedom of religion [Victoriano v. Elizalde Rope
Workers (1974)]
(4) Judicial or quasi-judicial order
The non-impairment clause is a limit on legislative power, and not
of judicial or quasi-judicial power. The approval of the
Rehabilitation Plan by the Securities and Exchange Commission is
an exercise of adjudicatory power by an administrative agency
and thus the non-impairment clause does not apply. Neither does
it impair the power to contract. [BPI v. SEC (2007)]
Note: Timber licenses, permits, and license agreements are the
principal instruments by which the State regulates the utilization
and disposition of forest resources to the end that public welfare
is promoted. They are not deemed contracts within the purview
of the due process of law clause. [Oposa v. Factoran (1993)]
LIMITATIONS
It is ingrained in jurisprudence that the constitutional prohibition
does not prohibit every change in existing laws. To fall within the
prohibition, the change must not only impair the obligation of the
existing contract, but the impairment must be substantial.
Moreover, the law must effect a change in the rights of the parties
with reference to each other, and not with respect to non-parties.
[Philippine Rural Electric Cooperatives Association v. Secretary,
DILG (2003)
 SECTION 11, ARTICLE III
LEGAL ASSISTANCE AND FREE ACCESS TO COURTS
Free access to the courts and quasi-judicial bodies and adequate
legal assistance shall not be denied to any person by reason of
poverty.
SEC. 18. Indigent litigants exempt from payment of legal fees.—
Indigent litigants (a) whose gross income and that of their
immediate family do not exceed four thousand (P4,000.00) pesos
a month if residing in Metro Manila, and three thousand
(P3,000.00) pesos a month if residing outside Metro Manila, and
(b) who do not own real property with an assessed value of more
than fifty thousand (P50,000.00) pesos shall be exempt from the
payment of legal fees.
The legal fees shall be a lien on any judgment rendered in the case
favorably to the indigent litigant, unless the court otherwise
provides.
To be entitled to the exemption herein provided, the litigant shall
execute an affidavit that he and his immediate family do not earn
a gross income abovementioned, nor they own any real property
with the assessed value aforementioned, supported by an
affidavit of a disinterested person attesting to the truth of the
litigant's affidavit.
Any falsity in the affidavit of a litigant or disinterested person shall
be sufficient cause to strike out the pleading of that party, without
prejudice to whatever criminal liability may have been incurred.
[Rule 141, Sec. 18, Rules of Court]
Indigent party. — A party may be authorized to litigate his action,
claim or defense as an indigent if the court, upon an ex parte
application and hearing, is satisfied that the party is one who has
no money or property sufficient and available for food, shelter and
basic necessities for himself and his family.
Such authority shall include an exemption from payment of
docket and other lawful fees, and of transcripts of stenographic
notes which the court may order to be furnished him. The amount
of the docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any judgment rendered
in the case favorable to the indigent, unless the court otherwise
provides.
Any adverse party may contest the grant of such authority at any
time before judgment is rendered by the trial court. If the court
should determine after hearing that the party declared as an
indigent is in fact a person with sufficient income or property, the
proper docket and other lawful fees shall be assessed and
collected by the clerk of court. If the payment is not made within
the time fixed by the court, execution shall issue or the payment
thereof, without prejudice to such other sanctions as the court
may impose. [Rule 3, Sec. 21, Rules of Court]
RA NO. 9999: FREE LEGAL ASSISTANCE ACT OF 2010
Legal services- any activity which requires the application of law,
legal procedure, knowledge, training and experiences which shall
include, among others, legal advice and counsel, and the
preparation of instruments and contracts, including appearance
before the administrative and quasijudicial offices, bodies and
tribunals handling cases in court, and other similar services as
may be defined by the Supreme Court.
Section 4. Requirements for Availment. - For purposes of availing
of the benefits and services as envisioned in this Act, a lawyer or
professional partnership shall secure a certification from the
Public Attorney's Office (PAO), the Department of Justice (DOJ) or
accredited association of the Supreme Court indicating that the
said legal services to be provided are within the services defined
by the Supreme Court, and that the agencies cannot provide the
legal services to be provided by the private counsel.
PAGE 44
For purpose of determining the number of hours actually
provided by the lawyer and/or professional firm in the provision
of legal services, the association and/or organization duly
accredited by the Supreme Court shall issue the necessary
certification that said legal services were actually undertaken.
Section 5. Incentives to Lawyers. - For purposes of this Act, a
lawyer or professional partnerships rendering actual free legal
services, as defined by the Supreme Court, shall be entitled to an
allowable deduction from the gross income, the amount that could
have been collected for the actual free legal services rendered or up
to ten percent (10%) of the gross income derived from the actual
performance of the legal profession, whichever is lower: Provided,
That the actual free legal services herein contemplated shall be
exclusive of the minimumsixty (60)-hour mandatory legal aid
services rendered to indigent litigants as required under the Rule
on Mandatory Legal Aid Services for Practicing Lawyers, under
BAR Matter No. 2012, issued by the Supreme Court.
Note: The significance of having an explicit “free access”
provisions in the Constitution may be gathered from the rocky
road which “free access” seems to have traveled in American
jurisprudence. The American constitution does not have an
explicit free access provision and, hence, its free access doctrine
has been developed as implicit from both the equal protection
clause and the due process
clause. [Bernas]
SECTION 12, ARTICLE III
RIGHT OF SUSPECTS
(1) GEN: Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain
silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he
must be provided with one. These rights cannot be waived.
EXN: in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other
means which vitiate the free will shall be used against him. Secret
detention places, solitary, incommunicado or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in violation of this or
Section 17 thereof shall be inadmissible in evidence against him
(4) The law shall provide penal and civil sanctions for violation of
this section as well as compensation to and rehabilitation of victims
of torture or similar practices and their families.
In Miranda v. Arizona: The Federal Supreme Court made it clear
that what is prohibited is the "incommunicado interrogation of
individuals in a police dominated atmosphere, resulting in self-
incriminating statements without full warnings of constitutional
rights.”
MIRANDA RIGHTS
The person under custodial investigation must be warned that:
(1) He has a right to remain silent;
(2) That any statement he makes may be used as evidence against
him; and
(3) That he has a right to the presence of an attorney, either
retained or appointed.
⟴ Rights of the Accused; Right to Counsel (2012)
No. III. Mr. Brown, a cigarette vendor, was invited by PO1 White to
a nearby police station. Upon arriving at the police station, Brown
was asked to stand side-by-side with five (5) other cigarette
vendors in a police line-up. PO1 White informed them that they
were looking for a certain cigarette vendor who snatched the
purse of a passer-by and the line-up was to allow the victim to
point at the vendor who snatched her purse. No questions were to
be asked from the vendors.
(a) Brown, afraid of a "set up" against him, demanded that he be
allowed to secure his lawyer and for him to be present during the
police line-up. Is Brown entitled to counsel? Explain (5%)
⟴ SUGGESTED ANSWERS:
Brown is not entitled to counsel during the police line-up. He was
not yet being asked to answer for a criminal offense. (Gamboa vs.
Cruz, 162 SCRA 642.)
(b) Would the answer in (a.) be the same if Brown was specifically
invited by White because an eyewitness to the crime identified
him as the perpetrator? Explain.
⟴ SUGGESTED ANSWERS:
Brown would be entitled to the assistance of a lawyer. He was already
considered as a suspect and was therefore entitled to the rights
under custodial investigation. (People vs. Legaspi, 331 SCRA 95.)
(c) Briefly enumerate the so-called "Miranda Rights". (2%)
⟴ SUGGESTED ANSWERS:
The Miranda warning means that a person in custody who will be
interrogated must be informed of the following:
(a) He has the right to remain silent;
(b) Anything said can be used as evidenced against him;
(c) He has the right to have counsel during the investigation; and
(d) He must be informed that if he is indigent, a lawyer will be
appointed to represent him. (Miranda vs. Arizona, 384 U.S. 436.)
RA 7438,
RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION
Section 1. Statement of Policy. - It is the policy of the Senate to
value the dignity of every human being and guarantee full respect
for human rights
Section 2. Rights of Persons Arrested, Detained or Under
Custodial Investigation; Duties of Public Officers. – Any public
officer or employee, or anyone acting under his order or his place,
who arrests, detains or investigates any person for the
commission of an offense:
(1) shall inform the latter, in a language known to and understood
by him,
(2) of his rights to remain silent and
(3) to have competent and independent counsel, preferably of his
own choice,
(4) who shall at all times be allowed to confer privately with the
person arrested, detained or under custodial investigation.
(5) If such person cannot afford the services of his own counsel, he
must be provided with a competent and independent counsel
by the investigating officer.
AVAILABILITY
(1) When the person is already under custodial investigation
(2) Custodial investigation involves any questioning initiated by
law enforcement
(3) During “critical pre-trial stages” in the criminal process
⟴ Lito initially resisted, but eventually broke down and admitted his
Under Article III, Section 12 of the Constitution, any person under
investigation for the commission of an offense shall have the right
to be informed of his right to remain silent, etc. The investigation
referred to is called:
⟴ SUGGESTED ANSWERS:
1. Preliminary Investigation
2. Criminal Investigation
3. Custodial Investigation
CUSTODIAL INVESTIGATION
Involves any questioning initiated by law enforcement.
When the investigation is no longer a general inquiry unto an
unsolved crime but has begun to focus on a particular suspect, as
when the suspect has been taken into police custody and the
police carries out a process of interrogation that lends itself to
eliciting incriminating statements. [People vs. Mara (1994)]
PAGE 45
Includes issuing an invitation to a person under investigation in
connection with an offense he is suspected to have committed.
[Sec. 2, RA 7438]
CRITICAL PRE-TRIAL STAGE
Any critical confrontation by the prosecution at pretrial
proceedings where the results might well determine his fate and
where the absence of counsel might derogate from his right to a fair
trial. [U.S. vs. Wade (1967)]
SHOW - UP AND POLICE LINE-UP
General: No right to counsel
Out-of-court identification like a “show up” (accused is brought
face to face with the witness for identification), or “police line-up”
(suspect is identified by witness from a group of persons gathered
for that purpose)
Exception: Right to counsel if accusatory
The moment there is a move or even an urge of said investigators
to elicit admissions or confessions or even plain information
which may appear innocent or innocuous at the time, from said
suspect [Gamboa v. Cruz (1988)]
POLICE LINE-UPS
When petitioner was identified by the complainant at the police
line-up, he had not been held yet to answer for a criminal offense.
The police line-up is not a part of the custodial inquest, hence, he
was not yet entitled to counsel.
Thus, it was held that when the process had not yet shifted from
the investigatory to the accusatory as when police investigation
does not elicit a confession the accused may not yet avail of the
services of his lawyer. [Escobedo v. Illinois of the United States
Federal Supreme Court (1964)]
However, given the clear constitutional intent in the 1987
Constitution, the moment there is a move or even an urge of said
investigators to elicit admissions or confessions or even plain
information which may appear innocent or innocuous at the time,
from said suspect, he should then and there be assisted by
counsel, unless he waives the right, but the waiver shall be made
in writing and in the presence of counsel. [Gamboa vs. Cruz
(1988)]
REQUISITES
Essence: Effective communication by the investigator of rights of
accused [People v. Agustin (1995)]
⟴ Custodial Investigation; Extrajudicial Confession
(2013)
No.III. A robbery with homicide had taken place and Lito, Badong
and Rollie were invited for questioning based on the information
furnished by a neighbor that he saw them come out of the victim's
house at about the time of the robbery/killing. The police
confronted the three with this and other information they had
gathered, and pointedly accused them of committing the crime.
participation in the crime. Elated by this break and desirous of
securing a written confession soonest, the police called City
Attorney Juan Buan to serve as the trio's counsel and to advise
them about their rights during the investigation. Badong and
Rollie, weakened in spirit by Lito's early admission, likewise
admitted their participation. The trio thus signed a joint extra-
judicial confession which served as the main evidence against
them at their trial. They were convicted based on their confession.
Should the judgment of conviction be affirmed or reversed on
appeal? (5%)
⟴ SUGGESTED ANSWERS:
The judgment of conviction should be reversed. The police officers
committed an offense by confronting the three accused. This is a
violation to Section 12, Article III of the 1987 Constitution, which
states that any person under investigation for the commission of
an offense shall have the right to be informed of his right to remain
silent and to have a competent and independent counsel
preferably of his own choice. If the person cannot afford the
 services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
⟴ Custodial Investigation; Right to Counsel (2000):
No XI. On October 1, 1985, Ramos was arrested by a security guard
because he appeared to be "suspicious" and brought to a police
precinct where in the course of the investigation he admitted he
was the killer in an unsolved homicide committed a week earlier.
The proceedings of his investigation were put in writing and dated
October 1, 1985, and the only participation of counsel assigned to
him was his mere presence and signature on the statement. The
admissibility of the statement of Ramos was placed in issue but
the prosecution claims that the confession was taken on October
1, 1985 and the 1987 Constitution providing for the right to
counsel of choice and opportunity to retain, took effect only on
February 2, 1987 and cannot be given retroactive effect. Rule on
this. (3%)
⟴ SUGGESTED ANSWERS:
The confession of Ramos is not admissible, since the
counsel assigned to him did not advise him of his rights. The fact that
his confession was taken before the effectivity of the 1987
Constitution is of no moment. Even prior to the effectivity of the
1987 Constitution, the Supreme Court already laid down strict rules
on waiver of the rights during investigation in the case of People v.
Galit, 135 SCRA 465 (1985).
⟴ Custodial Investigation; Right to Counsel; Receipt of
Property Seized (2002):
No VIII. One day a passenger bus conductor found a man's
handbag left in the bus. When the conductor opened the bag, he
found inside a catling card with the owner's name (Dante Galang)
and address, a few hundred peso bills, and a small plastic bag
containing a white powdery substance. He brought the powdery
substance to the National Bureau of Investigation for laboratory
examination and it was determined to be methamphetamine
hydrochloride or shabu, a prohibited drug. Dante Galang was
subsequently traced and found and brought to the NBI Office
where he admitted ownership of the handbag and its contents. In
the course of the interrogation by NBI agents, and without the
presence and assistance of counsel, Galang was made to sign a
receipt for the plastic bag and its shabu contents. Galang was
charged with illegal possession of prohibited drugs and was
convicted. On appeal he contends that –
A. The plastic bag and its contents are inadmissible in evidence
being the product of an illegal search and seizure; (3%) and
B. The receipt he signed is also inadmissible as his rights under
custodial investigation were not observed. (2%) Decide the case
with reasons.
⟴ SUGGESTED ANSWERS:
A. It is admissible...
B. The receipt which Galang signed without the assistance of
counsel is not admissible in evidence. As held in People v. Castro,
274 SCRA 115 {1997), since the receipt is a document admitting
the offense charged, Galang should have been assisted by
counsel as required by Article III, Section 11 of the Constitution.
⟴ Custodial Investigation; Extrajudicial Confession
No IX - Rafael, Carlos and Joseph were accused of murder before
the Regional Trial Court of Manila. Asccused Joseph turned state
witness against his co-accused Rafael and Carlos, and was
accordingly discharged from the information. Among the evidence
presented by the prosecution was an extrajudicial confession
made by Joseph during the custodial Investigation, implicating
Rafael and Carlos who, he said, together with him (Joseph),
committed the crime. The extrajudicial confession was executed
without the assistance of counsel.
Accused Rafael and Carlos vehemently objected on the ground that
said extrajudicial confession was inadmissible in evidence against
them. Rule on whether the said extrajudicial confession is
admissible in evidence or not. (5%)
⟴ SUGGESTED ANSWERS:
According to People vs. Balisteros, 237 SCRA 499 (1994), the
confession is admissible. Under Section 12, Article III of the
PAGE 46
Constitution, the confession is inadmissible only against the one
who confessed. Only the one whose rights were violated can raise
the objection as his right is personal.
⟴ Custodial Investigation; Extrajudicial Confession;
Police Line-Up (1994)
No. 10: An information for parricide was filed against Danny. After
the NBI found an eyewitness to the commission of the crime.
Danny was placed in a police line-up where he was identified as
the one who shot the victim. After the line-up, Danny made a
confession to a newspaper reporter who interviewed him.
1) Can Danny claim that his identification by the eyewitness be
excluded on the ground that the line-up was made without benefit
of his counsel?
2) Can Danny claim that his confession be excluded on the ground
that he was not afforded his "Miranda" rights?
⟴ SUGGESTED ANSWERS:
1) No, the identification of Danny, a private person, by an
eyewitness during the line-up cannot be excluded in evidence. In
accordance with the ruling in People vs. Hatton, 210 SCRA 1, the
accused is not entitled to be assisted by counsel during a police
line-up, because it is not part of custodial investigation.
2) No. Danny cannot ask that his confession to a newspaper
reporter should be excluded in evidence. As held in People vs.
Bernardo, 220 SCRA 31, such an admission was not made during a
custodial interrogation but a voluntary statement made to the
media.
⟴ Custodial Investigation; Police Line-Up (1997)
No. 10: A, while on board a passenger jeep one night, was held up
by a group of three teenagers who forcibly divested her of her
watch, necklace and wallet containing P100.00. That done, the trio
jumped off the passenger jeep and fled. B, the jeep driver, and A
complained to the police to whom they gave description of the
culprits. According to the jeep driver, he would be able to identify
the culprits if presented to him. Next morning A and B were
summoned to the police station where five persons were lined up
before them for identification. A and B positively identified C and
D as the culprits. After preliminary investigation. C and D and one
John Doe were charged with robbery in an information filed
against them in court. C and D set up, in defense, the illegality of
their apprehension, arrest and confinement based on the
identification made of them by A and B at a police line-up at which
they were not assisted by counsel. How would you resolve the
issues raised by C and D?
⟴ SUGGESTED ANSWERS:
The arguments of the accused are untenable. As held in People vs.
Acot, 232 SCRA 406, the warrantless arrest of accused robbers
Immediately after their commission of the crime by police officers
sent to look for them on the basis of the information related by the
victims is valid under Section 5(b).Rule 113 of the Rules on
Criminal Procedure. According to People vs. Lamsing, 248 SCRA
471, the right to counsel does not extend to police line-ups, because
they are not part of custodial investigations. However, according to
People vs. Macan 238 SCRA 306, after the start of custodial
investigation, if the accused was not assisted by counsel, any
identification of the accused in a police line-up is inadmissible.
RIGHT TO REMAIN SILENT
The warning is needed simply to make the person under custodial
investigation aware of the existence of the right;
This warning is the threshold requirement for an intelligent
decision as to its exercise.
More importantly, such a warning is an absolute prerequisite in
overcoming the inherent pressures of the interrogation
atmosphere.
Further, the warning will show the individual that his
interrogators are prepared to recognize his privilege should he
choose to exercise it.
 ⟴ Rights of the Accused; Right to Remain Silent (2013)
No.VII. As he was entering a bar, Arnold who was holding an unlit
cigarette in his right hand -was handed a match box by someone
standing near the doorway. Arnold unthinkingly opened the
matchbox to light his cigarette and as he did so, a sprinkle of dried
leaves fell out, which the guard noticed. The guard immediately
frisked Arnold, grabbed the matchbox, and sniffed its contents.
After confirming that the matchbox contained marijuana, he
immediately arrested Arnold and called in the police.
At the police station, the guard narrated to the police that he
personally caught Arnold in possession of dried marijuana leaves.
Arnold did not contest the guard's statement; he steadfastly
remained silent and refused to give any written statement. Later
in court, the guard testified and narrated the statements he gave
the police over Arnold's counsel's objections. While Arnold
presented his own witnesses to prove that his possession and
apprehension had been set-up, he himself did not testify.
The court convicted Arnold, relying largely on his admission of the
charge by silence at the police investigation and during trial. From
the constitutional law perspective, was the court correct in its
ruling? (6%)
⟴ SUGGESTED ANSWERS:
The court was wrong in relying on the silence of Arnold during
the police investigation and during the trial. Under Article III,
Section 12 of the 1987 Constitution, he had the right to remain
silent. His silence cannot be taken as a tacit admission, otherwise,
his right to remain silent would be rendered nugatory.
Considering that his right against self-incrimination protects his
right to remain silent, he cannot be penalized for exercising it
(People vs. Galvez, 519 SCRA 521).
⟴ Sgt. GR of WPD arrested two NPA suspects, Max and Brix, both
An accused's custodial rights, e.g., right to counsel and right to
remain silent, is available:
⟴ SUGGESTED ANSWERS:
At the Preliminary Investigation. Any person under investigation
for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the
presence of counsel. (Article III, Sec. 12 (1), 1987 Constitution).
These guaranteed rights are available in all kinds of investigation
including a preliminary investigation. In a preliminary
investigation, a public prosecutor determines whether a crime
has been committed and whether there is probable cause that
the accused is guilty thereof. (Rules of Court, Rule 112, Section
1). (Metropolitan Bank and Trust Company vs. Rogelio Reynaldo,
et.al., G.R. No. 164538, August 9, 2010, Del Castillo, J.).
The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and hence
formally at risk of incarceration or some other penalty, is not a
mere formal or technical right: it is a substantive right. To deny
the accused‟s claim to a preliminary investigation would be to
deprive him of the full measure of his right to due process.” (Sales
vs. Sandiganbayan, G.R. No. 143802, November 16, 2001).
Applying the foregoing constitutional and procedural precepts,
there is no doubt that the custodial rights are available during
the preliminary investigation.
RIGHT AGAINST SELF-INCRIMINATION
UNDER ART. III, SEC. 17
The warning of the right to remain silent must be
accompanied by the explanation that anything said can and will be
used against the individual in court.
This warning is needed in order to make him aware not only of the
privilege to remain silent, but also of the consequences of forgoing
it.
PAGE 47
RIGHT TO COUNSEL
Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation
shall at all times be assisted by counsel; otherwise the waiver shall
be null and void and of no effect. [RA 7438, Rights of Persons under
Custodial Investigation; Section 2.]
Essence: when a counsel is engaged by anyone acting on behalf of
the person under investigation, or appointed by the court upon
petition by said person or by someone on his behalf. [People v.
Espiritu (1999)]
Competent and independent counsel preferably of the suspects
own choice
Not competent counsel: lawyer signing only as witness [People v.
Ordono (June 2000)], mayor of town where accused is detained
[People v. Velarde (2002)]
Failure to ask for a lawyer does not constitute a waiver.
No effective waiver of the right to counsel during interrogation can
be recognized unless specifically made after the warnings have
been given.
Request for assistance of counsel before any interrogation cannot
be ignored/denied by authorities. Not only right to consult with
an attorney but right to be given a lawyer to represent him if he’s
indigent
⟴
aged 22, in the act of robbing a grocery in Ermita. As he handcuffed
them he noted a pistol tucked in Max’s waist and a dagger hidden
under Brix’s shirt, which he promptly confiscated. At the police
investigation room, Max and Brix orally waived their right to
counsel and to remain silent. Then under oath, they freely
answered questions asked by the police desk officer. Thereafter
they signed their sworn statements before the police captain, a
lawyer. Max admitted his part in the robbery, his possession of a
pistol and his ownership of the packet of shabu found in his
pocket. Brix admitted his role in the robbery and his possession of
a dagger. But they denied being NPA hit men. In due course,
proper charges were filed by the City Prosecutor against both
arrestees before the MM RTC. May the written statements signed
and sworn to by Max and Brix be admitted by the trial court as
evidence for the prosecution? Reason. (2004 Bar)
⟴ SUGGESTED ANSWERS:
No. The sworn written statements of Max and Brix may not be
admitted in evidence, because they were not assisted by counsel,
even if the police captain before whom they signed the
statements was a lawyer, nor can he be considered as an
independent counsel. Waiver of the right to a lawyer must be
done in writing and in the presence of independent counsel
(People v. Mahinay,G.R. No. 122485, February 1, 1999)
⟴ Rights of the Accused; Counsel of his Choice
(1) Mariano was arrested by the NBI as a suspect in the shopping
mall bombings. Advised of his rights, Mariano asked for the
assistance of his relative, Atty. Santos. The NBI noticed that Atty.
Santos was inexperienced, incompetent and inattentive. Deeming
him unsuited to protect the rights of Mariano, the NBI dismissed
Atty. Santos. Appointed in his place was Atty. Barroso, a bar
topnotcher who was in the premises visiting a relative. Atty.
Barroso ably assisted Mariano when the latter gave a statement.
However, Mariano assailed the investigation claiming that he was
deprived of counsel of his choice. Was the NBI correct in
dismissing Atty. Santos and appointing Atty. Barroso in his stead?
Is Mariano's statement, made with the assistance of Atty. Barroso,
admissible in evidence? (5%)
⟴ SUGGESTED ANSWERS:
The NBI was not correct in dismissing Atty. Santos and appointing
Atty. Barroso in his stead. Article III, Section 12(1) of the 1987
Constitution requires that a person under investigation for the
 commission of an offense shall have no less than "competent and
independent counsel preferably of his own choice " This is meant to
stress the primacy accorded to the voluntariness of the choice
under the uniquely stressful conditions of a custodial investigation'
Thus, the lawyer called to be present during such investigation
should be as far as reasonably possible, the choice of the individual
undergoing questioning.
The appointment of Atty. Barroso is questionable because he was
visiting a relative working in the NBI and thus his independence is
doubtful. Lawyers engaged by the police, whatever testimonials are
given as proof of their probity and supposed independence, are
generally suspect, as in many areas, the relationship between
lawyers and law enforcement authorities can be symbiotic.
Considering that Mariano was deprived of counsel of his own
choice, the statement is inadmissible in evidence. (People v.
Januario, G.R. No. 98252, February 7, 1997)
⟴ Custodial Investigation; Rights (1996):
No. 3: 1) A, who was arrested as a suspect in a murder case was
not represented by counsel during the "question and answer"
stage. However, before he was asked to sign his statements to the
police investigator, the latter provided A with a counsel, who
happened to be at the police station. After conferring with A, the
counsel told the police investigator that A was ready to sign the
statements. Can the statements of A be presented in court as his
confession? Explain.
⟴ SUGGESTED ANSWERS:
1) No, the statements of A cannot be presented in belatedly
conferred with him fully explained to him the nature and
consequences of his confession. In People vs. Compil 244 SCRA 135,
the Supreme Court held that the accused must be assisted by
counsel during the actual questioning and the belated assistance of
counsel before he signed the confession does not cure the defect.
⟴ Custodial Investigation; Right to Counsel (1988)
No. 15: Armando Salamanca, a notorious police character, came
under custodial investigation for a robbery in Caloocan City. From
the outset, the police officers informed him of his right to remain
silent, and also his right to have a counsel of his choice, if he could
afford one or if not, the government would provide him with such
counsel. He thanked the police investigators, and declared that he
fully understands the rights enumerated to him, but that, he is
voluntarily waiving them. Claiming that he sincerely desires to
atone for his misdeeds, he gave a written statement on his
participation in the crime under investigation. In the course of the
trial of the criminal case for the same robbery, the written
admission of Salamanca which he gave during the custodial
investigation, was presented as the only evidence of his guilt. If
you were his counsel, what would you do? Explain your answer.
⟴ SUGGESTED ANSWERS:
I would object to it on the ground that the waiver of the rights to
silence and to counsel is void, having been made without the
presence of counsel. (Art. III, sec. 12(1); People v. Galit, 135 SCRA
465 (1980). The waiver must also be in writing, although this
requirement might possibly have been complied with in this case
by embodying the waiver in the written confession. It should also
be noted that under Rule 134, sec. 3, even if the extrajudicial
confession is valid, it is not a sufficient ground for conviction if it is
not corroborated by evidence of corpus delicti
⟴ Custodial Investigation; Right to Counsel (1993)
No. 17; In his extrajudicial confession executed before the police
authorities, Jose Walangtakot admitted killing his girlfriend in a fit
of jealousy. This admission was made after the following answer
and question to wit:
T -Ikaw ay may karapatan pa rin kumuha ng serbisyo ng isang
abogado para makatulong mo sa imbestigasyong ito at kung wala
kang makuha, ikaw ay aming bibigyan ng libreng abogado, ano
ngayon ang iyong masasabi?" "S - Nandiyan naman po si Fiscal
(point to Assistant Fiscal Aniceto Malaputo) kaya hindi ko na
kinakailanganang abogado." During the trial. Jose Walangtakot
repudiated his confession contending that it was made without
PAGE 48
the assistance of counsel and therefore Inadmissible in evidence.
Decide.
⟴ SUGGESTED ANSWERS:
The confession of Jose Walangtakot is inadmissible in evidence. The
warning given to him is insufficient in accordance with the ruling
in People v. Duero, 104 SCRA 379, he should have been warned also
that he has the right to remain silent and that any statement he
makes may be used as evidence against him. Besides, under Art. III,
Sec. 12(1) of the Constitution, the counsel assisting a person being
investigated must be independent. Assistant Fiscal Aniceto
Malaputo could not assist Jose Walangtakot. As held in People v.
Viduya, 189 SCRA 403, his function is to prosecute criminal cases.
To allow him to act as defense counsel during custodial
investigations would render nugatory the constitutional rights of
the accused during custodial investigation. What the Constitution
requires is a counsel who will effectively undertake the defense of
his client without any conflict of interest. The answer of Jose
Walangtakot indicates that he did not fully understand his rights.
Hence, it cannot be said that he knowingly and intelligently waived
those rights.
⟴ Custodial Investigation; Right to Counsel (2000)
No XI. On October 1, 1985, Ramos was arrested by a security guard
because he appeared to be "suspicious" and brought to a police
precinct where in the course of the investigation he admitted he
was the killer in an unsolved homicide committed a week earlier.
The proceedings of his investigation were put in writing and dated
October 1, 1985, and the only participation of counsel assigned to
him was his mere presence and signature on the statement. The
admissibility of the statement of Ramos was placed in issue but
the prosecution claims that the confession was taken on October
1, 1985 and the 1987 Constitution providing for the right to
counsel of choice and opportunity to retain, took effect only on
February 2, 1987 and cannot be given retroactive effect. Rule on
this. (3%)
⟴ SUGGESTED ANSWERS:
The confession of Ramos is not admissible, since the counsel
assigned to him did not advise him of his rights. The fact that his
confession was taken before the effectivity of the 1987 Constitution
is of no moment. Even prior to the effectivity of the 1987
Constitution, the Supreme Court already laid down strict rules on
waiver of the rights during investigation in the case of People v.
Galit, 135 SCRA 465 (1985).
⟴ Custodial Investigation; Right to Counsel; Receipt of
Property Seized (2002)
No VIII. One day a passenger bus conductor found a man's
handbag left in the bus. When the conductor opened the bag, he
found inside a catling card with the owner's name (Dante Galang)
and address, a few hundred peso bills, and a small plastic bag
containing a white powdery substance. He brought the powdery
substance to the National Bureau of Investigation for laboratory
examination and it was determined to be methamphetamine
hydrochloride or shabu, a prohibited drug. Dante Galang was
subsequently traced and found and brought to the NBI Office
where he admitted ownership of the handbag and its contents. In
the course of the interrogation by NBI agents, and without the
presence and assistance of counsel, Galang was made to sign a
receipt for the plastic bag and its shabu contents. Galang was
charged with illegal possession of prohibited drugs and was
convicted. On appeal he contends that –
A. The plastic bag and its contents are inadmissible in evidence
being the product of an illegal search and seizure; (3%) and
B. The receipt he signed is also inadmissible as his rights under
custodial investigation were not observed. (2%)
⟴ SUGGESTED ANSWERS:
A. It is admissible...
B. The receipt which Galang signed without the assistance of
counsel is not admissible in evidence. As held in People v. Castro,
274 SCRA 115 {1997), since the receipt is a document admitting
the offense charged, Galang should have been assisted by counsel
as required by Article III, Section 11 of the Constitution.
⟴ Custodial Investigation; Police Line-up (1993)
No. 9: Johann learned that the police were looking for him in
connection with the rape of an 18-year old girl, a neighbor. He
went to the police station a week later and presented himself to
the desk sergeant. Coincidentally, the rape victim was in the
premises executing an extrajudicial statement. Johann, along with
six (6) other suspects, were placed in a police lineup and the girl
pointed to him as the rapist. Johann was arrested and locked up in
a cell. Johann was charged with rape in court but prior to
arraignment invoked his right to preliminary investigation. This
was denied by the judge, and thus, trial proceeded. After the
prosecution presented several witnesses, Johann through counsel,
invoked the right to bail and filed a motion therefor, which was
denied outright by the Judge. Johann now files a petition for
certiorari before the Court of Appeals arguing that: 2) He should
have been informed of his right to be represented by counsel prior
to his identification via the police line up. Decide.
⟴ SUGGESTED ANSWERS:
2} Pursuant to the decision in People us. Castmillo. 213. SCRA 777,
Johann need not be informed of his right to counsel prior to his
identification during the police line-up. The police line-up is not
part of custodial investigation, since Johann was not being
questioned but was merely being asked to exhibit his body for
identification by a witness.
⟴ Custodial Investigation; Rights (1990)
No. 9; Some police operatives, acting under a lawfully issued
warrant for the purpose of searching for firearms in the House of
X located at No. 10 Shaw Boulevard, Pasig, Metro Manila, found,
instead of firearms, ten kilograms of cocaine.
(1) May the said police operatives lawfully seize the cocaine?
Explain your answer.
(2) May X successfully challenge the legality of the search on the
ground that the peace officers did not inform him about his right
to remain silent and his right to counsel? Explain your answer.
(3) Suppose the peace officers were able to find unlicensed
firearms in the house in an adjacent lot, that is. No, 12 Shaw
Boulevard, which is also owned by X. May they lawfully seize the
said unlicensed firearms? Explain your answer.
⟴ SUGGESTED ANSWERS:
SUGGESTED ANSWER:
(1) Yes, the police operatives may lawfully seize the cocaine, ....
(2) No, X cannot successfully challenge the legality of the search
simply because the peace officers did not inform him about his
right to remain silent and his right to counsel. Section 12(1),
Article III of the 1987 Constitution provides: "Any person under
investigation for the commission of an offense shall have the right
to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice."
As held in People v. Dy, 158 SCRA 111. for this provision to apply, a
suspect must be under investigation. There was no investigation
involved in this case.
(3) The unlicensed firearms stored at 12 Shaw Boulevard may
lawfully be seized ...
⟴ Custodial Investigation; Rights (1993)
No. 4: Larry was an overnight guest in a motel. After he checked
out the following day, the chambermaid found an attache case
which she surmised was left behind by Larry. She turned it over to
the manager who, to determine the name and address of the
owner, opened the attache case and saw packages which had a
peculiar smell and upon squeezing felt like dried leaves. His
curiosity aroused, the manager made an opening on one of the
packages and took several grams of the contents thereof. He took
the packages to the NBI, and in the presence of agents, opened the
packages, the contents of which upon laboratory examination,
turned out to be marijuana flowering tops, Larry was
subsequently found, brought to the NBI Office where he admitted
ownership of the attache case and the packages. He was made to
sign a receipt for the packages. Larry was charged in court for
possession of prohibited drugs. He was convicted. On appeal, he
now poses the following issues:
PAGE 49
1) The packages are inadmissible in evidence being the product of
an illegal search and seizure;
2) Neither is the receipt he signed admissible, his rights under
custodial investigation not having been observed.
⟴ SUGGESTED ANSWERS:
On the assumption that the issues were timely raised the answers
are as follows:
1) The packages are admissible in evidence. ...
2) The receipt is not admissible in evidence. According to the ruling
in People vs. Mirantes, 209 SCRA 179, such receipt is in effect an
extrajudicial confession of the commission of an offense. Hence, if it
was signed without the assistance of counsel, in accordance with
Section 12(3), Article IV of the Constitution, it is inadmissible in
evidence. [People v. Duhan, 142 SCRA 100 (1986)].
⟴ Custodial Investigation; Rights (1996)
No. 3: 1) A, who was arrested as a suspect in a murder case was
not represented by counsel during the "question and answer"
stage. However, before he was asked to sign his statements to the
police investigator, the latter provided A with a counsel, who
happened to be at the police station. After conferring with A, the
counsel told the police investigator that A was ready to sign the
statements. Can the statements of A be presented in court as his
confession? Explain.
⟴ SUGGESTED ANSWERS:
1) No, the statements of A cannot be presented in court as his
confession. He was not assisted by counsel during the actual
questioning. There is no showing that the lawyer who
belatedly conferred with him fully explained to him the nature
and consequences of his confession. In People vs. Compil 244
SCRA 135, the Supreme Court held that the accused must be
assisted by counsel during the actual questioning and the
belated assistance of counsel before he signed the confession
does not cure the defect.
⟴ Custodial Investigation; Rights (1989)
No. 7: Pursuing reports that great quantities of prohibited drugs
are being smuggled at nighttime through the shores of Cavite, the
Southern Luzon Command set up checkpoints at the end of the
Cavite coastal road to search passing motor vehicles. A 19-year old
boy, who finished fifth grade, while driving, was stopped by the
authorities at the checkpoint. Without any objection from him, his
car was inspected, and the search yielded marijuana leaves hidden
in the trunk compartment of the car. The prohibited drug was
promptly seized, and the boy was brought to the police station for
questioning.
(1) Was the search without warrant legal?
(2) Before interrogation, the policeman on duty informed the boy
in English that he does "have a right to remain silent and the right
to counsel." However, there was no counsel available as it was
midnight. He declared orally that he did not need any lawyer as he
was innocent, since he was only bringing the marijuana leaves to
his employer in Quezon City and was not a drug user. He was
charged with illegal possession of prohibited drugs. Is his waiver
of the right to counsel valid?
⟴ SUGGESTED ANSWERS:
(1) No, the search was not valid, because there was no probable
cause ....
(2) No, the waiver of the right to counsel is not valid, since it was
not reduced in writing and made in the presence of counsel. Under
Section 12(1), Article III of the 1987 Constitution to be valid, the
waiver must be made in writing and in the presence of counsel.
RIGHTS TO VISITATION AND CONFERENCE
Sec. 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. – (f) Any person arrested or
detained or under custodial investigation shall be allowed visits
by or conferences with:
(1) any member of his immediate family, or
(2) any medical doctor;
(3) priest or religious minister chosen by him; or
(4) by his counsel; or
(5) by any national non-governmental organization duly
accredited by the Commission on Human Rights or
(6) by any international non-governmental organization duly
accredited by the Office of the President.
(7) The person's "immediate family" shall include his or her
spouse, fiance or fiancee, parent or child, brother or sister,
grandparent or grandchild, uncle or aunt, nephew or niece,
and guardian or ward.
RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION
Section 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. –
(e) Any waiver by a person arrested or detained under the
provisions of Article 125 of the Revised Penal Code, or under
custodial investigation, shall be in writing and signed by such
person in the presence of his counsel; otherwise the waiver shall
be null and void and of no effect.
WAIVER
What can be waived:
The right to remain silent and the right to counsel
What cannot be waived
The right to be given the MIRANDA warnings.
BURDEN OF PROVING VOLUNTARINESS OF WAIVER [PEOPLE
V. JARA, 1986]
Presumption against the waiver Burden of proof: prosecution must
prove with strongly convincing evidence to the satisfaction of this
Court that indeed the accused:
(1) Willingly and voluntarily submitted his confession and
(2) Knowingly and deliberately manifested that he was not
interested in having a lawyer assist him during the taking of
that confession.
SECTION 13, ARTICLE III
BAIL
All persons, except those charged with offenses punishable by RP
when evidence of guilt is strong, shall before conviction be bailable
by sufficient sureties or be release on recognized as may be provided
by law. The right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. Excessive bail
shall not be required.
NOTE: relate this one to Section 15, Article III
Bail is the security given for the release of a person in custody of
the law, furnished by him or a bondsman, conditioned upon his
appearance before any court as may be required. [Rule 114, Sec. 1,
ROC]. The basis of which is that the accused shall be entitled to be
presumed innocent until the contrary is proved beyong
reasonable doubt (Section 1(a), Rule 115, ROC)
⟴ Rights of the Accused; Right to Bail (1993)
No. 9: Johann learned that the police were looking for him in
connection with the rape of an 18-year old girl, a neighbor. He
went to the police station a week later and presented himself to
the desk sergeant. Coincidentally. the rape victim was in the
premises executing an extrajudicial statement. Johann, along with
six (6) other suspects, were placed in a police lineup and the girl
pointed to him as the rapist. Johann was arrested and locked up in
a cell. Johann was charged with rape in court but prior to
arraignment invoked his right to preliminary investigation. This
was denied by the judge, and thus, trial proceeded. After the
prosecution presented several witnesses, Johann through counsel,
invoked the right to ball and filed a motion therefor, which was
denied outright by the Judge. Johann now files a petition for
certiorari before the Court of Appeals arguing that: 3) He is
entitled to bail as a matter of right, thus the Judge should not have
denied his motion to fix ball outright. Decide.
⟴ SUGGESTED ANSWERS:
PAGE 50
3) In accordance with Art. III. sec. 13 of the Constitution, Johann
may be denied bail if the evidence of his guilt is strong considering
that the crime with which he is charged is punishable by reclusion
perpetua. It is thus not a matter of right for him to be released on
bail in such case. The court must first make a determination of the
strength of the evidence on the basis of evidence already presented
by the prosecution, unless it desires to present some more, and give
the accused the opportunity to present countervailing evidence. If
having done this the court finds the evidence not to be strong, then
it becomes the right of Johann to be admitted to bail. The error of
the trial court lies in outrightly denying the motion for bail of
Johann.
WHO MAY AVAIL
Generally, all person under custody of the law are entitled
to bail EXCEPT (1) hose charged with capital offense when
evidence of guilt is strong since the evidence (rebellion) in this
case is hearsay, the evidence of guilt is not strong, bail is allowed.
[Enrile v. Perez (En Banc Resolution, 2001)] and (2) Military men
[People v. Reyes (1992)] Military men who participated in failed
coup d’etat because of their threat to national security
[Comendador v. De Villa (1991)]
BAIL AS A MATTER OF RIGHT VS. MATTER OF DISCRETION
Matter of right Matter of Discretion
Bail is a matter of right in (1) In case the evidence of guilt is
all cases not punishable strong. In such a case, according to
by reclusion perpetua. People v. San Diego (1966), the court's
discretion to grant bail must be
exercised in the light of a summary of
the evidence presented by the
prosecution. Thus, the order
granting or refusing bail must
contain a summary of the evidence
for the prosecution followed by the
conclusion on whether or not the
evidence of guilt is strong (Note: it is
not the existence of guilt itself which is
concluded but the strength of the
probability that guilt exists).
(2) In extradition proceedings. Extradition courts do not render
judgments of conviction or acquittal so it does not matter WON
the crimes the accused is being extradited for is punishable by
reclusion perpetua[US Gov’t. v. Judge Puruganan and Mark Jimenez
(2002)
⟴
All persons charged shall, before conviction, be bailable by
sufficient sureties, except those charged with:
⟴ SUGGESTED ANSWERS:
Offenses punishable by reclusion perpetua when evidence of guilt is
strong.
⟴ Rights of the Accused; Right to Bail; Capital Offense
(Q4-2006)
State whether or not the law is constitutional. Explain briefly.
2. A law denying persons charged with crimes punishable by
reclusion perpetua or death the right to bail. (2%)
⟴ SUGGESTED ANSWERS:
The law is invalid as it contravenes Section 13, Article III of the
1987 Constitution which provides that "all persons, except those
charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be
provided by law." The accused may not be deprived of his
constitutional right to bail even if charged with a capital offense
where the evidence of guilt is not strong.
 ⟴ Rights of the Accused; Right to Bail; Deportation
Case (1989)
No. 15: May an alien invoke the constitutional right to bail during
the pendency of deportation proceedings?
⟴ SUGGESTED ANSWERS:
No. an alien may not invoke the constitutional right to bail during
the pendency of deportation proceedings. In Harvey vs Santiago,
162 SCRA 840, it was held that the constitutional guarantee to bail
may not be invoked in deportation proceedings, because they do
not partake of the nature of a criminal action.
⟴ Rights of the Accused; Right to Bail; Matter of Right
or a Matter of Discretion (Q7-2005)
a) State with reason(s) whether bail is a matter of right or a matter
of discretion in the following cases: (4%) a) The imposable
penalty for the crime charged is reclusion perpetua and the
accused is a minor;
⟴ SUGGESTED ANSWERS:
If the accused is a minor where the imposable penalty for the crime
charged is reclusion perpetua, bail would be a matter of right.
Under Article 68 of the Revised Penal Code, when the offender is a
minor under eighteen years of age, he is entitled to a penalty,
depending on his age, lower by one or two degrees than that
prescribed by law for the crime committed. The Constitution
withholds the guaranty of bail from one who is accused of a capital
offense where the evidence of guilt is strong. The obvious reason is
that one who faces a probable death sentence has a particularly
strong temptation to flee. This reason does not hold where the
accused has been established without objection to be a minor who
by law cannot be sentenced to death. (Bravo v. Borja, G.R. No. L-
65228, February 18, 1985)
b) The imposable penalty for the crimE charged is life
imprisonment and th accused is a minor;
⟴ SUGGESTED ANSWERS:
If the accused is a minor and the imposable penalty for the crime
charged is life imprisonment, bail would not be a matter of right. In
the instant case, assuming that evidence of guilt strong, bail shall be
denied as the privileged mitigating circumstance of minority is not
available for violation of special laws penalized by life imprisonment.
WHEN AVAILABLE
General rule: From the very moment of arrest (which may be
before or after the filing of formal charges in court) up to the time
of conviction by final judgment (which means after appeal).
No charge need be filed formally before one can file for bail, so
long as one is under arrest. [Heras Teehankee v. Rovica (1945)]
Arraignment of the accused is not essential to the approval of the
bail bond. When bail is authorized, it should be granted before
arraignment. Otherwise the accused may be precluded from filing
a motion to quash. Also, the court will be assured of the presence
of the accused at the arraignment precisely by grating bail and
ordering his presence at any stage of the proceeding. [Lavides v.
CA (2000)]
Exceptions:
(1) When charged with an offense punishable by reclusion
perpetua.
(2) Traditionally, the right to bail is not available to the military,
as an exception to the bill of rights. [People v. Reyes (1992)]
STANDARDS FOR FIXING BAIL
RULE 114. Sec. 9. Amount of bail; guidelines. – The judge who
issued the warrant or granted the application shall fix a
reasonable amount of bail considering primarily, but not limited
to, the following factors: (a) Financial liability of the accused to
give bail;
(b) Nature and circumstance of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;
(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
PAGE 51
(i) The fact that the accused was a fugitive from justice when
arrested; and
(j) Pendency of other cases where the accused is on bail. Excessive
bail shall not be required.
"Discretion is with the court called upon to rule on the question of
bail. We must stress, however, that where conditions imposed
upon a defendant seeking bail would amount to a refusal thereof
and render nugatory the constitutional right to bail, we will not
hesitate to exercise our supervisory powers to provide the
required remedy.
[Dela Camara v. Enage (1971)]
PRESUMPTION OF INNOCENCE
The requirement of proof beyond reasonable doubt is a
necessary corollary of the constitutional right to be presumed
innocent. [People vs. Dramavo (1971)]
The accused cannot present evidence before the prosecution does
so, even if the accused pleads guilty. It violates the presumption
of innocence. [Alejandro vs. Pepito (1980)]
The presumption of regularity (in official duties) cannot by itself
prevail over the presumption of innocence of the accused. But
where it is not the sole basis for conviction, the presumption of
regularity of performance of official functions may prevail over
the constitutional presumption of innocence. [People vs. Acuram
(2000)]
⟴ Rights of the Accused; Presumption of Innocence vs.
Presumption of Theft (2004)
(5-b) OZ lost five head of cattle which he reported to the police as
stolen from his barn. He requested several neighbors, including
RR, for help in looking for the missing animals. After an extensive
search, the police found two head in RR's farm. RR could not
explain to the police how they got hidden in a remote area of his
farm. Insisting on his innocence, RR consulted a lawyer who told
him he has a right to be presumed innocent under the Bill of
Rights. But there is another presumption of theft arising from his
unexplained possession of stolen cattle— under the penal law. Are
the two presumptions capable of reconciliation In this case? If so,
how can they be reconciled? If not, which should prevail? (5%)
⟴ SUGGESTED ANSWERS:
The two presumptions can be reconciled. The presumption of
innocence stands until the contrary is proved. It may be overcome
by a contrary presumption founded upon human experience. The
presumption that RR is the one who stole the cattle of OZ is logical,
since he was found in possession of the stolen cattle. RR can prove
his innocence by presenting evidence to rebut the presumption. The
burden of evidence is shifted to RR, because how he came into
possession of the cattle is peculiarly within his knowledge. (Dizon-
Pamintuan v. People, 234 SCRA 63 (1994)).
EQUIPOISE RULE
Where the evidence adduced by the parties is evenly balanced, the
constitutional presumption of innocence should tilt the balance in
favor of the accused. [Corpuz vs.
People (1991)]
In order that circumstantial evidence may warrant conviction, the
following requisites must concur:
(1) There is more than one circumstance
(2) The facts from which the inferences are derived are proven
(3) The combination of all the circumstances is such as to produce
conviction beyond reasonable doubt. [People v. Bato (1998)]
SECTION 14, ARTICLE III
RIGHT OF THE ACCUSED
(1) No person shall be held to answer for criminal offense without
due process of law
(2) In all criminal prosecutions, the accused shall be presumed
innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and cause
of accusation against him to have a speedy, impartial and public
trial to meet the witness face to face and to have compulsory process
to secure the attendance of witnesses and the production of evidence
in his behalf. However, after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has
been duly notified and his failure to appear is unjustifiable.
Section 1, Rule 115. Rights of accused at trial. – In all criminal
prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond
reasonable doubt.
(b) To be informed of the nature and cause of the accusation
against him.
(c) To be present and defend in person and by counsel at every
stage of the proceedings, from arraignment to promulgation of
the judgment. The accused may,
however, waive his presence at the trial pursuant to the
stipulations set forth in his bail, unless his presence is
specifically ordered by the court for purposes of identification.
The absence of the accused without justifiable cause at the trial
of which he had notice shall be considered a waiver of his right
to be present thereat.
When an accused under custody escapes, he shall be deemed to
have waived his right to be present on all subsequent trial
dates until custody over him is regained. Upon motion, the
accused may be allowed to defend himself in person when it
sufficiently appears to the court that he can properly protect
his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-
examination on matters covered by direct examination. His
silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against
himself.
(f) To confront and cross-examine the witnesses against him at
the trial. Either party may utilize as part of its evidence the
testimony of a witness who is deceased, out of or cannot with
due diligence be found in the Philippines, unavailable, or
otherwise unable to testify, given in another case or
proceeding, judicial or administrative, involving the same
parties and subject matter, the adverse party having the
opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance
of witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed
by law. [Rule 115, Rights of the Accused, Rules of Court]
⟴ and ability.
Pedro, the principal witness in a criminal case, testified and
completed his testimony on direct examination in 2015. Due to
several postponements by the accused, grounded on his recurring
illness, which were all granted by the judge, the cross-examination
of Pedro was finally set on October 15, 2016. Before the said date,
Pedro died. The accused moved to expunge Pedro’s testimony on
the ground that it violates his right of confrontation and the right
to crossexamine the witness. The prosecution opposed the motion
and asked Pedro’s testimony on direct examination be admitted
as evidence. Is the motion meritorious? (2016 Bar)
⟴ SUGGESTED ANSWERS:
The motion is meritorious. The cross-examination of a witness is an
absolute right, not a mere privilege, of the party against whom he
is called. With regard to the accused, it is a right guaranteed by the
fundamental law as part of due process. Article III, Sec. 14(2) of the
1987 Constitution specifically mandates that “the accused shall
enjoy the right to meet the witnesses face to face,” and Ruel 115,
PAGE 52
Sec. 1(f) of the 2000 Rules of Criminal Procedure enjoins that in all
criminal prosecutions the accused shall be entitled to confront and
cross-examine the witnesses against him at the trial. Accordingly,
the testimony of a witness given on direct examination should be
stricken off the record where there was not adequate opportunity
for cross-examination (People v.
Fernando Monjey Rosario, G.R. No. 146689, September 27, 2002).
In People v. Manchetti, G.R. No. L-48883, Aug. 6, 1980, the Supreme
Court also held that if a party is deprived of the opportunity of
cross examination without fault on his part, as in case of the illness
and death of a witness after direct examination, he is entitled to
have the direct testimony stricken from the records. Since the
accused was deprived of his opportunity to cross examine the
witness without faulty on his part, the motion to expunge is
meritorious.
CRIMINAL DUE PROCESS
Requisites [People vs. Vera (1937)]
(1) Accused is heard by a court of competent jurisdiction;
(2) Accused is proceeded against under the orderly process of
law;
(3) Accused is given notice and opportunity to be heard;
(4) Judgment rendered is within the authority of a constitutional
law. [Mejia vs. Pamaran (1988)]
RIGHT TO BE HEARD
Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and
to have competent and independent counsel preferably of his own
choice. If the person cannot afford the services of counsel, he must
be provided with one. These rights cannot be waived except in
writing and in the presence of counsel. [Art. III, Sec. 12]
It means the accused is amply accorded legal assistance extended
by a counsel who commits himself to the cause of the defense and
acts accordingly. It is an efficient and truly decisive legal
assistance, and not simply a perfunctory representation. [People
v. Bermas (1999)]
ASSISTANCE OF COUNSEL
RA 7438. Rights of Persons under Custodial Investigation. SEC. 2.
Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers. – (a) Any person arrested
detained or under custodial investigation shall at all times be
assisted by counsel;
Elements of the Right to Counsel
(1) Court’s duty to inform the accused of right to counsel before
being arraigned;
(2) It must ask him if he desires the services of counsel;
(3) If he does, and is unable to get one, the Court must give him
one; if the accused wishes to procure private counsel, the
Court must give him time to obtain one.
(4) Where no lawyer is available, the Court may appoint any
person resident of the province and of good repute for probity
RIGHT TO BE INFORMED
Procedural due process requires that the accused must be
informed why he is being prosecuted and what charge he
must meet. [Vera vs. People, supra]
Note: Description, not designation of offense, is controlling RIGHT
TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL
SECTION 16, ARTICLE III
All persons shall have the right to a speedy disposition of their cases
before all judicial, quasi -judicial or administrative bodies.
Sec. 17. Act not a bar to provision on speedy trial in the
Constitution – No provision of law on speedy trial and no rule
implementing the same shall be interpreted as a bar to any charge
of denial of the right to speedy trial guaranteed by Section 14(2),
Article III, of the 1987 Constitution. [RA 8493]
IMPARTIAL TRIAL: A civilian cannot be tried by a military court
so long as the civil courts are open and operating, even during
Martial Law. [Olaguer vs. Military Commission (1987)]
Dismissal based on the denial of the right to speedy trial amounts
to an acquittal. [Acevedo vs. Sarmiento (1970)]
Note: RA 8493 provides: a 30-day arraignment within the filing of
the information or from the date the accused appeared before the
court; trial shall commence 30 days from the arraignment, as fixed
by the court. The entire trial period shall not exceed 180 days,
except as otherwise authorized by the SC Chief Justice.
AVAILABILITY
(1) When proceeding is attended by vexatious, capricious and
oppressive delays
(2) When unjustified postponements of the trial are asked for and
secured
(3) When without cause or justifiable motive, a long period of time
is allowed to elapse without the party having his case tried.
[dela Rosa v. Court of Appeals (1996); Tai Lim v. Court of Appeals
(1999)]
Unreasonable delay weighed by following factors:
(1) Length of delay
(2) Reason for delay
(3) Assertion/failure to assert right by the accused Failure to
assert means waiver of privilege.
(4) Prejudice caused by the delay [Roquero v. The Chancellor of UP
Manila (2010)]
RA 8493 is a means of enforcing the right of the accused to a
speedy trial. The spirit of the law is that the accused must go on
record in the attitude of demanding a trial or resisting delay [Uy
v. Hon. Adriano (2006)]
When right not available right to speedy trial cannot be invoked
where to sustain the same would result in a clear denial of due
process to the prosecution. [Uy v. Hon.
Adriano (2006)]
Rationale of right to speedy trial:
(1) To prevent oppressive pre-trail incarceration,
(2) To minimize anxiety and concern of the accused,
(3) To limit the possibility that the defense will be impaired.
⟴ Rights of the Accused; Right to Speedy Trial (2000)
No XV. Charged by Francisco with libel, Pablo was arraigned on
January 3, 2000, Pre-trial was dispensed with and continuous trial
was set for March 7, 8 and 9, 2000. On the first setting, the
prosecution moved for its postponement and cancellation of the
other settings because its principal and probably only witness, the
private complainant Francisco, suddenly had to go abroad to fulfill
a professional commitment. The judge instead dismissed the case
for failure to prosecute. a) Would the grant of the motion for
postponement have violated the accused's right to speedy trial?
⟴ SUGGESTED ANSWERS:
The grant of the motion for postponement would not have
violated the right of the accused to speedy trial. As held In People
v. Leviste, 255 SCRA 238 (1996). since the motion for
postponement was the first one requested, the need for the
offended party to attend to a professional commitment is a valid
reason, no substantial right of the accused would be prejudiced,
and the prosecution should be afforded a fair opportunity to
prosecute its case, the motion should be granted.
⟴ given case, was merely invoking his constitutional right when a
At the Public Attorney's Office station in Taguig where you are
assigned, your work requires you to act as public defender at the
local Regional Trial Court and to handle cases involving indigents.
IV(A) In one criminal action for qualified theft where you are the
PAGE 53
defense attorney, you learned that the woman accused has been in
detention for six months, yet she has not been to a courtroom nor
seen a judge.
What remedy would you undertake to address the situation and
what forum would you use to invoke this relief? (3%)
⟴ SUGGESTED ANSWERS:
A) Section 7, Rule 119 provides, if the public attorney assigned to
defend a person charged with a crime knows that the latter is
preventively detained, either because he is charged with a
bailable crime but has no means to post bail, or, is charged with a
non-bailable crime, or, is serving a term of imprisonment in any
penal institution, it shall be his duty to do the following:
(a) Shall promptly undertake to obtain the presence of the
prisoner for trial or cause a notice to be served on the person
having custody of the prisoner requiring such person to so advise
the prisoner of his right to demand trial.
(b) Upon receipt of that notice, the custodian of the prisoner shall
promptly advise the prisoner of the charge and of his right to
demand trial. If at anytime thereafter the prisoner informs his
custodian that he demands such trial, the latter shall cause notice
to that effect to sent promptly to the public attorney.
xxxx
Moreover, Section 1 (e), Rule 116 provides, when the accused is
under preventive detention, his case shall be raffled and its
records transmitted to the judge to whom the case was raffled
within three (3) days from the filing of the information or
complaint. The accused shall be arraigned within ten (10) days
from the date of the raffle. The pre-trial conference of his case
shall be held within ten (10) days after arraignment.
On the other hand, if the accused is not under preventive
detention, the arraignment shall be held within thirty (30) days
from the date the court acquires jurisdiction over the person of
the accused. (Section 1 (g), Rule116)
Since the accused has not been brought for arraignment within
the limit required in the aforementioned Rule, the Information
may be dismissed upon motion of the accused invoking his right
to speedy trial (Section 9, Rule 119) or to a speedy disposition of
cases (Section 16, Article III, 1987 Constitution).
⟴ Trial; Speedy Trial (2007)
No.IX. L was charged with illegal possession of shabu before the
RTC. Although bail was allowable under his indictment, he could
not afford to post bail, and so he remained in detention at the City
Jail. For various reasons ranging from the promotion of the
Presiding Judge, to the absence of the trial prosecutor, and to the
lack of notice to the City Jail Warden, the arraignment of L was
postpones nineteen times over a period of two years. Twice during
that period, L’s counsel filed motions to dismiss, invoking the right
of the accused to speedy trial. Both motions were denied by the
RTC. Can L file a petition for mandamus. Reason briefly.
⟴ SUGGESTED ANSWERS:
Yes, L can file a petition for mandamus to enforce his
constitutional right to a speedy trial which was capriciously
denied to him. There is absolutely no justification for postponing
an arraignment of the accused nineteen (19) times and over a
period of two (2) years. The numerous, unreasonable
postponements of the arraignment demonstrate an abusive
exercise of discretion (Lumanlaw v. Peralta, 482 SCRA 396
[2006]).
Arraignment of an accused would not take thirty minutes of the
precious time of the court, as against the preventive
imprisonment and deprivation of liberty of the accused just
because he does not have the means to post bail although the
crime charged is bailable. The right to a speedy trial is
guaranteed by the Constitution to every citizen accused of a
crime, more so when is under preventive imprisonment. L, in the
motion to dismiss the case was twice filed by his counsel. The
RTC is virtually enjoined by the fundamental law to respect such
right; hence a duty. Having refused or neglected to discharge the
duty enjoined by law whereas there is no appeal nor any plain,
speedy, and adequate remedy in the ordinary course of law, the
remedy of mandamus may be availed of.
RIGHT OF CONFRONTATION
This is the basis of the right to cross-examination.
Two-fold purpose:
(1) to afford the accused an opportunity to test the testimony of
witnesses by cross-examination
(2) to allow the judge to observe the deportment of witnesses. [Go,
et al. v. The People of the Philippines and Highdone Company,
Ltd., et al., (2012)]
Inadmissibility for lack of right to confrontation:
(1) Testimony of a witness who has not submitted himself to cross
examination
(2) Affidavits of witnesses who are not presented during the trial,
hence not subjected to cross examination– hearsay, [Cariago
v. Court of Appeals (2001)]
Rule on Examination of a Child Witness [AM No. 004-07-SC]
The judge may exclude any person, including the accused,
whose presence or conduct causes fear to the child.
COMPULSORY PROCESS
(1) Right to Secure Attendance of Witness
(2) Right to Production of Other Evidence
Subpoena is a process directed to a person requiring him to attend
and to testify at the hearing or trial of an action or at any
investigation conducted under the laws of the Philippines, or for
the taking of his deposition. [Caamic v. Galapon (1994)]
Before a subpoena ducestecum may issue, the court must first be
satisfied that the following requisites are present:
(1) The books, documents or other things requested must appear
prima facie relevant to the issue subject of the controversy
(test of relevancy), and
(2) Such books must be reasonably described by the parties to be
readily identified (test of definiteness).
[Roco v. Contreras (2005)]
TRIALS IN ABSENTIA WHEN CAN TRIAL
IN ABSENTIA BE DONE 3 requisites:
(1) Accused failed to appear for trial despite postponement and
notice
(2) Failure to appear is unjustified
(3) After arraignment
If not then the right of the accused to be informed of the nature
and cause of accusation against him will be impaired for lack of
arraignment [Borja vs. Mendoza (1977)]
Consequences: Waiver of right to cross examine and
present evidence [Gimenez vs. Nazareno (1988)]
WHEN PRESENCE OF THE ACCUSED IS A DUTY
(1) Arraignment and Plea
(2) During Trial, for identification
(3) Promulgation of Sentence
Exception: Light offense —> can be via counsel
Petitioner challenges the jurisdiction of military commissions to
try him (for murder, illegal possession of firearms and for
violation of the Anti-Subversion Act) arguing that he being a
civilian, such trial during martial law deprives him of his right to
due process.
An issue has been raised as to WON petitioner could waive his
right to be present during trial.
On a 7-5 Voting:
Seven justices voted that petitioner may waive his right
to be present at all stages of the proceedings while five voted that
this waiver is qualified, he cannot waive when he is to be
identified.
PAGE 54
Trial in Absentia
As a general rule, subject to certain exceptions, any constitutional
or statutory right may be waived if such waiver is not against
public policy.
Considering Art IV, Sec 19, 1973 Constitution (trial of a capital
offense may proceed even in the absence of the accused) and the
absence of any law specifically requiring his presence at all stages
of his trial, there appears, no logical reason why petitioner,
although he is charged with a capital offense, should be precluded
from waiving his right to be present in the proceedings for the
perpetuation of testimony, since this right was conferred upon
him for his protection and benefit. [Aquino vs. Military Commission
(1975)]
⟴ The requisites of a valid trial in absentia exclude:
⟴ SUGGESTED ANSWERS:
Wherein he/she allows himself/herself to be identified by the
witness in his/her absence, without further unqualified
admitting that every time a witness mentions a name by which
he/she is known, it shall be understood to refer to him/her.
(Carredo vs. People, 183 SCRA 373)
SECTION 15, ARTICLE III
WRIT OF HABEAS CORPUS
GEN: The privilege of the writ of habeas corpus shall not be
suspended
EXN: in cases of invasion or rebellion when the public safety requires
it.
The President shall be the Commander-in-Chief of all armed forces
of the Philippines and whenever it becomes necessary, he may call
out such armed forces to prevent or suppress lawless violence,
invasion or rebellion.
In case of invasion or rebellion, when the public safety requires it,
he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the Philippines or
any part thereof under martial law.
Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the
Congress.
The Congress, voting jointly, by a vote of at least a majority of all
its Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set
aside by the President.
Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to
be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may: 1) review, 2) in an appropriate
proceeding; 3) filed by any citizen, 4) the sufficiency of the factual
basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and 5) must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where
civil courts are able to function, nor automatically suspend the
privilege of the writ. The suspension of the privilege of the writ
shall apply only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion. [Art.
VII, Sec. 18]
 threatened with violation by an unlawful act or omission of a
public official or employee, or of a private individual or entity.
⟴ Suspension of Writ of Habeas Corpus (1997) [Sec. 1, The Rule on the Writ of Amparo]
(a) When may the privilege of the writ of habeas corpus be
suspended?
Basis
(b) If validly declared, what would be the full consequences of such
The Supreme Court shall have the following powers: xxx
suspension?
(5) Promulgate rules concerning the protection and enforcement
⟴ SUGGESTED ANSWERS: of constitutional rights, xxx. Such rules shall provide a simplified
(a) Under Section 16, Article VII of the Constitution, the privilege and inexpensive procedure for the speedy disposition of cases,
of the writ of habeas corpus may be suspended when there is an shall be uniform for all courts of the same grade, and shall not
invasion or rebellion and public safety requires it. diminish, increase, or
modify substantive rights. Xxx [Art. VIII, Sec. 5]
(b) According to Section 18, Article VII of the Constitution, the
suspension of the privilege of the writ of habeas corpus shall PETITION FOR WRIT
apply only to persons judicially charged with rebellion or Form
offenses Inherent to or directly connected with invasion. Any The petition shall be signed and verified. [Sec. 5]
person arrested or detained should be judicially charged within
three days. Otherwise, he should be released. Moreover, under Contents
Section 13. Article III of the Constitution, the right to bail shall not The petition shall allege the following:
be impaired even when the privilege of the writ of habeas corpus (1) The personal circumstances of the petitioner
is suspended. (2) The name and personal circumstances of the respondent
responsible for the threat, act or omission, or, if the name is
unknown or uncertain, the respondent may be described by an
⟴ The privilege of the writ of habeas corpus shall not be assumed appellation
(3) The right to life, liberty and security of the aggrieved party
suspended except in cases of:
violated or threatened with violation by an unlawful act or
⟴ SUGGESTED ANSWERS: omission of the respondent, and how such threat or violation
Invasion or rebellion when the public safety requires it. (Section 18, is committed with the attendant circumstances detailed in
Article VII of Constitution) supporting
affidavits
(4) The investigation conducted, if any, specifying the names,
personal circumstances, and addresses of the investigating
AVAILABILITY authority or individuals, as well as the manner and conduct of
(1) A prime specification of an application for a writ of habeas the investigation, together with any report
corpus is involuntary restraint of liberty. (5) The actions and recourses taken by the petitioner to determine
(2) Voluntary restraint of liberty i.e right of parents to regain the fate or whereabouts of the aggrieved party and the identity
custody of minor child even if the child is in the custody of a of the person responsible for the threat, act or omission
third person of her own free will [Sombong v. CA (1990)] (6) The relief prayed for.
(3) Illegal arrest with supervening event when restraint of liberty
is already by virtue of the complaint or information [Velasco The petition may include a general prayer for other just
vs. CA (1995)] and equitable reliefs. [Sec. 5]
(a) The issuance of a judicial process preventing the discharge of Where to file
the detained person. The petition may be filed on any day and at any time [Sec.
(b) Another is the filing of a complaint or information for the 3]
offense for which the accused is detained. [Section 4 of Rule
102] Filing Enforceability Returnable
(4) Where a sentence imposes punishment in excess of the power
of the court to impose, such sentence is void as RTC of the place Before the
to the excess [Gumabon v. Director of Prisons (1971)] where the issuing court or
threat, act or judge
RESTRAINT OF LIBERTY omission was
Not only physical restraint, any restraint on freedom of action is commit
sufficient i.e (1) curtailed freedom of movement by the condition ted or any
that he must get approval of respondents for any travel outside of
Metro Manila, (2) abridged liberty of abode because prior its
approval of respondent is required in case petitioner wants to elements
change place of residence, (3) abridged freedom of speech due to occurred
prohibition from taking any interviews inimical to national Sandiganbayan (1) Before
security, and (4) petitioner is required to report regularly to Anywhere in the
or any of its the issuing court
respondents or their reps. [Moncupa v. Enrile (1986)] Philippines
justices or any justice
Court of Appeals thereof, OR
Note: Even if the party to whom the writ is addressed has illegally or any of its (2) Any
parted with the custody of a person before the application for the justices RTC of the place
writ is no reason why the writ should not where the
issue. [Villavicencio v. Lukban (1919)] threat, act or
omission was
Test for valid suspension of the privilege of the writ: committed or
arbitrariness, not correctness any of its
elements
Conditions for valid suspension: occurred
(1) Presence of invasion, insurrection or rebellion SC or any of its (1) Before
(2) Public safety requires it [Lansang v. Garcia (1971)] justices the issuing court
or any justice
Anywhere in the thereof
WRIT OF AMPARO, HABEAS DATA AND KALIKASAN (2) Before
Philippines
the
WRIT OF AMPARO Sandiganbayan
The petition for a writ of amparo is a remedy available to any or CA or any of
person whose right to life, liberty and security is violated or

PAGE 55
 their justices,
OR RETURN OF RESPONDENT
Filing Enforceability Returnable Within a non-extendible period of ten (10) days after service of
the writ, the respondent shall file a verified return which shall
(3) Any RTC of contain all defenses; all defenses not raised are deemed waived
the place where
the threat, act or HEARING
omission was Preliminary conference; same prioprity as other writs [no more
committed or than 60 days];
any of its
elements Reliefs
occurred Permanent cease and desist order, other reliefs

Docket fees: None [Sec. 4]

Return Within 72 hours after service of the writ, the respondent SECTION 17, ARTICLE III
shall file a verified written return together with supporting SELF-INCRIMINATION CLAUSE
affidavits which shall, among other things, contain his defenses. No person shall be compelled to be a witness against himself
A general denial is not allowed. [Sec. 9]

Hearing
SCOPE AND COVERAGE
Summary or court may call for a preliminary conference; given
No person shall be compelled to be a witness against
same priority as petition for habeas corpus [Sec. 13]
himself. [Art. III, Sec. 17]
Burden of proof : Substantial evidence
Only applies to compulsory testimonial, and doesn’t apply to
material objects [Villaflor vs. Summers (1920)]
Defense:
Private individual – ordinary diligence; public official –
It refers therefore to the use of the mental process and the
extraordinary diligence, no presumption of regularity of duties
communicative faculties, and not to a merely physical activity.
[Sec. 17]
If the act is physical or mechanical, the accused can be compelled
The Manalo brothers were abducted, detained, and tortured
to allow or perform the act, and the result can be used in evidence
repeatedly by the military. After their escape, they filed a petition
against him.
for the privilege of the Writ of Amparo. The Supreme Court
granted the petition and held that there was a continuing violation
EXAMPLES
of the Manalos’ right to security.
(1) Handwriting in connection with a prosecution for falsification
is not allowed, [Beltran v. Samson (1929); Bermudez vs. Castillo
As regards the relief granted, the Court held that the production
(1937)]
order under the Amparo rule is different from a search warrant and
(2) Re-enactment of the crime by the accused is not allowed
may be likened to the production of documents or things under Rule
(3) The accused can be required to allow a sample of a substance
27.1, ROC. [Secretary of National Defense v. Manalo (2008)]
taken from his body [U.S. vs. Tan The (1912)], or be ordered to
expel the morphine from his mouth [U.S. v. OngSio Hong
WRIT OF HABEAS DATA (SEE PREVIOUS DISCUSSION) The writ
(1917)]
of habeas data is an independent and summary remedy designed
(4) Accused may be made to take off her garments and shoes and
to protect the image, privacy, honor, information, and freedom of
be photographed [People v. Otadura (1950)]; compelled to
information of an individual, and to provide a forum to enforce
show her body for physical investigation to see if she is
one’s right to the truth and to informational privacy.
pregnant by an adulterous relation [Villaflor v. Summers
(1920)]
There must be a nexus between right to privacy and right to life,
(5) Order to give a footprint sample to see if it matches the ones
liberty and security.
found in the scene of the crime is allowed [People v. Salas and
People v. Sara]
RIGHT TO INFORMATIONAL PRIVACY V. LEGITIMATE STATE
INTEREST
The determination of whether the privilege of the writ
of habeas data, being an extraordinary remedy, may be granted in ⟴ The right of the accused against self-incrimination will
this case entails a delicate balancing of the alleged intrusion upon be violated if
the private life of Gamboa and the relevant state interest involved.
[Gamboa v. P/Ssupt. Marlou C. Chan, et al., (2012)]
⟴ SUGGESTED ANSWERS:
he is charged with violation of the Anti-Money Laundering Act
and he was required to produce his bank passbook (Khetin vs.
WRIT OF KALIKASAN Villareal, 42 Phil. 886)
Remedy against violation or threat of violation of constitutional
right to a balanced and healthful ecology by an unlawful act or
omission of a public official or employee, or private individual or
entity, involving environmental damage of such magnitude as to ⟴ Rights of the Accused; Self-Incrimination (1988)
prejudice the life, health or property of inhabitants in two or more No. 3: Dr. Juan Sto. Tomas is a practicing dentist in Marikina, Metro
cities or provinces Manila. He was charged with immorality before the Board of
Dentistry by a lady patient, who claims that Dr. Sto. Tomas took
WHO MAY FILE: liberties with her person and kissed her while she was under the
Natural or juridical persons, NGO or public interest groups in behalf treatment at the latter's clinic. At the initial hearing of the
of persons whose right is violated administrative complaint, the complainant's counsel called the
respondent as his first witness. The respondent through counsel,
WHO HAS JURISDICTION objected vigorously, claiming his constitutional right to be exempt
Supreme Court or Court of Appeals from being a witness against himself. The Board noted the
objection, but ruled that in the next scheduled hearing, a month
DOCKET FEES: None and a half later, the respondent would be called to testify as a
witness, as the right he claims is not available in administrative
WHEN IS WRIT ISSUED: investigations, but only in criminal prosecutions. Dr. Sto. Tomas is
Within three (3) days from the date of filing of the petition, decided not to testify. As his lawyer, what would you do? Why?
if the petition is sufficient in form and substance ⟴ SUGGESTED ANSWERS:
PAGE 56
I will file a petition for prohibition with prayer fo preliminary
injunction with the Regional Trial Court. The privilege against
self incrimination I available not only in judicial proceedings but
als in administrative investigations. In Pascual v. Board of
Medical Examiners, 28 SCRA 344 (1969), it was held that the
revocation of a license as a medical practitioner can be an even
greater deprivation than mere forfeiture of property. In some
aspects it is similar to criminal proceedings and, therefore, the
respondent cannot be made to testify as a witness for the
complainant.
⟴ Rights of the Accused; Self-Incrimination (1990)
No. 4: The privilege of self-incrimination must be timely invoked,
otherwise it is deemed waived.
1 In a CIVIL CASE, the plaintiff called the defendant a hostile
witness and announced that the defendant would be asked
incriminating questions in the direct examination. When should
the defendant invoke the privilege against self-incrimination?
2 In a CRIMINAL CASE, the prosecution called the accused to the
witness stand as the first witness in view of certain facts admitted
by the accused at the pre-trial. When should the accused invoke
the privilege against self-incrimination?
3. In an administrative case for malpractice and the cancellation of
license to practice medicine filed against C, the complainant called
C to the witness stand. When should C invoke the privilege against
self-incrimination? Explain your answers to the three questions.
⟴ SUGGESTED ANSWERS:
(1) As held in Bagadiong v, De Guzman, 94 SCRA 906, the
defendant should take the witness stand and object when a
question calling for an incriminating question is propounded.
Unlike in proceedings which are criminal in character in which
the accused can refuse to testify, the defendant must wait until a
question calling for an incriminatory answer is actually asked.
(Suarez v. Tongco, 2 SCRA 71)
(2) As held in Chavez v. Court of Appeals, 24 SCRA 663, in a
criminal case the accused may altogether refuse to take the
witness and refuse to answer any question, because the purpose
of calling him as a witness for the prosecution has no other
purpose but to incriminate him.
(3) As in a criminal case, C can refuse to take the witness stand
and refuse to answer any question. In Pascual v. Board of Medical
Examiners, 28 SCRA 344, it was held that an administrative case
for malpractice and cancellation of the license to practice
medicine is penal in character, because an unfavorable decision
would result in the revocation of the license of the respondent to
practice medicine. Consequently, he can refuse to take the
witness stand.
⟴ Rights of the Accused; Self-Incrimination (1992)
No, 3; Congress is considering a law against drunken driving.
Under the legislation, police authorities may ask any driver to take
a "breathalyzer test", wherein the driver exhales several times
into a device which can determine whether he has been driving
under the influence of alcohol. The results of the test can be used,
in any legal proceeding against him. Furthermore, declaring that
the issuance of a driver's license gives rise only to a privilege to
drive motor vehicles on public roads, the law provides that a
driver who refuses to take the test shall be automatically subject
to a 90-day suspension of his driver's license, Cite two [2] possible
constitutional objections to this law. Resolve the objections and
explain whether any such infirmities can be cured.
⟴ SUGGESTED ANSWERS:
Possible objections to the law are that requiring a driver to take
the breathalyzer test will violate his right against self-
incrimination, that providing for the suspension of his driver's
license without any hearing violates due process, and that the
proposed law will violate the right against unreasonable searches
and seizures, because it allows police authorities to require a
drive to take the breathalyzer test even if there is no probable
cause.
Requiring a driver to take a BREATHALYZER TEST does not
violate his right against self-incrimination, because he is not
being compelled to give testimonial evidence. He is merely being
asked to submit to a physical test. This is not covered by the
constitutional guarantee against self-incrimination. Thus, in
PAGE 57
South Dakota vs. Neville, 459 U.S. 553, it was held for this reason
that requiring a driver to take a blood-alcohol test is valid.
As held in Mackey vs. Afontrya 443 U.S. 1, because of compelling
government interest in safety along the streets, the license of a
driver who refuses to take the breathalyzer test may be
suspended immediately pending a post-suspension hearing, but
there must be a provision for a post-suspension hearing. Thus, to
save the proposed law from unconstitutionally on the ground of
denial of due process, it should provide for an immediate hearing
upon suspension of the driver's license. The proposed law
violates the right against unreasonable searches and seizures. It
will authorize police authorities to stop any driver and ask him to
take the breathalyzer test even in the absence of a probable
cause.
⟴ Rights of the Accused; Self-Incrimination (2000)
No XI. b) A man was shot and killed and his killer fled. Moments
after the shooting, an eyewitness described to the police that the
slayer wore white pants, a shirt with floral design, had boots and
was about 70 kilos and 1.65 meters. Borja, who fit the description
given, was seen nearby. He was taken into custody and brought to
the police precinct where his pants, shirt and boots were forcibly
taken and he was weighed, measured, photographed,
fingerprinted and subjected to paraffin testing. At his trial, Borja
objected to the admission in evidence of the apparel, his height
and weight, his photographs, fingerprints comparison and the
results of the paraffin test, asserting that these were taken in
violation of his right against self-incrimination. Rule on the
objection. (2%)
⟴ SUGGESTED ANSWERS:
b) The objection of Borja is not tenable. As held in People v.
Paynor, 261 SCRA 615 (1996), the rights guaranteed by Section
12, Article in of the Constitution applies only against testimonial
evidence. An accused may be compelled to be photographed or
measured, his garments may be removed, and his body may be
examined.
⟴ Rights of the Accused; Self-Incrimination (Q7- 2006)
Select the best answer and explain.
1. An accused's right against self-incrimination is violated in the
following cases: (5%)
_ When he is ordered by the trial court to undergo a paraffin test
to prove he is guilty of murder;
_ When he is compelled to produce his bankbooks to be used as
evidence against his father charged with plunder;
_ When he is ordered to produce a sample of his handwriting to be
used as evidence that he is the author of a letter wherein he agreed
to kill the victim;
_ When the president of a corporation is subpoenaed to produce
certain documents as proofs he is guilty of illegal recruitment.
⟴ SUGGESTED ANSWERS:
The best answer is c) when he is ordered to produce a sample of
his handwriting to be used as evidence that he is the author of a
letter wherein he agreed to kill the victim. Under Article HI,
Section 17 of the 1987 Constitution, "no person shall be
compelled to be a witness against himself." Since the provision
prohibits compulsory testimonial incrimination, it does not
matter whether the testimony is taken by oral or written means
as either way it involves the USE OF INTELLECTUAL FACULTIES.
The purpose of the privilege is to avoid and prohibit thereby the
repetition and recurrence of compelling a person, in a criminal or
any other case, to furnish the missing evidence necessary for his
conviction (Bermudez v. Castillo, Per Rec. No. 714-A, July 26,
1937; Beltran v. Samson, G.R. No. 32025, September 23,1929).
⟴ Rights of the Accused; Self- Incrimination (2010)
No. X. A, the wife of an alleged victim of enforced disappearance,
applied for the issuance of a writ of amparo before a Regional Trial
Court in Tarlac. Upon motion of A, the court issued inspection and
production orders addressed to the AFP chief of Staff to allow
entry at Camp Aquino and permit the copying of relevant
documents, including the list of detainees, if any. Accompanied by
court-designated Commission on Human Rights (CHR) lawyers, A
 took photographs of a suspected isolation cell where her husband
was allegedly seen being held for three days and tortured before
he finally disappeared. The CHR lawyers requested one Lt. Valdez
for a photocopy of the master plan of Camp Aquino and to confirm
in writing that he had custody of the master plan. Lt. Valdez
objected on the ground that it may violate his right against self-
incrimination. Decide with reasons. (4%).
⟴ SUGGESTED ANSWERS:
The objection of Lt. Valdez is not valid. The right against self-
incrimination refers to testimonial evidence and does not apply
to the production of a photocopy of the master plan of Camp
Aquino, because it is a public record. He cannot object to the
request for him to confirm his custody of the master plan,
because he is the public officer who had custody of it. (Almonte
vs. Vasquez, 244 SCRA 286 [1995]).
⟴ Exclusionary Rule under SEC. 17, ART. III in relation to SEC. 12:
Maria was accused of libel. While Maria was on the witness stand,
the prosecution asked her to write her name and to sign on a piece
of paper, apparently to prove that she authored the libelous
material. Maria objected as writing and signing her name would
violate her right against self-incrimination. Was Maria’s objection
proper? (1%)
⟴ SUGGESTED ANSWERS:
The objection was proper as the right to self-incrimination is a
fundamental right that affects liberty and is not waived simply
because the accused is on the witness stand. Section 17, Article
III of the 1987 Constitution provides that no person shall be
compelled to be a witness against himself. The essence of the
right against self-incrimination is testimonial compulsion, that is,
the giving of evidence against himself through a testimonial act
(People vs. Casinillo, 213 SCRA 777 [1992]).
In Beltran vs. Samson, G.R. No. 32025, September 23, 1929, the
Supreme Court held thst for the purposes of the constitutional
privilege there similarity between on who is compelled to
produce a document and one who is compelled to furnish a
specimen of his handwriting, for in both cases, the witness is
required to furnish evidence against himself. In this case, the
purpose of the fiscal, who requested the handwriting of the
witness, was to compare and determine whether the accused
wrote the documents believed to be falsified. Thus, the right
against self-incrimination may be invoked by a witness who was
compelled to furnish his handwriting for comparison.
In Gonzales vs. Secretary of Labor, the Supreme Court held that
the privilege against self-incrimination must be invoked at the
proper time, and the proper time to invoke it is when a question
calling for an incriminating answer is propounded. This has to be
so, because before a question is asked there would be no way of
telling whether the information to cbe elicited from the witness
is self-incriminating or not. As stated in Jones on Evidence (Vol. 6,
pp. 4926-4927), a person who has been summoned to testify
“cannot decline to appear, nor can he decline to be sworn as a
witness” and “no claim of privilege can be made until a question
calling for a criminating answer is asked; at that time, and
generally speaking, at that time only, the claim of privilege may
properly be imposed‟ (Bagadiong vs. Gonzales, G.R. No. L-25966,
December 28, 1979, De Castro, J.).
FOREIGN LAWS
The privilege which exists as to private papers, cannot be
maintained in relation to “records required by law to be kept in
order that there may be suitable information of transactions
which are the appropriate subjects of governmental regulation
and the enforcement of
restrictions validly established. [Shapiro v. US (1948)]
In recent cases, the US Supreme Court has struck down certain
registration requirements that presented real and appreciable
risk of self-incrimination. These involved statues directed at
inherently suspect groups in areas permeated by criminal
statutes, a circumstance which laid the subjects open to real risk
of self-incrimination. [Bernas]
PAGE 58
The great majority of persons who file income tax returns do not
incriminate themselves by disclosing their occupation. [US v.
Sullivan (1927)]
APPLICATION
General Rule: The privilege is available in any proceedings, even
outside the court, for they may eventually lead to a criminal
prosecution.
EXPANDED APPLICATION:
(1) Administrative proceedings with penal aspect i.e medical
board investigation [Pascual v. Board of Medical
Examiners(1969)], forfeiture proceeding [Cabal v. Kapunan Jr.
(1962)]
(2) Fact-Finding investigation by an ad hoc body [Galman vs.
Pamaran (1985)]
EFFECT OF DENIAL OF PRIVILEGE
When the privilege against self-incrimination is violated outside
of court (e.g. police), then the testimony, as already noted, is not
admissible.
Ousted of Jurisdiction: When the privilege is violated by the Court
itself, that is, by the judge, the court is ousted of its jurisdiction, all
its proceedings, and even judgment are null and void. [Chavez vs.
CA (1968)]
IMMUNITY STATUTES
TRANSACTIONAL IMMUNITY
The Commission on Human Rights shall have the
following powers and functions: xxx
(8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other
evidence is necessary or convenient to determine the truth in
any investigation conducted by it or under its
authority; [Art. XIII, Sec. 18]
USE AND FRUIT OF IMMUNITY
“Use immunity” prohibits use of a witness’ compelled testimony
and its fruits in any manner in connection with the criminal
prosecution of the witness.
“Transactional immunity” grants immunity to witness from
prosecution for an offense to which his compelled
testimony relates. [Galman vs. Pamaran (1985)]
Involuntary Servitude and Political Prisoners
(1) No person shall be detained solely by reason of his political
beliefs and aspirations.
(2) No involuntary servitude in any form shall exist except as a
punishment for a crime whereof the party shall have been duly
convicted. [Art. III, Sec. 18]
INVOLUNTARY SERVITUDE
Slavery and involuntary servitude, together with their corollary
peonage, all denote “a condition of enforced, compulsory service
of one to another.” [Hodges v. US (1906) in Rubi v. Provincial Board
of Mindoro (1919)]
A private person who contracts obligations of this sort toward the
Army cannot, by law that we know of, either civil or military be
compelled to fulfill them by imprisonment and deportation from
his place of residence, we deem it wholly improper to sustain such
means of compulsion which are not justified either by law or by
the contract. [In Re Brooks (1901)]
Domestic services are always to be remunerated, and no
agreement may subsist in law in which it is stipulated that any
domestic service shall be absolutely gratuitous, unless it be
admitted that slavery may be established in this country through
a covenant entered into between interested parties. [de los Reyes
v. Alojado (1910)]
A former court stenographer may be compelled under pain of
contempt to transcribe stenographic notes he had failed to attend
to while in service. x xx such compulsion is not the condition of
enforced compulsory service referred to by the Constitution.
Fernando, J. concurring opinion:
The matter could become tricky should a stenographer
stubbornly refuse to obey and the court insist on keeping him in
jail. The detention could then become punitive and give rise to the
issue of involuntary servitude. [Aclaracion v. Gatmaitan (1975)]
POLITICAL PRISONERS
If the petitioners are political prisoners subject to the civil
jurisdiction of ordinary courts of justice if they are to be
prosecuted at all, the army has no jurisdiction, nor power, nor
authority, from all legal standpoints, to continue holding them in
restraint. They are entitled, as a matter of fundamental right, to be
immediately released, any allegation as to whether the war was
ended or not. [Raquiza v. Bradford (1945)]
Sec. 19 of CA No. 682 authorizes that the political prisoners in
question "may be released on bail, even prior to the presentation
of the corresponding information," and this may be done "existing
provisions of law to the contrary notwithstanding." We must
assume that the discretion granted must be construed in the sense
that the same may be exercised in cases wherein it was not
heretofore granted by law. And it is reasonable to assume that the
discretion granted is to the effect that the People's Court may
exercise jurisdiction to order the release on bail of political
prisoners "even prior to the presentation of the corresponding
information." [Duran v. Abad Santos (1945)]
SECTION 19, ARTICLE III
Excessive Fines and Cruel and Inhuman Punishments
(1) GEN: Excessive fines shall not be imposed, nor cruel, degrading
or inhuman punishment inflicted. Neither shall the death penalty be
imposed,
EXN: unless for compelling reasons involving heinous crimes, the
Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to RP.
(2) The employment of physical, psychological or degrading
punishment against any prisoner or detainee or the use of
substandard or inadequate penal facilities under subhuman
conditions shall be dealt with by law.
In this case the Court took into account, in lowering the penalty to
reclusion perpetua of the accused most of whom were already
death row convicts, the deplorable subhuman conditions of the
National Penitentiary where the crime was committed. [People vs.
dela Cruz (1953)]
What is Prohibited: Cruel and unusual punishment. Unusual
punishment is not prohibited especially if it makes the penalty
less severe.
What is a cruel punishment?
(1) Involves torture or lingering death [Legarda v. Valdez (1902)]
(2) Not only severe, harsh or excessive but flagrantly and plainly
oppressive
(3) Wholly disproportionate to the nature of the offense as to
shock the moral sense of the community [People v. Estoista
(1953)]
Note: The constitutional limit must be reckoned on the basis of the
nature and mode of punishment measured in terms of physical
pain
RA 9346 (JUNE 24, 2006): AN ACT PROHIBITING THE
IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES
Sec. 1. The imposition of the penalty of death is hereby prohibited.
Accordingly, R.A. No. 8177, otherwise known as the Act
Designating Death by Lethal Injection is hereby repealed. R.A. No.
7659, otherwise known as the Death Penalty Law, and all other
laws, executive orders and decrees, insofar as they impose the
death penalty are hereby repealed or amended accordingly.
PAGE 59
The import of the grant of power to Congress to restore the death
penalty requires:
(1) that Congress define or describe what is meant by heinous
crimes
(2) that Congress specify and penalize by death, only crimes that
qualify as heinous in accordance with the definition or
description set in the death penalty bill and/or designate
crimes punishable by reclusion perpetua to death in which
latter case, death can only be imposed upon the attendance of
circumstances duly proven in court that characterize the
crime to be heinous in accordance with the definition or
description set in the death penalty bill
(3) that Congress, in enacting this death penalty bill be singularly
motivated by “compelling reasons involving heinous crimes.”
For a death penalty bill to be valid, a positive manifestation in the
form of higher incidence of crime should first be perceived and
statistically proven following the suspension of the death penalty
[is not required in Sec. 19 (1)]. Neither does the said provision
require that the death penalty be resorted to as a last recourse
when all other criminal reforms have failed to abate criminality in
society. [People v. Echegaray (1997)]
Sec 19 (2) as worded, already embodies constitutional
authorization for the Commission on Human Rights to take action
in accordance with Art XIII Sec 18. There is a command addressed
to Congressed to pass whatever civil or penal legislation might be
required for the subject. [Bernas]
⟴ The death penalty shall not be imposed
⟴ SUGGESTED ANSWERS:
Unless for compelling reasons involving heinous crimes and
Congress hereafter provides for it; (Section 19(1), Article III of
Constitution
SECTION 20, ARTICLE III
Non-Imprisonment for Debts
No person shall be imprisoned for debt or non-payment of a poll
tax.
SCOPE
(1) Debt – any civil obligation arising from a contract. It includes
even debts obtained through fraud since no distinction is
made in the Constitution. [Ganaway v. Quillen (1922)]
(2) Poll Tax – a specific sum levied upon any person belonging to
a certain class without regard to property or occupation (e.g.
community tax).
A tax is not a debt since it is an obligation arising from law. Hence,
its non-payment maybe validly punished with imprisonment.
Santos refused to pay 16 pesos for Ramirez’s cedula as payment
for what Santos owed Ramirez. Thus, Ramirez was convicted and
imprisoned for estafa. Upon demand for release, the Court held
that the imprisonment was correct since it was for estafa and not
involuntary servitude or
imprisonment for debt. [Ramirez v. de Orozco (1916)]
The obligation incurred by the debtor, as shown by the receipt,
was to pay an ordinary contractual obligation. Since the
guardianship proceeding was civil in nature, the Court did not
allow enforcement of the civil obligation by
an order of imprisonment. [In re Tamboco (1917)]
No person may be imprisoned for debt in virtue of a civil
proceeding. [Makapagal v. Santamaria (1930)]
A person may be imprisoned as a penalty for a crime arising from
a contractual debt and imposed in a proper criminal proceeding.
Thus, the conversion of a criminal fine into a prison term does not
violate the provision because in such a case, imprisonment is
imposed for a monetary obligation arising from a crime. [Ajeno v.
Judge Insero (1976)]

SECTION 21, ARTICLE III
Double Jeopardy
No person shall be twice put in jeopardy or punishment for the same
offense. If an act is punished by a law n ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution
for the same act.
TERMINATION OF JEOPARDY
(1) By acquittal
(2) By final conviction
(3) By dismissal without express consent of accused
(4) By “dismissal” on the merits
REQUISITES
(1) Court of competent jurisdiction;
(2) A Complaint/Information sufficient in form and substance to
sustain a conviction;
(3) Arraignment and plea by the accused;
(4) Conviction, acquittal, or dismissal of the case without the
express consent, of the accused. [Rule 117, Sec. 7;
People vs. Obsania (1968)]
WHEN SUBSEQUENT PROSECUTION IS BARRED
(1) Same offense
(2) Attempt of the same offense
(3) Frustration of the same offense
(4) Offense necessarily included in the 1st offense (All the
elements of the 2nd constitute some of the elements of the 1st
offense)
(5) Offense that necessarily includes the 1st offense (All the
elements of the 1st constitute some of the elements of the 2nd
offense)
EXCEPTIONS
(1) The graver offense developed due to "supervening facts"
arising from the same act or omission constituting the former
charged.
(2) The facts constituting the graver charge became known or
were discovered only after the filing of the former complaint
or information.
(3) The plea of guilty to the lesser offense was made without the
consent of the fiscal and the offended party.
WHEN DEFENSE OF DOUBLE JEOPARDY IS AVAILABLE
(1) Dismissal based on insufficiency of evidence;
(2) Dismissal because of denial of right to speedy trial;
(3) Accused is discharged to be a state witness.
MOTIONS FOR RECONSIDERATION AND APPEALS
The accused cannot be prosecuted a second time for the same
offense and the prosecution cannot appeal a judgment of
acquittal. [Kepner v. US (1904)]
Provided, that the judge considered the evidence, even if the
appreciation of the evidence leading to the acquittal is erroneous,
an appeal or motion for reconsideration by the prosecution will
not be allowed. [People v. Judge Velasco
(2000)]
No error, however, flagrant, committed by the court against the
state, can be reserved by it for decision by the Supreme Court
when the defendant has once been placed in jeopardy and
discharged even though the discharge was the result of the error
committed. [People v. Ang Cho (1945) citing State v. Rook]
A mere verbal dismissal is not final until written and
signed by the judge. [Rivera, Jr. v. People (1990)]
When an accused appeals his conviction, he waives his right to the
plea of double jeopardy. If the accused had been prosecuted for a
higher offense but was convicted for a lower offense, he has
technically been acquitted of the higher offense. His appeal would
give the Court the right to impose a penalty higher than that of the
original conviction imposed on him. [Trono v. US (1905)]
PAGE 60
Double jeopardy provides three related protections:
(1) Against a second prosecution for the same offense after
acquittal;
(2) Against a second prosecution for the same offense after
conviction; and
(3) Against multiple punishments for the same offense.
[People v. Dela Torre (2002)]
DISMISSAL WITH CONSENT OF ACCUSED
Provisional dismissal.—A case shall not be provisionally dismissed
except with the express consent of the accused and with notice to
the offended party. [Rule 117, Sec. 8 (1)]
When the case is dismissed other than on the merits, upon motion
of the accused personally, or through counsel, such dismissal is
regarded as “with express consent of the accused”, who is
therefore deemed to have waived the right to plea double
jeopardy.
⟴ Butchoy installed a jumper cable. He was prosecuted
under a Makati ordinance penalizing such act. He moved for its
dismissal on the ground that the jumper cable was within the
territorial jurisdiction of Mandaluyong and not Makati. The case
was dismissed. The City of Mandaluyong thereafter filed a case
against him for theft under the Revised Penal Code (RCP). Is there
double jeopardy?
⟴ SUGGESTED ANSWERS:
No. The second kind of double jeopardy under Section 21, Article
III only contemplates conviction or acquittal which could
terminate a first jeopardy.( Zapatos vs. People, 411 SCRA 1480)
⟴ Double Jeopardy (1988)
No. 21: The Filipino seamen detained at Kota Kinabalu, allegedly
fishing in Malaysian territorial waters, had been acquitted, after
trial, by the sessions court in the same city. They could not be
released and returned to the Philippines, because the prosecution
had appealed the judgment of acquittal to the Supreme Court of
Malaysia. Assume the situations had been reversed and a
Malaysian had been apprehended in Shasi, Sulu, for an alleged
offense, charged before the Regional Trial Court and after trial
acquitted. May the Provincial Fiscal of Sulu appeal such judgment
of acquittal to the Supreme Court, like what the Malaysians did in
the case of the Filipino fishermen at Kota Kinabalu? Explain your
answer.
⟴ SUGGESTED ANSWERS:
No, because it would place the accused in double jeopardy,
contrary to Art. III, sec. 21 of our Constitution. PD No. 1599
prohibits any person not a citizen to explore or exploit any of the
resources of the exclusive economic zone and makes violation of
the prohibition a crime punishable by a fine of P2,000.00 to
P100,000.00 and/or imprisonment of not less than 6 months nor
more than 10 years. If aliens are arrested for fishing within this
zone but for some reason are acquitted, the decision against them
cannot be appealed to the Court of Appeals because that would
place them in double jeopardy. This is so well established that the
Supreme Court turned down many pleas for re-examination of the
doctrine first announced in Kepner v. United States. 11 Phil. 669
(1904). The doctrine is said to be part and parcel not only of settled
jurisprudence but also of constitutional law. Nor does it matter
that the accused are aliens. This guarantee has been applied even
to aliens without thought of their citizenship. (See e.g., People v.
Ang Chio Kio, 95 Phil. 475 (1954) (Chinese previously convicted of
murder); People v. Pomeroy, 97 Phil 927 (1955) ( American
previously convicted of rebellion with murder, arson and robbery).
⟴ Double Jeopardy (1993)
No. 13: A Pajero driven by Joe sideswiped a motorcycle driven by
Nelson resulting in damage to the motorcycle and injuries to
Nelson. Joe sped on without giving assistance to Nelson. The Fiscal
filed two informations against Joe, to wit: (1) reckless imprudence
resulting in damage to property with physical injuries under Art.
365, RPC, before the RTC; and (2) abandonment of one's victim
 under par. 2 Art 275, before the MTC. Joe was arraigned, tried and
convicted for abandonment of one's victim in the MTC. He
appealed to the RTC. It was only a year later that he was arraigned
in the reckless imprudence charge before the RTC. He pleaded not
guilty. Subsequently, the RTC affirmed the decision of the MTC
relative to the abandonment of one's victim charge. Joe filed a
petition for review before the Court of Appeals, invoking his right
to double Jeopardy, contending that the prosecution for
abandonment under Art. 275 of the Revised Penal Code is a bar to
the prosecution for negligence under Article 365 of the same Code.
Decide.
⟴ SUGGESTED ANSWERS:
Joe cannot claim that his conviction for abandoning his victim in
violation of Article 275 of the Revised Penal Code is a bar to his
prosecution for negligence under Article 365 of the Revised Penal
Code. As held in Lamera v. Court of Appeals, 198 SCRA 186, there is
no double jeopardy, because these two offenses are not identical.
Reckless imprudence is a crime falling under the chapter on
criminal negligence, while abandonment of one's victim is a crime
falling under the chapter on crimes against security. The former is
committed by means of culpa, while the latter is committed by
means of dolo. Failure to help one's victim is not an offense by itself
nor an element of reckless imprudence. It merely Increases the
penalty by one degree.
⟴ Double Jeopardy (1997)
No. 2: The Sangguniang Panlungsod of Manila approved an
ordinance (No. 1000) prohibiting the operation in the streets
within the city limits of taxicab units over eight years old (from
year of manufacture). The imposable penalty for violation thereof
is a fine of P4,000.00 or imprisonment for one year upon the
erring operator. Thereafter and while the city ordinance was
already in effect. Congress enacted a law (Republic Act No. 500)
prohibiting the operation in the streets of cities throughout the
country of taxicab units beyond ten years old. The imposable
penalty for violation thereof is the same as in Ordinance No. 1000.
A, an owner/operator of a taxicab unit operating in the City of
Manila, was charged with violation of the city ordinance. Upon
arraignment, he pleaded not guilty; whereupon, trial was set five
days thereafter. For failure of the witnesses to appear at the trial,
the City Court dismissed the case against A. The City Prosecutor of
Manila forthwith filed another information in the same court
charging A with violation of Republic Act No. 500 for operating the
taxicab unit subject of the information in the first case. The
accused moved to dismiss the second case against him invoking
double Jeopardy. How would you rule on A's motion if you were
the Judge?
⟴ SUGGESTED ANSWERS:
If I were the judge, I would grant the motion. The dismissal of the
first case for failure of the witnesses to appear terminated the first
jeopardy. As held in Caes vs. Intermediate Appellate Court, 179
SCRA 54, the dismissal of a case for failure of the witnesses for the
prosecution to appear constitutes an acquittal. The acquittal of A
for violation of Ordinance No. 1000 bars his prosecution for
violation of Republic Act No. 500. Under Section 21, Article in of the
Constitution, if an act is punished by a law and an ordinance,
conviction or acquittal under either bars another prosecution for
the same act.
⟴ Double Jeopardy (1999)
A. Discuss the right of every accused against double jeopardy?
⟴ SUGGESTED ANSWERS:
According to Melo v. People, 85 Phil. 766, the rule of double
jeopardy means that when a person was charged with an offense
and the case was terminated by acquittal or conviction or in any
other manner without his consent, he cannot again be charged
with the same or identical offense.
⟴ Double Jeopardy (1999)
B. On October 21, 1986, 17 year old Virginia Sagrado brought a
complaint against Martin Geralde for consented abduction.
With the accused pleading not guilty upon arraignment, trial
ensued. After trial, a judgment of conviction was rendered
against Geralde. When the case was appealed to it, the Court
of Appeals reversed the judgment of the Trial Court,
PAGE 61
ratiocinating and ruling as follows: "This is not to say that the
appellant did nothing wrong...she was seduced by the
appellant with promises (of marriage) just to accomplish his
lewd designs." Years later, Virginia brought another
complaint for Qualified Seduction. Geralde presented a
Motion to Quash on the ground of double jeopardy, which
motion and his subsequent motion for reconsideration were
denied:
C. Question: May Geralde validly invoke double jeopardy in
questioning the institution of the case for Qualified
Seduction? He placed reliance principally on the "same
evidence" test to support his stance. He asserted that the
offenses with which he was charged arose from the same set
of facts. Furthermore, he averted that the complaint for
Qualified Seduction is barred by waiver and estoppel on the
part of the complainant, she having opted to consider the case
as consented abduction. Finally, he argued that her delay of
more than eight (8) years before filing the second case against
him constituted pardon on the part of the offended party.
How would you resolve Gerald's contentions? Explain. (4%)
⟴ SUGGESTED ANSWERS:
Geralde cannot invoke double jeopardy. According to Perez v. Court
of Appeals, 168 SCRA 236, there is no identity between consented
abduction and qualified seduction. CONSENTED ABDUCTION
requires that the taking away of the offended party must be with
her consent, after solicitation or cajolery from the offender, and the
taking away of the offended party must be with lewd designs. On
the other hand, QUALIFIED SEDUCTION requires that the crime be
committed by abuse of authority, confidence or relationship and
the offender had sexual intercourse with the woman. The delay in
filing the second case does not constitute pardon, according to
Article 344 of the Revised Penal Code, to be valid the pardon of the
offender by the offended party must be expressly given.
⟴ Double Jeopardy (2000)
No XV. Charged by Francisco with libel, Pablo was arraigned on
January 3, 2000, Pre-trial was dispensed with and continuous trial
was set for March 7, 8 and 9, 2000. On the first setting, the
prosecution moved for its postponement and cancellation of the
other settings because its principal and probably only witness, the
private complainant Francisco, suddenly had to go abroad to fulfill
a professional commitment. The judge instead dismissed the case
for failure to prosecute. b) Would the reversal of the trial court's
assailed dismissal of the case place the accused in double
jeopardy? (3%)
⟴ SUGGESTED ANSWERS:
b) Since the postponement of the case would not violate the right of
the accused to speedy trial, the precipitate dismissal of the case is
void. The reversal of the dismissal will not place the accused in
double Jeopardy.
⟴ Double Jeopardy (2001)
No X - For the death of Joey, Erning was charged with the crime of
homicide before the Regional Trial Court of Valenzuela. He was
arraigned. Due to numerous postponements of the scheduled
hearings at the instance of the prosecution, particularly based on
the ground of unavailability of prosecution witnesses who could
not be found or located, the criminal case was pending trial for a
period of seven years. Upon motion of accused Erning who
invoked his right to speedy trial, the court dismissed the case.
Eventually, the prosecution witnesses surfaced, and a criminal
case for homicide, involving the same incident was filed anew
against Erning. Accused Erning moved for dismissal of the case on
the ground of double jeopardy. The prosecution objected,
submitting the reason that it was not able to present the said
witnesses earlier because the latter went into hiding out of fear.
Resolve the motion. (5%)
⟴ SUGGESTED ANSWERS:
The motion should be granted. As held in Caes us. Intermediate
Appellate Court, 179 SCRA 54 (1989), the dismissal of a criminal
case predicatend on the right of the accused to a speedy trial
amounts to an acquittal for failure of the prosecution to prove his
guilt and bars his subsequent prosecution for the same offense.
 of the offense in order to convict the defendant. [Mekin v. Wolfe
⟴ Double Jeopardy (2002) (1903)]
No IX. A Tamaraw FX driven by Asiong Cascasero, who was drunk,
(5) Assumes to regulate civil rights and remedies only but in effect
sideswiped a pedestrian along EDSA in Makati City, resulting in
imposes a penalty or deprivation of a right which when done
physical injuries to the latter. The public prosecutor filed two
was lawful.
separate informations against Cascasero, the first for reckless
(6) Deprives a person accused of a crime of some lawful
imprudence resulting in physical injuries under the Revised Penal
protection of a former conviction or acquittal, or a
Code, and the second for violation of an ordinance of Makati City
proclamation of amnesty. [In re Kay Villegas Kami
prohibiting and penalizing driving under the influence of liquor.
(1970)]
Cascasero was arraigned, tried and convicted for reckless
imprudence resulting in physical injuries under the Revised Penal
The prohibition applies only to criminal legislation which affects
Code. With regard to the second case (i.e., violation of the city
the substantial rights of the accused. [Phil. National
ordinance), upon being arraigned, he filed a motion to quash the
Bank v. Ruperto (1960)]
information invoking his right against double jeopardy. He
contended that, under Art. III, Section 21 of the Constitution, if an
It applies to criminal procedural law prejudicial to the accused.
act is punished by a law and an ordinance, conviction or acquittal
[US v. Gomez (1908)]
under either shall constitute a bar to another prosecution for the
same act He argued that the two criminal charges against him
It is improper to apply the prohibition to an executive
stemmed from the same act of driving allegedly under the
proclamation suspending the privilege of the writ of habeas
influence of liquor which caused the accident. Was there double
corpus. [Montenegro v. Castañeda (1952)]
jeopardy? Explain your answer (5%)
⟴ SUGGESTED ANSWERS:
Yes, there is double jeopardy. Under the second sentence of Article
III, Section 21 of the Constitution, if an act is punished by a law and
⟴ An ex post facto law has been defined as one:
an ordinance, conviction or acquittal under either shall constitute a ⟴ SUGGESTED ANSWERS:
bar to another prosecution for the same act. In this case, the same which aggravates a crime or makes it greater than when it was
act is involved in the two cases. The reckless imprudence which committed; (Republic vs. Eugenio, 545 SCRA 384)
resulted in physical injuries arose from the same act of driving
under the influence of liquor. In Yap v. Lutero, G.R. No. L-12669,
April 30, 1959, the Supreme Court held that an accused who was BILLS OF ATTAINDER
acquitted of driving recklessly in violation of an ordinance could A bill of attainder is a legislative act which inflicts punishment
not be prosecuted for damage to property through reckless without judicial trial. If the punishment be less than death, the act
imprudence because the two charges were based on the same act. is termed a bill of pains and penalties. Within the meaning of the
In People v, Relova, 148 SCRA 292 (1987), it was held that when Constitution, bills of attainder include bills of pains and penalties.
there is identity in the act punished by a law and an ordinance, [Cummings v. Missouri
conviction or acquittal under either shall bar prosecution under (1867)]
the other.
It is a general safeguard against legislative exercise of the judicial
⟴ Double Jeopardy; Requisites (1999) function, or trial by legislature. [US v. Brown (1965)]
B. What are the requisites of double jeopardy?
⟴ SUGGESTED ANSWERS: ⟴ Bill of Attainder (1987)
As held in Cuison v. Court of Appeals, 289 SCRA 159, for a claim of
No. XI: Congress passed a law relating to officials and employees
double jeopardy to prosper, the following requisites must concur:
who had served in the Government for the period from September
(1) a first jeopardy has attached;
21, 1972 up to February 25, 1986.
(2) the first jeopardy was validly terminated; and
(3) the second is for the same offense.
(a) One provision of the law declared all officials from the rank of
assistant head of a department, bureau, office or agency "Unfit" for
A first jeopardy attaches:
continued service in the government and declared their respective
1 upon a valid complaint or information;
positions vacant.
2 before a competent court;
(b) Another provision required all the other officials and
3 after arraignment;
employees to take an oath of loyalty to the flag and government as
4 a valid entry of plea; and
a condition for their continued employment. Are the two
5 the dismissal or termination of the case without the express
provisions valid? Why?
consent of the accused
⟴ SUGGESTED ANSWERS:
(a) The law is a bill of attainder by which Congress, by assuming
SECTION 22, ARTICLE III judicial magistracy, in effect declares all officials and employees
Ex Post Facto and Bills Of Attainder during martial law (September 21, 1972February 25, 1986) as
No ex post facto law or bill of attainder shall be enacted. disloyal and, on this basis, removes some while subjecting others
to a loyalty test. With respect to the provision declaring positions
vacant, even the power to reorganize can not be invoked because
RA 1700 which declared the Communist Party of the Philippines
under the Freedom Constitution such power can be exercised
a clear and present danger to Philippine security, and thus
only by the President and only up to February 25, 1987. Since the
prohibited membership in such organization, was contended to
law under question was presumably passed after February 25,
be a bill of attainder. Although the law mentions the CPP in
1987 and by Congress, it is unconstitutional.
particular, its purpose is not to define a crime but only to lay a
basis or to justify the legislative determination that membership
(b) With respect to the provision requiring the loyalty test,
in such organization is a crime because of the clear and present
loyalty as a general rule is a relevant consideration in assessing
danger to national security. [People v. Ferrer (1972)]
employees' fitness. However, the requirement in this case is not a
general requirement but singles out "martial law" employees and
EX POST FACTO LAWS
therefore is administered in a discriminatory manner. Loyalty,
(1) Makes an action done before the passing of the law and which
therefore, while a relevant consideration in other circumstances,
was innocent when done criminal, and punishes such action.
is being employed in this case for an unconstitutional purpose.
(2) Aggravates a crime or makes it greater than when it was
committed.
(3) Changes the punishment and inflicts a greater punishment
than the law annexed to the crime when it was committed.
(4) Alters the legal rules of evidence and receives less or different ⟴ Bill of Attainder (1990)
testimony than the law required at the time of the commission

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No. 1; Executive Orders Nos. 1 and 2 issued by President Corazon
C. Aquino created the Presidential Commission on Good
Government (PCGG) and empowered it to sequester any property
shown prima facie to be ill-gotten wealth of the late President
Marcos, his relatives and cronies. Executive Order No. 14 vests on
the Sandiganbayan jurisdiction to try hidden wealth cases. On
April 14, 1986, after an investigation, the PCGG sequestered the
assets of X Corporation, Inc.
(1) X Corporation, Inc. claimed that President Aquino, as
President, could not lawfully issue Executive Orders Nos. 1, 2 and
14, which have the force of law, on the ground that legislation is a
function of Congress. Decide.
(2) Said corporation also questioned the validity of the three
executive orders on the ground that they are bills of attainder and,
therefore, unconstitutional. Decide.
⟴ SUGGESTED ANSWERS:
(1) Executive Orders Nos. 1, 2 and 14 were issued in 1986. At
that time President Corazon Aquino exercised legislative power .
(2) Executive Orders Nos. 1, 2 and 14 are not bills of attainder. A
bill of attainder is a legislative act which inflicts punishment
without judicial trial. Accordingly, it was held in Bataan
Shipyards and Engineering company. Inc. v. Presidential
Commission on Good Government, that Executive Orders Nos. 1,
2 and 14 are not bills of attainder, because they do not inflict any
punishment. On the contrary, they expressly provide that any
judgment that the property sequestered is ill-gotten wealth is to
be made by a court (the Sandiganbayan) only after trial.
⟴ Extradition; Effectivity of treaty (1996)
No. 6; 1) The Extradition Treaty between France and the
Philippines is silent as to its applicability with respect to crimes
committed prior to its effectivity.
a) Can France demand the extradition of A, a French national
residing in the Philippines, for an offense committed in France
prior to the effectivity of the treaty? Explain.
b) Can A contest his extradition on the ground that it violates the
ex post facto provision of the Philippine Constitution? Explain.
⟴ SUGGESTED ANSWERS:
1. a) Yes, France can ask for the extradition of A for an offense
committed in France before the effectivity of the Extradition
Treaty between France and the Philippines. In Cleugh vs. Strakosh.
109 F2d 330, it was held that an extradition treaty applies to
crimes committed before its effectivity unless the extradition
treaty expressly exempts them. As Whiteman points out,
extradition does not define crimes but merely provides a means
by which a State may obtain the return and punishment of persons
charged with or convicted of having committed a crime who fled
the jurisdiction of the State whose law has been violated. It is
therefore immaterial whether at the time of the commission of the
crime for which extradition is sought no treaty was in existence. If
at the time extradition is requested there is in force between the
requesting and "the requested States a treaty covering the offense
on which the request is based, the treaty is applicable. (Whiteman,
Digest of International Law, Vol. 6, pp. 753-754.)
b) No, A cannot contest his extradition on the ground that it
violates the ex post facto provision of the Constitution. As held in
Wright vs. Court of Appeals, 235 SCRA 341, the prohibition against
ex post facto laws in Section 22, Article III of the Constitution
applies to penal laws only and does not apply to extradition
treaties.
⟴ Extradition; Grounds (2002)
No XVIII. John is a former President of the Republic X, bent on
regaining power which he lost to President Harry in an election.
Fully convinced that he was cheated, he set out to destabilize the
government of President Harry by means of a series of protest
actions. His plan was to weaken the government and, when the
situation became ripe for a take-over, to assassinate President
Harry. William, on the other hand, is a believer in human rights
and a former follower of President Harry. Noting the systematic
acts of harassment committed by government agents against
farmers protesting the seizure of their lands, laborers complaining
of low wages, and students seeking free tuition, William organized
PAGE 63
groups which held peaceful rallies in front of the Presidential
Palace to express their grievances.
On the eve of the assassination attempt, John's men were caught
by members of the Presidential Security Group. President Harry
went on air threatening to prosecute plotters and dissidents of his
administration. The next day, the government charged John with
assassination attempt and William with inciting to sedition.
John fled to Republic A. William, who was in Republic B attending
a lecture on democracy, was advised by his friends to stay in
Republic B. Both Republic A and Republic B have conventional
extradition treaties with Republic X.
If Republic X requests the extradition of John and William, can
Republic A deny the request? Why? State your reason fully. (5%)
⟴ SUGGESTED ANSWERS:
Republic A can refuse to extradite John, because his offense is a
political offense. John was plotting to take over the government
and the plan of John to assassinate President Harry was part of
such plan. However, if the extradition treaty contains an attentat
clause, Republic A can extradite John, because under the attentat
clause, the taking of the life or attempt against the life of a head of
state or that of the members of his family does not constitute a
political offense and is therefore extraditable.
⟴ Extradition: Double Criminality (2007)
No. III. Lawrence is a Filipino computer expert based in Manila
who invented a virus that destroys all the files stored in a
computer. Assume that in May 2005, this virus spread all over the
world and caused $50 million in damage to property in the United
States, and that in June 2005, he was criminally charged before
United States courts under their anti-hacker law. Assume that in
July 2005, the Philippines adopted its own anti-hacker law, to
strengthen existing sanctions already provided against damage to
property. The United States has requested the Philippines to
extradite him to US courts under the RP-US Extradition Treaty.
a. Is the Philippines under an obligation to extradite Lawrence?
State the applicable rule and its rationale.
⟴ SUGGESTED ANSWERS:
The Philippine is under no obligation to extradite Lawrence.
Under the principle of dual or double criminality, the crime must
be punishable in both the requesting and requested states to make
it extraditable. In this case, only the United States had anti-hacker
law at the time of the commission of the crime in May 2005. The
rational for the principle of dual criminality rests “in part on the
basic principle of reciprocity” and “in part of the maxim nulla
poena sine lege.” (LA Shearer, 1971 Extradition in International
Law, Manchester University Press, Manchester, p. 137.)
b. Assume that the extradition request was made after the
Philippines adopted its antihacker legislation. Will that change
your answer?
⟴ SUGGESTED ANSWERS:
The Philippines is under no obligation to extradite Lawrence. The rule
is that the crime must be punishable in both countries at the time of
the commission of the offense. Since there was yet no such crime in
the Philippines at the time when the acts complained of were done,
in so far as the Philippines is concerned, Lawrence did not commit any
crime; hence, an extradition of Lawrence is tantamount to an ex post
facto application of the Philippine anti-hacker law, prohibited by
section 22, Article III of the 1987 Constitution.
⟴ Which of the following provisions of the Constitution
does not confer rights that can be enforced in the courts
but only provides guidelines for legislative or executive
action?
⟴ SUGGESTED ANSWERS:
(A) The maintenance of peace and order, the protection of life,
liberty, and property, and promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
(B) The State shall give priority to education, science and
technology, arts, culture, and sports to foster patriotism and
nationalism, accelerate social progress, and promote total human
liberation and development.
(C) The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government.

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