Consti 2 Review - Montejo Lectures

CONSTITUTIONAL LAW REVIEW
THE MONTEJO LECTURES

All the effort in the world won't
matter if you're not inspired.
Chuck Palahniuk, Diary
26 July 2012
DUE PROCESS AND EQUAL PROTECTION AS
LIMITATIONS ON POLICE POWER, EMINENT
DOMAIN AND TAXATION
A. Fundamental Principles on Constitutional Law and
the Bill of Rights
Okay, now we are starting with the Bill of rights.
Based on the discussions of fundamental powers, you already
know police power, eminent domain and the power to tax. Their
constant is that they are called inherent. Once the State comes
into being, meaning the elements of the state - people, territory,
government, sovereignty are present and existing, these
fundamental powers can be exercised without any need of a
constitutional or statutory conferment. The provisions in the
Constitution as well as in related issuances by Congress in terms
of statute are therefore considered as limitations of these
fundamental powers.
For the valid exercise of police power, the police power is
considered the most limitable, most demanding of all the powers
of State. It is the most demanding because it would affect any
human activity that can be imaginable in terms of regulation. It is
however dynamic because it is supposed to adapt to the
demands of the times. What have been considered as valid
regulations before in the exercise of certain rights may no longer
be considered valid today because they are no longer considered
part of the regulation.
public interest but if the means are unreasonable, they may not
be considered as valid or legal means, and the regulatory
measures maybe tested for the lawfulness of the means. This is
where most of the cases in police power are destined because
the lawfulness of the subject is generally given whereas the
lawfulness of the means would have tested whether or not these
are reasonable or necessary in order to achieve the objectives of
the law. It does not follow the general principle that the end
should justify the means. The means must be reasonable or
lawful.
Now, this power can be used through the exercise of eminent
domain or through the exercise of the power to tax. For example,
there is a regulation on importation so that there is protection of
the interest of the Filipino manufacturer or producer, the State
may impose higher duties and taxes for imported products. So
while ostensibly it is considered as a taxation measure, the actual
or real intent of the regulation is to protect or promote the local
manufacturers.
Eminent Domain
It can also be through eminent domain; the classic exercise is the
enactment of the CARP law. The CARP law has long been
declared as not unconstitutional as early as the case of
Association of Small Land Owners vs. DAR Secretary where
the SC said it is actually not purely an exercise of eminent
domain for taking of real property for public use upon giving of
just compensation because it is actually a regulatory measure to
regulate property ownership for the promotion of common good
based on the social justice provisions in the Constitution
equitably defusing wealth by supposedly distributing these lands.
That is the intent of the Constitution, to give to the poor and take
from the rich.
Association of Small Landowners vs. Secretary of DAR
G.R. No. 78742 July 14, 1989
Lawful Subject viz Lawful Means

Now the general test used for the exercise of police power, would
be 1) the lawfulness of the subject or lawful subject and 2) the
lawfulness of the means or lawful means.
The lawfulness of the subject simply answers the question of
which interest should be protected by reason of the regulation or
the exercise of police power. More or less, this refers to any
public interest matter. So if what is to be protected is the interest
of the many as compared to a few, then the required lawfulness
of the subject is generally satisfied or complied with. Now, the
lawfulness of the means require that there must be a causal
connection between the means employed to achieve the
purposes of the regulation. The means must be reasonable by
themselves because even if the objective of the regulation is for
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FACTS: Article XIII on Social Justice and Human Rights includes a

call for the adoption by the State of an agrarian reform program.
The State shall, by law, undertake an agrarian reform program
founded on the right of farmers and regular farm workers, who are
landless, to own directly or collectively the lands they till or, in the
case of other farm workers, to receive a just share of the fruits
thereof. RA 3844, Agricultural Land Reform Code, had already
been enacted by Congress on August 8, 1963. This was
substantially superseded almost a decade later by PD 27, which
was promulgated on Oct 21, 1972, along with martial law, to
provide for the compulsory acquisition of private lands for
distribution among tenant-farmers and to specify maximum
retention limits for landowners. On July 17, 1987, Cory issued EO
228, declaring full land ownership in favor of the beneficiaries of
PD 27 and providing for the valuation of still unvalued lands
covered by the decree as well as the manner of their payment.
This was followed on July 22, 1987 by PP 131, instituting a
comprehensive agrarian reform program (CARP), and EO 229,
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providing the mechanics for its implementation. After which is the
enactment of RA 6657, Comprehensive Agrarian Reform Law of
1988, which Cory signed on June 10. This law, while considerably
changing the earlier mentioned enactments, nevertheless gives
them suppletory effect insofar as they are not inconsistent with its
provisions.
In considering the rentals as advance payment on the land, the
executive order also deprives the petitioners of their property rights
as protected by due process. The equal protection clause is also
violated because the order places the burden of solving the
agrarian problems on the owners only of agricultural lands. No
similar obligation is imposed on the owners of other properties.
The petitioners maintain that in declaring the beneficiaries under
PD 27 to be the owners of the lands occupied by them, EO 228
ignored judicial prerogatives and so violated due process. Worse,
the measure would not solve the agrarian problem because even
the small farmers are deprived of their lands and the retention
rights guaranteed by the Constitution.
In his comment the Sol-Gen asserted that the alleged violation of
the equal protection clause, the sugar planters have failed to show
that they belong to a different class and should be differently
treated. The Comment also suggests the possibility of Congress
first distributing public agricultural lands and scheduling the
expropriation of private agricultural lands later. From this viewpoint,
the petition for prohibition would be premature.
ISSUE: Whether or not there was a violation of the equal
protection clause.
HELD: The SC ruled affirming the Sol-Gen. The argument of the
small farmers that they have been denied equal protection
because of the absence of retention limits has also become
academic under Sec 6 of RA 6657. Significantly, they too have not
questioned the area of such limits. There is also the complaint that
they should not be made to share the burden of agrarian reform,
an objection also made by the sugar planters on the ground that
they belong to a particular class with particular interests of their
own. However, no evidence has been submitted to the Court that
the requisites of a valid classification have been violated.
Classification has been defined as the grouping of persons or
things similar to each other in certain particulars and different from
each other in these same particulars. To be valid, it must conform
to the following requirements:
(1) it must be based on substantial distinctions;
(2) it must be germane to the purposes of the law;
(3) it must not be limited to existing conditions only; and
(4) it must apply equally to all the members of the class.
The Court finds that all these requisites have been met by the
measures here challenged as arbitrary and discriminatory.
Equal protection simply means that all persons or things similarly
situated must be treated alike both as to the rights conferred and
the liabilities imposed. The petitioners have not shown that they
belong to a different class and entitled to a different treatment. The
argument that not only landowners but also owners of other
properties must be made to share the burden of implementing land
reform must be rejected. There is a substantial distinction between
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these two classes of owners that is clearly visible except to those

who will not see. There is no need to elaborate on this matter. In
any event, the Congress is allowed a wide leeway in providing for
a valid classification. Its decision is accorded recognition and
respect by the courts of justice except only where its discretion is
abused to the detriment of the Bill of Rights.
Now eminent domain as understood is the highest and most

exact idea of property right the State which entitled to acquire
private property in the concept of compulsory sale. The traditional
characterization of the exercise of eminent domain is based on
the old and traditional concept of eminent domain as taking of
lands. Under the so-called Regalian doctrine, all lands originally
belong to the State. It is only by State allowance that these lands
are thereafter classified as alienable, disposable and therefore
can be subjected to private ownership. So when the State takes
these lands, it is just taking what it rightfully belongs to it. But as
we all know, private property in eminent domain, as society
develops, is not necessarily limited to real property or lands.
There can be expropriation of private property which includes
personal property except the two traditional exceptions of
money, and those considered personal actions or personal
options of an individual. These cannot be expropriated. Other
than these, any other property, even if they form intangible things
like connectivity, for example mobile phone providers, as held in
the case of PLDT. The SC has said that the compulsory
interconnection in PLDT and other providers would come in the
form of expropriation. The property of PLDT is private property
even if we talk about connectivity, which is also considered
private property.
REPUBLIC OF THE PHILIPPINES VS. PLDT
26 SCRA 620 (1969)
FACTS: Public petitioner commenced a suit against private
respondent praying for the right of the Bureau of
Telecommunications to demand interconnection between the
Government Telephone System and that of PLDT, so that the
Government Telephone System could make use of the lines and
facilities of the PLDT. Private respondent contends that it cannot
be compelled to enter into a contract where no agreement is had
between them.
ISSUE: Whether or not interconnection between PLDT and the
Government Telephone System can be a valid object for
expropriation.
HELD: Yes, in the exercise of the sovereign power of eminent
domain, the Republic may require the telephone company to
permit interconnection as the needs of the government service
may require, subject to the payment of just compensation. The use
of lines and services to allow inter-service connection between the
both telephone systems, through expropriation can be a subject to
an easement of right of way.


Now, in eminent domain, while the limitations are provided for in
the Constitution that there must have to be taking, being in the
concept of ousting the owner from its beneficial or common use
and it has to be more than a momentary period, there must be a
degree of permanence required. It must also take private
property as we said except those two which cannot be
expropriated; it must also be taking for public use.
Concept of Public Use
The concept of public use has developed through jurisprudence
and as required by the demands of time. While traditionally
eminent domain is exercised over land, the old concept is that,
there must have a benefit to the public in general. So that the old
concept of public use is based on the number of people
benefited. So if it is only benefiting the few, the taking is not
considered for public use because the direct advantage must be
for the many.
However, in several cases, usually involving land reform whether
in rural and urban areas, the SC has allowed that taking of these
lands for distribution for a few is considered taking for public use.
Although it would only directly benefit the few, it would actually
indirectly benefit the public. The same with the taking of lands for
conversion into economic zones, like ecotourism zones. While
only few individuals benefit directly from the taking, but because
of the business employment that these businesses will generate,
there will be indirect benefit to workers and their family so taking
there is for public use.
Just Compensation
Just compensation is actually a concept and theory that it must
be based on owner's loss. However, there are several laws on
the matter of just compensation. The traditional one would refer
to the cost of the land or market value, which will consider of
course the cost of acquisition, the present use of the property,
the potential use of the property. In later legislations like the
CARP law, the law has even provided for certain formulae for
computing the value of the property while there are some laws
which have also provided for the minimum value, meaning the
law has stated in the provision that the minimum value of the
property should be this much.
Now with respect to the determination of just compensation, the
principle has always been that the owner must have to be given a
chance to prove the value of the property though that is not
necessarily the value that has to be paid, at least, there is that
opportunity in compliance to the requirement of due process. The
owner has to be given that. So while a law may provide for the
minimum value or say formula to compute the value, the owner
must be allowed to present evidence to prove the value of just
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compensation. In the end, that would be for the court to decide

how much the value should be.
Now there are instances when a property, let us say land, most
especially land, where not the entire property is expropriated, so
there is a remainder for the owner to use. Now, the use of the
remainder will have to be considered under the concept of
consequential damage or consequential benefit. If the remainder
of the property will not be that useful to the owner that will be
considered consequential damage and therefore that will have to
be added to the value of the property. Conversely, if the
remainder after the expropriation will increase in value benefitting
the owner more than its potential uses before the expropriation,
then the property owner must have to suffer because the
consequential benefit will have to be deducted from the just
compensation.
Question of Propriety
Now, despite all these, that all these conditions or requirements
of the Constitution are complied with, the first question to ask in
the exercise of eminent domain is always the question of
propriety or necessity. Is it necessary to exercise the power of
eminent domain or expropriation? In several cases, the SC ruled
that eminent domain is an extraordinary remedy if the property
owner is not willing to sell. Which presupposes therefore that
when the expropriator would want to take property, there is no
immediate expropriation but there must have to be an offer to buy
the property at the level of the buyer and the seller. It is only
when the property owner is not going to sell or that there is no
agreement as to the price to the property like in an ordinary sale,
that there should be eminent domain. So the question of
necessity or propriety.
In one old case, the question of propriety was asked because the
private property of the petitioner was expropriated despite the
fact that the local government unit has existing vacant property.
The question is, could the expropriator expropriate a property, in
this case a LGU, for purposes of let us say construction of an
amusement center when it has an existing vacant lot which could
serve the same purpose? The SC said you cannot because
again it is always be a question of propriety or necessity.
By the way, in taking, there is a concept that the taking is not
limited to the literal act of taking. The taking now is characterized
as ousting the owner of the beneficial of use of the property or
preventing the owner from exercising full enjoyment of the right to
use over his property. So, good examples would be, in a dam
project, if there is a dam to be constructed, the lands upstream
would necessarily be inundated. There is no actual taking. The
expropriator, NAPOCOR in that case, did not actually take actual
property but because of the increase in the level of the water


upstream because of the construction of the dam, necessarily the
riverbanks of the property by the banks would be inundated. So
the owners will be deprived of full enjoyment of the potential uses
of the property. So that will also be considered as taking.
Or if there is a prohibition on easement, then there would also be
taking because the property cannot be fully enjoyed by the
owner. Good example would be if your property is adjacent to an
airport runway. You can be prevented from constructing a highrise building. It could cause safety issues on the airplanes taking
of and landing to the airport. So while the property is for you to
enjoy, you can be prevented from fully enjoying the property. Or
commonly, you may have been exposed to the transmission
towers or transmission lines. In the old cases you must have
come across decisions where the SC said that the property
owner will have to be paid just compensation in the form of an
easement of the right of way because you can still use the parts
of the land surrounding transition towers and under or beneath
the transition lines. However, in later cases, the SC says no, that
should be fully paid because the property owners have actually
been deprived of the full enjoyment of the property. So, from the
old concept of just paying the easement of right of way for the
transmission lines crossing your property, now the entire value of
the property has to be paid for just compensation. This means
that the just compensation is for the entire property which is
affected by the transmission towers and transmission lines
because the owner is ousted from the full use of the property.
Power of Taxation
By the way, the power to tax, there is not much to discuss than
your knowledge of taxation. The only reference to the part of tax
in the Constitution is the uniform and equitable rule in taxation
under Article VI section 28 paragraph 1,
(1) The rule of taxation shall be uniform and
equitable. The Congress shall evolve a progressive
system of taxation
the flexible tariff laws under paragraph 2,
(2) The Congress may, by law, authorize the president to fix
within specified limits, and subject to such limitations and
restrictions as it may impose, tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development
program of the Government.
the exemption under paragraph 3, for
real property tax on charitable
institutions, etc.
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(3) charitable institutions, churches, and parsonages or

convents appurtenant thereto, mosques, non-profit
cemeteries, and all lands, buildings, and improvements,
actually, directly, and exclusively used for religious,
charitable, or educational purposes shall be exempt from
taxation.
Under paragraph 4, tax exemption can
be granted provided there is majority
vote of Congress.
(4) no law granting any tax exemption shall be
passed without the concurrence of a majority of all
the members of Congress.
Article XIV, Section 4, paragraph 3
revenues and assets of non-stock, nonprofit educational institution are exempt
from income taxes
(3) All revenues and assets of non-stock, non-profit
educational institutions used actually, directly, and
exclusively for educational purposed shall be
exempt from taxes and duties. xxx
and paragraph 4 of the same article,
grants, endowments, donations or
contributions which are actually, directly
and exclusively used educational
purposes are exempt.
(4) Subject to conditions prescribed by law, all
grants, endowments, donations, or contributions
used actually, directly, and exclusively for
educational purposes shall be exempt from tax.
Now, these powers can be delegated. Police power can be
delegated by Congress to the LGUs. That has been provided for
under Section 16 of RA 7160. This is the General Welfare
Clause. In Section 16 there are 2 distinct powers there of LGUs
on police power. First would refer to the general grant of power to
enact ordinances and regulate the activities for the protection of
general welfare and second, those which Congress may delegate
specifically to LGUs from time to time. If there is none, the LGUs
can exercise police power under the general welfare clause.
Section 16. General Welfare. - Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall


ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
Eminent domain can be delegated not only to LGUs but also to

private entities which are usually considered quasi-public
corporations because of the services that they have, that they
offer, like PLDT and all these Telcos, water districts, the electric
companies and cooperatives. Under the National Electrification
Administration Law, the electric cooperatives have the power to
exercise eminent domain in relation to the services they are
offering. So, not limited to LGUs but also to private entities.
The power to tax cannot be delegated except to the local
government. From the national government, the Local
Government Code provides taxing power to the LGUs. It cannot
be delegated to private entities.
Now, we have had discussed the rule on construction of
constitutional provisions. Now, generally, with respect to the Bill
of rights, the Bill of rights is supposed to be, in the study of
constitutional law, limitation of the state powers. They are
therefore claimable exclusively against the exercise of the any of
the state powers. In a limited sense however, there can be
exercise of or claim of the bill of rights to limit acts of private
individuals or private entities when at least in 2 occasions: 1)
when the action of the private entity is considered as state action.
Remember the case of Manila Prince Hotel vs. GSIS. Manila
Hotel is supposed to be considered as a GOCC. GSIS is also
considered also a GOCC but can the acts of these entities be
questioned and limited by the bill of rights? The SC said in a
limited sense, it can considered state action they can be limited
by the bill of rights.
MANILA PRINCE HOTEL vs. GSIS
G.R. No. 122156 February 3, 1997
Pursuant to the privatization program of the government, GSIS
decided to sell 30-51% of the Manila Hotel Corporation. Two
bidders participated, MPH and Malaysian Firm Renong Berhad.
MPHs bid was at P41.58/per share while RBs bid was at
P44.00/share. RB was the highest bidder hence it was logically
considered as the winning bidder but is yet to be declared so.
Pending declaration, MPH matches RBs bid and invoked the
Filipino First policy enshrined under par. 2, Sec. 10, Art. 12 of the
1987 Constitution**, but GSIS refused to accept. In turn MPH filed
a TRO to avoid the perfection/consummation of the sale to RB.
RB then assailed the TRO issued in favor of MPH arguing among
others that:
1. Par. 2, Sec. 10, Art. 12 of the 1987 Constitution needs an
implementing law because it is merely a statement of
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principle and policy (not self-executing);

2. Even if said passage is self-executing, Manila Hotel does not
fall under national patrimony.
ISSUE: Whether or not RB should be admitted as the highest

bidder and hence be proclaimed as the legitimate buyer of shares.
HELD: No. MPH should be awarded the sale pursuant to Art 12 of
the 1987 Const. This is in light of the Filipino First Policy.
Par. 2, Sec. 10, Art. 12 of the 1987 Constitution is self executing.
The Constitution is the fundamental, paramount and supreme law
of the nation, it is deemed written in every statute and contract.
Manila Hotel falls under national patrimony. Patrimony in its plain
and ordinary meaning pertains to heritage. When the Constitution
speaks of national patrimony, it refers not only to the natural
resources of the Philippines, as the Constitution could have very
well used the term natural resources, but also to the cultural
heritage of the Filipinos. It also refers to our intelligence in arts,
sciences and letters. Therefore, we should develop not only our
lands, forests, mines and other natural resources but also the
mental ability or faculty of our people. Note that, for more than 8
decades (9 now) Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its
existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and
nationhood.
Herein resolved as well is the term Qualified Filipinos which not
only pertains to individuals but to corporations as well and other
juridical entities/personalities. The term qualified Filipinos simply
means that preference shall be given to those citizens who can
make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or inefficient, since
such an indiscriminate preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and concessions,
when a choice has to be made between a qualified foreigner and
a qualified Filipino, the latter shall be chosen over the former.
**Section 10. The Congress shall, upon recommendation of the
economic and planning agency, when the national interest
dictates, reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned by
such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments. The Congress shall enact
measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos.
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with
its national goals and priorities.


An action of a private entity is considered a state action if the
State is supposed to be, by the circumstances defined, to have
acted employing itself to the controversy or the action in
question. The other is 2) in the concept of the right to privacy.
You all know that the Constitution does not provide for any
provision with respect to rights to privacy. The nearest perhaps is
the right to privacy in correspondence and communication. And
based on the ruling in the Zulueta case, the SC has somehow
applied that section or provision in the Constitution to be
claimable by a private individual against a private individual.
Again, generally, these are only claimable against the State for
those considered as state action.
ZULUETA vs. CA
February 10, 1996
FACTS: The wife forcibly opened the drawers at the clinic of her
doctor-husband and took diaries, checks and greeting cards of
his alleged paramours. Thereafter, she used the same in their
legal separation case.
ISSUES: (1) Whether or not there was a violation of the right to
privacy. (2) Whether or not right to privacy can be invoked by a
private individual.
HELD: Said documents are inadmissible in evidence. This is so
because the intimacies of husband and wife does not justify the
breaking of cabinets to determine marital infidelity.
The constitutional injunction declaring the privacy of
communication and correspondence [to be] inviolable is no less
applicable simply because it is the wife (who thinks herself
aggrieved by her husbands infidelity) who is the party against
whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a
lawful order [from a] court or when public safety or order
requires otherwise, as prescribed by law. Any violation of this
provision renders the evidence obtained inadmissible for any
purpose in any proceeding.
There are several provisions in the Constitution which may refer

to the rights to privacy, most common there is your right against
reasonable search and seizure. But this is not a direct provision
that the person has the right to privacy.
Section 2. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue
except upon probable cause to be determined
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personally by the judge after examination under

oath or affirmation of the complainant and the
witnesses he may produce, and particularly
describing the place to be searched and the
persons or things to be seized.
The State, under section 2, cannot search your house, cannot
search your belongings, and cannot even arrest you without
warrant, generally. That is because you are entitled to be left or
left alone under the concept of right to privacy. There are other
statutes on the right to privacy but they are more on statutory
rights rather than constitutional rights. The discussion on the right
to privacy as affecting private individuals, meaning the
constitutional right is claimed against a private individual may be
had in that limited respect. But largely, it should be claimed only
against the State.
Due Process: Substantive and Procedural
Now, due process, the basic concept of due process is fairness.
There has to be some form of fairness when the State would
have to take some of our rights and there are two components
there the substantive and procedural. Substantive due process
would refer to the intrinsic validity of the law, there is a proper
exercise of the legislative power, there is a valid government
purpose, the law is not oppressive and arbitrary, and part of the
constitutional requirement to make a law effective is to comply
the requirement of publication. If the law has not been passed in
accordance with the processes of passing a bill under the
Constitution, then it affects the substantive validity of such
legislation. The procedural, this is simply characterized as that
which hears before it condemns, proceeds upon inquiry and
renders judgment only after trial. So, there has to be some form
of opportunity on the part of the accused or defendant to be
heard before judgment is rendered based on the rules with
respect to trial.
Now, the law or the concept of due process treats procedural due
process differently in the judicial cases and the administrative
cases. In administrative cases, you already know the several
cardinal primary rights while in judicial cases there are technically
four conditions. Impartial court with jurisdiction over the persons
of the parties, there opportunity to be heard, and judgment is
rendered upon a lawful hearing. The essence of procedural due
process is based on the discussions in several cases would lead
us to conclude that it is only an opportunity. For so long as the
opportunity is there, and it has not been deprived of that party
there is sufficient chance or opportunity for him to be heard then
that is supposed to be complying with the constitutional
requirement of due process. Same with administrative cases
because of the seven cardinal primary rights would not even
require a formal type of hearing. What the procedural due


process in administrative cases require substantially would still
be on the opportunity to present evidence which is required in
any proceeding.
Now, the question is asked whether due process is a
constitutional right or a statutory right. In certain respects, the
general characterization should be that due process is a
constitutional right because Section 1 would tell us that there is
that Due Process Clause. But because of certain rules that the
SC or the different administrative agencies may have issued and
promulgated pursuant to a valid delegation that there are
instances or issues which would refer to statutory grants. So for
example, the right to appeal is technically not a constitutional
right. The right to appeal is a statutory right being provided in
the rules in cases as may be allowed or provided for. Because
the constitutional right to due process is always complied when
the case is heard for the first time. Because that is the only
requirement that there is opportunity of the party to be heard and
allowed to present his evidence before judgment is rendered in
favor or against that party. So if that has been complied with, the
other modes of appeal, review will have to be granted by law or
the rules and not by the constitution. So if what is violated is the
right to due process it must have to be distinguished whether it is
a constitutional or statutory violation. In any cases however, if
there is already that mode of review or appeal on the part the
party as provided for by the rules, which has not been granted
him or deprived of him, the usual disposition of the SC is that
there is a violation of this due process. This disposition of the SC
has also led to some questions on whether or not the twin notice
rule for example, under the labor code, is a requirement of legal
process. Before the employee is supposed to be terminated or
otherwise disciplined, he must be entitled to the two notices. The
first is the notice of the violation with the opportunity to explain.
There must have to be an investigation where he may be
represented by counsel if he so desires. And he must be given
reasonable time for that. How many days is reasonable time? Is
there a requirement on days? Okay. And the second notice if the
employee will have to be disciplined, he mus6t have to be given
a copy of the order in writing. Now if this is not complied with, the
twin notice rule, is there a violation of due process rights?
Now, you very well remember the case of Isetan where the SC
has said that this is not actually a question of due process
because the constitutional provision on due process is the State
denying a person his right to due process. In the case of an
employee as against his employer, its not a case against the
State against the employee. It is a case between the employer
and the employee where the constitutional due process clause
does not come into play. Nonetheless, the two notice rule is also
a requirement if you have to stress it as a form of a statutory due
process, to give that person the employee the right to be heard
before he is condemned. Again, this is not the constitutional
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COLLEGE OF LAW
concept of due process but that which has been provided for by
law. Imagine in the case of a student who is facing a disciplinary
case before the schools disciplinary tribunal. Now under the
procedural due process in schools disciplinary tribunal, we all
know that the student must have to be informed as well in writing
the charges with sufficient opportunity to present his evidence as
well and that the tribunal must render its decision based on the
evidence presented. The parties however do not have the right to
cross-examine the witnesses against them. They only have the
right to present witnesses for them in their favor or, to rebut the
evidence or testimonies of the other party.
Now that is part supposedly the procedural due process of
schools disciplinary court. Now the question is again asked is
that the constitutional due process mentioned. That is not the
constitutional due process because that is not between the
student and the State. It is between the school and the student.
Nonetheless, because of the requirement of fairness, that before
a judgment or decision is rendered against a person he must be
heard, there is that consideration that is also part of due process.
Definitely, not the constitutional kind but those which may have
been provided by statutes or by rules.
Now, youre familiar with the drug related cases. In the ordinary
course of things, if you are the respondent in a criminal case, you
are notified by the prosecutor that a case is filed against you and
you are required to file a counter-affidavit. Then if there is no
clarificatory hearing, there is a resolution to indict you for
example. What is your first remedy available? File a motion for
reconsideration. If that MOR is denied, what is your available
remedy? You can file a Petition for Review before the Regional
State Prosecutor or the Dept. of Justice depending on the type of
hearing. After that from the RSPO you can DOJ Secretary or
from DOJ Secretary you can go to the Office of The President,
part of the administrative remedies that you must have to
exhaust. Now in drug related cases and that there is a resolution,
circular by the DOJ that in case the resolution of the prosecutor is
for dismissal, it goes to an automatic review to the DOJ Secretary
and the parties are not given a copy of the resolution. Now what
if the Secretary of Justice will reverse the ruling from dismissal to
indicting. What is your remedy now from the DOJ Secretary? So
you lose one or several remedies available.
Or for example, under the law creating the Sandiganbayan, we
have now several criminal cases which are triable with the
Sandiganbayan against public officers. There are two
considerations there. One is the salary grade of the employee.
Whats the salary grade? 27 or higher. Lower if there is a
conspiracy theory. And there are aside from that the
consideration of the violation. There are only a few violation that
are triable with the Sandiganbayan. Now if you are a public
officer with salary grade less than 27, and your are charge none


ATENEO DE DAVAO
COLLEGE OF LAW
of those crimes triable with the Sandiganbayan law, from the trial
court, say MTC, when you are convicted, you can appeal it to the
RTC right? From the RTC to the CA. and eventually by certiorari
with the SC. But if you are salary grade 27 and you commit any
of those crimes, you are tried in the Sandiganbayan. And if you
are convicted in the Sandiganbayan, where do you go? See. You
lose some of these available remedies if you were not in that
category. Now in one case, that case of Sandiganbayan, that has
been asked if whether it violates equal protection because there
is a different statement with respect to these covered employees
and those not covered. Those not covered have several chances
of paying their way to freedom (class laughs). Uh no. Having
every decision reviewed or appealed, not paid. It was wrong.
While those with the Sandiganbayan, they only have one chance
of review or appeal. Well the SC held that is justified because
they belong to different classes. But again, if it were to be due
process, it will have to be in the constitution as against the
exercise of the State of its power. So no person shall be denied
of his life, liberty or property without due process. So when the
person is charged for committing a criminal act, it is to deprtive
him of his liberty because death penalty cannot be imposed as of
the moment. So before that liberty can be taken away from him,
he must have to be granted his due process. And that is the
opportunity to be heard. In any other context if it were not as
between the State, the due process takes a different perspective
because it is no longer constitutional. Though cases will use the
phrase denial of due process violated his due process right
that should not be taken in the context of the constitutional grant
but in another only statutory allowances.
PARAS, TINE
TINAPAY, EARL
The study of law can be disappointing at times, a

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


1 August 2012
DUE PROCESS IN GENERAL
PROCEDURAL AND SUBSTANTIVE DUE PROCESS

When the State exercises its inherent powers with respect to the
constitutional right guaranties, we have come across a lot of
cases where the SC has tried to balance the conflicting interest
the power of the State in exercising its inherent power as against
the protection of these constitutional rights. Generally, the SC
has applied of what we now know as of balancing of interest test
to determine whether the State authority or power should be
upheld over the claim of individual protection of rights. In these
cases, the SC has considered a conscious effort to determine in
taking into consideration of these powers and would decide
cases with respect to this interplay in a given situation or type of
situation.
With respect to these constitutional rights that we have, there is
such a thing as hierarchy of rights. Which of these rights are
preferred under the Constitution? Generally, there are 3 rights
which occupy the highest or the first 3 in the hierarchy of rights
which are generally not permitted to be derogated by any of the
power of the State. These are:
1. arbitrary deprivation of life;
2. freedom from torture, cruel, degrading or inhuman
punishment and;
3. freedom of thought, conscience and religion which
includes political belief or aspirations and no religious
test for exercise of civil or political rights.
In the hierarchy of rights, these are the rights under
consideration generally there are no state regulation.
The rest of the rights in the hierarchy will be arbitrary arrest,
detention, search and seizure which should include the
provisions on ex-post facto or bill of attainder and involuntary
servitude, the provision of equal protection, the rights of accused,
presumption of innocence, rights during investigation, double
jeopardy, privilege against self incrimination, the next will be the
right to privacy and privacy of communication, next will be abode
and travel, next will be speech, assembly and formation, and the
last would be the right to association. These rights can be
derogated or there can be permissible derogation particularly
during times of emergencies.
The rest of the rights in our Constitution are only provided for
peculiar to our Constitution. These are eminent domain, nonimpairment clause, right to bail, suspension of the writ of the
ATENEO DE DAVAO
COLLEGE OF LAW
habeas corpus, speedy disposition of cases, use of inadequate

or substandard penal facility and non-imprisonment for debt.
These are so called peculiar to our Constitution because they are
not normally found in other constitutions or more else which
discusses the so called hierarchy of rights.
Now in substantive due process, there are 3 general standards
being used. This has been discussed in the case of Southern
vs. Anti-terrorism, 632 SCRA 146. These 3 general standards
used to review substantive due process if there is a question of
whether the law or action of the government violates substantive
due process. The 3 tests are (very important!):
1. Strict Scrutiny Test
2. Intermediate Scrutiny Test
3. Rational or Differential Test.
These 3 tests were originally or first used under the discussion of
equal protection on the basis of classification. However, the SC
has used these tests to test cases involving questions of
substantive due process.
In strict scrutiny test, there must have to be a compelling state
interest that must have to be shown and that there are available
means which are less restrictive to individual freedoms (murag
ang dapat kay there are no other available less restrictive
available means ) that must be proven also to allow a valid
government regulation. So if a regulation is to be tested under
strict scrutiny there must have to be 2 things to be proven;
1. That there is a compelling state interest that
must have to be observed and
2. There are less restrictive available means of
regulating individual liberties to allow possible
state regulation. (I think dapat there are no other
less restrictive available means )
But this test is usually used when the law in question deals with
fundamental rights such as speech, gender or race. In strict
scrutiny, the presumption of constitutionality has a very narrow
application. To state it differently, the presumption of
constitutionality may not even apply because the State has to
prove that there is a compelling state interest and that there are
no other less restrictive means available to regulate individual
liberties.
In intermediate review, the substantiality of government interest
is seriously looked into and the availability of less restrictive
alternatives is considered. Here, 2 things;
1. There is government interest which must
have to be shown to be substantial not
necessarily compelling and
2. That there are available less restrictive
alternatives for regulating liberties.


6.
This test is usually used when the laws in question affect gender
and legitimacy.
The last test is differential or rational review test. There is only
a need to show that the regulation rationally further a legitimate
government interest. There is no need for the court to inquire into
the substantiality of that government interest or that there are
less restrictive alternatives available. What is needed to be
shown is that the legislation rationally furthers a government
interest. This test is used when the law in question affects
economics or the economy.
So it largely depends on what rights are played as against a
government interest. If it refers to fundamental rights, its always
a strict scrutiny test, that there is no presumption of
constitutionality, the State has the burden of proving 2 thingsstate interest that is compelling and that there are no less
restrictive means available for regulating it.
The strict scrutiny test has also been applied to laws dealing with
freedom of the mind or political process. The US Supreme
Court has expanded it to suffrage, judicial access and
interstate travel. Interstate travel to us is actually liberty of travel
within the Philippines. There is no interstate travel here because
we are not comprised of sub states.
These standards are applied when there is a question on validity
of deprivation and as we all know if it is tested under judicial
review, theres always that question of grave abuse of discretion.
While these are the general test used, there are individual tests
which are applicable to individual exercises of authority. As we
have mentioned before, like in police power, the 2 standard tests,
the lawfulness of the subject and the lawfulness of the means.
There are also standard tests used to determine of whether the
regulation is valid. In eminent domain we have the validity of the
exercise of regulation based on the elements or conditions.
In regulatory ordinance for local governments as stated in the
case of White Light Corp. vs. City of Manila, 576 SCRA 1416,
the local regulatory ordinance must have to be within the powers
of the LGU to pass, must have been passed by the LGU
according to the procedure as provided in LGC and third it must
satisfy 6 other substantial requirements. These are:
1. Regulatory ordinance must not contravene
the Constitution or the law;
2. It must not be unfair or oppressive;
3. It must not be partial or discriminatory;
4. It must not prohibit a legitimate activity but
can only regulate;
5. It must be general and must be consistent
with public policy and;
10
ATENEO DE DAVAO
COLLEGE OF LAW
The ordinance must not be administrative (?)
(please check this because ingon ni sir admin
pero sa case na White Light it must not be
unreasonable)
White Light Corporation vs. City of Manila
G.R. No. 122846. January 20, 2009
Facts: On December 3, 1992, City Mayor Alfredo S. Lim

signed into law and ordinance entitled An Ordinance
Prohibiting Short-time Admission, Short-time Admission
Rates, and Wash-up Schemes in Hotels, Motels, Inns,
Lodging Houses, and Similar Establishments in the City
of Manila. On December 15, 1992, the Malate Tourist and
Development Corporation (MTDC) filed a complaint for
declaratory relief with prayer for a writ of preliminary
injunction and/or temporary restraining order (TRO) with the
Regional Trial Court of Manila, Branch 9 and prayed that the
Ordinance be declared invalid and unconstitutional. On
December 21, 1992, petitioners White Light Corporation,
Titanium Corporation and Sta. Mesa Tourist Development
Corporation filed a motion to intervene, which was granted
by the RTC. MTDC moved to withdraw as plaintiff which
was also granted by the RTC.
On January 14, 1993, the RTC issued a TRO directing the
City to cease and desist from enforcing the Ordinance. On
October 20, 1993, the RTC rendered a decision declaring
the Ordinance null and void. The City then filed a petition for
review on certiorari with the Supreme Court. However, the
Supreme Court referred the same to the Court of Appeals.
The City asserted that the Ordinance is a valid exercise of
police power pursuant to Local government code and the
Revised Manila charter. The Court of Appeals reversed the
decision of the RTC and affirmed the constitutionality of the
Ordinance.
Issue: Whether the Ordinance is constitutional.
Held: No, it is not constitutional. The test of a valid
ordinance is well established. A long line of decisions
including City of Manila has held that for an ordinance to be
valid, it must not only be within the corporate powers of the
local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be
general and consistent with public policy; and (6) must not
be unreasonable.
The Ordinance prohibits two specific and distinct business
practices, namely wash rate admissions and renting out a
room more than twice a day. The ban is evidently sought to
be rooted in the police power as conferred on local
government units by the Local Government Code through
such implements as the general welfare clause.
The apparent goal of the Ordinance is to minimize if not
eliminate the use of the covered establishments for illicit
sex, prostitution, drug use and the like. These goals, by
themselves, are unimpeachable and certainly fall within the
ambit of the police power of the State. Yet the desirability of


these ends does not sanctify any and all means for their
achievement. However well-intentioned the Ordinance may
be, it is in effect an arbitrary and whimsical intrusion into the
rights of the establishments as well as their patrons. The
Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricts the rights of
their patrons without sufficient justification.
Also in the case of Southern vs. Anti-Terrorism, 632 SCRA

146 (2010), there was a mentioned of void for vagueness
doctrine. We have come across this doctrine in People vs.
Siton, 600 SCRA 476 (2009) and the previous case to that that
under the void for vagueness doctrine there is an issue in
substantive due process the law which is vague. Under this
doctrine, it is stated that a law which is vague is void because it
generally, one, it would fail to give the subjected persons or
activity fair notice of the law and secondly, it would give the state
authorities a right or discretion in the implementation. A statute is
void therefore considered vague if the provisions of the law are
by characteristic that men of common intelligence would
necessarily differ as to its meaning or a guess as to its
meaning can differ as to its application.
The voidness however of the law is not to be based on the use of
imprecise language or that the law is ambiguous. It is vague if it
cannot be interpreted, that with the application of the rules of
statutory construction the statute cannot be interpreted and given
meaning. It is only then the statute is considered vague and
therefore considered void.
The void for vagueness doctrine has resulted into three other
discussions. They are:
1. Facial Challenge
2. Overbreadth doctrine
3. As applied challenge
Facial Challenge is a challenge of law that it is not constitutional.
There is a word by word, phrase by phrase, provision by
provision examination on whether or not the law is valid or
whether the law is unconstitutional. Facial challenges are
generally allowed only in cases involving free speech and
related activities. It is also extended to religious freedom and
other fundamental rights such as life, liberty, conscience, petition,
assembly, pursuit of happiness and privacy. It is not however
applicable to penal laws in general. The reason for disallowing
facial challenges on penal laws in general is because it will
prevent the state from prosecuting any person simply because
the person can question the constitutionality of penal statute
which ruling may also affect part persons who are not parties to
the case.
That is the difference with respect to as applied challenge.
When the criminal statute is questioned as unconstitutional and it
11
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COLLEGE OF LAW
does not involve speech and any of those fundamental rights,

as applied challenge maybe allowed, the reason for that as to
that specific accused or defendant, the law maybe
unconstitutional. I may have mentioned here before about the
decision of RTC 11 Judge Europa about unconstitutionality of
that provision on vagrancy law. That is an example of as applied
challenge as against that individual the law has to be considered
by that court as unconstitutional. Of course it does not apply to all
the rest who are not parties to the case. That is allowed because
each person charged before the court in violation of criminal
statute may have different circumstance than the rest. If the
circumstance is so and that tested against the law in question,
that law maybe considered as unconstitutional to him if applied.
So that maybe allowed even in ordinary criminal case provided it
is made as applied challenge.
Again, facial invalidation is generally not allowed in criminal
cases except those involving speech or those involving
fundamental rights. This allowance is considered by court as
permissible because these are our fundamental rights. If this
regulation of ones right to speech is declared unconstitutional,
the effect would not only be to the person challenging the
constitutionality of the law but also to those who may in the
future commit the same act or exercise the same right and also
with respect to other fundamental rights.
Overbreadth doctrine on the other hand has nothing to do with
what is void, what is vague or what is should be under facial
challenge. This doctrine applies to statue which are clear, there is
no vagueness, theres no ambiguity as to who are covered, what
acts are covered, what are the penalties, but they cover certain
fundamentally protected rights. So the State in promulgating a
law has covered an act have been covered to begin with thats
why theres an overbreadth in the application of the power of the
state in relation to the law having been promulgated. That can be
questioned by anybody and usually this would involve
fundamental rights because even if you are not a party to the
case because it affects you just the same if that law is not
declared unconstitutional a law maybe declared
unconstitutional under the overbreadth doctrine. There is an over
breadth in the application or in the exercise of the power of the
state by defining an act, providing penalties therefor because it
have been defined as regulated and it should not have been
regulated to begin with. That is the overbreadth doctrine.
PEOPLE VS. SITON
600 SCRA 476 (2009)
FACTS: Respondents Evangeline Siton and Krystel Kate
Sagarano were charged with vagrancy pursuant to Article
202 (2) of the Revised Penal Code. Instead of submitting
their counter-affidavits as directed, respondents filed
separate Motions to Quash[3] on the ground that Article 202
(2) is unconstitutional for being vague and overbroad.


ATENEO DE DAVAO
COLLEGE OF LAW
therewith.
In an Order dated April 28, 2004, the municipal trial court
denied the motions. Respondents thus filed an original
petition for certiorari and prohibition with the Regional Trial
Court
of
Davao
City, directly
challenging
the
constitutionality of the anti-vagrancy law, claiming that the
definition of the crime of vagrancy under Article 202 (2),
vague, results as well in an arbitrary identification of
violators, since the definition of the crime includes in its
coverage persons who are otherwise performing ordinary
peaceful acts.
The State, through the Office of the Solicitor General,
argued that pursuant to the Courts ruling in Estrada v.
Sandiganbayan, the overbreadth and vagueness doctrines
apply only to free speech cases and not to penal
statutes. It also asserted that Article 202 (2) must be
presumed valid and constitutional, since the respondents
failed to overcome this presumption.
The Regional Trial Court issued the assailed Order
granting the petition. In declaring Article 202 (2)
unconstitutional, the trial court opined that the law is
vague. It held that the void for vagueness doctrine is
equally applicable in testing the validity of penal statutes.
ISSUE: WHETHER THE REGIONAL TRIAL COURT
COMMITTED A REVERSIBLE ERROR IN DECLARING
UNCONSTITUTIONAL ARTICLE 202 (2) OF THE
REVISED PENAL CODE
HELD: The Court finds for petitioner.The power to define
crimes and prescribe their corresponding penalties is
legislative in nature and inherent in the sovereign power of
the state to maintain social order as an aspect of police
power. The legislature may even forbid and penalize acts
formerly considered innocent and lawful provided that no
constitutional rights have been abridged. However, in
exercising its power to declare what acts constitute a
crime, the legislature must inform the citizen with
reasonable precision what acts it intends to prohibit so that
he may have a certain understandable rule of conduct and
know what acts it is his duty to avoid. This requirement has
come
to
be
known
as
the void-for-vagueness
doctrine which states that a statute which either forbids or
requires the doing of an act in terms so vague that 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.
The
Regional
Trial
Court,
in
asserting
the
unconstitutionality of Article 202 (2), take support mainly
from the U.S. Supreme Courts opinion in the Papachristou
v. City of Jacksonville case. The underlying principles
in Papachristou are
that:
1)
the
assailed Jacksonville ordinance fails to give a person of
ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute; and 2) it encourages
or promotes opportunities for the application of
discriminatory law enforcement.
The said underlying principle in Papachristou that the
Jacksonville ordinance, or Article 202 (2) in this case, fails
to give fair notice of what constitutes forbidden conduct,
finds no application here because under our legal system,
ignorance of the law excuses no one from compliance
12
Thus, the U.S. Supreme Court in Jacksonville declared the

ordinance unconstitutional, because such activities or
habits as nightwalking, wandering or strolling around
without
any
lawful
purpose
or
object, habitual
loafing, habitual spending of time at places where alcoholic
beverages are sold or served, and living upon the earnings
of wives or minor children, which are otherwise common
and normal, were declared illegal. But these are specific
acts or activities not found in Article 202 (2). The closest to
Article 202 (2) any person found loitering about public or
semi-public buildings or places, or tramping or wandering
about the country or the streets without visible means of
support from the Jacksonville ordinance, would be
persons wandering or strolling around from place to place
without any lawful purpose or object. But these two acts
are still not the same: Article 202 (2) is qualified by without
visible means of support while the Jacksonville ordinance
prohibits wandering or strolling without any lawful purpose
or object, which was held by the U.S. Supreme Court to
constitute a trap for innocent acts.
Finally, we agree with the position of the State that first and
foremost, Article 202 (2) should be presumed valid and
constitutional. When confronted with a constitutional
question, it is elementary that every court must approach it
with grave care and considerable caution bearing in mind
that every statute is presumed valid and every reasonable
doubt
should
be
resolved
in
favor
of
its
constitutionality. The policy of our courts is to avoid ruling
on constitutional questions and to presume that the acts of
the political departments are valid in the absence of a clear
and unmistakable showing to the contrary. To doubt is to
sustain, this presumption is based on the doctrine of
separation of powers which enjoins upon each department
a becoming respect for the acts of the other
departments. The theory is that as the joint act of
Congress and the President of the Philippines, a law has
been carefully studied, crafted and determined to be in
accordance with the fundamental law before it was finally
enacted.
Southern Hemisphere Engagement Network, Inc. v.
Anti-Terrorism Council
FACTS: This case consists of 6 petitions challenging the
constitutionality of RA 9372, An Act to Secure the State
and Protect our People from Terrorism, aka Human
Security Act of 2007.
Petitioner-organizations assert locus standi on the basis of
being suspected communist fronts by the government,
whereas individual petitioners invoke the transcendental
importance doctrine and their status as citizens and
taxpayers.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP,
and PCR allege they have been subjected to close
security surveillance by state security forces, their
members followed by suspicious persons and vehicles
with dark windshields, and their offices monitored by men
with military build. They likewise claim they have been
branded as enemies of the State.


BAYAN, GABRIELA, KMP, MCCCL, COURAGE,
KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD, and Agham would like the Court to take
judicial notice of respondents alleged action of tagging
them as militant organizations fronting for the CPP and
NPA. They claim such Tagging is tantamount to the effects
of proscription without following the procedure under the
law.
of vagueness when:
It lacks comprehensible standards that men
of common intelligence must necessarily
guess at its meaning and differ as to its
application.
It is repugnant to the Constitution in 2 ways:
a. Violates due process for failure to
accord fair notice of conduct to avoid
b. Leaves law enforcers unbridled
discretion
in
carrying
out
its provisions and becomes an
arbitrary flexing of the Government
muscle.
Meanwhile, IBP and CODAL base their claim of locus

standi on their sworn duty to uphold the Constitution.
Petitioners claim that RA 9372 is vague and broad, in that
terms like widespread and extraordinary fear and panic
among the populace and coerce the government to give
in to an unlawful demand are nebulous leaving law
enforcement agencies with no standard to measure
the prohibited act.
ISSUE: WON RA 9372 is vague and broad in defining the
crime of terrorism.
Held: NO.
1. The doctrines of void-for-vagueness and
overbreadth find no application in the present case
since these doctrines apply only to free speech cases
and that RA 9372 regulates conduct, not speech.
a. Romualdez v. Sandiganbayan: The overbreadth and the
vagueness doctrines have special application only to free
speech cases, and are not appropriate for testing the
validity of penal statutes.
b. Romualdez v. COMELEC: A facial invalidation of
criminal statutes is not appropriate, but the Court
nonetheless proceeded to conduct a vagueness analysis,
and concluded that the therein subject election offense
under the Voters Registration Act of 1996, with which the
therein petitioners were charged is couched in precise
language.
c. The aforementioned cases rely heavily on Justice
Mendozas Separate Opinion in the Estrada case:
Allegations that a penal statute is vague and overbroad do
not justify a facial review of its validity. 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.
ii. The over breadth doctrine decrees that a

governmental purpose to control or prevent
activities
constitutionally
subject to
state
regulations may not be achieved by means, which
sweep unnecessarily broadly and thereby invade
the area of protected freedoms.
b. A facial challenge is likewise different from an
as applied challenge.
i. As applied challenge considers only extant facts
affecting real litigants.
ii Facial challenge is an examination of the entire law,
pinpointing its flaws and defects, not only on the basis
of its actual operation to the parties, but also on the
assumption or prediction that its very existence may
cause others not before the court to refrain from
constitutionally protected speech oractivities.
Under no case may ordinary penal statutes be subjected to
a facial challenge. If facial challenge to a penal statute is
permitted, the prosecution of crimes may be hampered. No
prosecution would be possible.
3. There is no merit in the claim that RA 9372 regulates
speech so as to permit a facial analysis of its validity.
a. Section 3 of RA 9372 provides the following elements
of the crime of terrorism:
i.
This rationale does not apply to penal statutes. Criminal

statutes have general in terrorem effect. If facial
challenge is allowed, the State may well be prevented from
enacting laws against socially harmful conduct.
Overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for
testing the validity of penal statutes.
2. Since a penal statute may only be assailed for being
vague as applied to petitioners, a limited vagueness
analysis of the definition of terrorism in RA 9372 is
legally impossible absent an actual or imminent charge
against them.
a. The doctrine of vagueness and the doctrine of
overbreadth do not operate on the same plane.
i.
13
A statute or acts suffers from the defect
ATENEO DE DAVAO
COLLEGE OF LAW
ii.
iii.
Offender commits an act punishable under

RPC and the enumerated special penal laws;
Commission of the predicate crime sows and
creates a condition of widespread and
extraordinary fear and panic among the
populace;
The offender is actuated by the desire to
coerce the government to give in to an unlawful
demand.
b. Petitioners contend that the element of unlawful

demand in the definition of terrorism must necessarily be
transmitted through some form of expression protected
by the free speech clause. The argument does not
persuade. What RA 9372 seeks to penalize is conduct, not
speech.
c. Petitioners notion on the transmission of message is
entirely inaccurate, as it unduly focuses on just one particle


of an element of the crime. Almost every commission of a
crime entails some mincing of words on the part of
offender. Utterances not elemental but inevitably
incidentalto the doing of the criminal conduct alter
neither the intent of the law to punish socially harmful
conduct nor the essence of the whole act as conduct
and not speech.
EQUAL PROTECTION
Now, lets go to equal protection.
Theres a case between Surigao Electric vs. ERC. This is a
case involving imposition of rates by public utilities. The question,
can they be regulated under the police power? It is a no brainer,
it should be regulated. The only discussion here perhaps is the
nature of the rate fixing authority of our regulatory bodies. In rate
fixing, there are two considerations: One, the quasi-judicial
function of the regulatory office or the quasi-legislative function of
the regulating office in fixing the rate. If the rates are fixed under
the bodys quasi-judicial function, then the requirements of due
process or notice and hearing must have to be satisfied. Because
it will only apply to a particular party or particular operator in that
case. But if the rate is fixed under the exercise of its quasilegislative power then notice and hearing need not be complied
as a requirement of due process because regulatory departments
or offices involved in public utilities are always given the power to
fix the rates based on public hearings and consultations and that
should satisfy the requirement of due process because anyway it
is not only applicable to one specific operator or public utility
operator but it will affect the rest or all of those in the particular
industry. There is no specific operator targeted because all of the
operators are targeted and the power of these regulatory offices
to fix rates are not limited to the exercise of quasi-judicial power.
SURNECO. As we held in Republic of the Philippines v. Manila

Electric Company
The regulation of rates to be charged by public utilities is founded
upon the police powers of the State and statutes prescribing rules
for the control and regulation of public utilities are a valid exercise
thereof. When private property is used for a public purpose and is
affected with public interest, it ceases to be juris privati only and
becomes subject to regulation. The regulation is to promote the
common good. Submission to regulation may be withdrawn by the
owner by discontinuing use; but as long as use of the property is
continued, the same is subject to public regulation.
Likewise, SURNECO cannot validly assert that the caps set by
R.A. No. 7832 are arbitrary, or that they violate the non-impairment
clause of the Constitution for allegedly traversing the loan
agreement between NEA and ADB. Striking down a legislative
enactment, or any of its provisions, can be done only by way of a
direct action, not through a collateral attack, and more so, not for
the first time on appeal in order to avoid compliance. The
challenge to the laws constitutionality should also be raised at the
earliest opportunity.
Even assuming, merely for arguments sake, that the ERC
issuances violated the NEA and ADB covenant, the contract had to
yield to the greater authority of the States exercise of police
power. It has long been settled that police power legislation,
adopted by the State to promote the health, morals, peace,
education, good order, safety, and general welfare of the people
prevail not only over future contracts but even over those already
in existence, for all private contracts must yield to the superior and
legitimate measures taken by the State to promote public welfare.
This case of White Light vs. City of Manila... This is an old case
involving an old problem in the City of Manila. As you have read,
this involves the power of the local government unit to enact an
ordinance to limit or regulate the business involving operations of
hotels and motels to curb the increasing problem of prostitution.
G.R. No. 183626

October 4, 2010
SURIGAO DEL NORTE ELECTRIC COOPERATIVE, INC.
(SURNECO) vs.
ENERGY REGULATORY COMMISSION
G.R. No. 122846

January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and
STA. MESA TOURIST & DEVELOPMENT CORPORATION
vs.CITY OF MANILA, represented by DE CASTRO, MAYOR
ALFREDO S. LIM
Petitioner Surigao Del Norte Electric Cooperative, Inc.

(SURNECO) is a rural electric cooperative organized and existing
by virtue of Presidential Decree No. 269.
On December 3, 1992, Mayor Lim signed into law the Ordinance

prohibiting short time admission in hotels, motels, lodging houses,
pension houses and similar establishments in the City of Manila.
On February 8, 1996, the Association of Mindanao Rural Electric

Cooperatives, as representative of SURNECO and of the other 33
rural electric cooperatives in Mindanao, filed a petition before the
then Energy Regulatory Board (ERB) for the approval of the
formula for automatic cost adjustment and adoption of the National
Power Corporation (NPC) restructured rate adjustment to comply
with Republic Act (R.A.) No. 7832.
On December 15, 1992, the Malate Tourist and Development

Corporation (MTDC) filed a complaint for declaratory relief with
prayer for a writ of preliminary injunction and/or temporary
restraining order (TRO). MTDC prayed that the Ordinance, insofar
as it includes motels and inns as among its prohibited
establishments, be declared invalid and unconstitutional. MTDC
claimed that as owner and operator of the Victoria Court in Malate,
Manila it was authorized by P.D. No. 259 to admit customers on a
short time basis as well as to charge customers wash up rates for
stays of only three hours.
Held:
It is beyond cavil that the State, in the exercise of police power,
can regulate the rates imposed by a public utility such as
14
ATENEO DE DAVAO
COLLEGE OF LAW


On December 21, 1992, petitioners White Light Corporation
(WLC), Titanium Corporation (TC) and Sta. Mesa Tourist and
Development Corporation (STDC) filed a motion to intervene and
to admit attached complaint-in-intervention on the ground that the
Ordinance directly affects their business interests as operators of
drive-in-hotels and motels in Manila.
The Court of Appeals reversed the decision of the RTC and
affirmed the constitutionality of the Ordinance.
Held: That the Ordinance prevents the lawful uses of a wash rate
depriving patrons of a product and the petitioners of lucrative
business ties in with another constitutional requisite for the
legitimacy of the Ordinance as a police power measure. It must
appear that the interests of the public generally, as distinguished
from those of a particular class, require an interference with private
rights and the means must be reasonably necessary for the
accomplishment of the purpose and not unduly oppressive of
private rights. It must also be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed
for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these requisites, the police measure
shall be struck down as an arbitrary intrusion into private rights. As
held in Morfe v. Mutuc, the exercise of police power is subject to
judicial review when life, liberty or property is affected. However,
this is not in any way meant to take it away from the vastness of
State police power whose exercise enjoys the presumption of
validity.
The Ordinance makes no distinction between places frequented by
patrons engaged in illicit activities and patrons engaged in
legitimate actions. Thus it prevents legitimate use of places where
illicit activities are rare or even unheard of. A plain reading of
section 3 of the Ordinance (SECTION 3. Pursuant to the above
policy, short-time admission and rate, wash-up rate or other
similarly concocted terms, are hereby prohibited in hotels, motels,
inns, lodging houses, pension houses and similar establishments
in the City of Manila.) shows it makes no classification of places of
lodging, thus deems them all susceptible to illicit patronage and
subject them without exception to the unjustified prohibition.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying
existing laws. Less intrusive measures such as curbing the
proliferation of prostitutes and drug dealers through active police
work would be more effective in easing the situation. So would the
strict enforcement of existing laws and regulations penalizing
prostitution and drug use. These measures would have minimal
intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be
circumvented by merely paying the whole day rate without any
hindrance to those engaged in illicit activities. Moreover, drug
dealers and prostitutes can in fact collect "wash rates" from their
clientele by charging their customers a portion of the rent for motel
rooms and even apartments.
The Decision of the RTC is REINSTATED. Ordinance No. 7774 is
hereby declared UNCONSTITUTIONAL.
15
ATENEO DE DAVAO
COLLEGE OF LAW
This is an old issue because in the old case of Ermita-Malate

Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
of Manila, (the City ordinance requiring patrons to fill up a
prescribed form stating personal information such as name,
gender, nationality, age, address and occupation before they
could be admitted to a motel, hotel or lodging house. This earlier
ordinance was precisely enacted to minimize certain practices
deemed harmful to public morals. A purpose similar to the
annulled ordinance in City of Manila which sought a blanket ban
on motels, inns and similar establishments in the Ermita-Malate
area. However, the constitutionality of the ordinance in ErmitaMalate was sustained by the Court.) The SC has upheld as
discussed the matter of the regulation requiring several providing
for an ordinance requiring several acts to be done before a
person may be permitted inside the motel in Metro Manila. One
of which was the requirement of lighting in the lobby. There is a
requirement of filling-up of registration documents. There is a
limitation for not allowing the room to be let out for more than
once in a period of 24 hours. There is a limitation in allowing
minors to be admitted as guests without the company of their
parents or legal guardians and there are corresponding penalties
for violations. In that old case, the SC has ruled that this
regulation is permissible. And in this new case White Light, the
same issue was raised. There is also a provision in the ordinance
providing for the same regulations on the exercise of this
business. And the SC had the occasion to discuss what I have
mentioned earlier, that aside from the general test of lawfulness
or standards of lawfulness of the means, the local ordinance
exercised in its regulatory function must have to comply with
those three (3) basic requirements or conditions and the six (6)
substantive requirements.
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance
to be valid, it must not only be within the corporate powers of the
local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene
the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not
prohibit but may regulate trade; (5) must be general and
consistent with public policy; and (6) must not be unreasonable.
I think that what is most important there is that the ordinance
must not prohibit but must only regulate the business. A business
which is otherwise legal can be regulated and cannot be totally
prohibited or declared to be illegal per se or per accidens like
operation of motels or hotels. There is nothing illegal about it. It
can be regulated for the protection of the public interest matter
like public health because of the responsible parenthood thing.
Ok. What other cases? This case of Office of the Solicitor
General vs. Ayala (G.R. No. 177056, September 2009). This


involves private parking in malls which collect fees. Now, in this
case, there was a proposal where private malls cannot collect
parking fees, so can that be allowed? SC said that the law is not
valid and it is not in the valid exercise of police power because
mall owners have obviously spent money for the construction of
these parking areas and they have the right to exact reasonable
parking fees. If there is a law prohibiting from collecting parking
fees, it will result into taking in the concept of eminent domain
and they must have to be paid with just compensation if the
ordinance prohibits them from exacting parking fees because
they are prevented them from the beneficial use of the property
which has been converted into a parking lot.
G.R. No. 177056
September 18, 2009
THE OFFICE OF THE SOLICITOR GENERAL vs.
AYALA LAND INCORPORATED, ROBINSON'S LAND
CORPORATION, SHANGRI-LA PLAZA CORPORATION and SM
PRIME HOLDINGS, INC.
The shopping malls operated or leased out by respondents have
parking facilities for all kinds of motor vehicles, either by way of
parking spaces inside the mall buildings or in separate buildings
and/or adjacent lots that are solely devoted for use as parking
spaces.
Respondents received information that, pursuant to Senate
Committee Report No. 225, the DPWH Secretary and the local
building officials of Manila, Quezon City, and Las Pias intended to
institute, through the OSG, an action to enjoin respondents from
collecting parking fees, and to impose upon said establishments
penal sanctions under PD No. 1096 (National Building Code) and
its IRR. With the threatened action against it, respondent SM
Prime filed, on 3 October 2000, a Petition for Declaratory
Relief8 under Rule 63.
Held:
The Building Code, which is the enabling law and the
Implementing Rules and Regulations do not impose that parking
spaces shall be provided by the mall owners free of charge.
Absent such directive, respondents are under no obligation to
provide them for free. In conclusion, the total prohibition against
the collection by respondents of parking fees from persons who
use the mall parking facilities has no basis in the National Building
Code or its IRR. The State also cannot impose the same
prohibition by generally invoking police power, since said
prohibition amounts to a taking of respondents property without
payment of just compensation.
Ok. Equal protection. We have said that the inclusion of the equal
protection clause under the same Section 1 of the due process
clause is by design and not by accident. General violations of
due process or arbitrariness are usually questioned under the
due process clause but specific instances of violations or acts of
arbitrariness are usually raised under equal protection issues
because it affects a particular class or individual. Now, the equal
protection clause in the Constitution simply requires that all
persons or things similarly situated should be treated alike both
as to the rights conferred and responsibilities imposed.
16
ATENEO DE DAVAO
COLLEGE OF LAW
The equal protection just like due process has two components:
(1) the substantive parts and (2) the procedural parts. Procedural
is simply that the law must have to be applied equally to those in
the same class. Equal protection does not require absolute
equality, it only requires substantive equality among equals
and the equality is measured or determined on the basis of valid
classification which is based on similarities and some particular
which is not shared by the rest with respect to the same
particulars. There is, again, no absolute similarity in all but at
least to these specifics they are similar and they are not shared
with the rest who do not belong to said class.
Now for there to be a valid classification the law has always
required that the classification must rest on (1) substantial
distinction. (2) It must be germane to the purpose of the law. The
classification must (3) not be limited to existing conditions only
and that (4) it must be equally applicable to those belonging to
the same class.
When it is said that the law must be based on substantial
distinction, the distinction must be of considerable value or
importance. As to what or how considerable the classification or
distinction is actually based on the second condition that it must
be germane to the purpose of the law, meaning, there is
reasonable connection with the means to accomplish the
purpose of the law. For example, when you say classification
based on gender, it may be substantial if the purpose of the law
is to grant maternity or paternity benefits but gender if used for
purposes of granting minimum wages then it is not substantial
because it is not germane to the purpose of the law. The purpose
being is to give a fair days wage to a fair days labor. A fair days
labor is not dependent on whether one is a man or woman. So
far as long as one gives a fair days labor, he must be paid a fair
days wage. So gender, in that case, cannot be considered
substantial. Age like minority or majority may be substantial if you
look into protecting public morality or morality of children, also
health. But if for the purpose of education, you could not say that
children should have more access to education than those who
are adults because each one should have an equal access to
education whether it should be free or at least given a substantial
subsidy. Again, the substantiality of the distinction must have to
be based on whether the distinction is germane to the purpose of
the law. Aliens or citizens, if you are talking about the exercise of
profession, it cannot be argued that constitutionally exercise of
profession is reserved for Filipino citizens only except in cases
provided by law. But if you say enjoyment of the rights under the
Bill of Rights, citizenship is not a valid classification because
every citizen except every person, except the right to information,
should be allowed to enjoy protection under the Constitution. As
mentioned earlier, the classification must not be limited to
existing conditions only. This should also mean that for so long
as the problem sought to be addressed by the legislation then the


ordinance or the law must have to be existing as well. While we
all know that there are laws which would take effect only after a
fixed period of time, that is not unconstitutional because these
are laws which are necessary to protect only the particular issue
which is to be addressed for a limited period of time. But if it is a
purely regulatory measure, for example, it cannot be made to
apply only for the present because if there is only one individual,
entity or activity covered by the legislation for now, it maybe
considered as unconstitutional because it becomes a specific
target of the legislation and not applicable to those who may
come under the classification. The classification, to be
reasonable, should be in terms applicable to future conditions as
well. Now, the classification must also be equally applicable to all
in the same class, this requires substantial symmetry not literal
equality in the application for it has always been an example that
is given in the income tax payment in your law on taxation. There
are income tax brackets where individuals may have different
income taxes but because they belong to the same category or
class, they have the same burden so while they do not pay the
same amount, the burden imposed to them under the laws of
taxation are the same because they belong to the same class.
ATENEO DE DAVAO
COLLEGE OF LAW
legislate the poor into prosperity by taking the wealth of the rich?
Because if you take it from the rich, normally, government will still
have to pay just compensation. So where will the government
take what it will have to pay for just compensation? Take them
from the rich, but as Obama would have it, tax the rich to give to
the poor. Probably I took this from Obamas political opponents.
Ok, lets continue tomorrow.
GIVERO, KATRINA KONGKONG

LEYES, HANNA
Always remember, your focus
determines your reality.
George Lucas
Now, standards of judicial review as mentioned before the

rational of the intermediate and strict scrutiny test have first been
used in equal protection cases. They have just been used also in
cases involving substantive due process. Now, they are of the
same discussions whether in equal protection or in substantive
due process. The strictest test here would be the strict scrutiny
test and this is used on issues on a equal protection or
discrimination is based on the fundamental rights. So I think if
the local ordinance in Davao on anti-discrimination eventually
pass and if there should be a question, it should be tested under
the strict scrutiny test. Whether or not it is a valid regulation on an
issue on discrimination based on race, gender, power, religion
and other factors mentioned therein. There are constitutionallyimposed equalities in the Constitution: provisions on economic
equality, on political equality and on social equality. There is a
provision there where political wealth or economic wealth should
be diffused or property ownership, I have read somewhere, I do
not know who wrote this which says you cannot legislate the
poor into prosperity by legislating the wealthy out of property
which is actually true, you take property from the wealthy does
not mean that the poor can prosper. I dont know. You cannot
multiply wealth by dividing it or that the government cannot give
to anybody anything that the government does not take first from
somebody else. The government will not actually give something
it owns to the poor to prosper. It takes it somewhere else
normally from the rich to give to the poor. So, we, the poor will be
happy. I remember those because I had a discussion one time
with another professor and he said these are fundamental
mistakes in the Constitution. Fundamental because it is the
fundamental law of the land. How could you diffuse property or
17


2 August 2012
EQUAL PROTECTION
Before we leave the item on Equal Protection, theres 1 case
involving EO 1 of PNoy creating the Philippine Truth
Commission. In this case of Biraogo vs. Philippine Truth
Commission, the SC nullified the creation of the Commission on
the ground of violation of equal protection. The dismissal was
based on the reasoning that the non-inclusion of past
administrations similarly situated (since the only object of the
investigation was the Arroyo administration) constitutes
arbitrariness. The Arroyo administration, according to the SC, is
not a class by itself and if the object of the commission is to
inquire into the excesses of the previous administration, then
everybody (i.e. those before Arroyo) must have to be included.
The non-inclusion therefore of the other past administrations
constitutes class legislation.
LOUIS "BAROK" C. BIRAOGO vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010
G.R. No. 192935
December 7, 2010
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and institutions to treat
similarly situated individuals in a similar manner." "The purpose of
the equal protection clause is to secure every person within a
states jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the states duly constituted
authorities." "In other words, the concept of equal justice under the
law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not
just those of the legislature. Its inhibitions cover all the
departments of the government including the political and
executive departments, and extend to all actions of a state denying
equal protection of the laws, through whatever agency or whatever
guise is taken.
18
ATENEO DE DAVAO
COLLEGE OF LAW
It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics
in equal degree. Substantial similarity will suffice; and as long as
this is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to a
class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the
non-application of the law to him."
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. As elucidated in
Victoriano vs. Elizalde Rope Workers' Union and reiterated in a
long line of cases,
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman
and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were the
same. The equal protection clause does not forbid discrimination
as to things that are different. It does not prohibit legislation which
is limited either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences, that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. [Citations omitted]


Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The
clear mandate of the envisioned truth commission is to investigate
and find out the truth "concerning the reported cases of graft and
corruption during the previous administration" only. The intent to
single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the
questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely
to investigating and finding out the truth concerning the reported
cases of graft and corruption during the previous administration,
and which will recommend the prosecution of the offenders and
secure justice for all;
SECTION 1. Creation of a Commission. There is hereby
created the PHILIPPINE TRUTH COMMISSION, hereinafter
referred to as the "COMMISSION," which shall primarily seek and
find the truth on, and toward this end, investigate reports of graft
and corruption of such scale and magnitude that shock and offend
the moral and ethical sensibilities of the people, committed by
public officers and employees, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of
justice shall be served without fear or favor.
SECTION 2. Powers and Functions. The Commission, which
shall have all the powers of an investigative body under Section
37, Chapter 9, Book I of the Administrative Code of 1987, is
primarily tasked to conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in Section 1,
involving third level public officers and higher, their co-principals,
accomplices and accessories from the private sector, if any, during
the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]
In this regard, it must be borne in mind that the Arroyo
administration is but just a member of a class, that is, a class of
past administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which
the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration cannot be taken
as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness."
The reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or "end
corruption and the evil it breeds."
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The probability that there would be difficulty in unearthing evidence

or that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased
presidents and cases which have already prescribed can no longer
be the subjects of inquiry by the PTC. Neither is the PTC expected
to conduct simultaneous investigations of previous administrations,
given the bodys limited time and resources. "The law does not
require the impossible" (Lex non cogit ad impossibilia).
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
centurys worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The
PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least,
have the authority to investigate all past administrations. While
reasonable prioritization is permitted, it should not be arbitrary
lest it be struck down for being unconstitutional. In the often quoted
language of Yick Wo vs. Hopkins,
Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public authority
with an evil eye and an unequal hand, so as practically to make
unjust and illegal discriminations between persons in similar
circumstances, material to their rights, the denial of equal justice is
still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body,
its scope is limited. The Court, however, is of the considered view
that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount
law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public
authority administered. Laws that do not conform to the
Constitution should be stricken down for being unconstitutional.
While the thrust of the PTC is specific, that is, for investigation of
acts of graft and corruption, Executive Order No. 1, to survive,
must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of "substantial
distinctions" would only confirm the petitioners lament that the
subject executive order is only an "adventure in partisan hostility."
In the case of US v. Cyprian, it was written: "A rather limited
number of such classifications have routinely been held or
assumed to be arbitrary; those include: race, national origin,
gender, political activity or membership in a political party, union
activity or membership in a labor union, or more generally the
exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements
of constitutionality, it must include or embrace all persons who
naturally belong to the class. "Such a classification must not be
based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be
in similar circumstances and conditions. Furthermore, all who are
in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from
those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the
members of the class."
The Court is not unaware that "mere underinclusiveness is not
fatal to the validity of a law under the equal protection clause."
"Legislation is not unconstitutional merely because it is not allembracing and does not include all the evils within its reach." It has


been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply
because it happens to be incomplete. In several instances, the
underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in
future legislations or regulations. These cases refer to the "step by
step" process. "With regard to equal protection claims, a legislature
does not run the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise, to cover every
evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no inadvertence. That
the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored
at least three times in the assailed executive order. It must be
noted that Executive Order No. 1 does not even mention any
particular act, event or report to be focused on unlike the
investigative commissions created in the past. "The equal
protection clause is violated by purposeful and intentional
discrimination."
REQUIREMENTS OF FAIR PROCEDURE

A. Arrests, Searches and Seizures
Section 2, Article III, 1987 Constitution
Section 3, Article III, 1987 Constitution
Now, lets go to the requirements of fair procedure, search and
seizure and arrest. The concept of the protection against
unreasonable search and seizure is largely based on privacy (the
right to be let and left alone). The State therefore is not allowed
to conduct searches in any house, dwelling or search the
documents or other effects of any person unless it is warranted.
The Constitution extends the protection to unreasonable search
and seizure only so that if the search and seizure is reasonable,
then that is not protected. The unreasonable searches and
seizures would cover:
1.
2.
search without warrant where it does not fall in any of

the 6 general/common exceptions or
even if there is a warrant, either the warrant was
illegally obtained or the warrant legally obtained is
illegally presented.
So in those cases the search would become unreasonable and

subject to the rule on exclusion (i.e. any items seized on the
occasion of the unreasonable search would be considered as
inadmissible in evidence.)
there is determination of probable cause to be done

personally by the judge.
Probable cause has been defined as such amount of facts or

circumstances which would lead a prudent judge to believe that a
crime has been committed and that the fruits, effects or objects of
the crime are in the place to be searched. There is also a
requirement of a hearing for the determination of probable cause.
The hearing is obviously summary in character but what is
required under the Rules is that there must have to be an oath or
affirmation during or before the examination and that the judge
must have to ask searching questions on the applicant and/or
witnesses. There were several cases in the past that [ruled that]
leading questions would not be allowed or are insufficient for the
judge to determine probable cause. The answers must have to
be based on the personal knowledge of the applicant and/or
witnesses. This is a rule on Evidence i.e. that a person can only
be allowed to testify on facts which he has perceived through the
use of his senses so that if the matters taken in the application
turn out to be false, such applicant and/or witnesses can be held
liable for false testimony.
Now in one case, People vs. Mamaril (October 6, 2010), the SC
had occasion to characterize the test for the proper determination
of probable cause. The issue raised by the appellant on appeal
was that there was no proper determination of probable cause
based on the line of questioning of the applicant (a police officer)
considering that there were only few questions asked. The SC
said that there are no general criteria on the amount of probable
cause (or the amount of questions that the judge must ask for
probable cause to be properly determined). What is important is
that the judge must personally believe that there exists probable
cause based on the facts and circumstances of the case. Again,
there is no hard and fast rule as to how the determination of
probable cause should be made because it is largely dependent
on findings and the application of these facts by the judge.
PEOPLE OF THE PHILIPPINES vs. OLIVE RUBIO MAMARIL
G.R. No. 171980
October 6, 2010
The contention of the accused-appellant, as asserted through the
Public Attorneys Office, is that the issued search warrant was not
based on probable cause. The accused-appellant relied heavily on
its argument that SPO4 Gotidoc, as the applicant of the search
warrant, did not testify on facts personally known to him but simply
relied on stories that the accused- appellant was peddling illegal
drugs.
REQUIREMENTS OF SEARCH WARRANTS
The Rules of Court provide for the requirements for the issuance
of search warrants:
1. an application must be under oath or affirmation;
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2.
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COLLEGE OF LAW
The requisites for the issuance of a search warrant are: (1)

probable cause is present; (2) such probable cause must be
determined personally by the judge; (3) the judge must examine, in
writing and under oath or affirmation, the complainant and the
witnesses he or she may produce; (4) the applicant and the
witnesses testify on the facts personally known to them; and (5)


the warrant specifically describes the place to be searched and the
things to be seized.
regularity of duty of the issuing judge, will not be sustained by this

Court.
On the other hand, probable cause means such facts and

circumstances which would lead a reasonable discreet and
prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the
place sought to be searched.
Also, the next requirement is that the warrant must be issued in

connection with one specific offense, thus, avoiding what is
known as scatter shot warrant. The theoretical basis for
disallowing a warrant issued for more than one specific offense is
that the judge will have difficulty in determining probable cause
that a crime has been committed and such will be subjected to a
search warrant with respect to the fruits, proceeds or things to be
used (for purposes of determining probable cause, if the warrant
should be issued for more than 1 specific offense). So only 1
offense for every warrant. In this case of Tan vs. Sy Tiong Gue,
the search warrant here was issued for robbery but the
information (for robbery) was dismissed thereafter. The question
raised here is: can the item seized under the warrant be used as
evidence in a case of qualified theft? Remember that double
jeopardy had not set in yet because the information (for robbery)
had been dismissed. The SC said NO considering that the
dismissal of the information (for robbery) was for lack of sufficient
cause or prima facie case of taking. If theres no taking, there
could be no qualified theft.
Based on the records, the Court is convinced that the questioned

search warrant was based on a probable cause. A portion of the
direct testimony of SPO4 Gotidoc is hereby quoted:
Q: What is your basis for applying for search warrant against the
accused?
A: Because there were many persons who were going to her place
and weve been hearing news that she is selling prohibited drugs
and some of them were even identified, sir.
Q: But you did not conduct any surveillance before you applied for
search warrant?
A: Prior to the application for search warrant, we conducted
surveillance already.
Q: Because personally you heard that the accused was dealing
prohibited drugs and that was the basis for you to apply for search
warrant with Branch 66?
A: Yes, sir. (Emphasis supplied) x x x
Section 6, Rule 126 of the Rules on Criminal Procedure provides
that:
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. (Emphasis supplied)
There is no general formula or fixed rule for the determination of
probable cause since the same must be decided in light of the
conditions obtaining in given situations and its existence depends
to a large degree upon the findings or opinion of the judge
conducting the examination.
It is presumed that a judicial function has been regularly
performed, absent a showing to the contrary. A magistrates
determination of a probable cause for the issuance of a search
warrant is paid with great deference by a reviewing court, as long
as there was substantial basis for that determination.
The defenses reliance of the quoted testimony of the police officer
alone, without any other evidence to show that there was indeed
lack of personal knowledge, is insufficient to overturn the finding of
the trial court. The accused-appellant, having failed to present
substantial rebuttal evidence to defeat the presumption of
21
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COLLEGE OF LAW
ROMER SY TAN vs. SY TIONG GUE

G.R. No. 174570
February 22, 2010
A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a
peace officer, commanding him to search for personal property
described therein and to bring it before the court. The issuance of
a search warrant is governed by Rule 126 of the Rules of Court,
the relevant sections of which provide:
Section 4. 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 witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which may be
anywhere in the Philippines.1avvphi1
Section 5. Examination of complainant; record. The judge 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 sworn
statements together with the affidavits submitted.
Section 6. Issuance and form of search warrant. 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.
Therefore, the validity of the issuance of a search warrant rests
upon the following factors: (1) it must be issued upon probable
cause; (2) the probable cause must be determined by the judge


himself and not by the applicant or any other person; (3) in the
determination of probable cause, the judge must examine, under
oath or affirmation, the complainant and such witnesses as the
latter may produce; and (4) the warrant issued must particularly
describe the place to be searched and persons or things to be
seized.
In the case at bar, the CA concluded that the RTC did not comply
with any of the requisites required for the issuance of the subject
search warrants. The CA ratiocinated that although the RTC judge
personally determined if probable cause existed by examining the
witnesses through searching questions, and although the search
warrants sufficiently described the place to be searched and things
to be seized, there was no probable cause warranting the issuance
of the subject search warrants. We do not agree.
Jurisprudence dictates that probable cause, as a condition for the
issuance of a search warrant, is such reasons supported by facts
and circumstances as will warrant a cautious man to believe that
his action and the means taken in prosecuting it are legally just
and proper. Probable cause requires facts and circumstances that
would lead a reasonably prudent man to believe that an offense
has been committed and that the objects sought in connection with
that offense are in the place to be searched. In Microsoft
Corporation v. Maxicorp, Inc., this Court stressed that:
The determination of probable cause does not call for the
application of rules and standards of proof that a judgment of
conviction requires after trial on the merits. As implied by the words
themselves, "probable cause" is concerned with probability, not
absolute or even moral certainty. The prosecution need not
present at this stage reasonable doubt. The standards of judgment
are those of a reasonably prudent man, not the exacting
calibrations of a judge after a full-blown trial.
Applying these set standards, this Court finds that there was no
grave abuse of discretion on the part of the RTC judge in issuing
the subject search warrants.
A perusal of the Sinumpaang Salaysay and the Transcript of
Stenographic Notes reveals that Judge Lanzanas, through
searching and probing questions, was satisfied that there were
good reasons to believe that respondents, accompanied by five
maids, took five boxes of Hennessy XO owned by the Guan Yiak
Hardware and brought them to the 8th floor of 524 T. Pinpin St.,
Binondo, Manila; and that a person named "Yubol" took various
checks from the companys vault, which was later brought to the
7th floor of 524 T. Pinpin St., Binondo, Manila. When they entered
the premises, Felicidad Chan Sy was accompanied by two
policemen, which stunned Romer Sy Tan, so that he was not able
to do anything in the face of the calculated and concerted actions
of his grandmother, Felicidad Chan Sy, and her seven
companions. Based on the foregoing circumstances, Romer Sy
Tan believed that the crime of robbery was committed by the
respondents.
The power to issue search warrants is exclusively vested in the
trial judges in the exercise of their judicial functions. A finding of
probable cause, which would merit the issuance of a search
warrant, needs only to rest on evidence showing that, more likely
than not, a crime has been committed and that it was committed by
the accused. The determination of whether probable cause exists
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COLLEGE OF LAW
as to justify the issuance of a search warrant is best left to the

sound discretion of a judge. Apparent in the case at bar and as
aptly found by the RTC judge, there was probable cause justifying
the issuance of the search warrants. This was established by the
Sinumpaang Salaysay and the testimonies, consisting of no less
than 37 pages, given by witnesses who had personal knowledge of
facts indicating that the crime of robbery had been committed and
that the objects sought in connection with the offense were in the
place sought to be searched. The facts narrated by the witnesses
while under oath, when they were asked by the examining judge,
were sufficient justification for the issuance of the subject search
warrants.
ROMER SY TAN vs. SY TIONG GUE (MR)

G.R. No. 174570
December 15, 2010
On March 22, 2010, respondents filed a Motion for
Reconsideration wherein respondents informed this Court, albeit
belatedly, that the Regional Trial Court (RTC) granted their motion
for the withdrawal of the Information filed in Criminal Case No. 06241375. As such, respondents prayed that the decision be
reconsidered and set aside and that the quashal of the subject
search warrants be rendered moot and academic on the basis of
the dismissal of the criminal case.
Consequently, in view of the withdrawal of the Information for
Robbery, the quashal of the subject search warrants and the
determination of the issue of whether or not there was probable
cause warranting the issuance by the RTC of the said search
warrants for respondents alleged acts of robbery has been
rendered moot and academic. Verily, there is no more reason to
further delve into the propriety of the quashal of the search
warrants as it has no more practical legal effect.
Furthermore, even if an Information for Qualified Theft be later filed
on the basis of the same incident subject matter of the dismissed
case of robbery, petitioner cannot include the seized items as part
of the evidence therein. Contrary to petitioners contention, he
cannot use the items seized as evidence in any other offense
except in that in which the subject search warrants were issued.
Section 4, Rule 126 of the Revised Rules of Court provides:
Section 4. 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 witnesses he may produce, and particularly describing the
place to be searched and things to be seized which may be
anywhere in the Philippines.1avvphi1
Thus, a search warrant may be issued only if there is probable
cause in connection with only one specific offense alleged in an
application on the basis of the applicants personal knowledge and
his or her witnesses. Petitioner cannot, therefore, utilize the
evidence seized by virtue of the search warrants issued in
connection with the case of Robbery in a separate case of
Qualified Theft, even if both cases emanated from the same
incident.


Moreover, considering that the withdrawal of the Information was
based on the findings of the CA, as affirmed by this Court, that
there was no probable cause to indict respondents for the crime of
Robbery absent the essential element of unlawful taking, which is
likewise an essential element for the crime of Qualified Theft, all
offenses which are necessarily included in the crime of Robbery
can no longer be filed, much more, prosper.
The last 2 requisites for the issuance of a search warrant would

be:
3. the particularity in the description of the place to be
searched and
4. the particularity in the description of the things to be
seized.
Now, with respect to the place to be searchedIn this case of
People vs. Tuan , 628 SCRA 226, the issue raised by the
appellant with respect to the description of the house to be
searched was based on the fact that the warrant application and
the warrant itself did not include the description of the house as
a 2 storey house with several rooms. The judge issued a warrant
for a particular house in a specific address. So is that sufficient to
satisfy the requirement of particularity of description? The SC
said YES. What is important (in particularity of description) would
be to allow the searching officer (the one with the warrant) to
sufficiently determine which place is sought to be searched and
the subject of the search warrant. We must remember that the
warrant is the authority which gives the searching party the right
to enter the premises. So that if the warrant is sufficient by itself,
like in this case where there is a specific address, there is no
more need to put in the description that the house is a 2 storey
structure with several rooms. The appellant apparently raised the
issue because 1 of the rooms of the said 2 storey house was not
used by him but had been rented for quite a while to somebody.
But that was not taken by the RTC and the CA considering that
this is a question on the particularity in the description of the
place (to be searched).
PEOPLE OF THE PHILIPPINES vs.
ESTELA TUAN y BALUDDA
G.R. No. 176066
August 11, 2010
Equally without merit is accused-appellants assertion that the
Search Warrant did not describe with particularity the place to be
searched.
A description of the place to be searched is sufficient if the
officer serving the warrant can, with reasonable effort,
ascertain and identify the place intended and distinguish it
from other places in the community. A designation or
description that points out the place to be searched to the
exclusion of all others, and on inquiry unerringly leads the peace
officers to it, satisfies the constitutional requirement of definiteness.
In the case at bar, the address and description of the place to be
23
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COLLEGE OF LAW
searched in the Search Warrant was specific enough. There was

only one house located at the stated address, which was accusedappellants residence, consisting of a structure with two floors and
composed of several rooms.
In view of the foregoing, the Court upholds the validity of the
Search Warrant for accused-appellants house issued by MTCC
Judge Cortes, and any items seized as a result of the search
conducted by virtue thereof, may be presented as evidence
against the accused-appellant.
Now, dont confuse this with that old case involving PICOP in
Bislig City. The issue there was on the particularity in the
description of the place (to be searched) because PICOP is a
very big compound. What was sought to be searched there were
the structures where illegal firearms and ammunitions were
supposed to have been kept and stored. In that case, the SC
said that the warrant failed to describe the particular structure to
be searched simply because it (PICOP) is a very big compound
(including forest land, among others). So if it were to be a big
compound where the structures are considerably separated from
each other, there must have to be a sufficient description of
which structure in the said address is sought to be searchednot
only of the address of the big compound.
PAPER INDUSTRIES CORPORATION OF THE
PHILIPPINES (PICOP) vs.
JUDGE MAXIMIANO C. ASUNCION
G.R. No. 122092 May 19, 1999
Thus, this Court has held that "this constitutional right [i]s the
embodiment of a spiritual concept: the belief that to value the
privacy of home and person and to afford it constitutional
protection against the long reach of government is no less than to
value human dignity, and that his privacy must not be disturbed
except in case of overriding social need, and then only under
stringent procedural safeguards." Additionally, the requisite of
particularity is related to the probable cause requirement in that, at
least under some circumstances, the lack of a more specific
description will make it apparent that there has not been a
sufficient showing to the magistrate that the described items are to
be found in particular place.
In the present case, the assailed search warrant failed to described
the place with particularly. It simply authorizes a search of "the
aforementioned premises," but it did not specify such premises.
The warrant identifies only one place, and that is the "Paper
Industries Corporation of the Philippines, located at PICOP
Compound, Barangay Tabon, Bislig[,] Surigao del Sur." The
PICOP compound, however, is made up of "200 offices/building,
15 plants, 84 staff houses, 1 airstrip, 3 piers/wharves, 23
warehouses, 6 POL depots/quick service outlets and some 800
miscellaneous structures, all of which are spread out over some
one hundred fifty-five hectares." Obviously, the warrant gives the
police officers unbridled and thus illegal authority to search all the
structures found inside the PICOP compound.
In their Opposition, the police state that they complied with the
constitutional requirement, because they submitted sketches of the


premises to be searched when they applied for the warrant. They
add that not one of the PICOP Compound housing units was
searched, because they were not among those identified during
the hearing.
These arguments are not convincing. The sketches allegedly
submitted by the police were not made integral parts of the search
warrant issued by Judge Asucion. Moreover, the fact that the
raiding police team knew which of the buildings or structures in the
PICOP Compound housed firearms and ammunitions did not
justify the lack of particulars of the place to be searched.
Otherwise, confusion would arise regarding the subject of the
warrant the place indicated in the warrant or the place identified
by the police. Such conflict invites uncalled for mischief or abuse of
discretion on the part of law enforces.
Thus, in People v. Court of Appeals, this Court ruled that the
police had no authority to search the apartment behind the store,
which was the place indicated in the warrant, even if they intended
it to be the subject of their application. Indeed, the place to be
searched cannot be changed, enlarged or amplified by the police,
viz.:
. . . In the instant case, there is no ambiguity at all in the warrant.
The ambiguity lies outside the instrument, arising from the absence
of a meeting of the minds as to the place to be searched between
the applicants for the warrant and the Judge issuing the same; and
what was done was to substitute for the place that the Judge had
written down in the warrant, the premises that the executing
officers had in their mind. This should not have been done. It [was]
neither fair nor licit to allow police officers to search a place
different from that stated in the warrant on the claim that the place
actually searched although not that specified in the warrant
[was] exactly what they had in view when they applied for the
warrant and had demarcated in the supporting evidence. What is
material in determining the validity of a search is the place stated
in the warrant itself, not what the applicants had in their thoughts,
or had represented in the proofs they submitted to the court issuing
the warrant. Indeed, following the officers' theory, in the context of
the facts of this case, all four (4) apartment units at the rear of
Abigail's Variety Store would have been fair game for a search.
The place to be searched, as set out in the warrant, cannot be
amplified or modified by the officers' own personal knowledge of
the premises, or the evidence they adduced in support of their
application for the warrant. Such a change is proscribed by the
Constitution which requires inter alia the search warrant to
particularly describe the place to be searched as well as the
persons or things to be seized. It would concede to police officers
the power of choosing the place to be searched, even if it not be
that delineated in the warrant. It would open wide the door to
abuse of the search process, and grant to officers executing a
search warrant that discretion which the Constitution has precisely
removed from them. The particularization of the description of the
place to be searched may properly be done only by the Judge, and
only in the warrant itself; it cannot be left to the discretion of the
police officers conducting the search. (Emphasis supplied.)
The other matter with respect to the description of the place to be

searched is mistake of the address. Now, in all warrant
applications, it is required now (under a separate issuance of the
24
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COLLEGE OF LAW
SC) that there must have to be a sketch so that the judge also
will be informed of the place intended to be searched. This
supposed sketch is to be included in the records for the purpose
of issuing the warrant.
What if there is a mistake in the description of the place, say as
to the address indicated in the warrant? Would the warrant be
valid and therefore served validly as well in the correct address
not in the address as mistakenly indicated in the warrant? The
first consideration is that the warrant is the piece of paper which
authorizes entry into a property. Most often than not, the ones
serving the warrant would be the applicant and the witnesses.
There are instances (however) where these [search warrants] are
not served by the applicant and the witnesses but by any other
law enforcement agency. Normally these are the same persons
[the applicant and the witnesses] who have previously conducted
surveillance on the determination of probable cause later when
they are to testify in the summary hearing. So they usually know
where the place is actually located (the subject of the search). If
the mistake in the warrant as to the address is clearly
typographical (not really a mistake which would give rise to
confusion), then the service of the warrant in the correct address
and the search conducted therein would be considered valid
not because of the knowledge of the searching party per se but
because the search was really intended in that place. This has
happened in one case. Its no longer included in the outline. This
involves an address somewhere in Cebu, in Mandaue City. A
person applied for SW where the address was, say, 123
Bonifacio St., a common name for a street in every locality.
However, what was typed in the search warrant (SW) was merely
Cebu City. That notwithstanding, the SW indicated also the
business name for which the SW was issued. The SC said this
was already sufficient. The error in this case was merely
typographical. The SW was considered to have been validly
issued; hence, it could be validly executed.
4. Particularity in the description of the things to be seized
What is required here is sufficiency of description.
As such, based on the circumstances, the exact quantity of say,
the drugs, or identity of the firearms to be seized (i.e. the serial
number, the caliber)these are not necessary for the purpose of
complying with this requirement.
This is because under the circumstances, it is not reasonably
expected that the applicant or witnesses would have a clear and
accurate description as to the quantity or quality. So, mostly, it
would be phrased as so much of the drugs, described as
methamphetamine hydrochloride or marijuana leaves, or in case
of firearms, pistols or rifles would sufficeall based on the
circumstances.


Case in Point (CIP): Ty v. De Jemil (2010)

It was held that the property to be seized based on the warrant
need not belong to the person against whom the warrant was
issued.
It must be remembered that in crimes (where searches are
usually done) say, drugs or illegal possession of firearms, the
criminal act is not premised on ones ownership of the drugs or
firearms, rather, it is based on ones possession. Mere
possession or (effective) control is sufficient to constitute a
prima facie proof of your culpability.
The fact of your non-ownership (of the drugs or firearms) will not
destroy said proof since ownership was never, in the first place, a
consideration for your apprehension. This also holds true if your
defense is non-ownership of the place where the things seized
were foundmere possession or control of the items is enough.
ARNEL U. TY, MARIE ANTONETTE TY, JASON ONG, WILLY
DY, and ALVIN TY vs. NBI SUPERVISING AGENT MARVIN E.
DE JEMIL, PETRON GASUL DEALERS ASSOCIATION, and
TOTALGAZ DEALERS ASSOCIATION,
G.R. No. 182147; December 15, 2010
Petitioners were stockholders of Omni Gas Corporation (Omni). It
is engaged in the business of trading and refilling of Liquefied
Petroleum Gas (LPG) cylinders. The case started when the JGAC
Law Office sent a letter to the NBI requesting, on behalf of their
clients (Shellane Dealers Association, Inc., Petron Gasul Dealers
Association, Inc., and Totalgaz Dealers Association, Inc.,) for the
surveillance, investigation, and apprehension of persons or
establishments in Pasig City that are engaged in alleged illegal
trading of petroleum products and underfilling of branded LPG
cylinders in violation of BP 33, as amended by PD 1865.
The NBIs test-buy yielded positive results for violations of BP 33.
Thus, the NBI served warrants which resulted in the seizure of
several items from Omnis premises. Before the Supreme Court,
Omni argued, among others, whether a probable cause exists
against them for violations of Sec. 2 (a) and (c) of BP 33.
The SC found probable cause based on, among others, the
following grounds:
xxx
Fourth. The issue of ownership of the seized branded LPG
cylinders is irrelevant and hence need no belaboring. BP 33, as
amended, does not require ownership of the branded LPG
cylinders as a condition sine qua non for the commission of
offenses involving petroleum and petroleum products. Verily, the
offense of refilling a branded LPG cylinder without the written
consent of the brand owner constitutes the offense regardless of
the buyer or possessor of the branded LPG cylinder.After all, once
a consumer buys a branded LPG cylinder from the brand owner or
its authorized dealer, said consumer is practically free to do what
he pleases with the branded LPG cylinder. He can simply store
the cylinder once it is empty or he can even destroy it since he has
paid a deposit for it which answers for the loss or cost of the empty
25
ATENEO DE DAVAO
COLLEGE OF LAW
branded LPG cylinder. Given such fact, what the law manifestly
prohibits is the refilling of a branded LPG cylinder by a refiller who
has no written authority from the brand owner. Apropos, a refiller
cannot and ought not to refill branded LPG cylinders if it has no
written authority from the brand owner.
Fifth. The ownership of the seized branded LPG cylinders,
allegedly owned by Omni customers as petitioners adamantly
profess, is of no consequence. The law does not require that the
property to be seized should be owned by the person against
whom the search warrants is directed. Ownership, therefore, is of
no consequence, and it is sufficient that the person against whom
the warrant is directed has control or possession of the property
sought to be seized. Petitioners cannot deny that the seized LPG
cylinders were in the possession of Omni, found as they were
inside the Omni compound.
In fine, we also note that among those seized by the NBI are 16
LPG cylinders bearing the embossed brand names
of Shellane, Gasul andTotalgaz but
were
marked
as
Omnigas. Evidently, this pernicious practice of tampering or
changing the appearance of a branded LPG cylinder to look like
another brand violates the brand owners property rights
as infringement under Sec. 155.1 of RA 8293. Moreover,
tampering of LPG cylinders is a mode of perpetrating the criminal
offenses under BP 33, as amended, and clearly enunciated under
DOE Circular No. 2000-06-010 which provided penalties on a per
cylinder basis for each violation.
Foregoing considered, in the backdrop of the quantum of evidence
required to support a finding of probable cause, we agree with the
appellate court and the Office of the Chief State Prosecutor, which
conducted the preliminary investigation, that there exists probable
cause for the violation of Sec. 2 (a) in relation to Sec. 3 (c) of BP
33, as amended.
Probable cause has been defined as the existence of such facts
and circumstances as would excite belief in a reasonable mind,
acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was
prosecuted.
After all, probable cause need not be based on clear and
convincing evidence of guilt, as the investigating officer acts upon
reasonable beliefprobable cause implies probability of guilt and
requires more than bare suspicion but less than evidence which
would justify a conviction.
5. The issuance of the SW was pursuant to a proper

application with the issuing court
GR: SEC. 2, RULE 126
EXC: A.M. ORDER 3-8-02
Under Sec. 2, Rule 126, as a rule, the warrant must be
issued by the court which has territorial jurisdiction over
the place where the crime was supposedly committed
and where it shall be enforced.
The exception would be if there is no court or judge in
that court of said place, then the proper court is any
court within the judicial region where the crime was


supposed to have been committed. (For instance, if
there is no RTC, then you can apply with MTC).
Sec. 2. Court where application for search warrant

shall be filed.* --An application for search warrant
shall be filed with the following:
1. Any court within whose territorial jurisdiction
a crime was committed.
2. For compelling reasons stated in the
application, any court within the judicial
region where the crime was committed if the
place of the commission of the crime is
known, or any court within the judicial region
where the warrant shall be enforced.
SC A.M. No. 99-20-09-SC, Resolution clarifying guidelines on
the application for enforceability of search warrants.
It can be seen with said provision thus that gone are
the days when the judge can issue a SW in one place
but it will be enforced in any another place. In the case
earlier cited, PICOP v. Asuncion, the warrant there was
issued in the Quezon City and was served in BISLIG.
This was valid before, but not now. Under Rule 126,
the proper issuing court would be those as enumerated
therein.
There is however a special exception to Rule 126, Sec.
2, that is:
SC A.M. Order 03-8-02
GUIDELINES ON THE SELECTION AND DESIGNATION
OF EXECUTIVE JUDGES AND DEFINING THEIR
POWERS, PREROGATIVES AND DUTIES
(See attached file for Full Text)
This AM Order concerns crimes which are heinous,
illegal gambling. (see enumeration). The SC said that
SW for any of these crimes can be applied for in the
Executive Judge (or if they are not available, the ViceExecutive Judges) of RTC of Manila or Quezon City
and the SW issued shall be valid for service
ANYWHERE in the Philippines.
ATENEO DE DAVAO
COLLEGE OF LAW
have authority to act on applications filed by the National Bureau of

Investigation (NBI), the Philippine National Police (PNP) and the
Anti-Crime Task Force (ACTAF), for search warrants involving
heinous crimes, illegal gambling, illegal possession of firearms and
ammunitions as well as violations of the Comprehensive
Dangerous Drugs Act of 2002, the Intellectual Property Code, the
Anti-Money Laundering Act of 2001, the Tariff and Customs Code,
as amended, and other relevant laws that may hereafter be
enacted by Congress, and included herein by the Supreme Court.
The applications shall be personally endorsed by the heads of
such agencies and shall particularly describe therein the places to
be searched and/or the property or things to be seized as
prescribed in the Rules of Court. The Executive Judges and ViceExecutive Judges concerned shall issue the warrants, if justified,
which may be served in places outside the territorial jurisdiction of
the said courts.
The Executive Judges and the authorized Judges shall keep a
special docket book listing names of Judges to whom the
applications are assigned, the details of the applications and the
results of the searches and seizures made pursuant to the
warrants issued.
This Section shall be an exception to Section 2 of Rule 126 of the
Rules of Court.
Period of Validity of Search Warrant

The SW is valid 10 days from issuance, and not from the
receipt of copy of the same by the law officers.
a)
It is within said period that searches and seizures can

be made. Otherwise, it will be void. (Sec. 10, Rule 126)
b)
Any search and seizure conducted in a day can be

continued to another day, provided the next day falls
within that 10 day period.
Time of the Search
As a rule, the search can be conducted only during daytime.

(Sec. 9, Rule 126). Search during nighttime may be conducted as
an exception if authorized by the court thru a special order after
application therein. The reason for this is that there are more
evils during nighttime which must be avoided.
Requirement of Witnesses
Under Sec. 8, Rule 126:
Chapter V. Specific Powers, Prerogatives and Duties of

Executive Judges in Judicial Supervision
xxx
SEC. 12. Issuance of search warrants in special criminal cases by
the Regional Trial Courts of Manila and Quezon City. The
Executive Judges and, whenever they are on official leave of
absence or are not physically present in the station, the ViceExecutive Judges of the RTCs of Manila and Quezon City shall
26
Sec. 8. Search of house, room, or premises to be

made in presence of two witnesses. 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, two witnesses of sufficient age and discretion
residing in the same locality.
As such, it is common in searches that barangay officials are

present as independent persons witnessing the same.
CIP:
Del Rosario v. Donato, Sr. (2010)
The SC said that the applicants and witnesses need not be

residents of the place intended to be searched.
This ruling came about because the reason for the provision Sec.
2, Rule 126 (requiring that the court where the SW must be
applied for should be the court which has territorial jurisdiction
over the place where the crime was committed) was the belief
that witnesses to crimes are usually found (or residing) in the
same place intended to be searched. That is the general rule
only; there is no requirement that they must be so.
ARTHUR DEL ROSARIO and ALEXANDER DEL ROSARIO,
Petitioners, v. HELLENOR D. DONATO, JR. and RAFAEL V.
GONZAGA, Respondents. March 5, 2010
Philip Morris Products, Inc. Philip Morris wrote the NBI, requesting
assistance in curtailing the proliferation of fake Marlboro cigarettes
in Angeles City, Pampanga. After doing surveillance work in that
city, Respondent Donato, Jr., the NBI agent assigned to the case,
succeeded in confirming the storage and sale of such fake
cigarettes at the house that belonged to petitioner del Rosario.
Respondent Donato applied for a search warrant. The NBI agents
proceeded to implement the warrant; however, their search yielded
no fake Marlboro cigarettes.
According to the Del Rosarios, the allegations in their complaint

stated a cause of action against respondents NBI agents.
However, the court found that all that the Del Rosarios alleged was
that respondents NBI agents used an unlawfully obtained search
warrant against them, evidenced by the fact that, contrary to the
sworn statements used to get such warrant, the NBI agents found
no fake Marlboro cigarettes in petitioner Alexander del Rosarios
premises.
It must be noted that a judicially ordered search that fails to
yield the described illicit article does not of itself render the
courts order unlawful.
The Del Rosarios did not allege that respondents NBI agents
violated their right by fabricating testimonies to convince the RTC
of Angeles City to issue the search warrant. Their allegation that
the NBI agents used an unlawfully obtained search warrant is a
mere conclusion of law. While a motion to dismiss assumes as
true the facts alleged in the complaint, such admission does not
extend to conclusions of law. Statements of mere conclusions of
law expose the complaint to a motion to dismiss on ground of
failure to state a cause of action.
Further, the allegation that the search warrant in this case was
served in a malicious manner is also not sufficient. Allegations
of bad faith, malice, and other related words without ultimate facts
to support the same are mere conclusions of law.
The Del Rosarios broad assertion in their complaint that the
search was conducted in full and plain view of members of the
community does not likewise support their claim that such search
was maliciously enforced. There is nothing inherently wrong with
search warrants being enforced in full view of neighbors. In fact,
when the respondent or his representative is not present during the
search, the rules require that it be done in the presence of two
residents of the same locality. These safeguards exist to protect
persons from possible abuses that may occur if searches were
done surreptitiously or clandestinely.
Subsequently, Petitioners filed a complaint for P50 million in

damages against Respondents. The latter answered the complaint
with a motion to dismiss on the grounds of: a) the failure of the
complaint to state a cause of action; b) forum shopping; and c) the
NBI agents immunity from suit, they being sued as such
agents. The RTC denied the motion, which was annulled by CA.
Petitioners sought reconsideration of the decision but the CA
denied it; hence, this petition for review.
[Two]
Issues
The SC found this untenable as the subject search warrant was

not issued under A.M. 02-1-06-SC, which governed the issuance
of a writ of search and seizure in a civil action for infringement filed
by an intellectual property right owner against the supposed
infringer of his trademark or name.
1.
Whether or not the CA correctly ruled that the complaint of
the petitioners did not state a cause of action; and
2.
Whether or not the CA correctly ruled that the petitioners
were guilty of forum shopping.
Rulings
[One]
The CA held that the petitioners complaint before the RTC failed
to state a cause of action. This was because while said complaint
alleged that the NBI agents unlawfully procured and enforced the
search warrant issued against the Del Rosarios, it failed to state
the ultimate facts from which they drew such conclusion.
27
ATENEO DE DAVAO
COLLEGE OF LAW
Invoking Section 21 of this Courts AM 02-1-06-SC, the CA held

that, rather than file a separate action for damages, the Del
Rosarios should have filed their claim for compensation in the
same proceeding and with the same court that issued the writ of
search and seizure. The Del Rosarios were thus guilty of forum
shopping.
Philip Morris, the manufacturer of Marlboro cigarettes, did not go

by this route. Philip Morris did not file a civil action for infringement
of its trademark against the Del Rosarios before the RTC of
Angeles City. Instead, Philip Morris sought assistance from the
NBI for the apprehension and criminal prosecution of those
reportedly appropriating its trademark and selling fake Marlboro
cigarettes.
In turn, the NBI instituted a police action that included applying for
a search and seizure warrant under Sections 3, 4, 5 and 6 of Rule


126 of the Rules of Criminal Procedure (not under the provisions of
A.M. 02-1-06-SC) against the Del Rosarios upon the belief that
they were storing and selling fake Marlboro cigarettes in violation
of the penal provisions of the intellectual property law.
If the judge does not find any probable cause or does not
continue with the indictment, the judge must require the
investigating officer (the prosecutor) to submit, within a certain
period of time, further documents or evidence for him or her (the
judge) to determine whether or not there is probable cause to
proceed.
The proceeding under Rule 126, a limited criminal one, does

not provide for the filing of counterclaims for damages
against those who may have improperly sought the issuance
of the search warrant. Consequently, the Del Rosarios had the
right to seek damages, if the circumstances warranted, by
separate civil action for the wrong inflicted on them by an
improperly obtained or enforced search warrant. Unfortunately,
their complaint, as worded, failed to state a proper cause of action.
It would seem that under the Rules of Court, the judge can
determine probable cause just like a prosecutor (referring to this
right). This is a variation from the previous discussions that the
determination by the judge of the existence of a probable cause,
when the case docket is received by him from the investigating
office, is to determine probable cause for the issuance of warrant
only.
Petitioner Arthur del Rosario claims that respondents NBI agents

wrongfully included him as respondent in their application for a
search warrant since he neither owned the house at 51 New York
Street nor resided in it.
In the old case of Lim (no citation), the SC said that the judge in
determining the probable cause for the existence of a warrant is
actually performing a judicial function, whereas the determination
by the investigating officer as to the existence of a probable
cause to indict a person in court is an executive function.
The court said that the rules do not require respondents in

search warrant proceedings to be residents of the premises to
be searched. If this were the case, criminals in possession of
illegal articles could simply use other peoples residence for storing
such articles to avoid being raided and searched.
The procedure for the issuance of SW and

Warrant of Arrest is different.
But now, under the Rules of Court, the judge, upon receiving the
full set of documents from the investigating officer can both, one,
perform the executive function by determining the existence of
probable cause whether or not there is a well-engendered belief
to charge the person in court. If there is none (probable cause),
the judge must require the prosecution to submit additional
evidence.
This is so even if the Constitution provides that (together) they

shall not issue except upon. (see provision: Sec. 2, Article III).
As to Warrants of Arrest
Under the Rules of Court, the criminal case against an accused
has already been processed during preliminary investigation or
preliminary examination. As such, what is now before the court
for the issuance of warrant (of arrest) is a complete set of records
coming from the investigating officer him or herself (whether from
the prosecutor or the MTC judge [if s/he is still allowed to do so,
today? No longer] or by the Ombudsman in appropriate cases).
And second, if after that or even before that the judge really
believes there is no really probable cause to continue with the
indictment or prosecution of the case, then the judge can dismiss
the case. This is the second right:
The judge is required to personally go over these complete

records, meaning all the affidavit complaint/s, counter-affidavit/s
(if any), documentary evidences, the finding of the investigating
officer (resolution) and the Information (which is prepared by the
investigating office and approved by the officer therein). The
judge must go over these.
With those records in hand, under the Rules of Court, the judge
has these three rights:
1.
To determine whether or not there is probable cause to

proceed, that is, whether or not there is probable cause
to cause the indictment of the accused.
ATENEO DE DAVAO
COLLEGE OF LAW
a)
b)
2.
If the judge believes there is no probable cause to continue

with the indictment or prosecution of the case, then the judge
can dismiss the case.
3.
The judge, upon finding the existence of a probable cause to

continue with the indictment, must then determine whether or
not there is a probable cause to issue the warrant of arrest.
Now, is there a difference between those two? There is:

In the first determination, it is for the purpose of determining
whether there is a need to proceed or continue with the
indictment;
In the second, it is for the purpose of determining whether or not
there is a need to place the person under the custody of the
court.
Thus, if the judge finds there is a probable cause to issue a
warrant of arrest, then the warrant shall issue.
28


ATENEO DE DAVAO
COLLEGE OF LAW
as a matter of course.
Now if you compare that with Search Warrants:

As to Search Warrants
The difference as to the procedure for their issuance primarily
lies on the presence or absence of an indictment.
2.
When the search warrant is applied for, granted, and issued by

the court, there is yet to be an indictment or charge. This is
because the reason why the SW was applied for in the first place
is to secure evidence so that the subject person may be indicted
(under a proper charge or case).
But when it is the warrant of arrest that is going to be issued,
there is already a prior determination by the investigating officer
that the crime has been committed and there is already a wellfounded belief that the person respondent has probably
committed the same and, therefore, s/he must be brought to trial.
As such, after the warrant of arrest is issued by the judge, there
would be then no longer issue as to whether or not there would
be case against that person to be tried before the court. The
same has been resolved initially.
3.
As to the
time
of
implementat
ion
As a rule, it
must be in
daytime.
As to the
manner of
implementat
ion
It must be
shown to the
person who
is in control
of the place
intended to
be searched
That alias warrant will be

outstanding and will
continue to have effect
until the accused has
been arrested.
None.
The arrest can be made at
anytime of the day and
there is no limitation as to
place.
It
can
be
implemented anywhere
within
the
territorial
jurisdiction of the court.
This need not be shown to
the person to be arrested.
Although it must be shown
to the accused at some
later time when the same
will be requested, but
definitely not needed
during the arrest per se.
Further Distinctions
1.
As to
lifetime
its
SEARCH
WARRANT
10 days from
its issuance
WARRANT OF ARREST
None.
It is valid until it is served.
The 10 day period referred
to under the Rules of
Court (Sec. 4, Rule 113)
refers to the requirement
of return or the duty of the
enforcing officer to return
the warrant to the court,
whether or not it has been
served. This is not the life
of warrant of arrest.
In practice, if after the
return was made the
accused was not yet
indicted or the arrest was
not successful, an alias
warrant is issued upon
application
by
the
prosecution. This issues
29
VALID INSTANCES OF WARRANTLESS

SEARCHES AND ARRESTS
There are 6 generally known exceptions to warrantless searches
and seizures. There are also 6 as to warrantless arrests.
However, there is a common exception for both:
Common ground:
Lack of sufficient opportunity to

secure a warrant
That would justify generally the so called warrantless search or

warrantless arrest. Again, there is no sufficient opportunity to
secure a warrant.
Now, the 6 exceptions are:
1.)
2.)
3.)
4.)
5.)
6.)
Search of moving vehicles

Search incident to a valid arrest
Evidence seized in plain view
The stop and frisk situation
Searches under express waiver, and
Search under the Customs and Tariffs Code


ATENEO DE DAVAO
COLLEGE OF LAW
SEARCH OF MOVING VEHICLES
1.
Now, search of a moving vehicle is largely justified on account of

the nature of a vehicle which is easy to take away from the
jurisdiction of the place where it is intended to be searched.
Nonetheless, even if it is a known exception, what is required is a
minimum determination of probable cause, that the vehicle
must be stopped and therefore must be searched.
The decision to put up a checkpoint must have to

be determined by the responsible officers, the one
in command, because that person would be in the
best position to determine which of his men will be
allocated for purposes of putting up a checkpoint.
2.
The checkpoint must have to be manned not only

by enlisted personnel, but also, there must have to
be for purposes of responsibility.
3.
The checkpoint must have to be stationary. It must

not be mobile except in emergency situations like
there is an ongoing bank robbery, there is an
ongoing crime being committed, where police
officers in the field will determine which would be
the best locations to set up the checkpoints to
avoid the escape of the perpetrators. Generally, it
would have to be stationary.
4.
The search in the checkpoints must have to be

limited to visual search. So that the vehicles must
have to be detained in those checkpoints
consistent with what is required for the conduct of
a visual search. The rule is visual searchno
extensive search is allowed unless, (here we go
again), there is a minimum determination of
probable cause that an extensive search must
have to be conducted. In Davao, we are used to
the checkpoints of Task Force Davao and I think
they have largely complied with the requirement of
a visual search unless, you look suspicious, where
an extensive search will have to be conducted.
It is not correct to assume that just because search of moving

vehicles is a known exception that law enforcement agents would
just or be allowed to stop a vehicle and search that vehicle for no
apparent reason.
Again, there is a minimum determination of probable cause that
there is a need to stop that vehicle and search it.
What is that probable cause?
Almost the same as that of a judge but this time, only to be
determined by a police officer and not by a judge.
So, such facts and circumstances which would lead that police
officer that a crime has been committed and the goods, effects,
and objects to be used for the commission of the crime are in the
motor vehicle.
That minimum determination is a state of mind and would not be
easy to dispute. Now, in relation to search of moving vehicles,
most of the cases here, you would notice, would involve the
participation of informants, the putting up of checkpoints and the
police officers eventually getting hold of that vehicle in a
checkpoint. Those are usually the same set of facts in almost all
cases of search of moving vehicles that have reached the
Supreme Court. So:
An information is received, reliable information from a reliable
source that this person will be travelling in that motor vehicle.
There is a sufficient description of a motor vehicle travelling along
this route and bringing with him illegal items or contraband; and
true to the information relayed, at some point in time later in the
day, this motor vehicle is stopped at a checkpoint purposely put
up based on that information.; and a person which would fit the
description given by the reliable informant is not really
apprehended because it is supposed to be searched and then
arrest. There is no such thing as arrest then searched in cases of
search of moving vehicles. So, this is always the situation.
Now, in relation to putting up of checkpoints, the Supreme Court
has already made a pronouncement in the case of Davilla where
putting up of checkpoints and the searches conducted in the
checkpoint must have to follow certain guidelines:
30
That is why I was wondering, Ive read in todays local papers

that one person is violated for violation the special gun ban rule
in Davao from August 1 31 in the task force Davao checkpoint
in the south wondering because, how was that firearm
discovered? Was that person carrying it with him or pointing it to
the task personnel? (giggles).
If you have been to those checkpoints regularly, you would notice
that, in the visual search they would look at you, look at your
dashboard, and look at the direction of the glove compartment.
They would not even ask you to open the glove compartment
because that is not part of visual search. Unless of course you
are acting suspiciously. Perhaps that person was acting
suspiciously because there was an extensive search, and it (gun)


was found in his glove compartment. If you regularly pass those
checkpoints, why would you place your handgun in the glove
compartment, why not place it somewhere else where they do
not usually conduct this search.
Either magaling yung task force or tanga yung nahuli. I was
reminded when some lawyers were in the list thingy there was
a time when lawyers were firing their firearms to distressed
themselves and a lot of lawyers had firearms, some were license
some with not. And for those licensed, some do not even have
the permit to carry the firearm outside the residence. So there
were questions asked, how would I bring my handgun or my
guns to the firing range and there were several who said Why? If
you are bringing them to the firing range, would you place them
on your hood? Of course you will have to conceal them, place
them in places where they would not look for it. Because if there
is nothing suspicious about you running your vehicle in a highway
going to the firing range, they will not stop and search your
vehicle ahh.. Okay. Do not place it on the hood of your vehicle,
place it somewhere else.
SEARCH INCIDENT TO A VALID ARREST
Okay, now the second instance is search incident to a valid
arrest.
Now, I mentioned earlier in search of moving vehicles based on
those usual set of facts, they do not effect an arrest, they just
conduct the search and then effect the arrest later, after the
discovery of the illegal item or contraband. Mostly, if they see this
person fitting the description, they will search the bags or
belongings nearest to that person. And in all these cases where
the Supreme Court upheld the search for moving vehicles, they
validated it because there was a search first before the arrest
was made.
Now, search incident to a valid arrest is of a different species as
that of search of moving vehicles situation, because here there
must have to be an arrest first before a search will have to be
conducted. The arrest must have to be valid before the search is
allowed and would be considered as valid. The search however,
to be valid, must have to follow the two limitations:
1.) Limitation on time
2.) Limitations on space
Limitation on time because, the reason why a search is allowed
immediately after a valid arrest is, to protect the arresting officer
form any act of violence that may be committed on him by the
person arrested on account of concealed weapons. That is why
search is allowed immediately after the arrest.
31
ATENEO DE DAVAO
COLLEGE OF LAW
Second, in order for the arresting officer to secure the evidence

that may have been used or fruits or objects which may be used
for the commission of the offensewhich may have been in the
possession or in the person of the person arrested or, within his
immediate vicinity.
And that should be the reason for allowing the requirement of
the second limitation, limitation on space. The search must
have to be conducted on the person only of the person arrested
as well as within the immediate environment which he has
effective control.
Again, this is in relation to the objects or fruits of the crime or
other objects that he may use to commit a crime or other
weapons which he may use to effect an escape or to avoid an
arrest.
So, the limitation is extended to the immediate vicinity where he
has effective control. Otherwise, it if were to be literally on his
person then it would be easy for that person arrested to escape
liability simply by throwing away all those things that would have
been seized from his person to avoid any liability.
It will not however extend to the space or environment where he
no longer has effective control. In one earlier case, the arrest for
example, was effected in the living room of the house, the search
conducted in the separate rooms of the safe house were not
considered as valid searches because they were not already
complying with the limitation on space. It must have to be in the
living room.
EVIDENCE SEIZED IN PLAIN VIEW
This is the so called plain view doctrine. Now in plain view
doctrine, this justifies also the seizures made of items not listed
or described in the search warrant. There is some confusion, (I
know its not you but for some),where, the question is asked, can
an item be seized even if it is not described or listed in the
warrant. The answer is yes, provided it falls under any of these
exceptions, and one of the most common exceptions would be
the so called evidence in plain view. Now in evidence in plain
view, the requirements are:
1.) There is a justification for the prior intrusion meaning,
the police officers must have a right to be in the place
where the search was made before there can be an
allowed seizure therein. If they were not properly
equipped with any right to be in the place to be
searched to begin with, then any search conducted
thereafter would not be considered as valid.


2.) The evidence is inadvertently discoveredmeaning ,
there was no intent to look for this object or thing
except that in the course of the search, these things
were accidentally discovered. Again, this is a state of
mind, but, it is usually appreciated if say, the search
was conducted on account of a search warrant. There
were items listed on the search warrant, say, the items
were drugs. And the conduct of the search where drugs
would normally be stashed or normally be found if kept
or hidden, found firearms which turned out to be not
licensed. Then this is a good example of that
(mumbles, sounds like daywhore), inadvertently or
accidentally discovered.
3.) Evidence is open to the eye or hand of the searching
officer it simply means, again, that it strengthens the
requirement that there is no intent to really search for
these things. They were just discovered, they are open
for the eye to see or open for the hand to feel when the
valid search was conducted.
4.) The evidence of illegality is immediately apparentthis
is where most of the cases are discussed. The
evidence of illegality to be apparent is literal. It must be,
just by looking at it, the officer can make a conclusion
that this is an illegal item or contraband. There is no
need for the police officer to exercise discretion that
this could be or may be illegal.
Now this plain view doctrine is almost always applied in cases
involving drugs and firearms simply, because the presumptions
here in the country on possession of firearms and drugs are
against regularity or allowance. We do not have the constitutional
right to bear arms and therefore, if a person is caught possessing
a firearm, the obligation is on him, to prove that he is duly
permitted and duly allowed to carry that farm. So the presumption
is always against regularity.
Same with drugsregulated rugs included. We have prohibited
and regulated drugs. Even where the drugs are regulated drugs,
it is the person arrested in possession of these regulated drugs to
prove that he is duly permitted to have or possess these drugs.
Of course, if prohibited, there is no other recourse but that person
is to be arrested. You cannot prove that you are in possession of
marijuana duly authorized by the state because it is medicinal for
you. It is not accepted as a theory or law in the country. In other
states in the US, marijuana is medicinal in certain quantities, wag
32
ATENEO DE DAVAO
COLLEGE OF LAW
lang mag overdose. (NB: there is no practical toxic level of

marijuana; hence, you cannot overdose on itWa El).
Okay. So, there was one case, ahhmmm its no longer here,
one of the older cases. The arrest was made in the living room
because of a buy bust operation. And so they searched the
immediate vicinity of the living room. They went to the next room;
it was actually the kitchen, where they found a plastic bag. The
plastic was opaque; it was not translucent, hanging by a nail on
the wall. Hey brought it down and they opened it. They saw some
item wrapped in newspaper. When they opened it up, they were
bricks of dried marijuana.
So the question is, are those bricks of dried marijuana leaves
admissible in evidence? (Actually, it should be buds not
leaves, the flowering portion of the plant, and it is cured, not
driedWa El)
Supreme Court said:
-It will not fall under search incident of a valid arrest because they
went in the next room. The living room was partitioned with a wall
from the kitchen.
-Secondly, it could not fall under evidence in plain view because,
the evidence of illegality is not immediately apparent. They had to
bring down the bag, opened the packing of newspaper, to
determine, to discover that it was indeed a prohibited drug. That
being the case, the Supreme Court said, the evidence of illegality
is not immediately apparent.
For illegal gambling for example, if there is a raid for illegal
gambling, what can be seized in plain view?
Money? Can money be seized when there is a search on
account of illegal gambling under plain view doctrine?
Is the evidence of illegality just by looking at money immediately
apparent? Di noh?
That is why in relation to these special offenses, not when the
possession is illegal per se by presumption, like drugs and
firearms. If they were to be like, violation of the Internal Revenue
Code, violation of Intellectual Property Code. The description of
the things to be seized must also be indicated to have been
illegally used or illegally obtained in violation of these laws.
Otherwise, the mere identification of these items which are not
illegal per se will not constitute as sufficient justification on
description to validate the seizure of these items.
In some old cases involving piracy, or video piracy, this case of
Sunny Philippines, this case of Columbia Pictures... The seizure


ATENEO DE DAVAO
COLLEGE OF LAW
of television sets and video recorders and other items used in the
so called violation of intellectual property rights, but which were
not sufficiently described as having been used for such illegal
activity were ordered returned by the court because the
possession of these items are not illegal per se.
What is so illegal for possessing a television set? Or a video
recorder? Eh mahilig lang talaga akong mag record kaya may
sampu ako dyan. So there must have to be a description that
these items are illegally used in violation of these laws.
Gambling, the same, normally the money or monies are always
described as bets. Because if you only indicate there, money, it
will end up to be kept by the police officer.. no no (sniggles).
They will return not kept, returned to the person from whom
they were taken. Let us continue next meeting.
ASONG, JP LEO
KINTANAR, KRISZA JOY
LAMAN, JAHMES WA EL
Without inspiration the best powers of the mind

remain dormant. There is a fuel in us which needs to
be ignited with sparks.
Johann Gottfried Von Herder
"I returned, and saw under the sun, that the race is not to the
swift, nor the battle to the strong, neither yet bread to the wise,
nor yet riches to men of understanding, nor yet favour to men
of skill; but time and chance happeneth to them all."
~Ecclesiastes 9:11
33


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COLLEGE OF LAW
seizure of these drugs was considered valid and therefore

admissible under the doctrine of pain view.
August 7, 2012
VALID INSTANCES OF WARRANTLESS
SEARCHES AND SEIZURES
A. SEARCH OF MOVING VEHICLES
The exception as to warrantless searches and seizures has also
been applied to searches and seizure of MOVING VESSELS.
Like searches on MOTOR VESSELS (in the same
characterization of MOVING VEHICLES), [they] can be also be
brought out of the territorial jurisdiction of the search warrant
where it is supposed to be implemented or served.
As such, searches of moving vessels are considered covered by
the instance of search of moving vehicles. Thus, there must have
to be also that minimum determination of probable cause.
Also covered are searches on AIRCRAFTS. These vehicles have
the same characteristics as that of those previously mentioned.
In their case, however, the visible searches will be to determine
violations of customs and tariff laws as well as immigration laws.
Also, in some cases, the search-of-moving-vehicles-exception
has been applied to cover instances of SEARCHES OF
VEHICLES IN BORDERS.
In that case, checkpoints are conducted at the borders (land
border, no border as to seas). These are [conducted and]
allowed when the vehicles to be searched would cross the border
to get to another state.
So again, invariably, those instances are covered under searches
of moving vehicles, which by their nature, are moving in or out
the territory where the search warrant will have to be
implemented.
B. PLAIN VIEW DOCTRINE
34
The SC reiterated the conditions in which search in plain view

shall be applicable.
The firstand which is the most important requisite or
conditionis that there must have to be a valid prior intrusion.
The intrusion must have to be valid before all the rest of the
conditions will be appreciated in favor of the applicability of the
doctrine.
Now, based on the facts of the case, the knowledge of the police
officers was based on the informants tip. Neither did they have
any personal knowledge, nor anything which consisted of
probable cause so as to make the entry.
Therefore, the intrusion was not justifiable. Since the intrusion
was not justified, the discovery of the drugs later on would not be
justified as well because they should not have been there to
begin with.
G.R. No. 191366

December 13, 2010
ARNOLD MARTINEZ Y NGELES, EDGAR DIZON Y FERRER,
REZIN MARTINEZ Y CAROLINO, and RAFAEL GONZALES Y
CUNANAN
This case would appear to fall under either a warrantless search
incidental to a lawful arrest or a plain view search, both of which
require a lawful arrest in order to be considered valid exceptions to
the constitutional guarantee.
Rule 113 of the Revised Rules of Criminal Procedure provides for
the circumstances under which a warrantless arrest is lawful. Thus:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a
private person may, without a warrant, arrest a person:
(a)
(b)
When, in his presence, the person to be arrested has

committed, is actually committing, or is attempting to commit
an offense;
When an offense has just been committed and he has
probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has
committed it; and
When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is
serving final judgment or is temporarily confined while his
case is pending, or has escaped while being transferred
from one confinement to another.xxx
Now, the last instance to be discussed is SEARCH IN PLAIN

VIEW. Case in point is PEOPLE vs. MARTINEZ.
(c)
This involves a search of residence in Trinidad Subdivision,

Dagupan City while the occupants of the house were having pot
session. So, the police officer, with the help of the informants,
barged into the residence. There, they verified the informants tip
that the accused were actually in pot session. There were several
items taken consisting of sachets which turn out to be MET
(shabu). So, the question was whether or not the search and
The manner by which accused-appellants were apprehended does

not fall under any of the above-enumerated categories. Perforce,
their arrest is illegal.


First, the arresting officers had no personal knowledge that at the
time of their arrest, accused-appellants had just committed, were
committing, or were about to commit a crime.
Second, the arresting officers had no personal knowledge that a
crime was committed nor did they have any reasonable ground to
believe that accused-appellants committed it.
Third, accused-appellants were not prisoners who have escaped
from a penal establishment.
Neither can it be said that the objects were seized in plain view.
First, there was no valid intrusion. As already discussed, accusedappellants were illegally arrested. Second, the evidence, i.e., the
tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through
the window before they saw and ascertained the activities of
accused-appellants inside the room.
In like manner, the search cannot be categorized as a search of a
moving vehicle, a consented warrantless search, a customs
search, or a stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of
any such showing.
On the contrary, it indicates that the apprehending officers should
have conducted first a surveillance considering that the identities
and address of the suspected culprits were already ascertained.
After conducting the surveillance and determining the existence of
probable cause for arresting accused-appellants, they should have
secured a search warrant prior to effecting a valid arrest and
seizure. The arrest being illegal ab initio, the accompanying search
was likewise illegal. Every evidence thus obtained during the illegal
search cannot be used against accused-appellants; hence, their
acquittal must follow in faithful obeisance to the fundamental law.
It has been held that personal knowledge of facts in arrests without
warrant must be based upon probable cause, which means an
actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when the suspicion, that the person to be
arrested is probably guilty of committing an offense, is based on
actual facts, that is, supported by circumstances sufficiently strong
in themselves to create the probable cause of guilt of the person to
be arrested. Xxx
Neither can it be said that the subject items were seized in plain
view. The elements of plain view are:
(a)
A prior valid intrusion based on the valid warrantless arrest in

which the police are legally present in the pursuit of their
official duties;
(b) The evidence was inadvertently discovered by the police who
have the right to be where they are;
(c) The evidence must be immediately apparent; and
(d) "Plain view" justified mere seizure of evidence without further
search.
The evidence was not inadvertently discovered as the police
officers intentionally entered the house with no prior surveillance or
investigation before they discovered the accused with the subject
items. If the prior peeking of the police officers in Bolasa was held
to be insufficient to constitute plain view, then more so should the
warrantless search in this case be struck down. Neither can the
search be considered as a search of a moving vehicle, a
35
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COLLEGE OF LAW
consented warrantless search, a customs search, a stop and frisk,

or one under exigent and emergency circumstances.
The apprehending officers should have first conducted a
surveillance considering that the identity and address of one of the
accused were already ascertained. After conducting the
surveillance and determining the existence of probable cause, then
a search warrant should have been secured prior to effecting
arrest and seizure.
The arrest being illegal, the ensuing search as a result thereof is
likewise illegal. Evidence procured on the occasion of an
unreasonable search and seizure is deemed tainted for being the
proverbial fruit of a poisonous tree and should be excluded. The
subject items seized during the illegal arrest are thus inadmissible.
The drug, being the very corpus delicti of the crime of illegal
possession of dangerous drugs, its inadmissibility thus precludes
conviction, and calls for the acquittal of the accused.
The SC noted some other cases In the case of PEOPLE vs.

BOLASA, the SC said that even peeping from a hole does not
even constitute plain view.
In the case of BOLASA, there was also an informants tip. An
informant relayed to the police officers that a man and a woman,
supposedly spouses, were packing marijuana leaves in their
residence. So what the police did was that they went to the
house, peeped through the hole and actually saw in fact that the
spouses were indeed packing marijuana leaves. They then
entered the residence, announced the arrest and seized the
evidence.
The SC said there was no justifiable intrusion. They should have,
as in the case of Martinez, applied for a warrant. The SC made a
rule that the police should have conducted surveillance
under the circumstance. And based on their (police) personal
knowledge, they could have applied for search warrant and
thereafter serve or implement said search warrant.
G.R. No. 125754. December 22, 1999

PEOPLE OF THE PHILIPPINES vs. ZENAIDA BOLASA Y
NAKOBOAN and ROBERTO DELOS REYES.
An anonymous caller tipped off PO3 Dante Salonga and PO3
Albert Carizon that a man and a woman were repacking prohibited
drugs at a certain house in Manila.
PO3 Salonga and PO3 Carizon together with SPO1 Fernando
Arenas immediately proceeded to the house of the suspects and
parked their car some three hundred (300) meters away. They
walked towards their quarry's lair accompanied this time by their
unnamed informer.
When they reached the house they "peeped (inside) through a
small window and x x x saw one man and a woman repacking
suspected marijuana."


They entered the house and introduced themselves as police
officers to the occupants and thereupon confiscated the tea bags
and some drug paraphernalia. They arrested the two (2) who
turned out to be the accused Zenaida Bolasa y Nakoboan and
Roberto delos Reyes. Subsequent examination of the tea bags by
NBI Forensic Chemist Rubie Calalo confirmed the suspicion that
the tea bags contained marijuana.
RULING
Arrests and seizures in the following instances are not deemed
unreasonable and are thus allowed even in the absence of a
warrant
1. Warrantless search incidental to a lawful arrest (Sec. 12, Rule
126 of the Rules of Court and prevailing jurisprudence);
2. Search of evidence in plain view. The elements are: (a) a
prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their
official duties; (b) the evidence was inadvertently discovered
by the police who have the right to be where they are; (c) the
evidence must be immediately apparent; and, (d) "plain view"
justified mere seizure of evidence without further search.
3. Search of a moving vehicle. Highly regulated by the
government, the vehicles inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.
An arrest is lawful even in the absence of a warrant: (a) when the
person to be arrested has committed, is actually committing, or is
about to commit an offense in his presence; (b) when an offense
has in fact been committed and he has reasonable ground to
believe that the person to be arrested has committed it; and, (c)
when the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
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.
IN THIS CASE, the manner by which accused-appellants were
apprehended does not fall under any of the above-enumerated
categories.
Perforce, their arrest is illegal. First, the arresting officers had no
personal knowledge that at the time of their arrest, accusedappellants had just committed, were committing, or were about to
commit a crime.
Second, the arresting officers had no personal knowledge that a
crime was committed nor did they have any reasonable ground to
believe that accused-appellants committed it.
Third, accused-appellants were not prisoners who have escaped
from a penal establishment.
Neither can it be said that the objects were seized in plain view.
36
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COLLEGE OF LAW
First, there was no valid intrusion. As already discussed, accusedappellants were illegally arrested. Second, the evidence, i.e., the
tea bags later on found to contain marijuana, was not inadvertently
discovered. The police officers intentionally peeped first through
the window before they saw and ascertained the activities of
accused-appellants inside the room.
In like manner, the search cannot be categorized as a search of a
moving vehicle, a consented warrantless search, a customs
search, or a stop and frisk; it cannot even fall under exigent and
emergency circumstances, for the evidence at hand is bereft of
any such showing.
On the contrary, it indicates that the apprehending officers should
have conducted first a surveillance considering that the identities
and address of the suspected culprits were already ascertained.
After conducting the surveillance and determining the existence of
probable cause for arresting accused-appellants, they should have
secured a search warrant prior to effecting a valid arrest and
seizure. The arrest being illegal ab initio, the accompanying
search was likewise illegal. Every evidence thus obtained during
the illegal search cannot be used against accused-appellants;
hence, their acquittal must follow in faithful obeisance to the
fundamental law.
C. STOP AND FRISK

This has been considered as an exception because to begin with,
there is no actual intention to search.
The STOP and FRISK SITUATION is based on the 1968 ruling of
the US SC in the case of TERRY vs. OHIO.
What happened in that case was that there were 3 accused,
apparently colored people, who were suspiciously facing a
business establishment, according to the police officer who
arrested them. The business establishment was a jewelry store.
They were acting suspiciously, so the police officer stopped and
frisked them for the presence of concealed deadly weapon which
they may use to harm the police officer while effecting the
search. And, eventually they were arrested. When they were
convicted by the state court of Ohio, they appealed to the SC,
which affirmed the decision.
The SC said that there was no search in the ordinary course of
search and seizure. There was only a stopping and frisking of the
person and incidentally the concealed weapon or contraband
was discovered upon such. This is where a police officer is
given ample latitude based on his experience on a possible
crime activity on going and therefore the rule allows him to
stop the person and frisk him for the purpose.
First, the general purpose is based on crime prevention. Because
of his (police officer) experience, he may have thought that there
is an on going criminal activity but he is not sure of it, thus, he is


given the right to stop and frisk that person. Second, this was for
him to be safe while he is still determining whether or not there is
indeed an ongoing criminal activity. In such a case, he is allowed
to search that person for concealment of weapon that the person
may use to commit violence.
That characterization however is based on several factors.
The most important is the appropriateness of
circumstances.
the
In this case of POSADAS Y ZAMORA vs CA (G.R. No. 89139),

an old case originally decided in Davao, the landmark case of
TERRY vs. OHIO was applied.
This is the circumstance that happened on the height of the
Sparrow unit of the CPP- NPA. The persons (involved) while
walking, apparently innocent, and bringing with them market
baskets or buri bags, were approached by police officers. They
attempted to run but they were eventually accosted. The bags
turned out to contain deadly weapons and ammunitions. So,
based on the circumstances, the search would be allowable. The
local judge here applied the TERRY vs. OHIO ruling.
G.R. No. 89139 August 2, 1990 ROMEO POSADAS y ZAMORA,
vs.
THE HONORABLE COURT OF APPEALS and THE PEOPLE OF
THE PHILIPPINES
Pat. Ursicio Ungab and Pat. Umbra Umpar were conducting a
surveillance along Magallanes Street, Davao City. While they were
within the premises of the Rizal Memorial Colleges they spotted
petitioner carrying a "buri" bag and they noticed him to be acting
suspiciously.
They approached the petitioner and identified themselves as
members of the PNP. Petitioner attempted to flee but his attempt
to get away was thwarted by the two notwithstanding his
resistance.
They then checked the "buri" bag of the petitioner where they
found one (1) caliber .38 Smith & Wesson revolver with two (2)
rounds of live ammunition for a .38 caliber gun, a smoke (tear gas)
grenade, and two (2) live ammunitions for a .22 caliber gun.
Then, they brought the petitioner to the police station for further
investigation. In the course of the same, the petitioner was asked
to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He
was then taken to the Davao Metrodiscom office and the prohibited
articles recovered from him were indorsed to M/Sgt. Didoy the
officer then on duty. He was prosecuted for illegal possession of
firearms and ammunitions.
RULING
Clearly, the search in the case at bar can be sustained under the
exceptions.
There are many instances where a warrant and seizure can be
effected without necessarily being preceded by an arrest, foremost
of which is the "stop and search" without a search warrant at
37
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COLLEGE OF LAW
military or police checkpoints, the constitutionality or validity of

which has been upheld by this Court in Valmonte vs. de Villa.
It was held in said case that [n]ot all searches and seizures are
prohibited. Those which are reasonable are not forbidden. A
reasonable search is not to be determined by any fixed formula but
is to be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds, or simply
looks into a vehicle or flashes a light therein, these do not
constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela (and
probably in other areas) may be considered as a security measure
to enable the NCRDC to pursue its mission of establishing
effective territorial defense and maintaining peace and order for
the benefit of the public. Checkpoints may also be regarded as
measures to thwart plots to destabilize the government in the
interest of public security.
In this connection, the Court may take judicial notice of the shift to
urban centers and their suburbs of the insurgency movement, so
clearly reflected in the increased killings in cities of police and
military men by NPA "sparrow units," not to mention the
abundance of unlicensed firearms and the alarming rise in
lawlessness and violence in such urban centers, not all of which
are reported in media, most likely brought about by deteriorating
economic conditions which all sum up to what one can rightly
consider, at the very least, as abnormal times.
Between the inherent right of the state to protect its existence and
promote public welfare and an individual's right against a
warrantless search which is however reasonably conducted, the
former should prevail.
True, the manning of checkpoints by the military is susceptible of
abuse by the men in uniform in the same manner that all
governmental power is susceptible of abuse. But, at the cost of
occasional inconvenience, discomfort and even irritation to the
citizen, the checkpoints during these abnormal times, when
conducted within reasonable limits, are part of the price we pay for
an orderly society and a peaceful community
Thus, as between a warrantless search and seizure conducted at
military or police checkpoints and the search thereat in the case at
bar, there is no question that, indeed, the latter is more reasonable
considering that unlike in the former, it was effected on the basis of
a probable cause.
The probable cause in this case was that when the petitioner acted
suspiciously and attempted to flee with the buri bag, there was a
probable cause that he was concealing something illegal in the bag
and it was the right and duty of the police officers to inspect the
same.
It is too much indeed to require the police officers to search the
bag in the possession of the petitioner only after they shall have
obtained a search warrant for the purpose. Such an exercise may
prove to be useless, futile and much too late.
The Court reproduces with approval the following disquisition of
the Solicitor General:


The assailed search and seizure may still be justified as akin to a
"stop and frisk" situation whose object is either to determine the
identity of a suspicious individual or to maintain the status quo
momentarily while the police officer seeks to obtain more
information.
This is illustrated in the case of Terry vs. Ohio, 392 U.S. 1
(1968). In this case, two men repeatedly walked past a store
window and returned to a spot where they apparently conferred
with a third man. This aroused the suspicion of a police officer. To
the experienced officer, the behaviour of the men indicated that
they were sizing up the store for an armed robbery. When the
police officer approached the men and asked them for their names,
they mumbled a reply. Whereupon, the officer grabbed one of
them, spun him around and frisked him. Finding a concealed
weapon in one, he did the same to the other two and found
another weapon. In the prosecution for the offense of carrying a
concealed weapon, the defense of illegal search and seizure was
put up.
The United States Supreme Court held that "a police officer may in
appropriate circumstances and in an appropriate manner approach
a person for the purpose of investigating possible criminal
behaviour even though there is no probable cause to make an
arrest."
In such a situation, it is reasonable for an officer rather than simply
to shrug his shoulder and allow a crime to occur, to stop a
suspicious individual briefly in order to determine his identity or
maintain the status quo while obtaining more information. . . .
Meanwhile, in the case of ESQUILLO vs. PEOPLE, G.R. No.

182010, the police officer was sent on a mission to make
surveillance on an activity of an alleged pickpocket.
When he reached the area, he chanced upon petitioner Susan
Equillo, standing and apparently placing what appears to be a
small sachet inside a false bottom of a lighter. Since the police
officer, based on his experience, had knowledge that drugs are
contained in such sachets, he went to the appellant and
introduced himself as a police officer. The woman started to run
but she was eventually caught up. When the officer inspected the
lighter, it turned out to be shabu.
So the question there was whether there was a valid arrest and
seizure upon search and frisk.
The SC made it fall under the STOP and FRISK SITUATION
because there was no intention really to arrest that person or any
intention to search the appellant. The police officer was there for
different reason. But because of his experience, he noticed that
the woman was acting suspiciously, for which reason the seizure
was considered valid under the STOP and FRISK.
ESQUILLO vs PEOPLE G.R. No. 182010
On the basis of an informants tip, PO1 Cruzin, together with PO2
Angel Aguas (PO2 Aguas), proceeded to Pasay City to conduct
38
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COLLEGE OF LAW
surveillance on the activities of an alleged notorious snatcher

operating in the area known only as Ryan.
As PO1 Cruzin alighted from the private vehicle that brought him
and PO2 Aguas to the target area, he glanced in the direction of
petitioner who was standing three meters away and seen placing
inside a yellow cigarette case what appeared to be a small heatsealed transparent plastic sachet containing white substance.
While PO1 Cruz was not sure what the plastic sachet contained,
he became suspicious when petitioner started acting strangely as
he began to approach her. He then introduced himself as a police
officer to petitioner and inquired about the plastic sachet she was
placing inside her cigarette case.
Instead of replying, however, petitioner attempted to flee to her
house nearby but was timely restrained by PO1 Cruzin who then
requested her to take out the transparent plastic sachet from the
cigarette case. After apprising petitioner of her constitutional rights,
PO1 Cruzin confiscated the plastic sachet on which he marked her
initials SRE. A case was filed against her.
In her present petition, petitioner assails the appellate courts
application of the stop-and-frisk principle in light of PO1 Cruzins
failure to justify his suspicion that a crime was being committed, he
having merely noticed her placing something inside a cigarette
case which could hardly be deemed suspicious.
To petitioner, such legal principle could only be invoked if there
were overt acts constituting unusual conduct that would arouse the
suspicion. circumstances leading to petitioners arrest.
RULING
Appellants conviction stands. Elucidating on what includes stopand-frisk operation and how it is to be carried out, the Court in
People v. Chua held:
. . . the act of a police officer to stop a citizen on the street,
interrogate him, and pat him for weapon(s) or contraband. 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 latters outer clothing
for possibly concealed weapons.
The apprehending police officer must have a genuine reason, in
accordance with the police officers experience and the
surrounding conditions, to warrant the belief that the person to be
held has weapons (or contraband) concealed about him. It should
therefore be emphasized that a search and seizure should precede
the arrest for this principle to apply.
This principle of stop-and-frisk search was invoked by the Court
in Manalili v. Court of Appeals. In said case, the policemen
chanced upon the accused who had reddish eyes, walking in a
swaying manner, and who appeared to be high on drugs. Thus,
we upheld the validity of the search as akin to a stop-and-frisk.
In People v. Solayao, we also found justifiable reason to stop-andfrisk the accused after considering the following circumstances:
the drunken actuations of the accused and his companions, the
fact that his companions fled when they saw the policemen, and
the fact that the peace officers were precisely on an intelligence
mission to verify reports that armed persons w[h]ere roaming the
vicinity. (emphasis and underscoring supplied; citations omitted)
xxx


What is, therefore, essential is that a genuine reason must exist, in

light of the police officers experience and surrounding conditions,
to warrant the belief that the person who manifests unusual
suspicious conduct has weapons or contraband concealed about
him.
Such a stop-and-frisk practice serves a dual purpose: (1) the
general interest of effective crime prevention and detection, which
underlies the recognition that a police officer may, under
appropriate
circumstances and in an appropriate manner,
approach a person for purposes of investigating possible criminal
behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police
officer to take steps to assure himself that the person with whom
he deals is not armed with a deadly weapon that could
unexpectedly and fatally be used against the police officer.
From these standards, the Court finds that the questioned act of
the police officers constituted a valid stop-and-frisk operation.
The search/seizure of the suspected shabu initially noticed in
petitioners possession - later voluntarily exhibited to the police
operative - was undertaken after she was interrogated on what she
placed inside a cigarette case, and after PO1 Cruzin introduced
himself to petitioner as a police officer. And, at the time of her
arrest, petitioner was exhibiting suspicious behavior and in fact
attempted to flee after the police officer had identified himself.
This case should be differentiated from the case of PEOPLE vs.

MENGOTE.
This case was still based on informants tip. The police station
received a phone call that there was a man acting suspiciously in
the corner of 2 streets because there was something on his
waistline. So, the police officer went to that place and saw that
man based on the description and jumped on him and found in
his possession unlicensed firearms. So he was charged
accordingly. The question thus is whether it was a valid stop-andfrisk situation.
The SC said NO because the circumstance was not appropriate.
The facts of the case will show that this happened around noon
time in the corner of two busy streets and that the person was not
the only person there because again, these are two busy streets.
The SC said there was nothing suspicious with a man holding his
tummy; it might be that he was just experiencing something that
requires him to touch his stomach.
G.R. No. 87059 June 22, 1992

THE PEOPLE OF THE PHILIPPINES vs. ROGELIO MENGOTE
There is no question that evidence obtained as a result of an illegal
search or seizure is inadmissible in any proceeding for any
purpose.
That is the absolute prohibition of Article III, Section 3(2), of the
Constitution. This is the celebrated exclusionary rule based on the
39
ATENEO DE DAVAO
COLLEGE OF LAW
justification given by Judge Learned Hand that "only in case the

prosecution, which itself controls the seizing officials, knows that it
cannot profit by their wrong will the wrong be repressed."
The Solicitor General, while conceding the rule, maintains that it is
not applicable in the case at bar. His reason is that the arrest and
search of Mengote and the seizure of the revolver from him were
lawful under Rule 113, Section 5, of the Rules of Court reading as
follows:XXX
In cases failing under paragraphs (a) and (b) hereof, the person
arrested without a warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be proceeded against in
accordance with Rule 112, Section 7.
We have carefully examined the wording of this Rule and cannot
see how we can agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not
an escapee from a penal institution when he was arrested. We
therefore confine ourselves to determining the lawfulness of his
arrest under either Par. (a) or Par. (b) of this section.
Par. (a) requires that the person be arrested (1) after he has
committed or while he is actually committing or is at least
attempting to commit an offense, (2) in the presence of the
arresting officer.
These requirements have not been established in the case at bar.
At the time of the arrest in question, the accused-appellant was
merely "looking from side to side" and "holding his abdomen,"
according to the arresting officers themselves. There was
apparently no offense that had just been committed or was being
actually committed or at least being attempted by Mengote in their
presence.
The Solicitor General submits that the actual existence of an
offense was not necessary as long as Mengote's acts "created a
reasonable suspicion on the part of the arresting officers and
induced in them the belief that an offense had been committed and
that the accused-appellant had committed it." The question is,
what offense? What offense could possibly have been suggested
by a person "looking from side to side" and "holding his abdomen"
and in a place not exactly forsaken?
These are certainly not sinister acts. And the setting of the arrest
made them less so, if at all. It might have been different if Mengote
had been apprehended at an ungodly hour and in a place where
he had no reason to be, like a darkened alley at 3 o'clock in the
morning.
But he was arrested at 11:30 in the morning and in a crowded
street shortly after alighting from a passenger jeep with his
companion. He was not skulking in the shadows but walking in the
clear light of day. There was nothing clandestine about his being
on that street at that busy hour in the blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all
of them innocent, why his eyes were darting from side to side and
he was holding his abdomen. If they excited suspicion in the minds
of the arresting officers, as the prosecution suggests, it has
nevertheless not been shown what their suspicion was all about.
In fact, the policemen themselves testified that they were
dispatched to that place only because of the telephone call from
the informer that there were "suspicious-looking" persons in that


vicinity who were about to commit a robbery at North Bay
Boulevard. The caller did not explain why he thought the men
looked suspicious nor did he elaborate on the impending crime.
Again, the STOP and FRISK is based on the appropriateness of

the situation. So the appropriateness of the circumstance would
define whether or not the STOP and FRISK situation should be a
ground for warrantless situation.
ATENEO DE DAVAO
COLLEGE OF LAW
Police officer Fami then revealed that when the receipt of the
evidence was prepared, all 3 accused were not represented by
counsel. He likewise disclosed that he was the one who escorted
all the accused during their physical examination. He also escorted
all 3 to the fiscals office where they were informed of the charges
against them.
The 3 were found guilty by the trial court, and the case was
automatically elevated to the CA for review. However, Nuevas
withdrew his appeal. Thus, the case was considered closed and
terminated as to him. The CA affirmed the trial court.
D. EXPRESS WAIVER
There are several matters to remember on EXPRESS WAIVER.
First, the waiver must have to be express. It cannot be
considered a waiver therefore if there is a failure of the person to
whom the right pertains to object or to refuse, or to avoid the
search of his person because most often than not, the failure to
object expressly is supposed to be based on ones fear or
perhaps, ones respect from authority, and not because he
actually allows the search to be conducted.
Second, it must be given by the person to whom the right
pertains. In this case of PEOPLE vs. NUEVAS, that was the
principle laid down by the Court. It must be given by the person
to whom the right pertains. That is why in some cases, there are
instances on the question on to whom the right pertains?
For example, in a lease room in a boarding house, who has the
right to grant consent? Is it the landlord/lady or the lessee of the
room? What is the object of the lease? Is the object turn over
ownership or only possession to lessee?
Even if there is consent, the search must have to be conducted in
relation or within the terms of the consent. No problem if the
consent is general, okay you can search the house etc..., then
there is no limitation as to the scope of the search to be
conducted.
PEOPLE VS. NUEVAS
Police officers Fami and Cabling, during a stationary surveillance
and monitoring of illegal drug trafficking in Olongapo City, came
across Jesus Nuevas, who they suspected to be carrying drugs.
Upon inquiry, Nuevas showed them a plastic bag which contained
marijuana leaves and bricks wrapped in a blue cloth. He then
informed the officers of 2 other persons who would be making
marijuana deliveries.
The police officers then proceeded where Nuevas said his
associates, Reynaldo Din and Fernando Inocencio, could be
located. Din was carrying a plastic which contained marijuana
packed in newspaper and wrapped therein. When the police
officers introduced themselves, Din voluntarily handed the plastic
bag over them. After the items were confiscated, the police officers
took the three men to the police office.
40
Issue
Whether or not Din and Inocencio waived their right against
unreasonable searches and seizures?
Held
No. The search conducted in Nuevas case was made with his
consent. However, in Dins case there was none.
There is a reason to believe that Nuevas indeed willingly submitted
the plastic bag with the incriminating contents to the police officers.
It can be seen that in his desperate attempt to exculpate himself
from any criminal liability, he cooperated with the police, gave them
the plastic bag, and even revealed his associates, offering himself
as an informant.
His actuations were consistent with the lamentable human
inclination to find excuses, blame others, and save oneself even at
the cost of others lives. Thus, the Court would have affirmed
Nuevas conviction had he not withdrawn his appeal.
On the other hand, with respect to the search conducted in the
case of Din, the Court finds that no such consent had actually been
given. The police officers gave inconsistent, dissimilar testimonies
regarding the manner by which they got hold of the plastic bag.
Neither can Dins silence at the time be construed as implied
acquiescence to the warrantless search. Thus, the prosecution
failed to clearly show that Din intentionally surrendered his right
against unreasonable searches.
As to Inocencios case, his supposed possession of the dried
marijuana leaves was sought to be shown through his act of
looking into the plastic bag that Din was carrying. The act
attributed to Inocencio is insufficient to establish illegal possession
of the drugs or even conspiracy to illegally possess the same. The
prosecution failed to show by convincing proof that Inocencio knew
of the contents of the bag and that he conspired with Din to
possess the illegal items.
But in one case, that case of VEROY vs. LAYAGUE, the consent
there to conduct a search was allowed [but only for the purpose
of ] searching the house for the presence of rebel soldiers. So
these are people supposedly hiding in the residential building.
Thus, the search is to be conducted only in the place where it is
reasonably expected that a person would hide.
Based on the facts of the case, however, they found the
supposed documents, firearms, and ammunitions in the places
where it cannot be reasonably expected to a person to be hiding,
that is, in the drawer and small cabinet where no human can fit.
The SC said that the search was INVALID.


reportedly being used as a hideout and recruitment center for rebel

soldiers.
VEROY VS. LAYAGUE

(210 SCRA 92)
Petitioners are husband and wife who owned and formerly resided
at Skyline, Davao City. In June 1988, they transferred to Quezon
City where they are presently residing. The care and upkeep of
their residence was left to two (2) houseboys. The key to the
master's bedroom as well as the keys to the children's rooms were
retained by petitioners.
On April 12, 1990, Capt. Obrero, raided the house of herein
petitioners in Davao City on information that the said residence
was being used as a safehouse of rebel soldiers. They were able
to enter the yard with the help of the caretakers but did not enter
the house since the owner was not present and they did not have a
search warrant.
Petitioner Ma. Luisa was contacted by telephone to ask permission
to search the house. Ma. Luisa Veroy responded that she is flying
to Davao City to witness the search but relented if the search
would not be conducted in the presence of Major Ernesto
Macasaet.
The authority given by Ma. Luisa Veroy was relayed by Capt.
Obrero to Major Macasaet who answered that Ma. Luisa Veroy has
called him twice by telephone on the matter and that the
permission was given on the condition that the search be
conducted in his presence.
The following day, Capt. Obrero and Major Macasaet conducted
the search pursuant to the authority granted by petitioner Ma.
Luisa Veroy. The caretakers facilitated their entry into the yard,
and using the key entrusted to Edna Soguilon, they were able to
gain entrance into the kitchen. A locksmith, Badiang, had to be
employed to open the padlock of the door leading to the children's
room. Capt. Obrero and Major Macasaet then entered the
children's room and conducted the search. Capt. Obrero recovered
handgun, printed materials, etc.
Issue
Whether the articles were inadmissible as evidence for being
violative of the prohibition against unreasonable searches and
seizures?
Held
Yes. Petitioners aver that while they concede that Capt. Obrero
had permission from Ma. Luisa Veroy to break open the door of
their residence, it was merely for the purpose of ascertaining
thereat the presence of the alleged "rebel" soldiers. The
permission did not include any authority to conduct a room to room
search once inside the house.
The Constitution guarantees the right of the people to be secure in
their persons, houses, papers and effects against unreasonable
searches and seizures. However, the rule that searches and
seizures must be supported by a valid warrant is not an absolute
one. Among the recognized exceptions thereto are:
(1)
(2)
(3)
A search incidental to an arrest;

A search of a moving vehicle; and
Seizure of evidence in plain view.
None of these exceptions pertains to the case at bar. The reason

for searching the house of herein petitioners is that it was
41
ATENEO DE DAVAO
COLLEGE OF LAW
While Capt. Obrero was able to enter the compound, he did not
enter the house because he did not have a search warrant and the
owners were not present. This shows that he himself recognized
the need for a search warrant, hence, he did not persist in entering
the house but rather contacted the Veroys to seek permission to
enter the same. Permission was indeed granted by Ma. Luisa
Veroy to enter the house but only to ascertain the presence of
rebel soldiers.
Under the circumstances it is undeniable that the police officers
had ample time to procure a search warrant but did not.
Undeniably, the offense of illegal possession of firearms is malum
prohibitum but it does not follow that the subject thereof is
necessarily illegal per se. Motive is immaterial in mala prohibita but
the subjects of this kind of offense may not be summarily seized
simply because they are prohibited. A search warrant is still
necessary.
Hence, the rule having been violated and no exception being
applicable, the articles seized were confiscated illegally and are
therefore protected by the exclusionary principle. They cannot be
used as evidence against the petitioners in the criminal action
against them for illegal possession of firearms.
Besides, assuming that there was indeed a search warrant, still in
mala prohibita, while there is no need of criminal intent, there must
be knowledge that the same existed. Without the knowledge or
voluntariness there is no crime. The criminal case against the
petitioners for illegal possession of firearms is DISMISSED.
SO, the waiver must have to be express and not implied. Failure
to object is not considered an express waiver.
In sum, express waiver requires an understanding of the right
of that person for unreasonable searches and seizure, and
full understanding of the effect of waiving or granting consent
to the search.
Second, it must have to be given by the person whose right
pertains and the search must have to be conducted in relation to
the consent given.
E. VIOLATION OF CUSTOM AND TARIFF LAWS
These searches are allowed because of the difference in
effecting searches therein. In this kind of search, however, there
must have to be a prohibition that these searches are limited to
the warehouses as well as any modes of transport.
As such, these searches cannot extend to residential units or
dwelling. Thus, if the search is to be conducted in residential
units or dwelling places there must have to be a search warrant
duly applied for and secured from the judge.


Now, in your outline, there are instances not covered by the
six general instances. It is not covered because they have not
reached the status of the six in the discussion. They have just
been laid lately because of the jurisprudence of the SC. They are
as follows:
ATENEO DE DAVAO
COLLEGE OF LAW
objects or other documents are offered after the presentation of

the oral testimonies of the witnesses.
So, it is usually around that time when there is a formal offer of
documentary evidence that the EXCLUSIONARY RULE is
claimed by objecting to the offer of the prosecution.
F. EXIGENT CIRCUMSTANCES
MOTION to QUASH
Again based on our discussion on hierarchy of rights, in cases of
emergency, the right against unreasonable searches and seizure
can be regulated and even be violated in some extent because of
the nature of exigency.
So in cases of EXIGENCY, where the organized state or
government is at stake, then there can be so called allowance for
unwarranted searches and seizure.
In airports, because of the 9/11 incident, we have seen the
increase of airport security. While there is no compulsion for you
to undergo this checks as part of airport security, if you dont
want your personal right to be violated, you cannot compel the
airport personnel or management to allow you to take a flight
without going through the security control of these aircrafts.
G. JAIL SAFETY
In the case of PEOPLE vs. CONDE, the SC made mention that
when you are (inmate) incarcerated, there is a diminished right to
privacy of the inmate. That is why many matter or things
delivered by a relative can be searched. As such, if you delivered
a cake, the guard can slice it without violation because the right
to privacy is diminished because you are supposed to be
incarcerated. It is based on the protection of STATE INTEREST.
There is also another procedure by which you could seek a ruling

on the admissibility and this is to file a motion to quash the
information.
The motion to quash the information is usually filed in the court
where the case is pending. It is provided for in your Rule 116,
Rules of Court. in such a case, the court will have to determine
whether the evidence is inadmissible. The motion to quash is
filed normally before the start of the trial and not during the trial
after the presentation of the prosecution of its evidence.
LIMINE
There is also what have been allowed (at least in local practice
but not in the rules of court) the so-called LIMINE. This is a pre
trial proceeding where the accused would ask the court before
trial for [a] determination whether [an evidence] should be
excluded.
CIVIL ACTION for DAMAGES
The 2nd remedy is civil action for damages under Article 32 of the
CC. This refers to violation of civil liberties including the rights
against unreasonable searches and seizure. You can claim
damages under CIVIL LAW.
In fact, not only the person conducting the search and seizure,
but also the officials who ordered the same under the concept of
RESPONDEAT SUPERIOR.
REMEDIES
The following are the remedies in case of violations:
The damages would range from the actual damages based on

actual injuries suffered due to loss or destruction of property. It
could also be moral damages for the moral suffering.
EXCLUSIONARY RULE
This is the constitutional provision protecting the right of the
people against unreasonable searches and seizure. All evidence
obtained in violation of the right against unreasonable searches
and seizure shall be inadmissible. However this RIGHT MUST
HAVE TO BE CLAIMED.
Normally it could be claimed when the object evidence is being
offered. Under the rules on evidence, oral testimony is offered
upon presentation of the witness or his own testimony while
42
CRIMINAL VIOLATIONS
Also these 3 Articles in the RPC are considered as remedies:
1. ART 128 Violation of domicile.
2.
ART 129 -
Search warrants maliciously obtained

and abuse in the service of those
legally obtained.
3.
ART 130 -
Searching domicile without witnesses.


These crimes carry the penalty from the range of arresto mayor
maximum to prision correccional minimum.
So, you can claim these protections, SIMULTANEOUSLY. They
are not exclusive.
COMMON INSTANCES
In warrantless arrests, there are also six common instances in
warrantless searches.
It is provided in Section 5, Rule 113 of Rules of Court:
First, the inflagrante delicto case,
Second, when the offense has just been committed and that the
person arresting has personal knowledge of the facts that the
person to be arrested has committed it.
Third, when the person to be arrested has escaped from
detention facility whether serving prior sentence or pending trial.
The 3 more are provided for in different provisions:
Under Section 24, Rule 114, Rules of Court:
1. If a person is arrested by bonds person, the bonds
person need not be armed by a warrant; or
2. If the accused attempts to leave the country, he can be
arrested even without a warrant in order to prevent
situation that he will be out the jurisdiction of the court.
The last instance is still under Rules of Court, Sec. 13, Rule 113:
1. The person legally arrested can be rearrested without
warrant.
So, a person who was legally arrested but has escaped before
he was turned over to penal facility or has been rescued, then
that person can be rearrested without warrant.
So those are the 6 common instances of warrantless arrest.
DISCUSSIONS
So the discussions here are on the first 2 instances. First, the in
flagrante delicto case and second, where an offense has just
been committed.
Now, in the in flagrante delicto cases, a personal knowledge is
required that there has been a commission of an offense
because the offense here is being committed, has just been
committed, is about to be committed, is being committed, or has
just been committed in the presence of the person arresting.
So, the personal knowledge is upon the offense. It goes without
saying that since it is in flagrante delicto, the identity goes there
43
ATENEO DE DAVAO
COLLEGE OF LAW
as well. But then again, the emphasis is on the offense because

the offense must have been committed in the presence of the
person arresting.
Now, as to the second situation, there are two considerations: the
phrase that the offense has just been committed and the 2nd
phrase personal knowledge of facts indicating to the person to
be arrested has committed it.
Now, in the phrase that the offense has just been committed.
the safest rule, I think, is less than 24 hours.
There is a case 12 hours or 18 hours which are still within the
phrase that the offense has just been committed. The only
exception perhaps in some cases that it can go beyond 24 hours
from the time of commission until the time of arrest would be
those considered in HOT PURSUIT situations.
But again, in hot pursuit situations, there must have to be NO
APPRECIABLE BREAK in the sequence of events from the time
of the commission in the pursuit until the arrest is made. That is
the essence of hot pursuit, NO APPRECIABLE GAP.
The reason there being that there is no reasonable opportunity to
secure a warrant of arrest because if there is an appreciable gap
from the time of commission to the pursuit until the arrest is
made, then the police officer should have filed a case and should
have secured a warrant before effecting the arrest.
Now, as to personal knowledge of facts indicating that the
person to be arrested has committed, that is where most of the
discussion are also had. This is because the question would be
whose knowledge is supposed to be considered? Is it the
knowledge of the witnesses as relayed to the arresting officer?
The rule is quite clear that it must be the personal knowledge of
the person making the arrest.
But when the person making the arrest was not there when the
offense is committed, it is hardly expected that all the knowledge
or perspective of the witnesses would be based on their own
perceptions.
There are some which will come from the testimony or
information of eyewitness. But what is important is that these
information or testimony coming from the witnesses must have
been coupled with the evidence they have found in the scene of
the crime and therefore their perception would become personal
to them, making this as knowledge personal through them.
If the information as to the identity is based mainly on what the
informant or witnesses have relayed to them and it is not coupled
with what they have discovered personally in the scene of the


crime, then there is no satisfaction of the requirement. They must
have personally knowledge of the fact indicating the identity of
the person to be arrested.
In one case involving a fight where the two accused persons
were picking woods and hollow blocks, crushing the skull of the
victim resulting to his death.
When the call for police investigation came, the police officer
went to the hospital and there, they were able to see the
condition of the victim, that is, there were pieces of wood and
hollow block in his skull. Also, they went to the scene of the crime
and they discovered that there was a wood and broken hollow
block soaked in blood. And, the identities of the persons were
actually provided to them by the other persons.
Thus, the officers eventually made the arrest within 12 hours and
the SC said that it was valid based on Rule 113 section 5
paragraph B because the personal knowledge of the witness
were also confirmed by the person who were in the scene of the
crime upon their investigation.
In the famous case of ROLITO GO vs. CA, while the name of the
accused ROLITO GO was simply relayed to them, being the
arresting officer, the arresting officer was able to determine his
identity through the credit card receipt payment that the accused
paid. His identity was also determined based on the car
registration and therefore based on their investigation, there is a
reasonable conclusion that the identity of the accused was not
merely provided to them by the witness but they were also able
to personally determine by their investigation that that is the
identity of the person to be arrested.
ROLITO GO VS. COURT OF APPEALS
On July 2, 1991, Eldon Maguan was allegedly shot to death by
accused Rolito Go due to a traffic altercation when petitioners car
and the victims car nearly bumped each other. The security guard
of the Cravings Bake Shop saw the whole incident and pointed
herein petitioner as the gunman, which he positively identified
when questioned by the authorities.
ATENEO DE DAVAO
COLLEGE OF LAW
In Umil vs. Ramos, there was a valid warrantless arrest because

the offense (subversion) constituted a continuing crimes. Here,
the offense was murder, not a continuing crime.
The warrantless arrest does not fall within the terms of Section 5
of Rule 113 of the 1985 Rules on Criminal Procedure.
Gos arrest took place 6 days after the shooting. The arresting
officers obviously were not present at the time petitioner allegedly
shot Maguan.
Neither could the arrest effected 6 days after be reasonably
regarded as effected when the shooting had in fact just been
committed.
Plus, none of the arresting officers had any personal knowledge
of facts indicating that Go was the gunman. The police merely
relied on the statements of an alleged eyewitness.
STRICT ENFORCEMENT of the rule is the general rule for

warrantless arrests because this is really a violation of ones
personal privacy.
Meaning, there must have to be adherence to the determination
of probable cause if there is a warrant for the arrest or, if there is
no warrant, they must have to follow strictly within the 6 allowable
instances.
TAKE NOTE: The exception to that would be arrest without
warrant in relation to the Comprehensive Dangerous Drugs
Law as well as the Illegal possession of firearms,
ammunitions and explosives.
The reason for that based on the SC decision is that there is
difficulty in effecting arrest for people engaged by reason of
secrecy attending the same. There is no such thing as business
of selling drugs and firearms and the like as opposed to those
ordinary goods or business.
That is why there is a little leeway granted to state authorities if
the warrants of arrest involve these.
Being convinced of the suspects identity, the police launched a

manhunt operation that caused petitioner to present himself before
the San Juan Police Station to verify the said issue; he was then
detained by the police.
CARCEDO, HARVEY
LADEZA, ROEL
PAGUICAN, JOSHUA
PELONIO, AM
Issue: Whether or not the warrantless arrest of herein petitioner

was lawful
Held
No. The reliance of both petitioner and the Solicitor General upon
Umil vs. Ramos is, in the circumstances of this case, misplaced.
44


August 8, 2012
inadmissible for any purpose in any

proceeding.
Rendition normally is not allowed under our Constitutional set-up

because warrants of arrest are supposed to be issued only after
the determination of probable cause in relation to the criminal
offense. We have said earlier that in case of the president, in the
exercise of his powers over foreign relations, he has the authority
to issue a warrant for the arrest of an undesirable alien for his
immediate deportation. That is a form of an administrative arrest.
It is a long established exception to the rule that warrants of
arrest can only be issued by the courts.
Now the other form of administrative arrest would be the
issuance of warrants of arrest on account of a refusal or
disobedience to a subpoena. If it is issued by a court in relation
to a court case, there might not be a difficulty of understanding
that such warrant may be issued for disobeying the subpoena
because that would constitute contempt of court. Nonetheless, in
our system there are certain non-judicial bodies which have the
power to issue subpoena where the refusal or disobedience
would also result into a contemptuous act resulting into that body
to issue a warrant for the arrest. That is also a form of an
administrative arrest. So for example, Congress has the power to
issue subpoena and while it is not based on any positive rule or
express provision of law, but by reason of its mission that the
National Legislature should have all the necessary authority to
ensure that all its processes are made effective (just like the
courts, in relation to its legislative functions specifically in its
legislative investigations, its can issue warrants of arrest directing
the arrest of persons for refusal to obey or follow the subpoena
and that contempt power of the national legislature need not be
exercised by the courts). That is again a form of an administrative
arrest.
The next item in your outline is
PRIVACY OF COMMUNICATIONS
We have made mention already that this privacy of
communications or privacy or the right to privacy is not actually a
--- there is no direct provision in the constitution with respect to
ones right to privacy, at most is this Section 3, Article III
Privacy of Communications:
Section 3.
1. The privacy of communication and
correspondence shall be inviolable
except upon lawful order of the court, or
when public safety or order requires
otherwise, as prescribed by law.
2. Any evidence obtained in violation of
this or the preceding section shall be
45
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COLLEGE OF LAW
This privacy of communications is just one of those provisions in

the Constitution which relates to ones right to privacy. Ones
right to privacy, though not expressed in the Constitution is a
known constitutional right. The provisions respecting
unreasonable searches and seizures, or the provision on
unreasonable arrest are examples of provisions in the
Constitution that guarantees ones right to privacy or the right to
be left or let alone. So the State in the exercise of its powers
cannot affect a right to privacy unless of course it is consistent
with the general requirement of due process among others for a
valid exercise of its police power.
The right to privacy is something new as discussed in Philippine
jurisprudence because again there is a dearth in the Constitution
as to the expressed provision respecting ones right to privacy.
Nonetheless, there are several provisions in our Constitution
which would pertain to ones right to privacy. They are referred to
as zones of privacy. Several provisions on the matter in the Civil
Code, like Article 26:
Article 26. Every person shall respect the
dignity, personality, privacy and peace of
mind of his neighbors and other persons. The
following and similar acts, though they may
not constitute a criminal offense, shall
produce a cause of action for damages,
prevention and other relief:
(1) Prying into the privacy of another's
residence;
(2) Meddling with or disturbing the
private life or family relations of another;
(3) Intriguing to cause another to be
alienated from his friends;
(4) Vexing or humiliating another on
account of his religious beliefs, lowly
station in life, place of birth, physical
defect, or other personal condition.
and this may be a cause of action for damages if there is a
violation. Also there is an act punishable (for torts) on account of
persons meddling or prying into the privacy of another that is
under the same article 26; and Article 32 holds any public officer
or employee or any private individual for damages for any
violation of the rights and liberties of other persons. Under Article
723, which is a mirror of Article III, Sec. 3, the privacy of letters
and other private communications are also covered.
The Revised Penal Code has also several provisions with


respect to rights to privacy under Art. 229 (violation of secrets),
Art. 290-292 (revelation of trade and industrial secrets, trespass
to dwelling). Invasion of privacy is also an offense under special
law, R.A. 4200 the Anti-Wire Tapping Act. Also included are the
old laws, R.A. 425 (the Secrecy of Bank Deposits) and R.A. 8293
(the Intellectual Property Code).
The Rules of Court also recognize privilege communications and
also pertain to privacy of certain information under the Rules on
Evidence. There are information or matters which cannot be
elicited in the ordinary course of testimony because they are
considered privileged communication.
The right to privacy is not new in American Jurisprudence
because it has long been established. The right to privacy has
been discussed in a lot of regulations which would include (it may
be discussed today because of the RH Bill in the understanding
that because of the information that the government is supposed
to make available to the public so that they can make intelligent
choices in terms of their reproductive health. The use of
contraceptives is an issue which has long been decided in the
US. In relation to the use of contraceptives amongst spouses, it
has long been decided that this has been considered a situation
to ones privacy because the use of contraceptives in the
bedroom is beyond the authority or powers of the court to inquire.
What happens in the bedroom supposedly would be left to the
discretion of these people which the State has no right to
intervene. So in that old case involving the use of contraceptives
which would prevent the use of contraceptives in certain
situations, the court said it could not be allowed as a regulatory
measure because that involves ones right to privacy.)
In another case, there was a case involving a regulation on the
availability of contraceptives to minors meaning below 18. The
age ranges from 16 to 18, meaning these people are already
capable of reproduction or reproducing children. The law in the
US has disallowed to make these contraceptives available to
minors. SC also struck down the provision of that law because
the use of contraceptives is actually in relation to ones right to
privacy. You dont actually announce it publicly you have heard
of the joke that there was this man, because of the unavailability
of these kinds of information or education in Philippine society,
Filipinos would normally have a hard time dealing with these
things, words or phrases. So there was this one man who was to
buy a condom and so he told the pharmacist, the sales lady in
the pharmacy: Miss, condom Miss in a very low tone and voice
as if and the sales lady said Saiz Sir and then he said again
Miss, condom Miss. Lady: Saiz lagi Sir, Man: Small Miss,
Lady: Tag Saiz Pisos Sir ba, Sa-iz. By the way, do they
come in sizes? Ive heard they come in different flavors?
This also led to the controversial decision in that American
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decision in Roe vs. Wade. Abortion or the right to have an

abortion has long been decided by the US Supreme Court in this
case where in the first trimester it is allowed and there is no
limitation or regulation allowed by the State. In the second
trimester, there is a little regulation; in the third trimester, State
has the right to regulate abortion except for medical reasons. So
that is something which is not an issue about anything else but
more on the right of the mother to be let and left alone in her
decision whether she would want to have a child. Again this is in
relation to her right to privacy, to be left her the decision whether
she would want a child.
Now, in the Constitution, this right to privacy under Sec. 3, Article
III was included for the first time in the 1935 Constitution and the
prevailing rule from which this was copied from (American rule)
was that the right to privacy is extended only to tangible objects
(Tangibles Only Rule) and there must be a trespass. Now in the
privacy of communication and correspondence, if there is no
trespass, there is no applicability of the right (to privacy in relation
to the search and seizure clause). Thats why it has to be
extended. The search and seizure clause in the American
experience at the time this provision was included in 1935
Constitution was that for the search and seizure clause to apply,
there must have to be an actual trespass and what is sought to
be seized are tangible items. Now letters of communication are
not tangible if they are electronically transmitted and normally if
there is such electronic seizure of this communication, there is no
actual trespass. So to extend that to communications and
correspondence they can include this provision in 35, which was
copied until the present Constitution.
The term communications here is used in its general sense. But
what is actually covered by this privacy of communications is
communications between a government official and a private
citizen, and the communications between private citizens which
cannot be violated by the State. So the question is, what about
the communications between government officials? Are these
communications covered by this prohibition? Because again the
general concept is that the Bill of rights is a limitation to State
authority. So it is a clash between the right of the State to
exercise its powers and the right of its citizens to claim their
rights and privileges. But what if the communications are
between public officers like the Hello Garci scandal? President
talking to the Commissioner of the Comelec, can that
communication be intercepted and recorded with the use of
government facility? That has not been answered but if you try to
look at this provision in relation to the general concept of the Bill
of rights, only communications between the individuals or
government officials and individuals are generally covered by this
provision. Please dont forget the case of ZULUETA vs. CA
because thats a peculiar decision. Peculiar in the sense that they
have applied this provision when the claim is between private


individuals. That is no encroachment or alleged violation coming
from the State. It is a case between husband and the wife over
the supposed letters which were sent by the paramour to the
husband and which were unlawfully taken from the private office
of the husband and introduced as evidence in the same case. So
the SC in that case applied this provision saying that generally
when two persons contract marriage they do not actually
surrender all the rights to privacy. That is a limitation of what is
being surrendered. For obvious reasons the most common of
what is to be surrendered are known to you, all the rest and so
when the wife unlawfully entered the private office of the husband
and unlawfully or forcibly opened the cabinet where these letters,
documents and pictures were found, the SC said they are
inadmissible under the second paragraph of this Sec. 3. And it
has not been applied since then probably because there has
been no case filed with the same set of facts or husbands had
become, since they have already known the decision, had
become more.. Okay.
ZULUETA vs. CA
G.R. No. 107383 ; Feb. 20, 1996
Facts:
Cecilia Zulueta is the wife of Dr. Alfredo Martin. On 26 March 1982,
Zulueta entered the clinic of her husband, a doctor of medicine,
and in the presence of her mother, a driver and Martins secretary,
forcibly opened the drawers and cabinet in her husbands clinic
and took 157 documents consisting of private correspondence
between Dr. Martin and his alleged paramours, greetings cards,
cancelled checks, diaries, Dr. Martins passport, and photographs.
The documents and papers were seized for use in evidence in a
case for legal separation and for disqualification from the practice
of medicine which Zulueta had filed against her husband. Dr.
Martin brought the action for recovery of the documents and
papers and for damages against Zulueta with the RTC. After trial,
the trial court rendered judgment for Martin. It (1) declared that the
documents and papers are properties of Dr. Martin, (2) ordered
Zulueta to return them and (3) enjoined her from using them in
evidence. On appeal, the Court of Appeals affirmed the decision of
the Regional Trial Court. Hence, Zulueta filed this petition for
review with the Supreme Court.
Issue:
Whether or not the constitutional injunction declaring that the
privacy of communication and correspondence to be inviolable
apply even to the spouse of the aggrieved party.
Held:
The documents and papers are inadmissible in evidence. The
constitutional injunction declaring the privacy of communication
and correspondence [to be] inviolable is no less applicable simply
because it is the wife (who thinks herself aggrieved by her
husbands infidelity) who is the party against whom the
constitutional provision is to be enforced. The only exception to the
prohibition in the Constitution is if there is a lawful order [from a]
court or when public safety or order requires otherwise, as
prescribed by law. Any violation of this provision renders the
evidence obtained inadmissible for any purpose in any
proceeding.
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COLLEGE OF LAW
The intimacies between husband and wife do not justify any one of
them in breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or
his right to privacy as an individual and the constitutional protection
is ever available to him or to her.
The law insures absolute freedom of communication between the
spouses by making it privileged. Neither husband nor wife may
testify for or against the other without the consent of the affected
spouse while the marriage subsists. Neither may be examined
without the consent of the other as to any communication received
in confidence by one from the other during the marriage, save for
specified exceptions. But one thing is freedom of communication;
quite another is a compulsion for each one to share what one
knows with the other. And this has nothing to do with the duty of
fidelity that each owes to the other.
Hence, the petition for review is DENIED.
The usual law in point with respect to privacy of communications

violation is R.A. 4200, the Anti-Wire Tapping Act. Now that law
basically allows wiretapping for reporting purposes for
presentation as evidence thereafter, provided, there is
compliance with the requirements for getting the warrant. The
warrant application is just like the search warrant application only
that what is sought to be seized here is the communication
between two private individuals, which may be used by the state
for filing a case against them. This law however has been outdated so to speak because at the time this law was enacted, the
usual modes of communication, though covered by RA 4200, did
not anticipate the forms of communication today. The age of
technology where mobile phones are already here or the so
called equipment which can be used for surveillance and
eventual recording by intercepting the electronic messages have
not also been envisioned in the Anti-Wire Tapping Act. The law
as the title suggests would require that there is an actual cutting
of the line, i.e. tapping it and tapping it for listening AND
recording because if it is only for listening, there is no violation.
Violation eventually would have to result from the recorded
communication which is eventually presented to the court where
there was no warrant previously secured.
This is supposed to have been amended on account of the
Committee Report hearing of the Hello Garci scandal. But you
know, Congress(men) are only good at that during investigations
because of the free media publicity that they get. And they dont
push with the recommendations of the Committee that there
should be an amendment to RA 4200 to cover present day
situation.
Just like in your law on libel... Is libel in the internet, do the
defamatory statements or comments in the internet constitute
libel? That has been questioned always because if you try to look
at the law on libel, the publication is supposed to be in any of


those modes or means. And when this law was enacted in the
1930s or 50s, internet was never imagined yet. The latest case
which has been dismissed I think was that.... I dont know... here
in Davao there was a case thats been filed against Aportadera,
which the prosecutor found probable cause. [EDITORS NOTE:
Congress has recently passed RA 10175 or the Cybercrime
Prevention Law. This lecture was delivered prior to the passage
of said Act. See for example Sec. 4(c) (4): xxx Libel. The
unlawful or prohibited acts of libel as defined in Article 355 of the
Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be
devised in the future.]
In libel there are several aspects to consider like
1. Where was the publication made;
2. Where was the publication first made or where was it
first read;
3. The person defamed is a public officer or private
person, there are considerations for purposes of
jurisdiction
ATENEO DE DAVAO
COLLEGE OF LAW
those who are tasked with gathering these information. There are
two things that may be the object of this writ:
1. If the information gathered is violative of your right to
privacy, life, liberty or security; or
2. If there is a need to update the facts taken of you then
the data, they can be ordered corrected.
FREEDOM OF EXPRESSION
The theory under freedom of expression is that it is only through
a free speech that ultimately government is to be hold. When
there is a competition of ideas in the free market of ideas where
everybody could freely speak and compete therein that
government is ultimately ran by __ of public opinion. The entire
idea is that based on philosophical basis of it, desired ultimate
good is better reached if people are free to speak against the ills
of government because if people are not free to speak, abuses in
the government or in the administration may not be made public
and therefore not corrected.
Scope of Freedom of Expression
When you post a defamatory statement on Facebook, is that

particular medium included in the definition of libel where the
defamatory statement is supposed to be found? Ok.
Now the intrusion as allowed will only be upon lawful order of the
court based on the Constitution. And even without lawful order of
the court, if public order or safety requires there can be an
intrusion into ones right to privacy of communications. Now the
intrusion must have to be issued by an Executive Order. So if it is
a Court order, no problem. If there is no court order, it can be by
executive order, provided, there is still public order or safety
requirement. So for example, the public order or safety is at stake
where human lives, property, and liberty are at stake then the
executive can order intrusion into ones right to privacy of
communications.
In relation to this privacy of communications by executive order
where there can be proper intrusion provided public order or
safety requirement would be your SC Resolution on the Writ of
Habeas Data. The Writ of Habeas Data refers to ones right to
privacy in life, liberty and security. So that would include your
right to privacy and it may relate to privacy of communications.
The writ is applicable if there is a violation or threatened violation
of such right to privacy by unlawful act or omission of any person
or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and
correspondence of the aggrieved party.
The objective of the writ is to enjoin the act or order the deletion,
destruction, rectification of the erroneous data of information.
This writ is normally addressed to those or properly addressed to
48
The scope of freedom of expression is only available in

discussion of matters affecting public interest. Purely private
matters are not covered and are not supposed to be guaranteed
under free speech. The two components or elements are:
1. Prior restraint
2. Freedom from subsequent punishment
Prior restraint is normally in the form of censorship. There is an
injunction for the expression prior to them being made. There are
some government regulations which must have to be complied
before the activity involving the freedom can be exercised. And
sometimes they are confused to be in the form of censorship just
like the requirement of permits and fees. If, say ABS-CBN, a
media facility, is required to secure a franchise first before it
could exercise an activity involving free speech or freedom of the
press or media and/or required thereafter to secure business
permit, that is not censorship because it is not a non-content
based regulation. They are imposed as a matter of constitution
with respect to franchise because to engage in mass media is not
a right but a privilege. The privilege there is made as a matter of
course because the government has the right to control them in
certain situations not as to their content but as to their coverage
as the need arises. The most common of which is when the
government as part of the franchise, conditions the grant by
requiring these media facilities to give them free government
time. You have seen these on TV: the public service is brought
to you by blah blah... Those are normally part of the conditions
of the franchise.
The other form of regulation, which the State has imposed and


which the SC has refused also to consider as censorship, is the
imposition of the ratings and classifications by the MTRCB. In
several cases that had been brought to the SC, all of them turned
out to have been ruled in favour of the MTRCB because this is
just a ratings and classifications board. If a movie, motion picture
or a television show has been rated as X or XX or XXX, they
cannot be shown in theatres other that those which have been
established and allowed for business to publicly show X, XX or
many X rated motion pictures. We dont have those kinds. Thats
why it cannot be publicly displayed or shown. But in reality, if
there are theatres established for that purpose, they can actually
be exhibited publicly just like in the other countries. Again, there
is none yet established here and none yet allowed for that
purpose. But if there is such, they can be publicly shown. That is
basically the common reasoning why the classification and rating
are not actually a form of censorship because they can be shown
in appropriate theatres but, again, we dont have one yet.
normal forms (like TV, motion pictures...). Between radio and

printed mass media, there is less regulation in printed form
because its form makes it not available to everybody. If the
printed publication is not available to certain localities,
automatically those will never go to targeted individuals. And
since it is printed, it has to be read. Those who cannot read will
necessarily be excepted of that target group unless those would
refer to pictures.
In prior restraints, the usual course of the SCs decision on the

validity of the prior restraint regulation is to declare against its
constitutionality or validity. The presumption is that, the prior
restraint is not valid or unconstitutional. Again this is only for
purely censorship provisions of law or laws providing for
censorship, but if it is rating or classification, it has long been
established that the MTRCB has the power.
In content-based restriction, the usual tests would be:

a. Dangerous Tendency Test
b. Clear-and-Present Danger Test
c. Balancing of Interest Test
Theres special mention with respect to movies, television and

radio programs that they can be classified and rated for public
exhibition not (as forms of censorship) but because there is a
need to protect the intended viewers or listeners of these
programs or motion pictures. The rule of thumb is that, the
greater access of the public to this form of mass media, the
greater there is allowance for state regulation. If there is less
access of this form of mass media by the public, there is less
state regulation. Radio and television... there is more access on
radio than in TV thats why in radio there is more regulation that
TV Motion pictures as against TV shows... there is more
regulation in TV than in motion pictures because sometimes the
prohibitive cause of viewing a motion picture in public theatres
would limit or prevent a lot more to view the motion picture.
Going back to the new forms of mass media today like the
internet, is that regulated? Do you know of a law which has
regulated the use of the internet as a form of mass media? I think
there is no law, as far as I know. I have not come across a law
which has dealt directly with the use of the internet. There are
some... there is a law regarding recording and uploading of sex
scandal videos [Anti-Voyeurism Act]. There is a law on that. It is
violative of the right of those people on the video. But its just
one, but you go to other forms, what about selling on Facebook?
There may be allowable regulation when it comes to these
49
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COLLEGE OF LAW
Subsequent punishment
Subsequent punishment... the second component... the
restrictions come in the form of punishments. There are two
considerations when a regulation in a form of subsequent
punishment is tested:
1. It has to be determined whether it is a content-based
restriction or a content neutral restriction
Those are the three most common tests. There are two tests
mentioned also in your outline:
d. Direct Incitement
e. Grave but Improbable Danger
They are cited there because they have been quoted in some
cases though they may not have been applied.
The Dangerous Tendency Test: when there is a state interest
which has to be protected from the evils to be brought about by
the speech or expression and there is a dangerous tendency that
the speech or expression will bring about that evil, then the State
has the right to prevent it from happening. This test is normally
used if the speech or regulation has something to do with
national security interest. When the very existence of an
organized government is at stake, the State will not wait that
there is a clear-and-present danger. The mere tendency that
these utterances claimed under free speech will bring about the
evil which will generally affect the very existence of an organized
government is sufficient for the State to regulate that particular
form of expression.
In Clear-and-Present Danger Test, there are two operative
phrases there. Clear meaning there is a causal relation between
the expression or the exercise of the right and the evil sought to
be avoided. Present that it is inevitable that the evil sought to be
avoided will happen because of the subject expression. Now in
this test, it is not only the words which are supposed to be tested,
it is also to consider the circumstances that these utterances are


ATENEO DE DAVAO
COLLEGE OF LAW
made. Usual example is when you shout the word fire in an

open field. Though fire or the existence of fire or expressing that
there is a fire will bring about some form of distraction but if it is
uttered in the open field it cannot bring about such distraction.
But if it is uttered in a movie house, then that will bring about
stampede, distraction, injury or death to the movie theatre goers.
So the circumstances are also considered in determining whether
or not the evil sought to be avoided will inevitably happen if the
expression is not regulated.
The Balancing of Interest Test is normally used when there are
clashes of rights or claims of rights. Remember when we
mentioned about the hierarchy of rights? The Constitution has
preferred rights in accordance with their importance or value in
our system of existence. And when there are several of these
rights clashing with each other, then the court will have to
exercise its discretion with the use of this Balancing of Interest
test. Which of these interests should be upheld in this particular
situation? Again, while there is a hierarchy of these rights not
because one occupies a higher level than the other (that
automatically this right in the higher level will prevail over that
which pertains to a lower right in the hierarchy), it is to be
decided or resolved based on the circumstances of the case and
which of these rights will prevail using the Balancing of Interest
test. Lets continue tomorrow.
TRINIDAD, CHE
MAGABILEN, DARLENE
It is not enough to take steps which may some
day lead to a goal; each step must be itself a
goal and a step likewise.
~Johann Wolfgang von Goethe
You got a dream... You gotta protect it. People
can't do somethin' themselves, they wanna tell
you you can't do it. If you want somethin', go
get it. Period.
~ Will Smith, The Pursuit of Happyness
50


August 9, 2012
ATENEO DE DAVAO
COLLEGE OF LAW
3. Freedom to access for information under Article

3,Section 7
FREEDOM OF EXPRESSION
Now we are still with content neutral restrictions and we have

discussed the various tests generally used in determining
whether the regulation under subsequent punishment is
supposed to be valid based on the applicable tests. Now in
various situations as applied, to restate, in print media, we have
mentioned that there is lesser latitude as compared to the other
forms of mass media based on the extent of the reach of
coverage of said form of mass media. In print media itself, there
is also a distinction to be made if it were to be a news item or a
feature story. When the item subject of the regulation is an action
for libel or damages, for example, is based on a news story, the
SC has given a wider latitude for freedom of expression of media
in deference of the fact that in news items there is a daily
deadline to meet so that if there are in accuracies in the
statements, provided there is no malice intended then the
expression would be upheld over the regulation. However, if it
were to be a feature story, there is supposed to be a lesser
latitude as compared to that of the news item because in a
feature story there is a reasonable amount of time to verify the
sources and to verify the veracity or falsity of a fact which is
subject of a feature story. In one case, an old case, SC said that
care is to be taken that in publication, there is avoidance of
affirming of what is not true or reckless disregard to take
necessary steps in ascertaining its truth or falsity. That is why in
news items, where there is another person or entity involved,
they would always have a statement that they had taken steps to
secure the comment of the persons subject of the item before
they have published the item in deference to or in response to
their obligation that they must have acted diligently or prudently
to ascertain the truth or falsity of the item before it seize the libel
thing in print media because if the reason for the failure to seek
or verify its truth or falsity is careless disregard for the truth or
there is really a willful assertion of what is false then they could
not be protected under the freedom of speech, media or
expression. Now in broadcast media, we mentioned yesterday
that there is stringent regulatory powers on the part of the
government due to its nature and its accessibility. As between TV
and radio, there is more government regulation in radio based on
the nature of radio coverage and the reach of audiences which is
not similar to that of TV.
Now in freedom of the press there are four aspects to it that was
discussed in the cases of News Sound Broadcasting vs Dy and
Soriano vs Laguardia. The four aspects are as follows:
1. Freedom from prior restraint
2. Freedom from subsequent punishment
which are actually the two main components of free speech
51
4. Freedom of circulation (CHAVEZ vs GONZALES)

G.R. No. 168338
February 15, 2008
FRANCISCO CHAVEZ vs. RAUL M. GONZALES
THIS CASE IS ABOUT THE GARCI SCANDAL
Generally, restraints on freedom of speech and expression are
evaluated by either or a combination of three tests, i.e., (a) the
dangerous tendency doctrine which permits limitations on
speech once a rational connection has been established between
the speech restrained and the danger contemplated; (b) the
balancing of interests tests, used as a standard when courts
need to balance conflicting social values and individual interests,
and requires a conscious and detailed consideration of the
interplay of interests observable in a given situation of type of
situation; and (c) the clear and present danger rule which rests
on the premise that speech may be restrained because there is
substantial danger that the speech will likely lead to an evil the
government has a right to prevent. This rule requires that the evil
consequences sought to be prevented must be substantive,
"extremely serious and the degree of imminence extremely high."
As articulated in our jurisprudence, we have applied either the
dangerous tendency doctrine or clear and present danger test
to resolve free speech challenges. More recently, we have
concluded that we have generally adhered to the clear and
present danger test.XXX
Anatomy of Restrictions: Prior Restraint, Content-Neutral and
Content-Based Regulations
Philippine jurisprudence, even as early as the period under the
1935 Constitution, has recognized four aspects of freedom of the
press. These are (1) freedom from prior restraint; (2) freedom from
punishment subsequent to publication; (3) freedom of access to
information; and (4) freedom of circulation.
Considering that petitioner has argued that respondents press
statement constitutes a form of impermissible prior restraint, a
closer scrutiny of this principle is in order, as well as its sub-specie
of content-based (as distinguished from content-neutral)
regulations.
At this point, it should be noted that respondents in this case deny
that their acts constitute prior restraints. This presents a unique
tinge to the present challenge, considering that the cases in our
jurisdiction involving prior restrictions on speech never had any
issue of whether the governmental act or issuance actually
constituted prior restraint. Rather, the determinations were always
about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there
is an impermissible restraint on the freedom of speech has always
been based on the circumstances of each case, including the
nature of the restraint. And in its application in our jurisdiction,
the parameters of this principle have been etched on a case-


to-case basis, always tested by scrutinizing the governmental
issuance or act against the circumstances in which they
operate, and then determining the appropriate test with which
to evaluate.
Prior restraint refers to official governmental restrictions on the
press or other forms of expression in advance of actual publication
or dissemination. Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the
executive, legislative or judicial branch of the government. Thus, it
precludes governmental acts that required approval of a proposal
to publish; licensing or permits as prerequisites to publication
including the payment of license taxes for the privilege to publish;
and even injunctions against publication. Even the closure of the
business and printing offices of certain newspapers, resulting in
the discontinuation of their printing and publication, are deemed as
previous restraint or censorship. Any law or official that requires
some form of permission to be had before publication can be
made, commits an infringement of the constitutional right, and
remedy can be had at the courts
Given that deeply ensconced in our fundamental law is the hostility
against all prior restraints on speech, and any act that restrains
speech is presumed invalid, and "any act that restrains speech is
hobbled by the presumption of invalidity and should be greeted
with furrowed brows," it is important to stress not all prior restraints
on speech are invalid. Certain previous restraints may be
permitted by the Constitution, but determined only upon a
careful evaluation of the challenged act as against the appropriate
test by which it should be measured against.
Hence, it is not enough to determine whether the challenged act
constitutes some form of restraint on freedom of speech. A
distinction has to be made whether the restraint is (1) a contentneutral regulation, i.e., merely concerned with the incidents of the
speech, or one that merely controls the time, place or manner, and
under well defined standards; or (2) a content-based restraint or
censorship, i.e., the restriction is based on the subject matter of the
utterance or speech. The cast of the restriction determines the test
by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral
regulation, only a substantial governmental interest is required for
its validity. Because regulations of this type are not designed to
suppress any particular message, they are not subject to the
strictest form of judicial scrutiny but an intermediate approach
somewhere between the mere rationality that is required of any
other law and the compelling interest standard applied to contentbased restrictions. The test is called intermediate because the
Court will not merely rubberstamp the validity of a law but also
require that the restrictions be narrowly-tailored to promote an
important or significant governmental interest that is unrelated to
the suppression of expression. The intermediate approach has
been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important
or substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incident
restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.
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On the other hand, a governmental action that restricts freedom of

speech or of the press based on content is given the strictest
scrutiny in light of its inherent and invasive impact. Only when the
challenged act has overcome the clear and present danger rule
will it pass constitutional muster, with the government having the
burden of overcoming the presumed unconstitutionality.
Unless the government can overthrow this presumption, the
content-based restraint will be struck down.
With respect to content-based restrictions, the government must
also show the type of harm the speech sought to be restrained
would bring about especially the gravity and the imminence of
the threatened harm otherwise the prior restraint will be invalid.
Prior restraint on speech based on its content cannot be justified
by hypothetical fears, "but only by showing a substantive and
imminent evil that has taken the life of a reality already on ground."
As formulated, "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."
The regulation which restricts the speech content must also serve
an important or substantial government interest, which is unrelated
to the suppression of free expression.
Also, the incidental restriction on speech must be no greater than
what is essential to the furtherance of that interest. A restriction
that is so broad that it encompasses more than what is required to
satisfy the governmental interest will be invalidated. The
regulation, therefore, must be reasonable and narrowly drawn to fit
the regulatory purpose, with the least restrictive means
undertaken.
Thus, when the prior restraint partakes of a content-neutral
regulation, it is subjected to an intermediate review. A contentbased regulation, however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The
latter will pass constitutional muster only if justified by a compelling
reason, and the restrictions imposed are neither overbroad nor
vague.
Applying the foregoing, it is clear that the challenged acts in the
case at bar need to be subjected to the clear and present danger
rule, as they are content-based restrictions. The acts of
respondents focused solely on but one objecta specific
content fixed as these were on the alleged taped conversations
between the President and a COMELEC official. Undoubtedly
these did not merely provide regulations as to the time, place or
manner of the dissemination of speech or expression.
So these are the four aspects generally followed under freedom

of press. The usual form and which is still a good law today as a
form of subsequent punishment which has not been declared as
unconstitutional as yet is our law on libel whether it be a case for
libel arising from a statement which is claimed to be defamatory
either in its criminal form or as a form of claim for civil damages.
This has been the usual form of subsequent punishment imposed


after the expression has been made. We all know that the law on
libel is still a good law although in the news paper you may have
read that Sen. Honasan has introduced a bill in the senate which
will decriminalize libel. They would want libel to be decriminalized
so its free for everybody to defame anybody else. So libel is any
public and malicious imputation of a crime, vice, or defect, real or
imaginary of an act, status, condition, commission or omission or
circumstance tending to cause dishonor, discredit or contempt of
person or blacken the memory of the dead. In several cases, it
has also been said that praise undeserved is libel in disguise.
Several matters with respect to libel, as you very well know, there
is no need to particularly name a person as the person defamed
to constitute a violation and therefore be criminally liable for libel
for so long as from the statement it can be ascertained by the
readers, if it is in print media or by the mass who have heard it if
it is orally made, that the person defamed is identifiable. Of
course, it is not based solely on the fact that the person defamed
could identity itself, it must have to be that the readers or the
listeners could identify the person defamed although not named.
That is why the most common, even the broad sheet of the Phil
Inquirer, would make these blind items and give clues as to who
these particular persons are but necessarily giving up the identity
of that person from the printed item to avoid any liability for libel
be it criminal or civil.
Now in libel, malice is also presumed, so that when the statement
is defamatory it is presumed in law that it is maliciously made.
However, there are certain situations where malice is not
presumed though it can be proven or that the presumption of
malice can be overcome. So for the following statements: private
communication for legal, moral or social duty or fair and true
report in good faith without comment of any judicial, legislative or
other official proceedings not confidential in nature or the court or
speech in such proceedings as exercised by public officials are
considered relatively privilege statements that malice in those
statements is not presumed but they can be actually be proven
as a fact. So that if the statement for example refers to a letter
that is made in relation to the call of social, civic or moral duty
addressed to a person of position who could address the
problems sought to be addressed in the said letter, if there is no
unnecessary publication then that may be considered as
relatively privilege. It would be different if there is an unnecessary
publication of that letter because that would erase the fact that
there is no malice in fact. Or if there are comments on official
proceedings this is not a fair and true report, malice in fact may
be considered as present.
Now, the absolutely privilege statements that may not be
subjected to any cause of action, the most common could be
under speech and debate clause of members of congress. They
shall not be held liable in any other place for any speech or
53
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COLLEGE OF LAW
debate made in congress or in any committee thereof while

congress is in session, so absolutely privilege statements. Also,
statements in pleadings which are material to the cause or case
under consideration are also considered as absolutely privilege
statements. So that if the statements in the pleadings are not
material to the cause or the case under consideration they may
not fall under the relatively privilege statements. So statements
like, in the answer the allegations in paragraph 16 of the
complaint is denied, the claims of the plaintiff being absolutely
false and the plaintiff is an absolute liar. That statement cannot
be subjected to a criminal case or civil case for libel because it is
material to the case because there is a denial of the claim.
Now the other matter with respect to libel would be your truth or
proof as a defense so that question is: can you prove that truth of
the statement to avoid liability? Burikat mana siya! She is a
prostitute! . If you can prove that she is a prostitute, can you
avoid liability for libel? OK, so the general rule is that if the
statement is true provided that it is established for good motive
and for justifiable ends, proof of truth is a defense. The problem
is what is so called justifiable about claiming that the person is
burikat.
If the defamatory statement is not a crime, it is only accepted as
a defense for pubic officers in relation to discharge of official
duties. And if it amounts to a crime, it can be used as proof or
defense if the defamation is against public or private person. So if
you call a private person a thief if you can prove that he is really
a thief because he has committed theft or thievery then you can
be exempted from liability.
APPLICATION OF TESTS IN VARIOUS

CONTEXTS
A. FREEDOM OF EXPRESSION AND
NATIONAL SECURITY
The other situation where the matter of free speech is usually
tested is when there is the question of the free exercise and
against or versus our national security interest. As we have said,
the dangerous tendency test is the normal test used if the
utterances or expression is directed against the very existence of
organized government. When the national security is at stake,
the State will not wait that the evil sought to be avoided in the
expression is not regulated or prevented to happen. So usually, it
is resolved in favor of the State again if there is dangerous
tendency that the speech sought to be avoided, if the speech is
not regulated, will come true.


B. FREEDOM OF EXPRESSION AND THE
RIGHT TO PRIVACY
In a clash of rights between the freedom of expression and
freedom to be left or let alone or the right to privacy of the
individuals, there should be a distinction if the depiction of a
person in the exercise of freedom of expression, like in the
motion picture or in the TV show, involves a public officer or a
private person. If it is a public officer, generally there is leeway
granted in favor of the freedom expression because of the
character of that public personality. If it is a private person there
is always a need for some arrangement with respect to the public
depiction of a private life of a private person.
So you have contracts to that effect then if you produce a movie
involving Manny Pacquiao when he was not yet a member of
congress then there must have to be some sort of agreement to
that person and the person exercising freedom of expression to
be able to be allowed to, in a limited sense, invade that persons
right to privacy. But with respect to a public person, there is
somehow much greater leeway given to the exhibition in the form
of motion picture or, say, TV show of the public character of that
public persons life. Of course, it does not include his private life.
For example if he is a government official and the government
officials to be depicted - that his life would be depicted in that art
form is supposed to be important because it involves a public
incident or public event. For so long as there is no fictionalization
to that extent then there is no need for an agreement with respect
to that public persons depiction of public life in that art form. That
is to that extent.
However, there are situations where the person is not a public
functionary, strictly speaking, but because of his status in society
there has, somehow, been a conversion of his person as a
private character to a public personality.
A lot of the movie actors would fall in this category. So, can their
lives or can they be depicted in an art form without their
permission? The answer is only with their respect, again, to the
public character of that public personality not the private aspects
of their private lives.
C. FREEDOM OF EXPRESSION AND THE
ADMINISTRATION OF JUSTICE (CONTEMPT OF
COURT)
The last of these would be the freedom of expression and
administration of justice.
The discussion here is with respect to - the first is criticism to the
court or of court actions or proceeding or decision. And the
second would be that of concept SUB JUDICE RULE.
54
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COLLEGE OF LAW
In FAIR CRITICISM, the SC had already lain down in TULFO

VS. PEOPLE (2008) that there is allowable criticism to courts
decision provided it is made fairly or this is the FAIR CRITICISM
RULE, which must comply with the following conditions:
1. Must be made in good faith;
2. Must be couched with respectful language;
3. Must be directed at the merits; and
4. Must not that grave or ridicule in court or insults its
members.
TULFO VS. PEOPLE
Facts: Atty. Ding So of the Bureau of Customs filed four
separateInformations against Erwin Tulfo, Susan Cambri, Rey
Salao, JocelynBarlizo, and Philip Pichay, accusing them of libel in
connection with the publication of articles in the column Direct Hit
of the daily tabloid Remate.
The column accused So of corruption, and portrayed him as an
extortionist and smuggler. After trial, the RTC found Tulfo, et al.
guilty of libel. The CA affirmed the decision.
Issues: W/N the assailed articles are fair commentaries.
Ruling: NO.
a. Good faith is lacking, as Tulfo failed to substantiate or
even attempt to verify his story before publication. He provided no
details on the acts committed by the subject. They are plain and
simple baseless accusations, backed up by the word of one
unnamed source.
b. Not fair or true because fair is defined as having
the qualities of impartiality and honesty. True is defined as
comfortable to fact; correct; exact; actual; genuine; honest. Tulfo
failed to satisfy these requirements, as he did not do research
before making his allegations, and it has been shown that these
allegations were baseless. The articles are not fair and true
reports, but merely wild accusations.
The elements of fair commentary (to be considered
privileged): a. That it is a fair and true report of a judicial,
legislative, or other official proceedings which are not of
confidential nature, or of a statement, report, or speech delivered
in said proceedings, or of any other act performed by a public
officer in the exercise of his functions; b. That it is made in good
faith; c. That it is without any comments or remarks.
Journalists may be allowed an adequate margin of
error in the exercise of their profession, but this margin does
not expand to cover every defamatory or injurious statement
they may make in the furtherance of their profession, nor
does this margin cover total abandonment of responsibility.
The mere fact that the subject of an article is a public figure or a
matter of public interest does not mean it is a fair commentary
within the scope of qualified privileged communication, which
would automatically exclude the author from liability. The
confidentiality of sources and their importance to journalists are
accepted and respected. What cannot be accepted are journalists
making no efforts to verify the information given by a source, and
using that unverified information to throw wild accusations and
besmirch the name of possibly an innocent person. Journalists


have a responsibility to report the truth, and in doing so must at
least investigate their stories before publication, and be able to
back up their stories with proof. Journalists are not storytellers or
novelists who may just spin tales out of fevered imaginings, and
pass them off as reality. There must be some foundation to their
reports; these reports must be warranted by facts. Freedom of
expression as well as freedom of the press may not be
unrestrained, but neither must it be reined in too harshly.***
that they are supposed to be deciding cases based on the facts

and evidence presented. The so called prejudicial coverage
would only be considered as having unduly influence the judge if
there is a direct showing that there is a causal relation between
the prejudicial coverage and the decision or the resolution of the
judge.
Now this fair criticism rule would relate only to decisions,

resolutions or orders of the court disposing of a case or a petition
pending before the Court. It is not ordinarily allowable in
situations where the court is yet to decide or which is actually
hearing still the case or petition pending before it because any of
those persons who would make the said criticism will the
subjected to what we know as a violation of sub judice rule and
may be held liable for contempt of court.
Now, in relation, still, to the fair criticism rule, the SC has

mentioned two principles affecting ones right to criticize
courts proceedings, namely:
The sub judice rule, strictly speaking, applies to situations where

the utterances or actions or actuations are directed against or to
courts to sway his decision in favor of one course of action and
against another.
To say or state or utter something with respect to a pending case
is not per se violative of the sub judice rule. The expression or
utterances or actuations or actions must be directed to unduly
influence the court in coming up its decision. So if the intent and
objective of that utterance, expression, actuation or action is to
sway the decision of the court and duly influence it to be one and
not the other is what is contemplated under the sub judice rule.
Most often than not, the public or lawyers will refuse to comment
on a pending action for a fear that they will be held liable for
contempt of court. But then again, if it is not intended to unduly
influence the outcome of the case then there is no violation of the
sub judice rule. With all the more reason here in the Philippines
where we do not follow the jury system. The sub judice rule has
taken its roots from countries where the case is decided under
jury system because it would be difficult to insulate the members
the jury from any utterances made outside of court which may
bring about them to decide the case one way and not the other.
In our system where case is decided by a sole presiding judge or
as differentiated in collegiate courts, the so called sub due dice
rule, though applicable, would not really be that prejudicial for
parties because judges are supposed to have this proven probity
and independence that they should be swayed by publics
persuasions on a pending action.
In fact, if you remember the case of WEBB vs. DE LEON and in
the onset of that case, there was a question of whether there is
violation of the sub due dice rule, the media has kept on covering
the particular case and at that point of having prejudicial
coverage of that of case in the media. The SC made an obiter
that the judges are supposed to be insulated from all these media
coverage whether it may be prejudicial or not because of the fact
55
ATENEO DE DAVAO
COLLEGE OF LAW
1.
2.
OPEN JUSTICE POLICY; and

PRINCIPLE OF JUDICIAL INDEPENDENCE.
The open justice policy allows a persons right to criticize the

judiciary in order to prevent arbitrariness in the exercise of
judicial power and thus, maintaining the publics confidence in
that system. However in the principle of judicial
independence, in order for the courts to decide cases fair and
square and not unduly influence by these criticisms, it states that
the courts should be free from unjust criticisms and the freedom
of the court from these unjust criticisms are in two aspects,
namely:
1.
2.
The institutional; and

The individual.
Institutional, meaning that the courts in general must be insulated

from unfair criticism so that it will not or the judiciary being the
non-reactive branch of government and being a non political
office, it is supposed to be insulated from the pressures of public
opinion where it is mostly desired in the executive and legislative
department.
The philosophical basis of the freedom of expression that the
governments objective is best achieved through the competing
ideas in the free market should not be applied to ordinary court
decisions because courts must decide cases based on the facts,
evidence and the applicable laws on the particular case.
Individual because judges are also human beings. They must
also be free from unjust criticisms. While public officers are not
immune from criticisms, in one old case, the SC made a
statement that the balm of clean conscience would actually
assuage the wounded feelings brought about by unfair criticisms
is not only applicable to other public officers but must also be
applicable to judges. But then again, since judges are, like the
judiciary, are not political officers, they should be insulated from
unjust criticisms so that they will be able to maintain their judicial
independence - that they will decide cases based on what has
been presented to them or before them, with the evidence and
apply it to the applicable laws in that particular case.


CONTENT NEUTRAL RESTRICTIONS
Now, CONTENT NEUTRAL RESTRICTIONS, the regulation, as
a form of subsequent punishment, may be allowed because it is
on the circumstances when the expression is made and not on
the content of the expression. The normal test used is the
OBRIEN TEST taken from the US decision of US vs. OBRIEN
(1968). This was adopted in the case of ADIONG VS. COMELEC
(1992).
If you remember this case, this refers to the political exercise

where the COMELEC issued, then, what was referred to
COMELEC TIME and COMELEC SPACE -that the public or that
the election propaganda of any candidate in printed form can
only be posted in areas designated as COMELEC SPACES. Now
this refers to cars, stickers or decals bearing the name of a
candidate. Now, can the COMELEC penalize or regulate the
posting of these election propaganda in the form of stickers or
decals to be posted only in COMELEC spaces not to be allowed
to be posted in anywhere else like a motor vehicle.
So, the SC quoted the case the principle in the case of US vs.
OBRIEN, the regulation is valid
1. if it is within the constitutional powers of government;
2. if it furthers an important or substantial government
interest;
3. if the governmental interest is unrelated to the
suppression of free expression; and
4. if the incidental restriction on alleged freedom of
expression is greater than is essential to the
furtherance of government interest.
individual freedom on one hand and substantial public interests on

the other is made even more difficult in election campaign cases
because the Constitution also gives specific authority to the
Commission on Elections to supervise the conduct of free, honest,
and orderly elections. When faced with border line situations where
freedom to speak by a candidate or party and freedom to know on
the part of the electorate are invoked against actions intended for
maintaining clean and free elections, the police, local officials and
COMELEC, should lean in favor of freedom. The regulation of
election campaign activity may not pass the test of validity if it is
too general in its terms or not limited in time and scope in its
application, if it restricts one's expression of belief in a candidate or
one's opinion of his or her qualifications, if it cuts off the flow of
media reporting, and if the regulatory measure bears no clear and
reasonable nexus with the constitutionally sanctioned objective.
The posting of decals and stickers in mobile places like cars and
other moving vehicles does not endanger any substantial
government interest. There is no clear public interest threatened by
such activity so as to justify the curtailment of the cherished
citizen's right of free speech and expression. Under the clear and
present danger rule not only must the danger be patently clear and
pressingly present but the evil sought to be avoided must be so
substantive as to justify a clamp over one's mouth or a writing
instrument to be stilled. The regulation strikes at the freedom of an
individual to express his preference and, by displaying it on his car,
to convince others to agree with him. A sticker may be furnished by
a candidate but once the car owner agrees to have it placed on his
private vehicle, the expression becomes a statement by the owner,
primarily his own and not of anybody else. The restriction as to
where the decals and stickers should be posted is so broad that it
encompasses even the citizen's private property, which in this
case is a privately-owned vehicle. In consequence of this
prohibition, another cardinal rule prescribed by the Constitution
would be violated. Section 1, Article III of the Bill of Rights provides
that no person shall be deprived of his property without due
process
of
law.
The prohibition on posting of decals and stickers on "mobile"
places whether public or private except in the authorized areas
designated by the COMELEC becomes censorship.
ADIONG VS. COMELEC
REGULATION OF POLITICAL CAMPAIGN OR

ELECTION ACTIVITY
Facts: COMELEC promulgated Resolution No. 2347 which

provides that decals and stickers may be posted only in any of the
authorized posting areas, prohibiting posting in "mobile" places,
public or private. Petitioner Blo Umpar Adiong, a senatorial
candidate in the May 11, 1992 elections now assails the
Resolution. In addition, the petitioner believes that with the ban on
radio, television and print political advertisements, he, being a
neophyte in the field of politics stands to suffer grave and
irreparable
injury
with
this
prohibition.
Now in that election related activity, as discussed also in the case

of OSMENA VS. PHILIPPINE PRESS INSTITUTE (not found in
the outline).
In relation to that OBRIEN TEST, in the case of ADIONG, the
regulation of election related activity:
Issue: Whether
unconstitutional.
or
Not
the
COMELECs
prohibition
Held: The prohibition unduly infringes on the citizen's fundamental

right of free speech. The preferred freedom of expression calls all
the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally
vital right of suffrage. The so-called balancing of interests
56
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COLLEGE OF LAW
1.
2.
3.
4.
must not be too general or limited in time and scope on

its application;
does not restrict ones the expression or belief or
opinion of qualification;
does not cut off the flow of media reporting; and
must bear clear and reasonable connection with the
sanction and objective of the regulation.


What was subject of this case of OSMENA whether or not media
practitioners should be regulated in COMELEC time and space if
they would write something about a candidate.
No problem if it were to be a plebiscite because in a plebiscite,
there is no candidate to be elected but the ones to be voted on
are issues, so media practitioners to be allowed to defend a
position on that issue in a plebiscite. But with respect to the
election, there seems to be a way of media practitioners in right
to circumvent the regulation on equal access to public office. This
so called COMELEC time and space before were instituted in
order to equalize the supposed exposure of candidates to have
the resources and those who have none under the constitutional
concept of equal chances or opportunity to public office. Those
rules have been changed substantially by the Fair Elections Act
of 2001. There are more allowable time, there are more allowable
exposure in print media but just the same principle should apply the principle on whether or not the State through the COMELEC
which is tasked to enforce or implement all elections related laws
would have the power to regulate the exercise of media
practitioners over qualifications or other considerations of a
candidate during an election campaign. Now, the SC has
resolved this issue in favor of the press people - that for so long
as it is a legitimate reporting on that qualifications of that
candidate in trying to illicit from the readers an approval or
disapproval of the qualifications or non-qualifications of a
candidate, that should be allowable.
Now, in the OBRIEN case which was adopted in the case of
ADIONG, the putting up and the sticking of these decals or
stickers in places other than the COMELEC space was held by
the SC as unconstitutional because to stick the decals or stickers
in cars or privately owned properties are actually considered as a
form of expression because this is the choice of the person as to
his candidate.
So, it is not normally expected that the candidate would just be
allowed to stick the sticker in any car without the permission of
the owner because it is the owners choice and preference on
which candidate sticker will be allowed to be posted or to be
placed on this motor vehicle. So it goes beyond the supposed
regulation if it were to cover that situation.
ATENEO DE DAVAO
COLLEGE OF LAW
In the past several elections, this 2001 Fair Elections Act had
always maintained that if it is in a private property, you can put
everything there, in whatever size, because it is your expression.
If you have a wall by your building, write your name there, put
your face there and let the COMELEC bring it down and let us
see who shall win because it is your expression. The reason why
they regulate the sizes in the COMELEC Space is to give
everybody a fair chance. If the regulation is one long bond paper
size, why put up a poster size? Your face will be bigger than the
rest.
FREEDOM OF ASSEMBLY
The other allowable or which still continue to be allowed under
present day consideration is the Public Assembly Act of 1985
or BP 880. Under BP 880, the law primarily requires a permit to
be secured first if the public assembly is to be held in a public
place other than those designated as freedom parks. Now, this
requirement of permit is content neutral because it has nothing to
do with the utterances or the expression made in that public
assembly. The reason why permit is required is in-order for the
LGU or for the State, for that matter, to allocate from among the
public using the public facility on who shall be allowed to use this
for the efficient use of everybody.
If it is in a private place, BP 880 is not applicable. So you can do
your own thing in that private place. The only requirement is that,
there must have consent from the private place owner. If it is in
the freedom park or established to be a freedom park, still no
requirement of permit because it is supposed to be established
for such purpose.
Now, if you have noticed there was an issue on this permit during
the last SONA because from the vantage point of the applicant,
the one who conducted the rally going to Batasang Pambansa
they said they have made an application and there was no
response - either to grant it or to deny it.
And under the law, which is correct, if under BP 880, if there is no
word within, I think, 24 or 48 hours from the time the application
is made, it is deemed approved.
BATAS PAMBANSA BLG. 880
That is why even in the FAIR ELECTIONS ACT you may have
noticed that during election campaign, there are a lot of posters
or streamers which are not compliant that are posted in private
places. Because there is a question, even if you read the Fair
Elections Act, what is covered by the regulation to be posted in
COMELEC spaces must have to be compliant is no question. It
must compliant to the regulated sizes. But what if you would want
it to be placed in your own private place, should your poster or
sticker be compliant?
57
AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE

OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION
THE GOVERNMENT FOR OTHER PURPOSES
Section 4. Permit when required and when not required - A written

permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall
be required if the public assembly shall be done or made in a


freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which
shall be subject to the rules and regulations of said educational
institution. Political meetings or rallies held during any election
campaign period as provided for by law are not covered by this
Act.
Section 5. Application requirements - All applications for a permit
shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names
of the leaders or organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or streets to be used
for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be
used.
(b) The application shall incorporate the duty and responsibility of
applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the
city or municipality in whose jurisdiction the intended activity is to
be held, at least five (5) working days before the scheduled public
assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal mayor
shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.
Section 6. Action to be taken on the application
(a) It shall be the duty of the mayor or any official acting in his
behalf to issue or grant a permit unless 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.(b) The mayor or any
official acting in his behalf shall act on the application within two (2)
working days from the date the application was filed, failing which,
the permit shall be deemed granted. Should for any reason the
mayor or any official acting in his behalf refuse to accept the
application for a permit, said application shall be posted by the
applicant on the premises of the office of the mayor and shall be
deemed to have been filed.(c) If the mayor is of the view that there
is imminent and grave danger of a substantive evil warranting the
denial or modification of the permit, he shall immediately inform the
applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the
application within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the
Regional Trial Court, or the Intermediate Appellate Court, its
58
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decisions may be appealed to the appropriate court within fortyeight (48) hours after receipt of the same. No appeal bond and
record on appeal shall be required. A decision granting such permit
or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided
within twenty-four (24) hours from date of filing. Cases filed
hereunder shall be immediately endorsed to the executive judge
for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are
hereby allowed.
Section 7. Use of public thoroughfare - Should the proposed
public assembly involve the use, for an appreciable length of time,
of any public highway, boulevard, avenue, road or street, the
mayor or any official acting in his behalf may, to prevent grave
public inconvenience, designate the route thereof which is
convenient to the participants or reroute the vehicular traffic to
another direction so that there will be no serious or undue
interference with the free flow of commerce and trade.
Section 8. Responsibility of applicant - It shall be the duty and
responsibility of the leaders and organizers of a public assembly to
take all reasonable measures and steps to the end that the
intended public assembly shall be conducted peacefully in
accordance with the terms of the permit. These shall include but
not be limited to the following:(a) To inform the participants of their
responsibility under the permit; (b) To police the ranks of the
demonstrators in order to prevent non-demonstrators from
disrupting the lawful activities of the public assembly;(c) To confer
with local government officials concerned and law enforcers to the
end that the public assembly may be held peacefully;(d) To see to
it that the public assembly undertaken shall not go beyond the time
stated in the permit; and(e) To take positive steps that
demonstrators do not molest any person or do any act unduly
interfering with the rights of other persons not participating in the
public assembly.
Section 9. Non-interference by law enforcement authorities - Law
enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a
law enforcement contingent under the command of a responsible
police officer may be detailed and stationed in a place at least one
hundred (100) meter away from the area of activity ready to
maintain peace and order at all times.xxx
Section 15. Freedom parks - Every city and municipality in the
country shall within six months after the effectivity of this Act
establish or designate at least one suitable "freedom park" or mall
in their respective jurisdictions which, as far as practicable, shall be
centrally located within the poblacion where demonstrations and
meetings may be held at any time without the need of any prior
permit. In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks within the
period of six months from the effectivity of this Act.


And also, in this case of IBP vs. ATIENZA, a 2010 case, 2

matters are subject of discussion, to wit;
1.
2.
One, the application for a permit under the BP 880

can be denied based on clear and present danger.
So, if the rally is to be allowed since a permit is to be
granted and there is a clear and present danger that
the evil sought to be avoided will happen then the
application must have to be denied. However, if it is to
be denied, the applicant must have to be heard. So,
relating this to the last SONA, if the city government of
QC would have denied it because they thought that it
will bring about chaos and violence if this rally will be
allowed to get in the Batasan complex when the
President will deliver his SONA, then they should have
denied the application after hearing the applicant why
they would want to have permit.
The second is that, still in the case of IBP, the SC said
that when the application is made, it should be
granted based on the terms of the application. So
for example, the application is made for a particular
day, and that the rally particular day at a particular
place, it should be granted based on those terms. If the
LGU chief executive would wish to grant it on different
terms from that of the application, the clear and present
danger test should be used to determine why there
should be a change in the terms for the application and
that grant of the application would also require hearing
for that purpose of determining whether there is clear
and present danger for a allowing the LGU to change
the terms of the application.
What happened in this case was that the IBP National Office
applied for a rally permit to conduct a rally at Mendiola Bridge. It
was granted without any hearing but they were allowed to
conduct that public assembly or rally at Plaza Miranda. The IBP
still proceeded to conduct their rally at the designated time and
date per application and also at the place of the application but
not in the place as indicated in the permit. They went to Plaza
Mendiola and they were charge for violation of BP 880, for
conducting a rally without a permit. They went to the SC on that
issue eventually and the SC upheld the position of the IBP
because the change of the tenor of the application in the grant of
the permit as applied for can only be done if there is justifiable
reasons for doing so under the clear and present danger rule and
there is a hearing conducted to determine whether or not indeed
there is a need to alter or change the terms of the application.
OK!
59
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G.R. No. 175241
February 24, 2010
INTEGRATED BAR OF THE PHILIPPINES
vs. MAYOR JOSE "LITO" ATIENZA
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.

Ermita, the Court reiterated:
x x x Freedom of assembly connotes the right of the people to
meet peaceably for consultation and discussion of matters of
public concern. It is entitled to be accorded the utmost deference
and respect. It is not to be limited, much less denied, except on
a showing, as is the case with freedom of expression, of a
clear and present danger of a substantive evil that the state
has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary
consequence of our republican institutions and complements the
right of free speech. To paraphrase the opinion of Justice
Rutledge, speaking for the majority of the American Supreme
Court in Thomas v. Collins, it was not by accident or coincidence
that the rights to freedom of speech and of the press were coupled
in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances.
All these rights, while not identical, are inseparable. In every case,
therefore, where there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the
challenged governmental actuation. The sole justification for a
limitation on the exercise of this right, so fundamental to the
maintenance of democratic institutions, is the danger, of a
character both grave and imminent, of a serious evil to public
safety, public morals, public health, or any other legitimate
public interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public
Assembly Act of 1985 practically codified the 1983 ruling in Reyes
v. Bagatsing.15 In juxtaposing Sections 4 to 6 of the Public
Assembly Act with the pertinent portion of the Reyes case, the
Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there
may be valid objections to the grant of the permit or to its grant but
at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be
the standard for the decision reached. If he is of the view that there
is such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority.16 (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his
discretion when he did not immediately inform the IBP who should
have been heard first on the matter of his perceived imminent and
grave danger of a substantive evil that may warrant the changing
of the venue. The opportunity to be heard precedes the action on
the permit, since the applicant may directly go to court after an
unfavorable action on the permit.1avvphi1
Respondent failed to indicate how he had arrived at modifying the
terms of the permit against the standard of a clear and present
danger test which, it bears repeating, is an indispensable condition
to such modification. Nothing in the issued permit adverts to an
imminent and grave danger of a substantive evil, which "blank"


denial or modification would, when granted imprimatur as the
appellate court would have it, render illusory any judicial scrutiny
thereof.
It is true that the licensing official, here respondent Mayor, is not
devoid of discretion in determining whether or not a permit would
be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what
may possibly occur but of what may probably occur, given all the
relevant circumstances, still the assumption especially so where
the assembly is scheduled for a specific public place is that the
permit must be for the assembly being held there. The exercise of
such a right, in the language of Justice Roberts, speaking for
the American Supreme Court, is not to be "abridged on the
plea that it may be exercised in some other place." (emphasis
and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or
explanation for his action. It smacks of whim and caprice for
respondent to just impose a change of venue for an assembly that
was slated for a specific public place. It is thus reversible error for
the appellate court not to have found such grave abuse of
discretion and, under specific statutoryprovision, not to have
modified the permit "in terms satisfactory to the applicant."
Now final items on freedom of expression. Commercial speech.

Now, what is a commercial speech? A commercial speech is a
speech done in behalf of a company or individual for economic or
financial gains. Common example of it would be your
advertisements.
So for example VIC SOTTO will say something about TIDE ba
yon? The name is BLAH BLAH Can the government regulate
that speech because it is not true, that there is no truth to that
statement because in reality it is surf which has the
characteristic?
Iba nga dyan sa commercial ilalagay ko lang walang kuso kuso,
malilinis na daw. San kaya yang sabon na yan?
Can the government regulate that? OK!
In the US, there is truth in advertising. That is why, it is common
in them that if there is brand X, Y, Z, A, B, C as front cover in the
Philippines, there, there is none. It is really by brand name. If I
am selling TIDE and I have a brand SURF here, ARIEL here and
state that TIDE is the BEST! In the Philippines, it is always X, Y,
Z, and that TIDE because they dont want to be held liable for
those other brands.
Now, can that be regulated - commercial speech? Commercial
speech meaning those expressions in relation to commercial
transactions. They are not protected speech in the same
category as private speech. OK? So the ordinary expression,
say, media practitioners, you as a commentator or member of
non government organizations participating in public assemblies
for regress and grievances, speeches thereto are protected
60
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COLLEGE OF LAW
speech and they are greatly protected than the commercial

speeches. So, commercial speeches because for they are for
commercial transactions or commercial gains or financial gains,
they are protected but not the same category as protected
speech.
Now government speech. Government speech, of course, are
government messages. Question is that, are they subject to
regulation? Well, the common subsequent answer is that, NO
they are not because they are made by the State anyway. But
the question here is really, if there is, say, an untruthful statement
in a government speech, can they be held liable for it? Like for
example, if you, as a media practitioner, has written a news item
or a feature story which turns out to be false, could you be held
liable for it? YES! Of course you can because that is no longer
protected speech.
But how about government speech? If PNOY says that the
Philippines GDP last year 6.4 blah blah number one. If that
turns out to be false, could you hold him liable? That is the
question.
Or in, (NAGRING ANG CELL NI CHAM, sir: HELLO!) public
advertisements, government advertisements on TV.
This has been brought to you by Kapisanan ng mga
Broadcasters ng Pilipinas through the help Government
information office, blah blah Can those messages regulated,
that if it turns out to be false or there is an ascertion of falsehood
making it as true, can they be held liable?
And finally, there is a matter of HECKLERs VETO.
What is a HECKLERs VETO?
A person who is to deliver a speech which is expected to arouse
violence from the reactionary group, may be called as a heckler.
Can that heckler be vetoed or enjoined from actually making
utterances?
So for example here is a group of pro RH bill. When was this
when the catholic church had these? last Sunday. that the
nationwide call for a rally. There is one in manila, there is one in,
I think Nograles, in Davao. Sila lang ata mag-isa, but di ko lang
sure. But I read in the newspapers that Karlo Nograles is anti-RH
bill. So, for example, there is a group of nun and priest, an antiRH, and there is this one guy, what is his name? The famous
intramuros guy, (CES BELTRAN) - that guy is pro-RH. In fact he
was one who is charged for some misdemeanor when he went to
church in Intramuros and shouted statements against the church
leaders for being anti-RH, that same guy. What if he is about to
deliver his piece in front or before this group of religious including
Bishops who were there for an ANTI-RH rally, could he be


ATENEO DE DAVAO
COLLEGE OF LAW
prevented from uttering or from making his speech for fear that
there will be a violent reaction from the targeted group which is
the anti-RH bill proponents?
Now, it has not been tested here but in the US, there is a mix
reaction on whether a HECKLERs veto is allowed. AGAIN, the
HECKLERS VETO is that act of the state of preventing that
person considered as a heckler from making his speech or
utterance for fear that violence may erupt if he will be allowed to
make his expression.
Some would say that there is no hecklers veto because of the
right of the person to express which may illicit a violent reaction
from the rest should not be curtailed simply because of the
perceived violent reaction because who has the right to express
and whose right of expression should be upheld - the one of the
heckler or one of the reacting group? If there the reacting group
has the right to express their selves, why should the heckler be
prevented from expressing his opinion as well on the matter?
Who should be prevented, the heckler or the reactionary group?
The hecklers utterances may bring about violence, so who
should be prevented, the reacting group which will commit
violence or the heckler whose expression would illicit some
violence from the rest? We shall continue tomorrow.
MACLA, JAMAIL
ORCULLO, HAZEL BETH
If you want to make your dreams come true, the

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

keep on walking.
~Buddhist Saying
61


August 14, 2012

FREEDOM OF ASSOCIATION
Section 8. 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.
ARTICLE IX B 2(5)
5. The right to self-organization shall not be denied to
government employees.
ARTICLE XIII, Section 3. 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.
Under freedom of association, we have this case of GSIS vs.
Villariza.
GOVERNMENT EMPLOYEES HAVE THE
FREEDOM TO ASSOCIATE,
HOWEVER, THEY DO NOT HAVE THE RIGHT TO
STRIKE
We all know that government employees have the right to
associate themselves or to exercise their right or freedom to
associate. However, they do not have the right to strike (public
sector) considering that the right to strike is mentioned in the
Constitution must have to be exercised in accordance with law.
Where there is a law prohibiting strike or work stoppage in the
public sector considering the nature of the service, they may
engage in concerted activities to some extent but they can not
engage in any activity that is considered a strike or work
stoppage.
Now in this case of GSIS vs Villariza, this was a mass action by
GSIS employees against the GSIS management. They were
eventually held administratively liable for it. Now the question
here is whether their actions were prohibited under law. What is
prohibited under the law is any act with the intent of effecting
work stoppage or service disruption in order to realize their
demands or force concessions, economic or otherwise. Only if
the actions would be constitutive of such extent with the intent to
force the government to give in to their demands under threat of
a work stoppage would it be constitutive of a prohibited act.
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What they simply did here was to wear shirts and arm bands
supposedly to redress their grievances to GSIS management.
They did not actually commit an act of work stoppage because
they reported to work so the administrative sanctions against
them were not justified. So must that be for all other government
employees.
While they may form an association and collectively bargain with
the government, they cannot collectively bargain with the
government as if they were employees from the private sector for
several reasons.
REASONS WHY GOVERNMENT EMPLOYEES
CANNOT COLLECTIVELY BARGAIN
First, would be the nature of the job is public service. Its not
actual employment.
Second is, government cannot give concessions especially
economic demands as ordinary CBA negotiations would have
because this is largely dependent upon items already
appropriated for by Congress.
Everything with respect to money -------- public treasury requires
appropriations made by Congress, they cannot involve
themselves into any activity which would force the government to
(disburse public funds?).
GSIS VS VILLARIZA
GR 180291
In this case, CSC found that the acts of respondents in going to the
GSIS-IU office wearing red shirts to witness a public hearing do not
amount to a concerted activity or mass action proscribed
above. CSC even added that their actuations can be deemed an
exercise of their constitutional right to freedom of expression. The
CA found no cogent reason to deviate therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which
serves to regulate the political rights of those in the government
service, the concerted activity or mass action proscribed must be
coupled with the intent of effecting work stoppage or service
disruption in order to realize their demands of force concession.
Wearing similarly colored shirts, attending a public hearing at the
GSIS-IU office, bringing with them recording gadgets, clenching
their fists, some even badmouthing the guards and PGM Garcia,
are acts not constitutive of an (i) intent to effect work stoppage or
service disruption and (ii) for the purpose of realizing their
demands of force concession.
Precisely, the limitations or qualifications found in Section 5 of
CSC Resolution No. 02-1316 are there to temper and focus the
application of such prohibition. Not all collective activity or mass
undertaking of government employees is prohibited. Otherwise, we
would be totally depriving our brothers and sisters in the
government service of their constitutional right to freedom of
expression.
Government workers, whatever their ranks, have as much right as
any person in the land to voice out their protests against what they
believe to be a violation of their rights and interests. Civil Service
does not deprive them of their freedom of expression. It would be
unfair to hold that by joining the government service, the members


thereof have renounced or waived this basic liberty. This freedom
can be reasonably regulated only but can never be taken away.
immediately available to CenPEG and all other interested political

parties or groups for independent review.
FREEDOM OF INFORMATION
ANY MATTER OF PUBLIC INTEREST, NOT

COVERED BY NATIONAL SECURITY ISSUES
Section 7. 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.
Now this case of CenPEG vs COMELEC involves freedom of
information refers to the matter of disclosure of the source code
of the automated national and local elections of 2010. The source
code is actually as described in this case the readable
representation of the instructions on how the machine would
work during the elections. In simple terms, the SC even likened it
to a blueprint of instructions or a recipe if you would want to be
more simple about it on how the machine would read and
eventually count, canvass and eventually transmit the votes.
Freedom of information-- the petitioner here wanted to examine
the source code. The COMELEC, however, failed to make the
source code available until the source code was delivered and
deposited with the Banko Sentral ng Pilipinas. It was too late
because the elections have already been conducted. But still in
this petition for mandamus, the SC granted the petition
compelling the COMELEC to disclose the source code of the
AES technology for the automated elections. Rightfully so
because this will be the same source code, perhaps, that we will
be using in the 2013 elections.
G.R. No. 189546 September 21, 2010
CENTER FOR PEOPLE EMPOWERMENT IN
GOVERNANCE, vs.COMMISSION ON ELECTIONS,
This case concerns the duty of the Commission on Elections
(COMELEC) to disclose the source code for the Automated
Election System (AES) technologies it used in the 2010 national
and local elections.
The Court finds the petition and this last manifestation meritorious.
The pertinent portion of Section 12 of R.A. 9369 is clear in that
"once an AES technology is selected for implementation, the
Commission shall promptly make the source code of that
technology available and open to any interested political party or
groups which may conduct their own review thereof." The
COMELEC has offered no reason not to comply with this
requirement of the law. Indeed, its only excuse for not disclosing
the source code was that it was not yet available when CenPEG
asked for it and, subsequently, that the review had to be done,
apparently for security reason, "under a controlled environment."
The elections had passed and that reason is already stale.
WHEREFORE, the Court GRANTS the petition for mandamus and
DIRECTS the COMELEC to make the source codes for the AES
technologies it selected for implementation pursuant to R.A. 9369
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Now in the freedom of information we always know that what is

supposed to be covered here are any matter of public interest
which is not covered by national security issues. And even if
there is access supposedly to this kind of information, this
information is not to be given out for free or if there is an absence
of any good intention requiring such information.
The freedom of information must have to be related to the so
called freedom of expression that would include the speech,
media because only an informed individual can intelligibly
formulate his thoughts to be able to compete in the free market of
ideas. So if the reason for acquiring a certain information of a
public office is not based on that good will of intentions, then
denial of that request for absolute information would not be a
denial of the right to information simply because again there is no
bona fide, legitimate purpose for securing that particular
information.
ACADEMIC FREEDOM
Now the other matter in your outline with respect to freedom of
expression would be the academic freedom. We have always
related this academic freedom with respect to, in relation to
freedom of expression. Because of the aspect or ---- affecting
ones free speech when one enters an institution of higher
learning.
In Garcia v. The Faculty Admission Committee, Loyola School
of Theology (68 SCRA 277 [1975]), the Court had occasion to
note the scope of academic freedom recognized by the
Constitution as follows:
(I)t is to be noted that the reference is to the 'institutions of higher
learning' as the recipients of this boon. It would follow then that the
school or college itself is possessed of such a right. It decides for
itself its aims and objectives and how best to attain them. It is free
from outside coercion or interference save possibly when the
overriding public welfare calls for some restraint. It has a wide
sphere of autonomy certainly extending to the choice of students.
This constitutional provision is not to be construed in a niggardly
manner or in a grudging fashion. That would be to frustrate its
purpose, nullify its intent.
xxx
"To clarify further the distinction between the freedom of the
university and that of the individual scholar, he says: "The personal
aspect of freedom consists in the right of each university teacher
recognized and effectively guaranteed by society to seek and
express the truth as he personally sees it, both in his academic
work and in his capacity as a private citizen. Thus the status of the
individual university teacher is at least as important, in considering


academic freedom, as the status of the institutions to which they
belong and through which they disseminate their learning."'
He likewise quoted from the President of the Queen's University in
Belfast, Sir Eric Ashby: "'The internal conditions for academic
freedom in a university are that the academic staff should have de
facto control of the following functions:
(i) the admission and examination of students;
(ii) the curricula for courses of study;
(iii) the appointment and tenure of office of academic staff; and
(iv) the allocation of income among the different categories of
expenditure.
It would be a poor prospect for academic freedom if universities
had to rely on the literal interpretation of their constitutions in order
to acquire for their academic members control of these four
functions, for in one constitution or another most of these functions
are laid on the shoulders of the law governing body .'" XXXX
It is the business of a university to provide that atmosphere which
is most conducive to speculation, experiment and creation. It is an
atmosphere in which there prevail the four essential freedom of a
universityto determine for itself on academic grounds who may
teach, what may be taught, how it shall be taught, and who may be
admitted to study"' (Emphasis supplied; citing Sinco, Philippine
Political Law, 491, (1962) and the concurring opinion of Justice
Frankfurter in Sweezy v. New Hampshire (354 US 234 [1957]).
Academic freedom has practically types or components.

ACADEMIC FREEDOM OF THE INSTITUTION
The first would be academic freedom of the institution.
The right of the institution to decide for itself:
1. what subjects to teach,
2. what courses to offer,
3. who to hire as part of the members of the faculty,
4. who to admit to study in the institution.
That goes with it the discretion to determine what are the
reasonable rules for engagement of the members of the faculty
as well as reasonable rules for admission and continued
admission of its students. That would also include the right to
form its own objectives, mission, what its policies are in relation
to running the institution of higher learning.
ACADEMIC FREEDOM WITH RESPECT TO THE
TEACHERS
The second would be with respect to the teachers, the members
of the faculty because the members of the faculty would have
their academic freedom in relation to the way they teach the
subject, the way they would want to impart their knowledge to
their students, they way they handle their particular sections or
subjects.
ATENEO DE DAVAO
COLLEGE OF LAW
And in the interest of their higher learning, they are supposed to

be protected also with respect to the results of any studies that
they may have done in relation to their further studies on account
of their being members of the faculty without fear of retribution
from the school for any mistake or error that may have been
caused on account of that particular study.
Of course if results of the research were, for example, or a paper
based on a research is plagiarised or something done to come
up with a false result, then that would not be protected under
academic freedom
FREEDOM WITH RESPECT TO THE STUDENTS
The third which is mostly related to freedom of expression is that
of the students. Because there have been several cases in the
past decided on which should prevail- the right of the students to
freely express themselves in joining activities in redress of their
grievances or whether the school has the right to discipline them
according to the reasonable rules of the school.
Now, its a given that when students enter a school or institutions
for higher learning would not divest themselves of their right to
freedom of expression. They would always continue to have the
right to express themselves. But since everything is not absolute,
they must be subjected to reasonable rules of the school with
respect to when they would be able to express their sentiments
or thoughts on a particular issue.
Again, for so long as these reasonable regulations are imposed
by the school at least are content neutral restrictions then they
would not be considered to be unreasonable regulations on the
content of the speech.
That is why the school would always require that the students
would have to express their grievances or conduct rallies or
similar activities in areas of the school were the holding of regular
classes would not be disturbed. Of course these students
engaged in these activities would not also be allowed without fear
of penalty to disrupt the holding of regular classes because the
other students who are in their classes would also have the right
to continue their study in that institution of higher learning. So
there would always be that clash in that particular context.
Now when the students under the Magna Carta would have the
right to be allowed enrolment in a school and also allowed re
enrolment until the full completion of the course requirement to
earn a degree. These are subject to reasonable rules of
academics as well as rule on behaviour or rules of discipline in
school.
Everything is supposed to have been given at the time of
engagement in the sense that they are admitted to study in the
64


institution of higher learning. So that the students cannot later on
complain that they were proceeded against and penalized
accordingly based on the rules they do not know.
I think after some time for those who studied here in the Ateneo
undergraduate courses, before the males did not have uniforms.
But a certain time they have required the freshmen light blue
colored upper garment. Everybody now is wearing that, for the
males at least. And I think students have been made to sign an
acknowledgement, furnished with, read of and understood the
rules respecting the academic rules.
Now in relation to that is the procedural due process in the
institutions of higher learning. When the students supposed to be
proceeded against by the school for violations rules whether
academic or rules of discipline.
In academic rules, theres not much discussion because its as
simple as you make the grade or you dont. Theres no such thing
as the holding of a hearing, investigation you would be made to
explain yourself because you have been heard when you took
the exam. Thats the opportunity to be heard already and
during the exam you were supposed to give all the evidence why
you should pass the subject and not fail the subject. So
everything is given for you to explain or even allowed you to
attach your countervailing evidence if there is.
But for violation of the schools rules on discipline, you always
follow that procedural due process. It has been applied in several
cases already. One of the landmark cases is that of the Ateneo
involving fraternity Aquila Legis where the SC said that the
respondent student must be furnished with the charge in writing,
given the opportunity to present his evidence. There must be a
hearing conducted where the parties be allowed to offer
evidence. Although, there is no allowance for cross examination.
The investigating committee must act independently and must
also decide the case based on the evidence on record adduced
by the parties. These are the minimum requirements for
procedural due process when the school for higher learning will
impose sanctions upon a student.
ADMU vs Capulong
G.R. No. 99327 May 27, 1993
Corollary to their contention of denials of due process is their
argument that it is Ang Tibay case 25 and not theGuzman case
which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process,
the Guzman case is more apropos to the instant case, since the
latter deals specifically with the minimum standards to be satisfied
in the imposition of disciplinary sanctions in academic institutions,
such as petitioner university herein, thus:
ATENEO DE DAVAO
COLLEGE OF LAW
right to answer the charges against them with the assistance of

counsel, if desired: (3) they shall be informed of the evidence
against them (4) they shall have the right to adduce evidence in
their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school
authorities to hear and decide the case.
It cannot seriously be asserted that the above requirements were
not met. When, in view of the death of Leonardo Villa, petitioner
Cynthia del Castillo, as Dean of the Ateneo Law School, notified
and required respondent students on February 11, 1991 to submit
within twenty-four hours their written statement on the
incident, 27 the records show that instead of filing a reply,
respondent students requested through their counsel, copies of the
charges. 28While of the students mentioned in the February 11,
1991 notice duly submitted written statements, the others failed to
do so. Thus, the latter were granted an extension of up to February
18, 1991 to file their statements.
Indubitably, the nature and cause of the accusation were
adequately spelled out in petitioners' notices dated February 14
and 20, 1991. 30 It is to be noted that the February 20, 1991 letter
which quoted Rule No. 3 of its Rules of Discipline as contained in
the Ateneo Law School Catalogue was addressed individually to
respondent students. Petitioners' notices/letters dated February
11, February 14 and 20 clearly show that respondent students
were given ample opportunity to adduce evidence in their behalf
and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very
start of the investigations before the Joint Administration FacultyStudent Committee, the law firm of Gonzales Batiler and Bilog and
Associates put in its appearance and filed pleadings in behalf of
respondent students.
Respondent students may not use the argument that since they
were not accorded the opportunity to see and examine the written
statements which became the basis of petitioners' February 14,
1991 order, they were denied procedural due process. 31 Granting
that they were denied such opportunity, the same may not be said
to detract from the observance of due process, for disciplinary
cases involving students need not necessarily include the right to
cross examination. An administrative proceeding conducted to
investigate students' participation in a hazing activity need not be
clothed with the attributes of a judicial proceeding. A closer
examination of the March 2, 1991 hearing which characterized the
rules on the investigation as being summary in nature and that
respondent students have no right to examine affiants-neophytes,
reveals that this is but a reiteration of our previous ruling inAlcuaz.
Respondent students' contention that the investigating committee
failed to consider their evidence is far from the truth because the
February 14, 1992 ordered clearly states that it was reached only
after receiving the written statements and hearing the testimonies
of several witnesses. 33 Similarly, the Disciplinary Board's
resolution dated March 10, 1991 was preceded by a hearing on
March 2, 1991 wherein respondent students were summoned to
answer clarificatory questions.
While student again has the right to continue re-enrolment at a

completion of a degree, but of course, that would be... it would
always remain as the right of the school under its academic
(1) the students must be informed in writing of the nature and

cause of any accusation against them; (2) that they shall have the
65


freedom to determine who to allow to study based on its
reasonable rules on its academics...
THREE-FLUNK RULE
As to the right of the student to allow enrolment, that has long
been decided and one of the cases is the case of DECS vs.
Sandiego, where the three-flunk rule in the examinations for
admission in a Medical school in the Philippines, has been to test
the argument of the respondent... is that a student has the right
to be admitted to a school of higher learning or a medical school
for that matter. But the SC said, ruling in favor of DECS, that a
three-flunk rule is reasonable considering that the profession
eventually coming out from the medical school has a close link to
a public interest issue which is public health. Stated differently,
the closer the link of a profession to a public interest or a public
interest matter, the greater there is the state regulation allowable.
So that if it were to be a different kind of profession, there may
not be stringent government regulation given for admission in the
school. But if it is a school or a degree which has closer relation
to public interest matter, then there may be greater state
regulation allowable as to who shall be admitted. And also, the
school itself has the right under its academic freedom to impose
reasonable rules for admission.
Some would require as to take entrance examinations and there
is the requirement of passing the entrance exam, is ordinarily
considered to be reasonable regulations or rule for admission.
So, student knows he has a right under academic freedom to
enrol in the institution, he must have to comply with reasonable
regulations imposed.
DECS v San Diego (1989)
FACTS:
Roberto Rey San Diego, the private respondent is a graduate of
the University of the East with a degree of Bachelor of Science
in Zoology. The petitioner claims that he took the NMAT
three times and flunked itas many times.
ISSUE:
Whether the private respondent who has thrice failed the National
Medical Admission Test (NMAT) is entitled to take it again as it is
a requirement for admission to any Medical School in the
Philippines. He invoked of his constitutional rights to academic
freedom and quality education, squarely challenging the
constitutionality of MECS Order No. 12, Series of 1972.
HELD:
The private respondent cannot take the NMAT again and pursue
his medical profession because of the following grounds:
1. For the purpose of gauging at least initially by the admission test
and by the three-flunk rule, a student shall not be allowed to take
the NMAT again after three successive failures.
2. The State ensures that medical profession is not permeated by
incompetents to whom patients may unwarily hand over their lives
and health.
66
ATENEO DE DAVAO
COLLEGE OF LAW
3. It is not enough to simply invoke the right to quality education as

a guarantee of the Constitution, while one has the right to aspire to
be a doctor, he does not have the constitutional right to be a
doctor; one must show that he is entitled to it because of his
preparation and promise.
4. The conflict that the challenged rule violates the equal protection
clause is not well-taken. Conformable to Article III, Section 1 of the
Constitution, a law does not have to operate with equal force on
all person or things.
In an old case, there is this case of Garcia vs. Faculty of

Admission, faculty of admission is the School of Theology of
Ateneo, there is this woman who would want to be admitted to
that school of theology. Per practice or traditions for the Catholic
Church, Schools for Theologies are always reserved for
biologically male persons. (at least biologically....) if you are
biologically female, you may not force yourself into admission for
school of theology, at least for catholic church. OKAY...
Now, this case of Mercado vs. Ama, this case involves AMA
members of faculty or teachers who were terminated by the
school based on non-renewal of the fixed term contracts. The
argument of the school was that, they have the right under its
academic freedom to engage the services of a teacher for whom
to employ as members of the faculty. But the question is that, is
their claim of academic freedom proper? SC looked into the basis
of the claim of petitioners, the petitioners here won in the NLRC
and eventually lost in the CA. The SC reversed the CA ruling and
decided in their favor of the faculty members. Here is the
question of whether these teachers can be terminated based on
non-renewal of contract or whether they could be terminated
because of non-regularization after the probationary status. We
all know that in the teaching profession under the Magna Carta
for teachers, the probationary period is how long? THREE
YEARS... 6 semesters actually... that would be 3 school years.
Now these teachers involved were hired for 7 trimesters (AMA
follows trimester, 1 trimester is 1/3) almost 2 years and 1/3...
Short for the 3 years. AMA terminated them on two grounds:
1. Non-renewal of fixed term contract; and
2. The contracts, they will never be regularized because
they fail to pass the probationary status.
There was a test, they failed to pass the test... the Performance
Appraisal System for Teachers (PAST) and other requirements
for regularization that the school implements to maintain its high
academic standards. So they were terminated for separate
concerns. The SC said that there may be a problem if the
probationary status period overlapped the fixed term status. We
all know that as way back as the Brent Ruling, a fixed term
contract is allowed, so there is no regularization or expectation of
regularization after the expiration of the fixed term contract. You
are agreed for a period of 1-year, youre a temporary faculty
because the regular faculty left for further studies abroad. So


youre hired for a fixed term of 1 year. If the period expires,
automatically you lose your work, and you are therefore not
considered to be regular or there is no violation of security of
tenure. The problem here is that, the person is supposed to have
been hired for a fixed term as provided in their probationary
status, like, youre in contract for 3 years, how would, SC asked,
if that 3 year period as fixed in the contract... is that probationary
also or is it a fixed term?
SC said that when, the fix term overlaps the probationary status,
then the probationary status required under Article 281 of the
Labor Code, that an employee must have to be regularized after
the probationary status unless,
1. he has been informed of what must be achieved during
the probationary status otherwise, he will not be
regularized;
2. Second, the employees was not able to meet those
standards conditioned to be met at that time of service.
So since, the employees here were serviced or both theres an
overlapped within the fixed term and the probationary status by
law, then the SC said that it should be treated as probationary
status. And that the failure of AMAs duty to inform them of the
reasonable requirements to pass the probationary status, would
make their termination or the claim of academic freedom of
school or institution of higher learning was not considered as
valid.
MERCADO VS AMA (2010)

FACTS:
The teachers in this case were on probationary status on fixed
term contracts from the time they were employed and until the
expiration of their teaching contracts. Subsequently, before they
were able to complete three consecutive years of service, they
were informed by the school that with the expiration of their
contract to teach, their contract would no longer be renewed.
Hence, they filed a complaint for illegal dismissal.
The Labor Arbiter ruled that the teachers were illegally dismissed
and stated that Article 281 of the Labor Code on probationary
employment applied to the case.
On appeal, the NLRC ruled that the applicable law is Section 92 of
the Manual regulations for Private Schools and not Article 281 of
the Labor Code. However, the NLRC affirmed the Labor Arbiters
decision since the teachers were terminated on the basis of
standards which were made known to them only near the end of
their probationary period.
On a petition for certiorari, the Court of Appeals reversed the
decision of the NLRC because the teachers were not actually
dismissed in that their contracts merely expired.
ATENEO DE DAVAO
COLLEGE OF LAW
operates during the probationary period and for this reason is

subject to the terms of Article 281 of the Labor Code. Unless this
reconciliation is made, the requirements of this Article on
probationary status would be fully negated as the school may
freely choose not to renew contracts simply because their terms
have expired.
Given the clear constitutional and statutory intents, the Supreme
Court concluded that in a situation where the probationary status
overlaps with a fixed-term contract not specifically used for the
fixed term it offers, Article 281 should assume primacy and the
fixed-period character of the contract must give way.
To highlight what the Supreme Court mean by a fixed-term
contract specifically used for the fixed term it offers, a replacement
teacher, for example, may be contracted for a period of one year to
temporarily take the place of a permanent teacher on a one-year
study leave. The expiration of the replacement teacher's
contracted term, under the circumstances, leads to no probationary
status implications as she was never employed on probationary
basis; her employment is for a specific purpose with particular
focus on the term and with every intent to end her teaching
relationship with the school upon expiration of this term.
While the Supreme Court can grant that the standards were duly
communicated to the teachers and could be applied beginning the
1st trimester of the school year 2000-2001, glaring and very basic
gaps in the school's evidence still exist.
The exact terms of the standards were never introduced as
evidence; neither does the evidence show how these standards
were applied to the teachers. Without these pieces of evidence the
Supreme Court had nothing to consider and pass upon as valid or
invalid for each of the teachers. Inevitably, the non-renewal (or
effectively, the termination of employment of employees on
probationary status) lacks the supporting finding of just cause that
the law requires and, hence, is illegal.
ln my experience, Nick, lessons not learned in blood

are soon forgotten
-Clyde Shelton, Law Abiding Citizen
FREEDOM OF RELIGION
Section 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
Religion: any system of belief, worship, conducts, often involving
ethics, which includes the freedom not to believe.
The Freedom of religion is found in several provisions in the
constitution. The first is the separation of the Church and the
State.
RULING:
The Supreme Court stated that nothing is illegitimate in defining
the school-teacher on fixed term basis. The school, however,
cannot forget that its system of fixed-term contract is a system that
67


SEPARATION OF THE CHURCH AND STATE
1.Non-establishment clause
2.Free exercise of Religion
ARTICLE II, Section 6. The separation of Church and State shall

be inviolable.
Already understood in its original concept, the separation of the
Church and State, prohibits the State from intruding into religious
matters. But it does not work the other way around, there is no
such thing as religion prohibiting from engaging itself into political
matters, because by origin the church has always been intruding
into the realm of politics, as it is today.
EXEMPTION FROM REALTY TAXES
ARTICLE VI, Section 28.
1.
xxx
2.
xxx
3.
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.
4.
Xxx
There can also be no payment of public funds for religious
services, except for those ministers, preacher who have been
employed in the government penal institutions, orphanage. They
are paid not because they are religious people, but because of
the tasks.
And we have mentioned before, there was a question in the bar,
several years ago. OFWs in Hong Kong who converge in public
squares every Sunday, for tsismis. and in order to give in to
their religious needs, the OWWA, decided to engage the services
of a Catholic Priest, to deliver mass every Sunday. Can this
religious service be valid?
BELIEF AND ACTION TEST
Now the scope of the freedom would refer to what is known as
the BELIEF AND ACTION TEST. The first is the BELIEF, the
second is the ACTION.
In BELIEF, whatever is in the realm of the thought that is
supposed to be absolutely protected. There is no such thing as
reasonable regulation allowable if it remains in the realms of
thought.
In ACTION however, to act in accordance to ones belief, then it
may be subject to reasonable regulation under the Police Power.
The right is not absolute.
ATENEO DE DAVAO
COLLEGE OF LAW
(School District v. Schempp, 374 US 203)

The non-establishment clause does not depend upon any
showing of direct governmental compulsion. It is violated by the
enactment of laws which establish an official religion whether those
laws operate directly to coerce non-observing individuals or not.
The test of compliance with the non-establishment clause can be
stated as follows: What are the purposes and primary effect of the
enactment? If either is the advancement or inhibition of religion,
the law violates the non-establishment clause. Thus, in order for a
law to comply with the non-establishment clause, two requisites
must be met. First, it has a secular legislative purpose. Second,
its primary effect neither advances nor inhibits religion.
The free exercise of religion clause withdraws from legislative
power the exertion of any restraint on the free exercise of religion.
In order to show a violation of this clause, the person affected must
show the coercive effect of the legislation as it operates against
him in the practice of his religion. While the freedom to believe
(non-establishment) is absolute, the moment such belief flows over
into action, it becomes subject to government regulation.
NON-ESTABLISHMENT CLAUSE
1.
2.
Prohibits excessive governmental entanglement with

religious institutions and;
Government endorsement or disapproval of religion
FREE EXERCISE CLAUSE
Prohibits the government from inhibiting religious beliefs with

imposition of penalties on (such) religious beliefs.
The concept of freedom of religion with respect to the
participation or the entanglement of the government is that the
government must have to be an innocent by-stander with respect
to religion and religious practices.
Religion can be best achieved by the volunteerism of its
members not because the State has imposed upon them to be
religious or from prohibiting them from being religious. Rightfully
so, as you may have seen, the bigger religious groups or sects,
we have are those who encourage freedom of thought and
freedom conscience of its members.
For those who have these thought and conscience imposed on
them, they may be good in numbers but they are not good in
()
The Philippines is how many percent Catholics? (80% according
to Wikipedia, citing the NSO Census of 2000 as its source.)
The prohibitions are as follows:
68


Government Neutrality should be summarized as follows:
1. Government must not prefer one religion or no-religion
over another
2. Government funds must not be applied for religious
purposes
3. Government action must not aid religion
4. Government action must not result into excessive
entanglement with religion.
For the non-establishment clause, there are acts permitted and

these are called as non-discriminatory concessions (?) and these
are the cases mentioned earlier under the Constitutions
exemptions on realty taxes, public schools (primary and
secondary schools) the constitution allows it provided it would
comply with the requirements, that there is no additional
expenditure allowing religious instructions in public schools.
They must also be based on the religion, where the child
belongs, upon the written request and approval by the
administrators and parents, and there shall be no discrimination.
No problem with private schools, they are not regulated as those
with the public primary and secondary schools. In the Ateneo, we
have religious instructions. In the Law School, we also have
Christian Ethics, at least man lang meron.
The test used normally when the issue pertains to nonestablishment, is the so called benevolent neutrality or
accommodation, again the State is considered to be innocent bystander with respect to the exercise of the different religions
which is practiced among the different sects. There should be a
wall of separation between the Churches and the State.
OPERATION OF SECTARIAN SCHOOLS
ARTICLE XIV, Section 2. The State shall:
1.
XXX
2.
Establish and maintain, a system of free public
education in the elementary and high school levels. Without
limiting the natural rights of parents to rear their children,
elementary education is compulsory for all children of school age;
RELIGIOUS INSTRUCTIONS IN PUBLIC
SCHOOLS
ARTICLE XIV, Section 3.
1.
XXX
2.
XXX
3.
At the option expressed in writing by the parents or
guardians, religion shall be allowed to be taught to their children
or wards in public elementary and high schools within the regular
class hours by instructors designated or approved by the
69
ATENEO DE DAVAO
COLLEGE OF LAW
religious authorities of the religion to which the children or wards

belong, without additional cost to the Government.
CIVIL CODE, Article 359. 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;
PUBLIC AID TO RELIGION
ARTICLE VI, Section 29.
1.
XXX
2.
No public money or property shall be appropriated,
applied, paid, or employed, directly or indirectly, for the use,
benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher,
minister, 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.
3.
XXX
Aglipay vs. Ruiz (Not Discussed by Atty. Montejo)
In Aglipay v. Ruiz, this Court had occasion to state that the
government should not be precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable
to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. Assessed by these criteria, Republic
Act No. 3350 cannot be said to violate the constitutional inhibition
of the "no-establishment" (of religion) clause of the Constitution.
Act 4052 contemplates no religious purpose in view. What it gives
the Director of Posts is the discretionary power to determine when
the issuance of special postage stamps would be advantageous
to the Government. Of course, the phrase advantageous to the
Government does not authorize the violation of the Constitution;
i.e. to appropriate, use or apply of public money or property for the
use, benefit or support of a particular sect or church. In the case at
bar, the issuance of the postage stamps was not inspired by any
sectarian feeling to favor a particular church or religious
denominations. The stamps were not issued and sold for the
benefit of the Roman Catholic Church, nor were money derived
from the sale of the stamps given to that church. The purpose of
the issuing of the stamps was to take advantage of an event
considered of international importance to give publicity to the
Philippines and its people and attract more tourists to the country.
Thus, instead of showing a Catholic chalice, the stamp contained a
map of the Philippines, the location of the City of Manila, and an
inscription that reads Seat XXXIII International Eucharistic
Congress, Feb. 3-7, 1937.


ATENEO DE DAVAO
COLLEGE OF LAW
In the Free exercise clause, the government is prohibited from

inhibiting religious beliefs, with imposition of penalties for
religious beliefs and practices.
Three basic accommodations for Free exercise:
1.
MANDATORY ACCOMODATION
a.
Those which are found to be constitutionally compelled
and required by the free exercise clause.
2.
PERMISSIVE ACCOMODATION
a.
Those which are discretionary, that is not required by
the free exercise clause, but nonetheless permitted by the
establishment clause.
3.
PROHIBITED ACCOMODATION
a.
THOSE WHICH THE RELIGIOUS CLAUSES
PROHIBITS, WHICH IS PROHIBITTED (?)
b.
In this, the establishment prevails over potential
accommodation requests.
When there is an exercise of an act, the State may prohibit such
exercise depending on these 3 accommodations.
Boy Pick-up: Neneng, Hinding hindi kita sasagutin ng OO.

Neneng B: Bakit?
Boy Pick-up: Kasi, True or False ang tanong mo. Boom!
ELMAN, JENIKA
TRAVILLA, CHERRYL
PENDATUN, DATS
DUMAGAN, MENCHIE
"What's your road, man?--holyboy road, madman road,
rainbow road, guppy road, any road. It's an anywhere road
for anybody anyhow."
~ Jack Kerouac, On the Road, Part 4, Ch. 1
The important thing is to strive towards a goal which is
not immediately visible. That goal is not the concern of the
mind, but of the spirit.
~Antoine de Saint-Exupry,
Flight to Arras, 1942
70


Agust 24, 2012
FREEDOM OF RELIGION
So we are still under freedom of religion. Now, the multiple test
used in the free exercise clause is at least based on the
decisions of the SC would be:
1.) Clear and Present Danger - this was applied in discussion
on flag salute cases. Remember the case of Ebralinag. This is
similarly applied in the discussion on freedom of expression, the
question in every case is whether the words used in such
circumstances and is in such a nature as to create a clear and
present danger that they will make about the serious evil which
the state has a right to prevent. If you relate this to the case
Ebralinag v. Division Superintendent of Schools of Cebu, is the
regulation on flag salute constitutive of a violation of free exercise
by reason of the penalty imposable? However the claim of
freedom of religion must have to be upheld over that regulation.
To put it differently whether to allow the freedom of religion to
create a situation that will bring about the evil sought to be
avoided. In the old case, the possibility that the citizenry will be
composed of un-nationalistic individuals because children were
not compelled to salute the flag. In the Ebralinag case it was
explained that the evil sought to be avoided is presumed happen
will come to pass simply because to be patriotic or nationalist will
not be achieved by requiring the children to salute the flag among
others.
EBRALINAG v. THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU
G.R. No. 95770 March 1, 1993
Facts: The petitioners in both (consolidated) cases were expelled
from their classes by the public school authorities in Cebu for
refusing to salute the flag, sing the national anthem and recite the
patriotic pledge as required by Republic Act No. 1265 (An Act
making flag ceremony compulsory in all educational institutions) of
July 11, 1955 , and by Department Order No. 8 (Rules and
Regulations for Conducting the Flag Ceremony in All Educational
Institutions) dated July 21, 1955 of the Department of Education,
Culture and Sports (DECS)making the flag ceremony compulsory
in all educational institutions. Jehovah's Witnesses admitted that
they taught their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those
are" acts of worship" or "religious devotion" which they "cannot
conscientiously give to anyone or anything except God". They
consider the flag as an image or idol representing the State. They
think the action of the local authorities in compelling the flag salute
and pledge transcends constitutional limitations on the State's
power and invades the sphere of the intellect and spirit which the
Constitution protect against official control.
Issue: Whether or not school children who are members or a
religious sect may be expelled from school for disobedience of
R.A. No. 1265 and Department Order No. 8.
Held:
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entitled to the highest priority and the amplest protection among

human rights, for it involves the relationship of man to his Creator
The sole justification for a prior restraint or limitation on the
exercise of religious freedom is the existence of a grave and
present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty)
to prevent." Absent such a threat to public safety, the expulsion of
the petitioners from the schools is not justified. (Teehankee).
The petitioners further contend that while they do not take part in
the compulsory flag ceremony, they do not engage in "external
acts" or behavior that would offend their countrymen who believe
in expressing their love of country through the observance of the
flag ceremony. They quietly stand at attention during the flag
ceremony to show the irrespect for the right of those who choose
to participate in the solemn proceedings. Since they do not engage
in disruptive behavior, there is no warrant for their expulsion.
The Court is not persuaded that by exempting the Jehovah's
Witnesses from saluting the flag, singing the national anthem and
reciting the patriotic pledge, this religious group which admittedly
comprises a "small portion of the school population" will shake up
our part of the globe and suddenly produce a nation "untaught and
uninculcated in and unimbued with reverence for the flag,
patriotism, love of country and admiration for national heroes"
.What the petitioners seek only is exemption from the flag
ceremony, not exclusion from the public schools where they may
study the Constitution, the democratic way of life and form of
government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation of
profession and be taught the virtues of "patriotism, respect for
human rights, appreciation for national heroes, the rights and
duties of citizenship, and moral and spiritual values (Sec. 3[2], Art.
XIV, 1987 Constitution) as part of the curricula. Expelling or
banning the petitioners from Philippine schools will bring about the
very situation that this Court had feared in Gerona . Forcing a
small religious group, through the iron hand of the law, to
participate in a ceremony that violates their religious beliefs, will
hardly be conducive to love of country or respect for dully
constituted authorities.
Also, the expulsion of members of Jehovah's Witnesses from the
schools where they are enrolled violates their right as Philippine
citizens, under the 1987 Constitution, to" protect and promote the
right of all citizens to quality education . . . and to make such
education accessible to all (Sec. 1, Art. XIV).
In the case of Texas vs. Johnson regarding the flag burning issue
it has been upheld that such is a valid freedom of expression
provided that the flag that you burn is you own, meaning that it is
your own property and for so long as you burn your own property
which will not result in burning of another person's property that
is sufficiently protected under freedom of expression. So the flag
is therefore not icon or an object which would be imbued with
such interest that it will promote nationalism or patriotism on
individual. There are a lot of acts which would ordinarily be
shown as disrespect in relation to how flags are tainted in certain
national activities. Of course it would be different if it is the flag
No. Religious freedom is a fundamental right which is


owned by the state which would be subjected to such acts
because that would necessarily show disrespect.
Even in the Philippines, we still have that law which would
penalize unauthorized use or destruction of Philippine flag which
are ordinarily used in the course or conduct of official business.
There is a way of disposing a tattered flags which if not followed
will subject the person to a criminal liability.
The other case is Estrada vs. Escritor, if you remember this case,
there was an administrative case for gross immorality involving a
Supreme Court employee because of a supposed to be immoral
liaison between two married individuals separated from their
respective spouses. They have claimed that their association or
union is authorized as part of their religious practices and in fact
they were able to show that this practice had long been practiced
in their religion and there is a document signed by them,
supposedly witnessed by their God that their union is a union
base on their belief. The SC applied the compelling interest test.
We have discussed this already in freedom of expression, that if
there is a compelling state interest, the state has the right to
protect. The state may regulate the expression, in this case
between the exercise of religion.
As we have known from our freedom of expression discussion,
there must have a compelling interest that must be shown. What
that compelling state interest is not defined or contained in an
enumerated list of items that would fall under that. It is merely
characterized as something preferred like national security,
preservation of the lives of multiple individuals and not violating
explicit constitutional protection. So if we go by the extreme of
your religion. Take for example your religion believes of offering a
virgin to your god, we have always said that it may be regulated
not only because it is difficult to find one now (just kidding ) but
because it would result to something that the state has the right
to prevent. Nobody is entitled to kill a person; it is said under the
Constitution, without due process of law. So even if with the claim
of religious right, that this is free exercise -- we believed that we
can be saved from all of these if we offer a virgin to our god
that may not be allowable because there is a compelling state
interest.
Under that compelling state interest in relation to our discussion
in freedom of expression we also mentioned that there must have
to be showing that the intrusion or regulation of the government
is necessary and that It is the least intrusive measure on the free
exercise to be an allowable regulation. If the means to regulate in
order to protect the state interest is not the least intrusive, that
regulation cannot be also considered as valid. So there must
have to be a determination of the court on whether or not of all
the available means to protect the compelling state interest, this
is the least intrusive of all these measures.
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In the case of Estrada, the SC clarified that they were charge of

an administrative case, again, it would have been different if they
were charge with a criminal case, say for bigamy or concubinage,
because the state has the right to protect its citizens from
commission of offenses. It must remain clear that, it may be
different if they have been charge criminally because then again,
the state has always have the right to ensure that the task to
protect its citizens is done.
ESTRADA v. ESCRITOR
AM No. P021651 June 20, 2000
Facts: Escritor is a court interpreter since 1999 in the RTC of Las
Pinas City. She has been living with Quilapio, a man who is not her
husband, for more than twenty five years and had a son with him
as well. Respondents husband died a year before she entered into
the judiciary while Quilapio is still legally married to another
woman.
Complainant Estrada requested the Judge of said RTC to
investigate respondent. According to complainant, respondent
should not be allowed to remain employed therein for it will appear
as if the court allows such act.
Respondent claims that their conjugal arrangement is permitted by
her religionthe Jehovahs Witnesses and the Watch Tower and
the Bible Trace Society. They allegedly have a Declaration of
Pledging Faithfulness under the approval of their congregation.
Such a declaration is effective when legal impediments render it
impossible for a couple to legalize their union.
Issue: Whether or Not the State could penalize respondent for
such conjugal arrangement.
Held: No. The State could not penalize respondent for she is
exercising her right to freedom of religion. The free exercise of
religion is specifically articulated as one of the fundamental rights
in our Constitution. As Jefferson put it, it is the most inalienable
and sacred of human rights. The States interest in enforcing its
prohibition cannot be merely abstract or symbolic in order to be
sufficiently compelling to outweigh a free exercise claim. In the
case at bar, the State has not evinced any concrete interest in
enforcing the concubinage or bigamy charges against respondent
or her partner. Thus the States interest only amounts to the
symbolic
preservation
of
an
unenforced
prohibition.
Furthermore, a distinction between public and secular morality and
religious morality should be kept in mind. The jurisdiction of the
Court extends only to public and secular morality.
The Court further states that our Constitution adheres the
benevolent neutrality approach that gives room for accommodation
of religious exercises as required by the Free Exercise Clause.
This benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling
state interests. Assuming arguendo that the OSG has proved a
compelling state interest, it has to further demonstrate that the
state has used the least intrusive means possible so that the free
exercise is not infringed any more than necessary to achieve the
legitimate goal of the state. Thus the conjugal arrangement cannot
be penalized for it constitutes an exemption to the law based on
her right to freedom of religion.


Remember the discussion on facial invalidation or void for

vagueness, in criminal offenses, that may not be ordinarily
allowed, unless it involves free speech. Now religion is closely
related to expression because freedom of religion is placed under
the category of freedom of thought or conscience. So, while in
the Estrada case administrative liability is observed to be nonexistent during the exercise of religious right, in criminal cases,
there must have to be a greater scrutiny of whether or not the
claim is a valid claim.
The other is in the case of Iglesia ni Cristo, the ratings and

classification of television show involving religious programs. The
SC has always upheld the power of the MTRCB over motion
pictures and television shows and the law creating the MTRCB
as well as the powers granted therein have not yet been declared
as unconstitutional. As mentioned before, the only problem with
the classification board is that, there are not enough medium or
places by which those rated other than the usual can be publicly
exhibited or shown. The ratings and classification is not a form of
censorship yet it can be shown in the appropriate place that is
consistent with the ratings of the firm.
Now, in this compelling state interest there are 3 questions to be

asked:
EXEMPTION FROM UNION SHIP IN RE

FREEDOM TO ASSOCIATE
1.) Is the claim for religious right a sincere claim?

Apparently, there must be sincerity of the claim of the
exercise of religious right although the court will not
look into its truthfulness or validity. Sincerity because it
must have to be practiced and the practice have been
established already, a standard practice of the religion
and that person claiming exemption from the coverage
of the state regulation must have been practicing that
religion. The most common is been akin to a joke: They
say that can I convert my religion from Christianity to
Islam so that I may be allowed to marry more than
once. I dont know why they would want to marry more
than once, having one is difficult enough, they want
more difficulty.
2.) Whether there is sufficient compelling interest?
3.) Least Intrusive of all means.
Those three questions must have to be answered in order that a
valid claim for free exercise may be vested.
FREEDOM TO PROPAGATE RELIGIOUS
DOCTRINES
The usual question here in relation to propagation of religious
doctrines is the requirement in acquiring permit prior to
dissemination of religious publication. One must distinguish
between what is regularly required as part of the conduct of
business. Like a requirement of a business permit. The licensing
requirement there must not be confused with the licensing to
propagate in relation to free exercise and the licensing in relation
to the privilege of conducting business. So, Daugthers of St. Paul
which sells religious publication as well as religious items, is that
entity exempt from the payment of license fees or permits? So
one must be able to distinguish that.
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It has always been allowed that members of certain religious

groups who are not allowed to associate themselves other than
their own religious groups are not covered by the terms of the
union shop clauses. In admission however, they are not
prohibited from associating by themselves by reason of their
religious beliefs and aspiration. Again in all of these, the sincerity
of the claim must have to be established. It cannot be like a rule
just promulgated yesterday for the convenience of the members.
It must be established in the religious dogma or being as
practiced in that particular religion.
DISQUALIFICATION FROM LOCAL ELECTIVE
OFFICE
This old case of Pamil vs. Teleron discuss the old provision of the
Revised Administrative Code that there is a disqualification for
priest or religious persons to participate in elections or to be
elected to the public office because of the Constitutional
principle of the separation of the Church and the state.
PAMIL v. TELERON
G.R. No. L-34854 November 20, 1978
Facts: Private respondent, Father Margarito R. Gonzaga, was, in
1971, elected to the position of municipal mayor of Alburquerque,
Bohol. Therefore, he was duly proclaimed. A suit for quo warranto
was then filed by petitioner, himself an aspirant for the office, for
his disqualification based on this Administrative Code provision: "In
no case shall there be elected or appointed to a municipal office
ecclesiastics, soldiers in active service, persons receiving salaries
or compensation from provincial or national funds, or contractors
for public works of the municipality." The suit did not prosper,
respondent Judge sustaining the right of Father Gonzaga to the
office of municipal mayor. He ruled that such statutory ineligibility
was impliedly repealed by the Election Code of 1971. The matter
was then elevated to this Tribunal by petitioner. It is his contention
that there was no such implied repeal, that it is still in full force and
effect. Thus was the specific question raised.
Issue: WON the disqualification of the respondent based on
Administrative Code provision Constitutional.


Held: The challenged Administrative Code provision, certainly

insofar as it declares ineligible ecclesiastics to any elective or
appointive office, is, on its face, inconsistent with the religious
freedom guaranteed by the Constitution. To so exclude them is to
impose a religious test. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office.
There is thus an incompatibility between the Administrative Code
provision relied upon by petitioner and an express constitutional
mandate.
But since the Revised Administrative Code has been repealed

and we have with respect to local government official the Local
Government Code, the national official in the Constitution there
seems to be no prohibition now on elective offices that religious
persons cannot run or even elected to office. The only effect is
that, for the church policy is that they must have to resign or take
a leave so that there will be no confusion when they are sitting in
that capacity, that they are there to act as public officers and not
as officers of their respective religion. In the Cabinet now we
have Bro. Armin A. Luistro of the Department of Education.
Perhaps the president believes that the Jesuits could offer better
policy in the Education or perhaps they believe that if Jesuit
would end up being the Secretary of Education it will become
more expensive.
One matter in freedom of religion is the conscientious objector.
So what is a consensus objector? This has relation to an
individual who has claim the right to refuse to perform military
service on the grounds of freedom of thought, conscience, and/or
religion. Perhaps, the most famous of whom is Cassius Clay
because he was about to be drafted in Vietnam War, he changed
his religion to Islam and became Muhammad Ali for which the
dodged the drafting and he was penalized accordingly. He was
made to suffer and penalized and jailed. That, I think has not
happened in the Philippines because we have no force drafting in
the military. Since the martial law, the military has been the
blatant source of employment and it has increase in number ever
since, and because the maximum allowable age for service has
been fixed. Despite the retirement of previous ones there are so
many more enlisted throughout the year, so there is no need to
forcible draft everybody to perform a military service.
Now this has been allowed in some jurisdiction but generally,
again, the claim is supposed to be sincere. If you were to avoid
forced drafting into the military because of the religious belief,
you are a conscientious objector, your freedom of religion would
prevent you from joining the service because it against your
religion. But then again, it is allowed in certain jurisdiction but
certainly not in the state because they can compel you to render
civilian service. Just compulsory service. You must have heard of
the National Guard, the National Guard that is used to be kept as
a reserve force for the purposes of augmenting regular armed
forces of the US if there is a local emergency or strike. In need
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not be a war, if there is a national emergency or there is a need

for military personnel to participate in a search and rescue
operations or similar activities. They can call in the National
Guard and these are technically military service.
Clay v. United States
403 U.S. 698
June 28, 1971
In 1966, Muhammad Ali (formerly Cassius Clay) was classified as
1-A (eligible for service in the U.S. armed forces), two years after
being classified as I-Y (not qualified), due to an amendment in his
mental aptitude test. In response, Ali applied for conscientious
objector status but was turned down by both his local draft board
and the State Appeal Board. According to existing statutes, the
matter was then referred to the Justice Department for an advisory
recommendation and the FBI, in preparation for a hearing on "the
character and good faith of the [petitioner's] objections," conducted
more than 35 interviews with Ali's family, friends, neighbors, and
business and religious associates. The hearing officer at Ali's
hearing, after listening the testimony of Ali's parents, one of his
attorneys and Ali himself (and after reviewing the report generated
by the FBI to which he had access), recommended to the Justice
Department that Ali be granted his conscientious objector status.
However, the Justice Department, in a letter to the Appeal Board,
advised against granting such status. The Board honored this
request without stating the reasons it was basing its decision.
According to the U.S. Supreme Court:
"That denial, for which no reasons were ever given, was,
as we have said, based on a recommendation of the
Department of Justice, overruling its hearing officer and
advising the Appeal Board that it 'finds that the
registrant's conscientious-objector claim is not sustained
and recommends to your Board that he be not [so]
classified.' This finding was contained in a long letter of
explanation, from which it is evident that Selective
Service officials were led to believe that the Department
had found that the petitioner had failed to satisfy each of
the three basic tests for qualification as a conscientious
objector."
The three basic tests for conscientious objector status that the
Justice Department letter argued Ali did not meet were:
1.
2.
3.
an applicant's objection must be against

participating in war in any form, not just a particular
war (the Justice Department letter indicated that
Ali's objection was "limited to military service in the
Armed Forces of the United States");
an applicant's objection to service in the
military must be based on religious training and
belief (the Justice Department letter stated that Ali's
"claimed objections to participation in war insofar as
they are based upon the teaching of the Nation of
Islam rests on grounds which primarily are political
and racial"); and that
an applicant's objection must be sincere (the
Justice Department letter stated that Ali "has not
shown overt manifestations sufficient to establish
his subjective belief where, as here, his
conscientious-objector claim was not asserted until
military service became imminent")


Now, before the Supreme Court, the government conceded that
Muhammad Ali's objection was based upon the "religious training
and belief" of the Nation of Islam after all, and that his reasons for
doing so were indeed sincere (and the Supreme Court agreed with
the government's revised thinking). However, the government
continued to argue that Muhammad Ali was not against all war, but
only wars that were not declared by Allah, which in fact Ali had
personally stated many times. However, the Supreme Court found
that:
"Since the Appeal Board gave no reasons for its denial
of the petitioner's claim, there is absolutely no way of
knowing upon which of the three grounds offered in the
Department's letter it relied. Yet the Government now
acknowledges that two of those grounds were not valid.
And the Government's concession aside, it is
indisputably clear, for the reasons stated, that the
Department was simply wrong as a matter of law in
advising that the petitioner's beliefs were not religiously
based and were not sincerely held."
LIBERTY OF ABODE and of Changing the same

There is not much change there. Liberty of abode and of
changing the same can be affected by lawful order of the court.
THE RIGHT TO TRAVEL
The reasons for infringing it would be interest of national security,
public safety and public health. These are not limitations on the
court, the court can actually impose its powers and jurisdiction
over the person and thereby protect the right of the person to
travel even if the constitution says it is only to infringe in the
interest of national security, public safety or public health. Under
Rules of Court, the courts have the inherent power to make its
functions work. If the person is under the jurisdiction of the court,
the court can issue any order to prevent that person from getting
out of the courts jurisdiction and outside the effects of the
warrant.
Remember that old case of Marcos vs. Manglapus, the
discussion here was on whether or not the right to travel in the
Constitution includes ones right to travel back or to enter into the
country. The liberty of abode means the liberty or your right to
choose where to live and to change the place of your residence
that can only be infringe upon lawful order of the court. The most
common example we give is Destierro. You have been
penalized as a concubine in concubinage and you are also
penalized with distierro, you cannot enter within the 200km
radius.
The right to travel is intra-country, within the country, or going
outside of the country. In the US where there are several state,
the right to travel include travel within the state going to another
state provided it within the entire United States. But the right to
travel back in the case of Manglapus was discussed not as an
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express provision in the Constitution included in Section 6 of

Article III but rather under the principle of Incorporation. In the
Doctrine of Incorporation, generally accepted principles of
international law are deemed part of the law of the land. The
Universal Declaration of Human Rights among others states that
everyone has the right to freedom of movement and residence
within the borders of each state and everyone has the right to
leave any country including his own and to return to his country.
That is the generally accepted principle and that deemed
incorporated as part of the law of the land.
Marcos vs. Manglapus
G.R. No. 88211
Sept. 15, 1989
Facts: This case involves a petition of mandamus and prohibition
asking the court to order the respondents Secretary of Foreign
Affairs, etc. To issue travel documents to former Pres. Marcos and
the immediate members of his family and to enjoin the
implementation of the President's decision to bar their return to the
Philippines. Petitioners assert that the right of the Marcoses to
return in the Philippines is guaranteed by the Bill of Rights,
specifically Sections 1 and 6. They contended that Pres. Aquino is
without power to impair the liberty of abode of the Marcoses
because only a court may do so within the limits prescribed by law.
Nor the President impair their right to travel because no law has
authorized her to do so.
They further assert that under international law, their right to return
to the Philippines is guaranteed particularly by the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights, which has been ratified by the
Philippines.
Issue: Whether or not, in the exercise of the powers granted by
the constitution, the President (Aquino) may prohibit the Marcoses
from returning to the Philippines.
Held: "It must be emphasized that the individual right involved is
not the right to travel from the Philippines to other countries or
within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved in this case at bar
is the right to return to one's country, a distinct right under
international law, independent from although related to the right to
travel. Thus, the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights treat the right to
freedom of movement and abode within the territory of a state, the
right to leave the country, and the right to enter one's country as
separate and distinct rights. What the Declaration speaks of is the
"right to freedom of movement and residence within the borders of
each state". On the other hand, the Covenant guarantees the right
to liberty of movement and freedom to choose his residence and
the right to be free to leave any country, including his own. Such
rights may only be restricted by laws protecting the national
security, public order, public health or morals or the separate rights
of others. However, right to enter one's country cannot be
arbitrarily deprived. It would be therefore inappropriate to construe
the limitations to the right to return to ones country in the same
context as those pertaining to the liberty of abode and the right to
travel.
The Bill of rights treats only the liberty of abode and the right to
travel, but it is a well considered view that the right to return may


be considered, as a generally accepted principle of International
Law and under our Constitution as part of the law of the land.
The court held that President did not act arbitrarily or with grave
abuse of discretion in determining that the return of the Former
Pres. Marcos and his family poses a serious threat to national
interest and welfare. President Aquino has determined that the
destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years after the
Marcos regime.
The return of the Marcoses poses a serious threat and therefore
prohibiting their return to the Philippines.
RIGHT OF PERSONS UNDER CUSTODIAL

INVESTIGATION
In 1963, the US Supreme Court in the case of Miranda vs. State
of Arizona, the court made a ruling that known as the Miranda
Rule. Ernesto Miranda by his family name Hispanic was arrested
on account of a complaint for abduction and rape of a female and
the car plate was taken and it was traced to him. So several days
later, he was arrested and placed in custody and brought to the
police station and after several hours of interrogation he signed a
confession. The court of Arizona convicted him solely on the
basis of the extrajudicial confession and on appeal, the US
Supreme Court discussed and reversed the decision of the lower
court and remand the case to the lower court for presentation of
other evidence because the extrajudicial confession was
excluded. The trial court nonetheless upon the trial convicted him
and imposed a penalty. But in the Supreme Court, it had a
discussion of what are the rights of the person if that person is
placed under investigation. There are two distinct rights because
the Miranda Rule was not yet established which were sought to
be reviewed as having been violated in the case of Ernesto
Miranda:
1.) His privilege against self-incrimination which under
Sec. 17 of Art. III now;
2.) His right to be represented by counsel. Should a
person be assisted by counsel when he is under
investigation? And so we came to be what we have
now what we know as Miranda Warning.
This was first incorporated in the 1973 Constitution of the
Philippines, simply because the decision was in 1963, it could not
have been incorporated in 1935. What the ruling simply requires
is that the person must have to be informed of these so called
Miranda Rights, and that information is what we know as Miranda
Warning. The Miranda Rights are:
1.) The right to remain silent;
2.) The right to be informed that if he would waive his right
to remain silent anything that he will provide and say
will be and can be used against him in the court of law.
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3.) He will also be informed that his Miranda Rights include

the right to be represented by counsel; and
4.) If he could not afford the service of a counsel the state
will provide a counsel for him.
To give the Miranda Warning would require much more than the
perfunctory presentation of the rights. In the US, there is no such
thing or only some as difficulty in the manner or way that the
Miranda Warnings are given but not as much as here because
English is not a first language. So, in the previous decisions of
the Supreme Court on the manner, the SC simply characterizes it
that there must be a meaningful transmission of a right.
Meaningful transmission requires that individual differences of
person to whom these warnings are given and to whom these
rights are afforded must have to be taken into consideration. The
SC assumed that the public servant would easily recite these
rights. I would have to pose that it should have been better that
there must have to be a requirement that the police officer giving
these warnings must also be able to give them properly and
intelligently. The Supreme Court decisions have placed
importance that the person to whom the right pertains have
understood the meaning and import of these rights and that
would include the meaning and import of any waiver of such
rights.
Constitutionally, it is simply required that there is a meaningful
transmission of a right and that if there is a waiver, the waiver
must have to be in writing and must have to be with the
assistance of counsel. The question is asked today that have the
answers ready because if it were to be asked prior to the 1987
Constitution, there was this case of People vs. Galit which
somehow defined how the rights are to be waived based on the
decision of March 20, 1985 which have since then been
incorporated in the 1987 Constitution. So atleast those problems
were answered in the Constitution:
1.) Meaningful transmission of a right;
2.) Meaningful transmission of the consequences of a
waiver;
3.) The waiver must have to be in writing; and
4.) The waiver must have to be made with the assistance
of counsel.
(Distinction) So, while the assistance of counsel during the taking
of the testimony or during the investigation may be waived the
requirement that the waiver must be in writing with the assistance
of counsel, the assistance of counsel there may not be waived.
The currently question asked is that, why should the so called
Miranda Rights be considered as claimable. Constitutionally, it
must have to be when a person is taken under investigation. In
the 73 Constitution it was originally placed to require Custodial


Investigation. The person must have to be placed under custody.
Meaning they must have been arrested at the very least for a
substantial restriction of his freedom to go around. It is not
necessary that he is in jail but at least his freedom to move
around or mobility is substantially affected, he is considered to be
theoretically placed under custody.
In the case of Escobedo vs. Illinois which was the basis for 87
Draft, one need not be under the custody anymore because the
experience in the 73 Constitution would show that persons
investigated, admissions are taken even if these persons are not
in custody. So the Escobedo v. Illinois ruling on investigation has
been adopted under the 87 Constitution. The investigation
happens when the person is asked or the questions asked
relating to that persons possible complicity of the crime under
investigation. These would go beyond the general line of
questioning on the person or persons whereabouts but is now
pointing to that person as possible suspect. So if that question is
pointing to that person as a possible suspect then that is already
considered investigation regardless of the fact that the person is
in custody or not. So as soon as the investigation is or has
commenced then the right is now at play.
Escobedo v. Illinois
378 U.S. 478
June 22, 1964
Facts: Danny Escobedo's brother-in-law was killed on January 19,
1960. At about 2:30 in the morning, Escobedo was arrested
without a warrant and taken to the Chicago police headquarters for
questioning. Escobedo made no statement to the police and was
released at approximately 5:00 that afternoon, after his lawyer
obtained a writ of habeascorpus.
Ten days later, on January 30, Escobedo was again arrested,
handcuffed, and driven to the police station. On the way to the sta
tion, the police allegedly informed Escobedo that a man named
Benedict DiGerlando had said it was Escobedo who had fired the
shots that killed his brother-in-law. The police also allegedly told
Escobedo that the case against him was pretty secure and he
might as well "come clean" and admit to the killing. At that point,
Escobedo asked to have his lawyer present before answering any
questions.
The police questioned Escobedo for several hours, during which
he continued to ask for his attorney. He was told that he could do
so after the police concluded their interrogation. Escobedo's
attorney, who was at the police station on another matter,
discovered that Escobedo was in custody. He asked repeatedly to
speak to his client but got the same answer: He could see
Escobedo after the questioning.
While interrogating Escobedo, the police told him that they had
DiGerlando in custody. They asked Escobedo if he would like to
call DiGerlando a liar to his face. Escobedo said he would, and
when the two men met, Escobedo said to DiGerlando: "I didn't
shoot Manuel-yo4 did." This statement placed Escobedo at the
crime scene for the first time or, at the least, showed that he had
knowledge of the crime. As the questioning continued, Escobedo
gave other information that incriminated himself, his sister, and
77
ATENEO DE DAVAO
COLLEGE OF LAW
DiGerlando in the murder of his brother-in-law.

Before his trial, and on appeal, Escobedo asked the court
to suppress all information gathered during the interrogation
without his attorney. The motion was denied, and Escobedo was
convicted of the murder of his brother-in-law.
In February 1963, the Illinois Supreme Court heard Escobedo's
appeal, ruled that the information should not have been allowed as
evidence, and reversed the decision of the lower court. However,
the state appealed for a rehearing. Saying that Escobedo had
given the information voluntarily, the state asked the court to rule in
favor of the prosecution and admit the evidence. The court
agreed.
Escobedo then petitioned the United States Supreme Court to
review the case.
Issue: Was the refusal by police to honor Escobedo's request to
consult with his lawyer a violation of his Sixth Amendment rights?
Held: The U. S. Supreme Court, by a vote of 5-4, said that
Escobedo's rights had been violated. Overturning the ruling of the
state supreme court, it declared that the information was not
admissible as evidence because it had been unlawfully obtained.
Writing for the Court, Justice Arthur Goldberg explained the point
at which a police procedure became "accusatory" instead of
'investigatory:"
... [when] the investigation is no longer a general inquiry
into an unsolved crime but has begun to focus on a
particular subject, ... the police carry out a process of
interrogation that lends itself to eliciting incriminating
statements, the suspect has requested and been denied
an opportunity to consult with his lawyer, and the police
have not effectively warned him of his absolute
constitutional right to remain silent, the accused has
been denied 'the Assistance of Counsel" in violation of
the Sixth Amendment .... [N]o statement elicited by the
police during the interrogation may be used against him
at a criminal trial.
The dissenting justices expressed their serious concerns
that this decision would make it much more difficult for
the police to obtain information and for prosecutors to
gain convictions.
We say that in the Constitutional context because R.A. No. 7438

(April 27, 1992) as you all know, it has expanded the applicability
of Miranda Rule because, a person who is arrested detained or
investigated can claim the right, now as we know as Miranda
Rights. So, before in the Constitutional context, if the person is
not yet arrested, he could not claim Miranda Rights. He need not
be informed of his Miranda Rights through a Miranda Warning.
R.A. No. 7438 has expanded it to cover time of arrest already.
This is also not claimable for statement taken before the 73
Constitution because there is no Miranda Warning to talk about.
It is not also considered in situations like police line-up where
there is no questioning technically. When the person is faced or
identification in a police line-up, that person is not placed under
investigation. That is the in the Constitutional context again,


because in R.A. No. 7438, the practice of inviting persons to the
police station to shed light on the crime being investigated is
considered covered under R.A. No. 7438.
So if you were, for example, invited to a police station for
purposed of identification. The Police Line-up, if it were to be in
the construction of the Constitution that is not covered, but if you
were to argue that this is covered by the R.A. No. 7438 then the
answer should be, that the Miranda Warning should have been
given.
Now, there are also some other discussion on the Miranda
Rights, under R.A. No. 7438. There two documents there
required:
1.) The custodial investigation report; and
2.) Extra-judicial confession.
In the original context of the Constitution of the application of the
Miranda Warnings and of the Miranda Rights, there was no need
of any written extra-judicial protection. Before the practice of
police officers would be one of two things:
1.) There is a signed confession;
2.) The police investigator would testify in court that the
accused has admitted to a committing the said crime.
In order to do away with the said practices the R.A. No. 7438 has
responded by requiring them to document the custodial
investigation report which must be:
1.) In writing;
2.) Read and understood by the confessant and
3.) Explained to him, if the he does not know how to read
and write;
4.) In the language that he speaks and understands.
Extra-judicial confession have the same requirement before it will
be signed, which are:
1.) It must be in writing;
2.) It must be read and understood by the person and
3.) It must be explained to him, if the he does not know
how to read and write;
4.) The explanation must be in the language that he
speaks and understands;
5.) It must be signed by him with the assistance of his
counsel.
If there is no counsel because there is a valid waiver, the law still
requires that it must still have to be signed by that person in the
presence of any of his parents, older brothers and sisters, his
78
ATENEO DE DAVAO
COLLEGE OF LAW
spouse, the municipal mayor, the municipal judge, district school

supervisor, or priest or minister of the gospel as chosen by him.
Otherwise, such extrajudicial confession shall be inadmissible as
evidence in any proceeding.
Remember, when a person is arrested without warrant, the usual
proceedings to be conducted by the prosecutor against the
person is called inquest proceeding. Then the information is
thereafter filed in court and if the accused wants to avail himself
of the provisions of Rule 112 of the Rules of Court on Preliminary
Investigation, can he avail of that and what are the conditions?
Well, the ROC requires that he must avail of that in 5 days from
knowledge that the information has been filed and he must have
waived his right under Art. 125 of the Revised Penal Code which
is arbitrary detention (ang arbitrary detention kay Art. 124 man,
basi Delay in the delivery of detained persons to the proper
judicial authorities, you mean?) R.A. No. 7438 covers Art. 125.
Any waiver of the right under Art. 125 of the RPC must have to
be in writing and must have to be signed by that person with the
assistance of counsel.
Again, this is in an expansion of the ROC and because this is
substantive law, it shall govern and this is also the law which has
expanded somehow the Constitutional provision, though it did not
violate the Constitutional provision in the right of the persons
under investigation.
Other matter in R.A. No. 7438 is assisting of counsel. There are a
lot of questions and cases before R.A. No. 7438, on who can be
an assisting counsel for purposes of waiving his right to remain
silent or his right to be assisted by counsel under the
Constitutional context. So in one case, I think in Samal where the
MTC Judge acted as counsel, there were questions as to
whether they could be an assisting counsel and most questions
would be if the fact that the assisting counsel has been provided
by the police officers did not be a ground for excluding the
confession because the assisting counsel is one provided by the
investigating officer. The answer is not necessarily because
Miranda Rights include the right to be represented by counsel
and if he cannot afford that the State will provide him with one.
So for so long as the counsel who assisted the person is there to
protect his rights then that lawyer assisting is fine.
R.A. No. 7438 defines who can be an assisting counsel as any
lawyer, except those directly affected by the case, those charged
with conducting preliminary investigation or those charged with
the prosecution of crimes cannot be assisting counsel. That
would be the general rule, then if you are the municipal attorney,
city attorney, provincial legal officer, you cannot be an assisting
counsel because youre interested in the prosecution of offenses.


The exemption probably is when you are a relative of that
person.
value the dignity of every human being and guarantee full respect
for human rights.
In this right under investigation, the choice of counsel use the

word preferably and as we always maintained the word should
be understood liberally if it is claimed by that person that
preferably means that if allowed or allowable under the
statute.
Section 2. Rights of Persons Arrested, Detained or Under

Custodial Investigation; Duties of Public Officers.
Final item with respect Extra-Judicial Confession would be the

rule on admissibility. There are always two things that would
affect the admissibility of the extra-judicial confession:
1.) Question on the validity of the waiver;
2.) Question on the validity of the confession.
Whether the waiver is voluntary or involuntary given, and whether
the confession is voluntary or involuntary given. Now with respect
to the waiver, the burden is always on the State. Because this is
a Constitutional Right, the presumption of regularity does not
work in this particular situation. The presumption is that the
waiver is not valid. It is for the State to prove that the waiver was
validly given. So we start with:
1.) Meaningful transmission of the right;
2.) Meaningful transmission of the consequence of the
waiver;
3.) That the waiver is in writing;
4.) That the waiver has been given with the assistance of a
counsel.
But with respect to the confession, we still follow the presumption
that people would always easily confess if they are liable or guilty
of it. So that if the confessant or the person investigated would
claim otherwise, it is his burden to prove that the confession was
obtained by reason of vitiated consent, or by force, intimidation,
torture or the like. There is no presumption of torture or any
vitiation of consent even if it were true. The presumption is that,
the police officers are performing their regular function and
torture is not part of their regular function.
Republic Act No. 7438
April 27, 1992
AN ACT DEFINING CERTAIN RIGHTS OF PERSON

ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION AS WELL AS THE DUTIES OF THE
ARRESTING, DETAINING AND INVESTIGATING OFFICERS,
AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF
Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled::
Section 1. Statement of Policy. It is the policy of the Senate to
79
ATENEO DE DAVAO
COLLEGE OF LAW
(a) Any person arrested detained or under custodial

investigation shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting
under his order or his place, who arrests, detains or
investigates any person for the commission of an
offense shall inform the latter, in a language known to
and understood by him, of his rights to remain silent and
to have competent and independent counsel, preferably
of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or
under custodial investigation. If such person cannot
afford the services of his own counsel, he must be
provided with a competent and independent counsel by
the investigating officer.
(c) The custodial investigation report shall be reduced to
writing by the investigating officer, provided that before
such report is signed, or thumbmarked if the person
arrested or detained does not know how to read and
write, it shall be read and adequately explained to him by
his counsel or by the assisting counsel provided by the
investigating officer in the language or dialect known to
such arrested or detained person, otherwise, such
investigation report shall be null and void and of no
effect whatsoever.
(d) Any extrajudicial confession made by a person
arrested, detained or under custodial investigation shall
be in writing and signed by such person in the presence
of his counsel or in the latter's absence, upon a valid
waiver, and in the presence of any of the parents, elder
brothers and sisters, his spouse, the municipal mayor,
the municipal judge, district school supervisor, or priest
or minister of the gospel as chosen by him; otherwise,
such extrajudicial confession shall be inadmissible as
evidence in any proceeding.
(e) Any waiver by a person arrested or detained under
the provisions of Article 125 of the Revised Penal Code,
or under custodial investigation, shall be in writing and
signed by such person in the presence of his counsel;
otherwise the waiver shall be null and void and of no
effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences
with any member of his immediate family, or any medical
doctor or priest or religious minister chosen by him or by
any member of his immediate family or by his counsel,
or by any national non-governmental organization duly
accredited by the Commission on Human Rights of by
any international non-governmental organization duly
accredited by the Office of the President. The person's
"immediate family" shall include his or her spouse, fianc


or fiance, parent or child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew or niece, and
guardian or ward.
As used in this Act, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is investigated in
connection with an offense he is suspected to have committed,
without prejudice to the liability of the "inviting" officer for any
violation of law.
Section 3. Assisting Counsel. Assisting counsel is any lawyer,
except those directly affected by the case, those charged with
conducting preliminary investigation or those charged with the
prosecution of crimes.
The assisting counsel other than the government lawyers shall be
entitled to the following fees;
(a) The amount of One hundred fifty pesos (P150.00) if
the suspected person is chargeable with light felonies;
ATENEO DE DAVAO
COLLEGE OF LAW
latter cannot afford the services of his own counsel.
(b) Any person who obstructs, prevents or prohibits any
lawyer, any member of the immediate family of a person
arrested, detained or under custodial investigation, or
any medical doctor or priest or religious minister chosen
by him or by any member of his immediate family or by
his counsel, from visiting and conferring privately with
him, or from examining and treating him, or from
ministering to his spiritual needs, at any hour of the day
or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more
than six (6) years, and a fine of four thousand pesos
(P4,000.00).
The provisions of the above Section notwithstanding, any security

officer with custodial responsibility over any detainee or prisoner
may undertake such reasonable measures as may be necessary
to secure his safety and prevent his escape.
(b) The amount of Two hundred fifty pesos (P250.00) if

the suspected person is chargeable with less grave or
grave felonies;
Section 5. Repealing Clause. Republic Act No. No. 857, as

amended, is hereby repealed. Other laws, presidential decrees,
executive orders or rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or modified
accordingly.
(c) The amount of Three hundred fifty pesos (P350.00) if

the suspected person is chargeable with a capital
offense.
Section 6. Effectivity. This Act shall take effect fifteen (15) days
following its publication in the Official Gazette or in any daily
newspapers of general circulation in the Philippines.
The fee for the assisting counsel shall be paid by the city
or municipality where the custodial investigation is
conducted, provided that if the municipality of city cannot
pay such fee, the province comprising such municipality
or city shall pay the fee: Provided, That the Municipal or
City Treasurer must certify that no funds are available to
pay the fees of assisting counsel before the province
pays said fees.
Approved: April 27, 1992
In the absence of any lawyer, no custodial investigation shall be

conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article 125
of the Revised Penal Code.
Section 4. Penalty Clause. (a) Any arresting public officer or
employee, or any investigating officer, who fails to inform any
person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent
counsel preferably of his own choice, shall suffer a fine of Six
thousand pesos (P6,000.00) or a penalty of imprisonment of not
less than eight (8) years but not more than ten (10) years, or both.
The penalty of perpetual absolute disqualification shall also be
imposed upon the investigating officer who has been previously
convicted of a similar offense.
PINOON, LOREVILL
The greatest results in life are usually attained by

simple means and the exercise of ordinary qualities.
These may for the most part be summed in these
two: common-sense and perseverance.
~Owen Feltham
The same penalties shall be imposed upon a public

officer or employee, or anyone acting upon orders of
such investigating officer or in his place, who fails to
provide a competent and independent counsel to a
person arrested, detained or under custodial
investigation for the commission of an offense if the
80


RIGHT TO BAIL
August 28, 2012

In one of the cases in your outline, the accused there, on the
date the victim died, forcibly took the victim to his vehicle. The
victim jumped out of the vehicle. After the incident the accused
went directly to the police station to voluntarily give the statement
that the victim jumped out of the motor vehicle. Now, that
statement was taken as part of the evidence of the prosecution
and the accused was convicted. It was admissible as it was not
taken under custodial interrogation. The Supreme Court
rationalize on the ground that the statement was voluntarily
given. It should be treated as one of the exceptions that the
rights under Miranda Rule are not claimable because there is no
questioning on the part of the police officer that may have elicited
the extra judicial confession.
So, if the statement is voluntarily given, it is considered
admissible. This is commonly observed when persons suspected
of committing a crime are interviewed by media and perhaps
because of lack of any knowledge of such rights, they would
normally give information as to whether they have committed the
crime and those are admissible because they are elicited not by
reason of questioning where they are place under investigation.
Now in administrative investigations which ordinarily are not in
relation to criminal offense, the Mirada rule is not applicable. But
they must have the right to be represented by counsel as
required in the fundamental rules of due process. But as to
whether they should be given the warning and as to whether they
could be extended to the so called Miranda rights, its another
thing.
Example, if an employee is charge administratively by an
employer for violating a company rule or policy, he is entitled to
representation in accordance to the labor code. However, as to
whether he is entitled to be informed of his rights to remain silent,
it is not included. It is also not an obligation of the employer to
provide him a counsel if he cant afford one, though it is provided
under the Miranda rights. But as to entitlement of counsel and to
be informed on this right it is mandated under the labor code.
Same principle would apply in cases of students with
administrative cases in tertiary level, it is mandated that they
should be allowed representation but the school has no
obligation to give Miranda warnings or provide a counsel if they
cant afford one. This should not be confused with the privilege of
self-incrimination under section 17 because here it is claimable
by any person in any proceeding, criminal or administrative,
because the privilege is different.
81
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COLLEGE OF LAW
When Right may be Invoked

Right to bail. It must be understood in relation to Rule 114 of the
Rules on Criminal Procedure because when the Constitution
provides when bail is a matter of right or when it is a matter of
discretion, the basis is when the offense which a person is
charged would carry with it the penalty of Reclusion Perpetua or
higher, bail is a matter of discretion. However, in the Rules of
Court, it provides for certain circumstances which a person in a
criminal case may have bail as a matter of discretion even if the
penalty is less than Reclusion Perpetua, this is when the penalty
is six years and one day to twenty years and there is showing of
the following circumstances such as being a recidivist, habitual
delinquent, that the accused has previously escape, there is
probability of flight a free list or on bail or risk that he would
commit another crime. Rule 114 section 5.
Sec. 5. Bail, when discretionary. XXX
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or his
bail shall be cancelled upon a showing by the prosecution, with
notice to the accuse, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent,
or has committed the crime aggravated by the circumstance of
reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation, parole,
or conditional pardon;
(d) That the circumstances of his case indicate the probability of
flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.
XXX
If a person is not yet charged, can a person put up bail? If he is
under custody he could. What if the accused is already charged
in court but not yet arrested? Can he put up bail? I think the
logical thinking would tell us that as soon as the information is
charged, even if no warrant is issued yet, you must be allowed to
post bail. Nonetheless, remember our discussion on arrest.
When the information is filed in court the rules of court provide for
three things that a judge can do.


1.
2.
3.
Judge would determine whether or not there is a

probable cause to proceed with the case. So the judge
can dismiss the case without issuing a warrant.
If there is doubt as to the probable cause it can require
the prosecution to present additional evidence to prove
probable cause to proceed.
If there is reason to proceed the judge will determine
whether there is a probable cause to issue a warrant.
Now if the judge can determine the probable cause whether or

not to proceed and thereby dismisses the case, what should
happen then if the accused already posted bail even before he
was arrested? I dont know the answer but just a thinking based
on the provisions of the Rules of Court.
Now in relation to the court where you have to post bail when
bail is a matter of discretion, you cannot file it anywhere but in the
issuing court. If you want bail to be reduced or want to post
another kind of bail other than cash, it must be applied for in the
issuing court. It is only the issuing court can exercise discretion if
there is a need to exercise discretion if there is none then you
could file it in any of those court mentioned under the rules.
Section 17, Rule 114.
Sec. 17. Bail, where filed. (a) Bail in the amount fixed may
be filed with the court where the case is pending, or in the
absence or unavailability of the judge thereof, with any regional
trial judge, metropolitan trial judge, municipal trial judge, or
municipal circuit trial judge in the province, city or municipality. If
the accused is arrested in a province, city, or municipality other
than where the case is pending, bail may also be filed with any
regional trial court of said place, of if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge,
or municipal circuit trial judge therein.
(b) Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the application
may only be filed in the court where the case is pending, whether
on preliminary investigation, trial, or appeal.
Any person in custody who is not yet charged in court may
apply for bail with any court in the province, city, or municipality
where he is held.
Bail in Military Courts
Okay now, we already know that there is no bail in military courts
involving military personnel as to the respondent or accused
because of the condition or nature of the proceedings in military
courts, including the offenses are not ordinary as it involves
offenses against the state, such as treason. If they would be
allowed bail, they could be out there and commit same acts of
treason.
82
ATENEO DE DAVAO
COLLEGE OF LAW
Standards for Fixing Bail

Now when bail is a matter of right, section 9 of rule 114 (standard
for fixing bail) may be taken by the court in relation to the request
of the prosecution to increase bail or request of the defense to
reduce bail. Now in case where bail is a matter of discretion
hearing is mandated. It is a condition precedent, to determine the
presence of those circumstances under section 5 in rule 114
however, if bail is a matter of right, hearing is not normally
required. The court would just issue the release after the accused
is complied with the undertaking requirements. But again, if there
is a request in increase or reduced bail, then hearing is normally
taken to determine it.
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:chanroblesvirtuallawlibrary
(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;
(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.
Now these standards in section 9 are not the hard and fast rule,
they are just guidelines that may be used in determining amount
of bail the court may use any other reason for granting bail.
Now, bail is not required when the law does not require any bail
or would allow recognizance. When is recognizance allowed?
Ordinarily, if the person is charged with a violation of ordinance
or of a light felony, the bail to be granted there is merely
recognizance. Under R.A. 7636, when the penalty range does
not exceed 6 months or a fine of not more than P2000.00 or both,
recognizance shall be granted. When the accused has been
incarcerated for a period of at least equal to or more than the
minimum of the principal penalty, without applying the modifying
circumstances, the accused shall be released on recognizance
even if that case shall have to continue. If the accused has
applied for probation and he is not on bail pending the grant of
the application, the accused may be released on recognizance.
Youthful offender under P.D. 603 shall be released on
recognizance. No bail shall be required. And, as we all know
recognizance shall be to place the obligation to a responsible


member of the community to ensure that the accused will be
present every time the case is called and the presence of the
accused is required.
Now, in cash, property or surety as bond, it is quite easy to
understand that in case of violation of the undertaking of the
accused, the cash bond shall be forfeited in favor of the
government as well as the property bond and the surety
company will be liable for the entire amount of bail under his
guaranty. Now, what should happen if the accused is released on
recognizance and the accused does not appear as required by
the court? Will that responsible member of the community be
incarcerated instead until the accused appears? What happens?
OK.
RIGHTS DURING TRIAL
Lets go to rights during trial. Now, the first of these rights during
trial is your due process in criminal cases. We have said that in
section 14, that is a restatement of the due process right or rule
in criminal cases, not because of anything else but because there
is a need to restate that considering that in our system, an
accused is charged an the entire resources of the government is
against him. Thats why there is a need to restate, to put more
emphasis on that due process clause in criminal cases.
This case of Dimarucot vs. People involves an accused who has
been convicted in the trial court. The accused appealed to the
Court of Appeals and when the lawyer received the notice to file
the appellants brief within 20 days, in relation to Rule 124 of our
Rules of Court, the lawyer failed to file the appellants brief
despite 4 extensions sought. The appeal was dismissed on the
ground of failure to prosecute by the Court of Appeals. The
accuseds lawyer filed a motion for reconsideration stating,
among others, that the reason for failure to file the brief was his
own fault considering that he was suffering from some personal
problem on account of an ailment and, on the same motion for
reconsideration, undertook to file the appellants brief within a
period of 7 days. Despite that, he still failed to file the appellants
brief for which reason the motion for reconsideration was denied.
Thereafter, the accused filed an omnibus motion for
reconsideration stating again the reasons for the delay, and this
time raising the ground that based on the Rules of Court, there
must have to be a notice to the appellant. The CA is allowed to
dismiss the appeal motu proprio upon the failure of the appellant
to file the appellants brief but with prior notice to the appellant.
The reason for granting the appellant to give the appellant such
notice is to give the appellant to state the reason for the failure
and for the court to determine whether the reasons are
satisfactory or justified. Can the CA in this particular case motu
proprio dismiss the appeal for failure to file the appellants brief
even without notice to the appellant and if so should this be a
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violation of his right to due process? The Supreme Court said in

this case, there is no violation of due process. There is even no
need for notice as may have been required by the rules.
Ordinarily, it is so required in order to give the accused the
reasons for the failure and for the court to appreciate whether
those reasons are satisfactory or justified. But, the facts of the
case would tell us, according to the SC, that accuseds appellant
failed to file appellants brief despite 4 extensions sought and
granted. He even failed to file the undertaking in the motion for
reconsideration filed. Again due process is merely to give an
opportunity to the party to plead his case. The facts of the case
would show that more than sufficient opportunity has been
granted. It also highlights the constitutional discussion on due
process which does not include the right to appeal. As we made
mention, the right to appeal is only included in the Rules of Court
under Rule 115, Section 1(i) with respect to the accused having
this right to appeal. The right to appeal is therefore statutory and
not constitutional with respect to cases or parties where cases
are filed in our system because the due process is satisfied
substantially when the case is heard even in the first instance
that it is filed, tried and decided.
G.R. No. 183975
September 20, 2010
GREGORIO DIMARUCOT y GARCIA vs. PEOPLE
Petitioner cannot simply harp on the mistakes and negligence of
his lawyer allegedly beset with personal problems and emotional
depression. The negligence and mistakes of counsel are binding
on the client.18 There are exceptions to this rule, such as when the
reckless or gross negligence of counsel deprives the client of due
process of law, or when the application of the general rule results
in the outright deprivation of ones property or liberty through a
technicality. However, in this case, we find no reason to exempt
petitioner from the general rule. The admitted inability of his
counsel to attend fully and ably to the prosecution of his appeal
and other sorts of excuses should have prompted petitioner to be
more vigilant in protecting his rights and replace said counsel with
a more competent lawyer. Instead, petitioner continued to allow his
counsel to represent him on appeal and even up to this Court,
apparently in the hope of moving this Court with a fervent plea for
relaxation of the rules for reason of petitioners age and medical
condition. Verily, diligence is required not only from lawyers but
also from their clients.
Negligence of counsel is not a defense for the failure to file the
appellants brief within the reglementary period. Thus, we
explained in Redea v. Court of Appeals:
In seeking exemption from the above rule, petitioner claims that he
will suffer deprivation of property without due process of law on
account of the gross negligence of his previous counsel. To him,
the negligence of his former counsel was so gross that it practically
resulted to fraud because he was allegedly placed under the
impression that the counsel had prepared and filed his appellants
brief. He thus prays the Court reverse the CA and remand the
main case to the court of origin for new trial.


Admittedly, this Court has relaxed the rule on the binding effect of
counsels negligence and allowed a litigant another chance to
present his case (1) where the reckless or gross negligence of
counsel deprives the client of due process of law; (2) when
application of the rule will result in outright deprivation of the
clients liberty or property; or (3) where the interests of justice so
require. None of these exceptions obtains here.
For a claim of counsels gross negligence to prosper, nothing short
of clear abandonment of the clients cause must be shown. Here,
petitioners counsel failed to file the appellants brief. While this
omission can plausibly qualify as simple negligence, it does not
amount to gross negligence to justify the annulment of the
proceeding below. (Emphasis supplied.)
The right to appeal is not a natural right and is not part of due
process. It is merely a statutory privilege, and may be exercised
only in accordance with the law. The party who seeks to avail of
the same must comply with the requirements of the Rules. Failing
to do so, the right to appeal is lost.
Strict compliance with the Rules of Court is indispensable for the
orderly and speedy disposition of justice. The Rules must be
followed, otherwise, they will become meaningless and useless.
PRESUMPTION OF INNOCENCE
The next right of the accused is the presumption of innocence.
The presumption of innocence, as the term suggests, is merely a
presumption. It does not create any protection on the part of the
accused that the state cannot in any other way prove his guilt.
The presumption simply gives the state the burden of proving,
first, that the accused has committed the act and that the act
constitutes a crime. When that burden is met, then, the burden of
evidence shifts to the accused. The accused has now the burden
of proving his innocence. The state is not even barred from
legislating a law which would provide for a prima facie
presumption of guilt like your law on anti-fencing. When you are
in possession of a property which was not brought through legal
means, which you know or should have known to have been
stolen, you are supposed to be prima facie liable for fencing.
Now, that law has not been declared as unconstitutional because
what the law creates is merely a prima facie presumption. It does
not destroy the presumption of innocence because presumption
of innocence is also prima facie in effect because the state can
prove that you are not innocent of such crime. The same thing
with the procedure on preliminary investigation or examination,
when a complaint is processed in the investigation level, whether
it be the prosecutor or any other authorized officer. The
determination of that investigating officer as to the guilt is only
prima facie. Meaning, they find probable cause or a well-founded
belief that the accused has committed the offense and therefore
must be held for trial. That does not destroy the presumption
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because its only a prima facie finding of liability. The state still
has the burden in the first instance to prove that the accused has
committed the act and that the act is constitutive of a crime and
that the accused must therefore be held liable.
RIGHT TO BE HEARD PERSONALLY OR BY
COUNSEL
This simply means the right to present your evidence. I often
would relate that to my personal experience with Atty. Gil dela
Banda. When we were still in the legal aid office we have this
accused who was charged with possessing and or pushing
marijuana leaves one sack of that. The penalty was death. There
was still death penalty before. Since he was my supervising
lawyer, I was just a new lawyer then. We kept on arguing or
discussing whether or not we should allow the accused to be
heard in person because the accused wanted to say his piece,
saying that if he will be allowed to testify, he will be able to
convince the judge that he did not commit the crime. The usual
thing with the legal aid office before, during our time, when it
comes to drugs or drug related cases, its always the
inadmissibility of the evidence because we were not there, we
would not know what would have happened and while there may
be reason to doubt as to the doing of the police officers, we have
no basis in fact to doubt what they say. So its their word against
the word of the police. But we had difficulty because there were, I
think 4 occasions that we interviewed the accused, some in the
jail, some in the courthouse, switching his story 4 times also. So
we said, ok should we present him or not? You know Sir Gil, hes
a, not that I am not, but he was looking at the moral side of it.
Meaning, if you know that the accused is going to perjure himself,
would you as an officer of the court participate in that actuation?
To allow a witness to state a falsehood and be an instrument in
that falsehood. On the other hand, theres a question of, again,
either legal or moral, what authority do you have as a lawyer to
prevent the accused from taking his constitutional right to be
heard in person simply because you have your opinion that he is
going to tell a lie? So, thats the moral or legal dilemma. Finally,
we said that we will file a motion for leave to file a motion for a
demurrer to evidence and file a demurrer and cross a bridge
when there is a bridge. Because, when you file a demurrer there
is no defense evidence yet. So we did just that and try to put the
question to be answered later hoping that the demurrer will be
granted. The demurrer was granted, and so, we did not cross the
bridge because there was no bridge yet. The short of the long
story is that the accused was killed. You know the Davao Dog
Squad.
Ok, the question is, if the accused had the right to be heard by
himself personally, again, theres that moral or legal question, if
you know that he is going to perjure himself would you put him in
the stand? You ask the question, what made you conclude that


he is going to tell a falsehood? Was his first story the correct
story? The second, the third, the fourth? You can never know
because you were never really there as much as the court was
not there and also the prosecutors. So it leaves him to tell his
story. Objectively, we have known in legal ethics, you take the
case regardless of your opinion as to the innocence or guilt of the
person. At least, thats what the book says. Its different if you tell
the person to tell a lie. But, with your set of questions, the
answers have been different in four occasions. While there may
be suspicion that he is not telling the truth, the question is, which
truth? Your truth or his truth? Or which of those answers really
are true? And which are not? So, that is when he has to claim
his right to be heard.
To be heard by counsel, well, there is that old saying, that a
person may be convicted not because he is guilty but because he
does not know how to protect his innocence. Even the most
learned man in the law, if he is personally involved in litigation,
may not have the test of objectivity in proceeding with the case.
He might be too emotional about it. He may be too distracted to
be able to properly try the case. Objections, I watch a portion of
this civil action in HBO and John Travolta was trying a case
against a seasoned lawyer. The seasoned lawyer is a teacher in
remedial law, particularly in evidence so there were clips of him
teaching. He was telling his student that you object. If you, by
chance, slept during the trial, upon waking up what do you say?
Objection, your honor! In any case, to be assisted by counsel, is
different from the right to be assisted by counsel preferably of his
own choice under section 12. In the rights of the accused during
trial, to be assisted by counsel, the court has the obligation to
inform the accused just like the investigating officer in the
investigation under section 12 that he has the right to be
represented by counsel and if he cannot afford one, the state will
provide him with one. But that is the extent of the similarity
between section 12 and section 14. Because in section 12, we
have already mentioned that the phrase preferably of his own
choice is found which is not found on section 14, the rational
being that it is already before a court or a judge. The right of the
accused during trial is better protected because it is already in
court. The judge is not there to convict the accused. The judge is
there to see that justice is delivered or administered. So, unlike in
the investigation where the proceeding is out of court, the one
asking the question are the police officers that would be
witnesses against you, who have been the person who arrested
you, you must have to be given better protection. Thats why the
choice of counsel is with that phrase preferably the choice of the
person to be prosecuted.
IMPORTANT: In any case to be assisted by counsel must have
to be differentiated with the phrase to be assisted by counsel
preferably of his own choice under Sec. 12. In the rights of the
accused during trial to be assisted by counsel, the court has the
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obligation to inform him and just like the investigating officer in

investigation under Section 12 that he has the right to be
represented by counsel and if he cannot afford one, the
State will provide him with one. But that is the extent of the
similarity between Section 12 and 14.
In Section 12, we have already mentioned that the phrase
preferably of his own choice is found which is not found in
Section 14. The reason being this is already for the court or the
judge. The rights of the accused during trial is better protected
because it is already in court. The Judge is not there to convict
the accused, the judge is there to see that justice is delivered or
administered. Unlike in an investigation where there is
proceeding out of court, the one asking the questions are the
police officer, the same officers that would be witnesses against
you or may have been the person who arrested you, they must
have to be given better protection as well as the choice of
counsel and so there is that phrase preferably of his own
choice.
What would happen here in reality is the judge will appoint a
counsel de officio. If the accused appears before the court
without any representation. The usual counsel de officio are
those found in court and those new practitioners, so that they will
be given experience also.
Supposedly, if you go by the technicality of it, the appointment of
counsel de officio involves 2 matters: one, the competence of the
counsel to represent the accused and second, the competence
on the case, on the complexity or nature of the offense. There is
a presumption that the lawyer knows the law and the procedure.
But the complexity of the case may somehow change that level
of competence or skill of the lawyer. If the client or accused is
facing a death penalty case, would a new practitioner be in a
better position than one who has the experience of trying these
cases? If that is the question, the Judge would be able to answer
himself so that the counsel de officio would be properly
appointed. Second is that by the rules of court, when you are
appointed as counsel de officio, you are supposed to be paid by
the Supreme Court for the services you rendered. The Rules of
Court will not make it difficult for you to seek payment for your
services because of the reportorial requirement. The ROC you
will be paid so little and the reportorial requirement would require
you to spend so much. In the case of People vs. Siongco, the
regular counsel of the accused here was a lawyer from the Public
Attorneys Office, however, when the PAO lawyer was absent, the
court appointed a counsel de officio to assist the accused for at
least 6 hearings and the accused later on complained that he
was not my regular counsel. My regular counsel was the PAO
lawyer and so my right to be heard by counsel has been violated.
The SC said that there was no violation, there was no denial of
the right to be heard by counsel because you have had legal


representation. The appointment of the counsel de officio does
not follow with that of Section 12 that it is preferably of his own
choice.
The right to free legal assistance under Section 11 is in relation
to the right under Section 14. The free legal assistance here is
still on the right to be heard by counsel. I must have mentioned
that the Supreme Court has promulgated a rule on limited law
student practice. If you have finished your 3rd year in law school,
you can perform the acts as if you are a lawyer provided you are
supervised by a member of the Philippine bar. This is to give
legal representation for those who may not be able to afford legal
representation or there may have been too many cases already
handled by the PAO where a case of a person may not be
handled well. I would like to believe that new lawyers or law
students have a better grasp of the law or procedure although
they may not have the experience; they have a better
understanding of the latest jurisprudence or the application of the
law. It does not follow that if you have been in the practice for so
long that you have better commands. The experience that they
may have had may only be with respect to skill on trial but not
necessarily on the substantive aspect of the law or the correct
interpretation of the Rules of Court which may have decided
recently. At most, old practitioners may have better delivery but it
does not follow that when they talk a lot that they know about it.
So, those who have finished their 3rd year in law school, not 3
years. In 4th year, there is really nothing much there, its just
review. In trial practice, what is important is the Rules of
Procedure because the substantive law, you can always go back
to your office and study your case. In procedure, there is too little
time while you are already in court to read. They say, just
remember the basics in objecting in Evidence.
RIGHT TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION
Now, the right to be informed of the nature and the causes of
accusation is normally satisfied between the period or stay of
arraignment. During arraignment, the accusations is read to the
accused and this must be read to him in a language he speaks
and understands because there must be meaningful transmission
of what the charges are with respect to the accused. If there is no
prior arraignment, there is no valid proceeding. The arraignment
must bepersonally to the accused and the accused must also
personally enter his plea. However, if he refuses to enter a plea
after the reading of the information, the court may enter a plea of
not guilty; and he must be there in person. Unlike in the US as
we may have seen in some shows or moviesarraignment may
be dispensed with and the counsel may enter a plea.
ATENEO DE DAVAO
COLLEGE OF LAW
1.) to furnish the accused of the charge and allow him to

prepare for his defense
2.) for the accused to avail of any conviction or acquittal
from any further prosecution, meaning, he will have to
or he may be able to claim double jeopardy
3.) to inform the court of a sufficiency of information if it
warrants a conviction because before arraignment, we
all know that the Prosecution can still amend the
information whether in form or in substance.
But after it is read, it can only be amended when it refers to form
and if substance, there must have to be the exercise of discretion
by the court in order to protect the rights of the rights of the
accused. And normally, this is with respect to his rights against
double jeopardy. So if the information does not charge an
offense, then probably the defense can seek the quashal of the
information. Again, this is to inform the court as to whether the
information is sufficient.
In the case of People vs. Bartolini, the information did not
indicate the age of the victim. I think, it is a crime of rape. (Note:
It was a 2010 case, 626 SCRA 527, it was really a rape case and
the information did not indicate the age of the victim) The
question is: Is the defect fatal? The SC said: Yes, the defect is
fatal because the accused upon reading the information must
have been informed that he could possibly face the death
penalty. Again, age here is an essential element of the offense so
to qualify it and make the penalty death. So, if that was not
included in the information, as we all know that would never be
appreciated to qualify the offense and make death as the
imposable penalty.
G.R. No. 179498
August 3, 2010
RUSTICO BARTOLINI y AMPIS
Similar to (People vs.) Tagud, the qualifying circumstance of
relationship of BBB to appellant was specifically alleged and
proven during the trial. Notably absent in the information, however,
is a specific averment of the victims age at the time the offense
against her was committed. Such an omission committed by the
prosecutor is fatal in the imposition of the supreme penalty of
death against the offender. It must be borne in mind that the
requirement for complete allegations on the particulars of the
indictment is based on the right of the accused to be fully informed
of the nature of the charges against him so that he may adequately
prepare for his defense pursuant to the constitutional requirement
on due process, specially so if the case involves the imposition of
the death penalty in case the accused is convicted. Thus, even if
the victim is below eighteen (18) years of age and the offender is
her parent, but these facts are not alleged in the information, or if
only one (1) is so alleged such as what happened in the instant
case, their proof as such by evidence offered during trial cannot
sanction the imposition of the death penalty.
There are 3 reasons why the information must have to be read:
86


Ok, I was in a North Cotabato town a couple of weeks ago and
there was an arraignment and reading of the information. One of
the local languages in the town is Ilocano so they were looking
for somebody to interpret the information in Ilocano. Luckily, the
court employee knows how to speak Ilocano and he was able to
interpret/translate the information in Ilocano because the accused
does not know or cannot understand English as much as he
could speak and understand Ilocano. The problem there is:
What if that person is not a court employee? Could they just ask
anybody from the public to act as interpreter? By the way, is that
an interpreter or a translator? What do they exactly do, do they
interpret or do they translate?
If you translate, what do you do? you interpret and when you
interpret, you translate.
You must have read in the internet in the archives of the file of
OJ Simpson the killing of his spouse and of the lover. That was
in the first time that we were at least in Philippine history being
spot doing court room proceedings or case because the court
room proceedings were televised from start to finish and the
Judge there, a Japanese American allowed that coverage to be
done and so everybody who was interested in law follow those
proceedings. There was a question on interpretation or
translation raised because one the witnesses was a househelp
who was Mexican and apparently saw OJ going in or coming out
because she was therefor the dogs of her employer. She was
testifying in Spanish or Mexican and there was a question on
whether what the court employee should do, to interpret or to
translate. Because to translate is literally to transpose it from
English to Ilocano or Cebuano and vice-versa, so to translate is
to give your understanding of the question or of the answer and it
may give it another meaning. The Judge was saying you should
not translate, you should interpret. If you have seen those
proceedings, the stenograhers were using this machines
attached to a CPU and the lawyers would automatically read
everything in English. Here, we dont have those and whats
worse, if you go to trial your English in the transcript of
stenographic notes would be horrible.
There was one trial and I have this question, Is it not that your
motor vehicle is a Route 10 vehicle? The case was reckless
imprudence, a clients vehicle has bumped along Ladislawa road.
The thing was my clients vehicle bumped that PUJ and the PUJ
was Route 10, which supposedly should not pass that Buhangin
Road, it should be within downtown only. And so that PUJ was
plying that area which he was not supposed to do, he was
negligent that was our defense. So when the driver was
testifying, I asked, Is it not that your motor vehicle is a Route 10
vehicle? Here comes the interpreter: Tinuod ba nga ang imong
sakyanan daut-daut?
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DUMANDAN, GAB
ILUSTRISIMO, ROGIE
TORRES, EGAY
The difference between a successful person and

others is not a lack of strength, not a lack of
knowledge, but rather a lack in will.
Vince Lombardi
Its not whether you get knocked down, its

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

but in what he longs to attain.
~Kahilil Gibran


August 29, 2012
(IMPORTANT)These four-fold factors in balancing the interest

are as follows:
RIGHT OF THE ACCUSED TO A SPEEDY,

IMPARTIAL AND PUBLIC TRIAL
Speedy Trial
This includes the right of the parties to a free and impartial court
or tribunal. The impartiality is not only required as a matter of
procedure but the judge must also be impartial for which there is
a corresponding rule in the Rules of Court for mandatory
disqualification of judges by reason of conflicting interests and
the voluntary grounds for their inhibition. There is no mandatory
ground if the judge may still be sought to be refused from hearing
the case on the voluntary ground provision (of the Rules) on the
assumption that judge can no longer be impartial in this case.
The most that is asked with respect to the impartiality during the
conduct of the trial is the behavior of Judges in relation to the
proceedings. Ideally, though (the one) presiding in the conduct of
the hearing must have to be an innocent bystander with respect
to the respective claims of the parties, nonetheless, the judge is
not also prohibited from asking clarificatory questions in order
that he may be clarified as to certain matters. But the line dividing
what is clarificatory and what is helping the cause of one party is
very thin; this is where most motions to refuse answer
because of the assumption or the notion that the judge asking
questions are actually helping a party in his cause or defense.
The right to speedy trial is given to the accused and it is
characterized as a trial that is (free) from any capricious/
unauthorized delay. This characterization however is not subject
to hard and fast rule. There is no definite set of rules even if the
right to speedy trial act has been incorporated in the Rules of
Court. We are aware that there is a law, the right of speedy trial
act, and there is an allowable number of days for the time of
filing, from the time of arraignment and from the time of the
prosecution to present evidence and defense (vice versa)
including the full presentation of respective rebuttal and answer
to rebuttal by the parties. The case is thereafter submitted for
decision. The Rules of Court as well as the law itself have been
interpreted by the court to allow reasonable and justifiable
delays. In the case of Olbes vs. Buemio, 607 SCRA 336, there
was a total of 253 days from the time the accused was
arraignedor a lapse of 105 days and from the first pre-trial to
the actual trial conducted there was a lapse of 148 days, a total
of 253 days delayed. The claim of the accused (was ) that there
was a violation of the constitutional right to speedy trial, that there
was a delay from the arraignment to the actual pre trial. The SC
applied the balancing of interest test between the right of the
accused to speedy trial and the right of the State to prosecute.
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1.) the delay ,

2.) the reason of the delay
3.) the assertion or non-assertion of the right of speedy
trial of the accused; and
4.) the prejudice due to the delay or may have been
caused by the delay.
There is a BALANCE OF INTEREST while the accused has
the right to speedy trial to free himself from the anxiety and
expense so that this guilt or innocence will be determined to the
most reasonable time possible required to protect both the
interest of the accused as well as the prosecution, the court shall
note that balance using the four-fold factors mentioned.
G.R. No. 173319
December 4, 2009
FEDERICO MIGUEL OLBES vs. HON. DANILO A. BUEMIO
Petitioner draws attention to the time gap of 105 days from his
arraignment on February 12, 2003 up to the first pre-trial setting on May
28, 2003, and another gap of 148 days from the latter date up to the
second pre-trial setting on October 23, 2003 or for a total of 253 days - a
clear contravention, according to petitioner, of the 80-day time limit from
arraignment to trial.
It bears noting, however, that on his arraignment on February 12, 2003,
petitioner interposed no objection to the setting of the pre-trial to May 28,
2003 which was, as earlier stated, later declared a non-working day.
Inarguably, the cancellation of the scheduled pre-trial on that date was
beyond the control of the trial court.
Petitioner argues, however, that the lapse of 253 days (from arraignment
to October 23, 2003) was not justified by any of the excusable delays as
embodied in the time exclusions22 specified under Section 3 of Rule 119.
The argument is unavailing.
In Solar Team Entertainment, Inc. v. Judge How, the Court stressed that
the exceptions consisting of the time exclusions provided in the Speedy
Trial Act of 1998 reflect the fundamentally recognized principle that
"speedy trial" is a relative term and necessarily involves a degree of
flexibility. This was reiterated in People v. Hernandez, viz:
The right of the accused to a speedy trial is guaranteed under Sections
14(2) and 16, Article III of the 1987 Constitution. In 1998, Congress
enacted R.A. No. 8493, otherwise known as the "Speedy Trial Act of
1998." The law provided for time limits in order "to ensure a speedy trial
of all criminal cases before the Sandiganbayan, [RTC], Metropolitan Trial
Court, Municipal Trial Court, and Municipal Circuit Trial Court." On
August 11, 1998, the Supreme Court issued Circular No. 38-98, the
Rules Implementing R.A. No. 8493. The provisions of said circular were
adopted in the 2000 Revised Rules of Criminal Procedure. As to the time


limit within which trial must commence after arraignment, the 2000
Revised Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions
of section 1(g), Rule 116 and the preceding section 1, for the first twelvecalendar-month period following its effectivity on September 15, 1998,
the time limit with respect to the period from arraignment to trial imposed
by said provision shall be one hundred eighty (180) days. For the
second twelve-month period, the time limit shall be one hundred twenty
(120) days, and for the third twelve-month period, the time limit shall be
eighty (80) days.
R.A. No. 8493 and its implementing rules and the Revised Rules of
Criminal Procedure enumerate certain reasonable delays as exclusions
in the computation of the prescribed time limits. They also provide that
"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 speedy trial as
provided by Article III, Section 14(2), of the 1987 Constitution." Thus, in
spite of the prescribed time limits, jurisprudence continues to adopt the
view that the concept of "speedy trial" is a relative term and must
necessarily be a flexible concept. In Corpuz v. Sandiganbayan, we held:
The right of the accused to a speedy trial and to a speedy disposition of
the case against him was designed to prevent the oppression of the
citizen by holding criminal prosecution suspended over him for an
indefinite time, and to prevent delays in the administration of justice by
mandating the courts to proceed with reasonable dispatch in the trial of
criminal cases. Such right to a speedy trial and a speedy disposition of a
case is violated only when the proceeding is attended by vexatious,
capricious and oppressive delays. x x x
While justice is administered with dispatch, the essential ingredient is
orderly, expeditious and not mere speed. It cannot be definitely said how
long is too long in a system where justice is supposed to be swift, but
deliberate. It is consistent with delays and depends upon circumstances.
It secures rights to the accused, but it does not preclude the rights of
public justice. Also, it must be borne in mind that the rights given to the
accused by the Constitution and the Rules of Court are shields, not
weapons; hence, courts are to give meaning to that intent.
A balancing test of applying societal interests and the rights of the
accused necessarily compels the court to approach speedy trial cases
on an ad hoc basis.
In determining whether the accused has been deprived of his right
to a speedy disposition of the case and to a speedy trial, four
factors must be considered: (a) length of delay; (b) the reason for
the delay; (c) the defendants assertion of his right; and (d)
prejudice to the defendant.
The time limits set by the Speedy Trial Act of 1998 do not thus preclude
justifiable postponements and delays when so warranted by the
situation. To the Court, the reasons for the postponements and delays
attendant to the present case reflected above are not unreasonable.
While the records indicate that neither petitioner nor his counsel was
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notified of the resetting of the pre-trial to October 23, 2003, the same
appears to have been occasioned by oversight or simple negligence
which, standing alone, does not prove fatal to the prosecutions case.
The faux pas was acknowledged and corrected when the MeTC recalled
the arrest warrant it had issued against petitioner under the mistaken
belief that petitioner had been duly notified of the October 23, 2003 pretrial setting.
Reiterating the Courts pronouncement in Solar Team Entertainment,
Inc. that "speedy trial" is a relative and flexible term, Lumanlaw v.
Peralta, Jr. summons the courts to maintain a delicate balance between
the demands of due process and the strictures of speedy trial on the one
hand, and the right of the State to prosecute crimes and rid society of
criminals on the other.
Applying the balancing test for determining whether an accused has
been denied his constitutional right to a speedy trial, or a speedy
disposition of his case, taking into account several factors such as the
length and reason of the delay, the accuseds assertion or non-assertion
of his right, and the prejudice to the accused resulting from the delay,
the Court does not find petitioner to have been unduly and excessively
prejudiced by the "delay" in the proceedings, especially given that he
had posted bail.
In the case of Apollo vs. Sandiganbayan, the SC reiterated that

the right of the State to prosecute its case in order to prosecute
criminal offenders is also a protected right. There must have to
be also a balancing of interest of claims of the right of the
accused to speedy trial and the right of the state to prosecute the
offenders of the state.
Public Trial
The Right to Public Trial is not to be understood to (apply to)
everybody i.e. the public to observe the conduct of the trial.
Public trial is characterized as granting the person of the accused
the right to have an open session and only when there is no
secrecy in the conduct of the proceeding. There are several
exceptions to this: when the nature of testimony is delicate, then
the public may be excluded or if the witness is a child witness.
Also, under the Rule 119, Sec. 21, the accused may ask for the
exclusion of the public for any other reason.
Right to Confront Witnesses
The right of the accused to meet the witnesses face to face
would include the right to cross-examine them. It has a two-fold
purpose : 1. to test the credibility of the witness ; 2. to observe
the demeanor of the witness when testifying, this is based on the
principle that the evidence to be credible must not only be
credible in itself but must also come from a credible witness. So
in order to test the credibility of the witness the accused must
have the right to cross examine. Of course, there are some


exceptions. One, from dying declarations. Also during preliminary
investigation stage. We all know that even if there should be a
clarificatory hearing required by the investigating officer to be
conducted, the parties do not have the right to cross examine the
other witness. During preliminary conference/investigation, if
there are matters which they wish to ask ot the other party on the
matter under investigation, the question must have to be
coursed through a hearing officer or prosecutor. He cant be
asked directly because there is no right to cross-examine the
witnesses of the respondent.
Right to Secure the Attendance of Witnesses
This would be in reference to right to compulsory process. There
is no question that the accused can seek the issuance of a
subpoena for the witness to testify in court for his for his defense.
That is his constitutional right, among others. No problem with
the state because it has all the resources. It can even take care
of the expenses of all its witnesses, even if the latter are living
outside the 100km limit of their place of residence or office. But
for the accused, he does not have the same right with that of the
State. The problem is while the accused may have the right to
compulsory process that is the extent of his right. Under the rules
to issue subpoena, the party requesting for a witness to a
subpoena duces tecum requires some fees and expenses. Those
are not included in the right of the accused to compulsory
process. The accused may still have to shoulder the expenses
for the issuance of the service order of the subpoena as well as
the expense of the intended witnesses for the defense as
requested. The rule of subpoena would be applicable only within
100 km ordinary course of travel (rule). Before, we follow the
50 km radius rule. This was amended and it is now 100 km in the
ordinary course of travel. If the person intended to be presented
by reason of a subpoena resides outside or without (in the place
of 100 km in the ordinary course of travel rule), then the
subpoena may no longer be effective as to him and he can
actually refuse to such subpoena. And he will not face any
contempt charges.
VIATORY RIGHTS
Also in relation to subpoena is the so called viatory rights of
witnesseswhich refers to the right of a witness to refuse to
honor the subpoena for valid and justifiable reason. The
most common is one when he resides or is in a place more than
100kms. This would apply normally to private citizens and not to
public officials. Because if you are a public official witness, the
viatory rule does not apply. You can be compelled to be a
witness by reason of your position or else you will be held in
contempt. The viatory rights can also be claimed by an ordinary
citizen witness. Let us say the expenses of his testimony or travel
to testify is not paid because that is always part of the obligation
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of the one requesting the issuance of subpoena to advance and

make his payments needed. Again the right merely includes the
issuance of the subpoena. But as to the fees and expenses
relative to the issuance or service of the subpoena would be
another. That is not included in the right of the accused to a
compulsory processes.
There is Rule 119, Sec. 14 a part of a right of the accused to
compulsory process. This is applicable to all but this is most
applicable to the accused in criminal case to secure the
appearance of a material witness. If a witness is not willing to
testify, the witness may be arrested and incarcerated if he does
not post bail until he will testify as he is so requested. The bail
will not be discharged until he will testify in accordance to the
court order. The problem here is if you caused to arrest this
person and incarcerate her/him for refusing to testify, his
testimony may no longer be in your favor.
TRIAL IN ABSENTIA
It is a procedure provided for in the rules as well as in the
Constitution with respect to the right of the accused to be
present and in relation to he right of the state to prosecute the
criminal .The conduct and proceedings of the trial shall not be
made dependent upon the presence of the accused. We all know
that when the accused has not been arraigned, no proceedings
can be validly made. But after the accused has been arraigned
and in a hearing, the accused has been duly notified and his
absence is unjustified the state may proceed even in his
absence . Only when the three conditions are met that there be
trial in absentia. The most important is that there must have to be
a prior valid arraignment. When the accused is absent in a case
for example despite due notice, the court may exercise
discretion to hear the case today or transfer it in another day. But
if a case he would want to hear today in absentia that is totally
valid because of the filing of the petition and the absence is not
justified. Nonetheless, if the accused appear in the next schedule
hearing, then there is no more trial in absentia as there is the
presence of the accused of course. However, if the accused
jumps bail there is the effect on his right to hear the proceedings
against him and every time the accused jumps bail or escapes
from confinement the absence thereafter on account of the
jumping bail or the escape from confinement his absence is
unjustified and there will be trial in absentia.
There are several questions ask with respect to rights of the
accused in the constitution as well as those reflected in the rules
of court on due process. Is the due process is affected? The
answer is no. It will not be affected if the accused jumps bail and
he will be tried in absentia, the rights of the accused to due
process will not be affected. Still the duty of the prosecution and


of the court to ensure that the rights of the due process are
observed and accorded even in his absence.
The presumption of innocence the presumption is not simply
destroyed because the accused is tried in absentia. There is also
related principle in criminal law that plying is indicative of guilt ,
that the innocent stands while the guilty flees even if no one
pursues him , that principle does not automatically destroys the
presumption of innocence of the accused. The prosecution has
the still 1st the burden to prove prima facie evidence of guilt of
the accused. Just because accused jumps bail or escapes
confinement does not make the accused guilty beyond
reasonable doubt .Actually THAT IS INDICATIVE OF GUILT BUT
NOT HE IS GUILTY. The right to be heard personally is waived
because he not present and is tried in absencia but the right to
be heard by counsel is not affected, the counsel must still act as
his the counsel until the counsel is discharged.
3.)
The right to be heard personally. Of course that is
considered waived because he is no longer present because he
is tried in absentia. But the right to be heard by counsel is not
affected. The counsel must still act as his counsel until the
counsel is discharged. If the counsel is discharged then the
obligation to the client who is tried in absentia ends. But before
then or until then, the accuseds right to be heard through his
counsel will remain.
The second is humanity: to prevent extorting evidence to convict

that person by his own testimony, by compulsion or duress. So
the State must be able to prove its case not because it has
compelled somebody to provide evidence, but it must prove its
case based on available evidence.
Now, as we made mention in relation to the discussion of the
right of the person under investigation, the privilege against selfincrimination is claimable by any person who is asked an
incriminating question. An incriminating question is one the
answer to which would subject the person to a penal liability. If it
is civil or non-penal liability then that would not be considered as
a self-incriminating question. If you joke about it, if you ask a
woman her age normally they would not tell her age because that
would be self-incriminating. But that is not a self-incriminating
question because being old is not a crime It would not
produce a criminal liability. Only that would subject to a criminal
liability be considered a self-incriminating question.
4.)
Right to speedy discharge in relation to right to counsel
is the same. It would still remain.
Now, traditionally, the privilege against self-incrimination is

applicable only to those which would be a result of the use of
physical or moral compulsion to extort communications or verbal
confessions or admissions. So if there is use of duress, force, or
any other acts which may vitiate consent to secure the oral,
verbal confession or admission of a person that is what is usually
covered by the privilege against self-incrimination. So that purely
mechanical acts or any incriminating evidence which is not a
product of a verbal or oral admission or confession are not
covered.
5.)
Right to speedy, impartial public trial. That would, with
respect to impartial public trial they would technically not be
affected. With respect to speedy trial, there may be some effects
though it does not give the State the right or license to delay the
proceedings for the trial. Then they must have to conduct trial
consistent with the demands of speedy trial taking into
consideration the fact of course that the accused has jumped bail
or has escaped from prison.
For example, in some old cases a person is required to undergo

medical examination for purposes of determining whether she is
pregnant by reason of an extramarital affair or while a woman
undergoes a physical examination to determine such act of
pregnancy may be invasive. That is not covered by the privilege
because all she has to do would be to lie down there, not say
anything, there is no oral admission or confession extorted by
reason of the examination.
PRIVILIGE AGAINST SELF-INCRIMINATION

The Privilege against Self-Incrimination under Section 17 is
based on two considerations: Consideration of Public Policy and
Consideration of Humanity.
Public Policy because to compel a person to testify against
himself will place him in the greatest temptation to perjure himself
because he has no other way out. He will be compelled under the
circumstances to lie about everything so that he will not be
placed in jail.
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Or in one case where a person was accused of robbery and

during such robbery a shoe was left, a size 10 shoe. So that was
one of the exhibits presented by the prosecution during trial and
the accused was asked to fit the shoe. If the shoe fits, convict. If
the shoe does not fit, acquit. The claim of self-incrimination was
not allowed because it is a purely mechanical act to fit the shoe.
In the O.J. Simpson case as I mentioned last night, if you were
familiar with that, one of the defense evidence was to let O.J. fit
the leather glove; one piece of those gloves was left and was
soaked in blood. So to make the presentation more dramatic, the
defense presented that and asked Mr. OJ Simpson to fit the
glove. And they used it in the closing argument because the


glove did not fit. Of course because it was leather, it was soaked
in blood and kept in the laboratory by the custodian. And if you
know when a leather is soaked in a liquid like blood, it will
necessarily shrink and at that time OJs left hand I think just
like Michael Jacksons, was surprisingly bloated on that day.
Conveniently his hand was big enough. It was made bigger. And
then in the closing argument, the defense lead counsel said If
the glove did not fit, you must acquit. And so they did. What
would these ordinary laymen know about the leather glove being
soaked in blood? They would never, not that they would never,
they would not necessarily know that. So these are the
mechanical acts which are not covered by the privilege.
However, today, there is some sort of a change in the strict
application because of development in jurisprudence that to
which if the matter or the mechanical act would require the use
of ones intelligence, the use of ones mind or brain, then it does
not become a purely mechanical act.
The most common example is handwriting. When the issue in the
criminal case involves handwriting, say falsification, it requires
the signature, of course, you only falsify a signature. Forgery in
our Revised Penal Code refers to bank notes, you make one and
make it appear as if it were a valid bank notes. You do not forge
a signature. But outside of law school i-forge na bai, i-forge na
bai. Sige i-forge nalang. But it is actually falsification. You make it
appear in Articles 171 and 172 of RPC that the person
participated in the making of an act when in fact that should not
have been done.
So when the issue in the criminal case is falsification whether a
signature or a writing and the accused is made to copy certain
words and phrases to prove that his handwriting is similar to that
in the questioned document. The Supreme Court has said that is
not a purely mechanical act because to copy a writing with his
own handwriting would require him to use his intelligence or use
of his brain.
So it would go with an act that an accused is required to by the
police officers to reenact a crime. In reenactment, if the person is
compelled, again there must be compulsion, to reenact a crime
then it may be covered by the privilege because the accused will
have the right to refuse to answer the question requiring him to
reenact the commission of the offense. Because if he really did
the act or crime, that he would have to recall what he had done
with the use of his intelligence or his brain or his mind and it is
not a purely mechanical act.
The problem however with this privilege against self-incrimination
although it is applicable to any person, in any proceedings
regardless of whether it is civil or criminal or administrative,
whether the person is the accused or party defendant maybe or
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an ordinary witness is that this right is waivable immediately upon

the fact that the question is answered. Unlike in say, rights under
investigation even if you answered right then and there, even if
you said I do not need a lawyer, but if such waiver is not valid in
law you can still ask for its exclusion when it is presented in
evidence.
But in the privilege against self-incrimination, to refuse to answer
under a claim of the privilege of an incriminating question, it must
have to be raised before the question is answered. Once the
question is answered, it is automatically. You can not say Oopps!
Mali ako. Can I have it stricken off the record? In fact it can not
be done because you must have to claim it before it is answered.
That is why we said the difference between the privilege and the
right under Section 12 is that, in Section 12 you can have it
excluded later. And in Section 17 you can not. You must refuse
to answer by claiming the privilege. Also in section 12, if there is
a lawyer assisting you, the lawyer may very well that if it is the
investigation is conducted he may very well protect your rights by
preventing you from answering the question because there is a
lawyer assisting the confessant during an investigation.
But in section 17, let us say, as made mention yesterday, if you
were to make an investigation in the company level and the
employee was not assisted by a counsel, he may not know of his
privilege against self-incrimination. He may be answering these
questions subjecting himself not only by answering administrative
liability on account of his employment or by violation of company
rules and policy but he may open himself up to a criminal liability.
So, for example, a cashier in a private company has been
charged administratively of a violation of a fact that he has taken
some money she has received in trust for the company and this
was for cashiers violation of companys rules and violation
against taking company property and when it is considering it
may result to dismissal even if it were committed as a first
offense based on companys rules.
Now if the cashier answers that question: did you take that?
Yes. Do you admit how much money? Yes. And used it for your
own benefit? The cashier may not only be liable administratively,
the cashier can be dismissed from employment and he can also
be subjected to a criminal liability. And the claim that he was not
afforded his Miranda warnings during that administrative
investigation will not prevent the filing of the criminal case nor the
admission of his testimony during that administrative proceeding
because he was not actually investigated for a commission of an
offense but for a commission of an act in violation of a company
rule.


ATENEO DE DAVAO
COLLEGE OF LAW
IMMUNITIES
The final item would be the so-called immunities. In your outline,
there are two immunities stated. They are USE IMMUNITY and
TRANSACTIONAL IMMUNITY. There are situations where a
person maybe compelled to testify and by reason of his
compulsion to testify, his right against self-incrimination maybe
violated in order not to put him in jeopardy or be penalized for
such compulsory admission or confession which he cannot
escape by reason of being invoked that would always or usually
would grant that person some form of immunity from prosecution
either under the innocent rule or transactional rule.
The most common of TRANSACTIONAL IMMUNITY is that
there is an agreement between that person and the investigating
body or person that any testimony will be provided for the crime
under investigation cannot be used against him. So there is an
agreement. The most common of which is when the person of
the accused is discharged as a state witness. When can an
accused be discharged as a state witness under our rules of
court?
There are several accused and he (one of them) does not appear
to be the most guilty; there is no other direct testimony that may
be utilized by the prosecution to prove the guilt of the accused.
And there is the requirement that the testimony of the State
Witness can be corroborated by other witness on certain material
point. It is also required under the Rules of Court that the state
witness must have to execute an affidavit which would contain
his testimony for which he must actually testify. If he does not
testify on that then it is not. If he refuses to testify based on the
terms of the discharge, the discharge will not be valid; he can still
be prosecuted and the transactional immunity cannot be claimed.
There are situations wherein the State Witness is discharged
only and eventually the prosecution may think that they may no
longer need the testimony of the State Witness. So if it was not
his fault that he was not able to testify, then, the transaction may
still be valid and the immunity still stands. But if the failure is
based on his refusal, then, the transaction will be invalidated and
the discharge will not be applied.
NOTE: The USE and FRUITS IMMUNITY, as the term suggests,
would simply exempt that person investigated, and who has been
compelled to give incriminating answers, from the use of his
testimony and the fruits of his testimony against him. Meaning, if
there are still other evidence which could be used to prove his
guilt, then, he may still be prosecuted and will not exempt him
from prosecution. The State will use other evidence that are
outside of what he has provided for the fruits of his testimony of
which he has been compelled to provide.
RIGHT TO SPEEDY DISPOSITION OF CASES
93
In relation to your periods of deciding cases not only for the

Courts, but as well as for the administrative agencies. Now,
under the Rules of Court, how long in time is given to the
investigating prosecutor to resolve cases filed in the prosecution
office and under preliminary investigation. How long? 30 days?
From the time the case is needed for resolution.
In Article 7, Section 18, if the Supreme Court hears a petition for
the questions on the sufficiency of factual basis for the
declaration of Martial Law or for the suspension of the privilege of
the writ of habeas corpus. How many days does the Supreme
Court have to decide the petition? 30 days from the filing of the
petition. And not from the time the case is submitted for decision.
And under Article 8, Section 15, there are several periods for the
Supreme Court, how long? 24 months. For the lower collegiate
courts, 12 months. For the Lower courts, 3 months from the time
the cases are submitted for resolution or decision.
We have learned that this period in the Constitution for the Court
to decide or issue a decision is considered mandatory with
respect to the judges or the justices to promulgate their decision;
but are considered directory when it refers to the validity of the
decision, meaning, decisions rendered outside of these
mandatory periods do not make these decisions invalid.
Nonetheless, they are mandatory against the judges or justices
concerned. If they fail to comply with these periods, they shall be
subjected to some form of administrative liability, from reprimand
up to fines. You have come across several cases where the
judges are fined for failing to resolve the cases within the said
mandated periods.
Now, you will notice in your outline, this case of DIMARUCUT
VERSUS PEOPLE OF THE PHILIPPINES. There was an
abandonment of an appeal. The court still applied the rule on
speedy disposition of justice even if the appeal had been
abandoned. The court still resolved it, dismissed it, on
consideration that there is still this right to speedy disposition of
cases.
DIMARUCOT vs. PEOPLE OF THE PHILIPPINES
630 SCRA 456
Section 8, paragraph 1, Rule 124 of the Revised Rules of Criminal
Procedure, as amended, provides:
SEC. 8. Dismissal of appeal for abandonment or failure to
prosecute. The Court of Appeals may, upon motion of the
appellee or motu proprio and with notice to the appellant in either
case, dismiss the appeal if the appellant fails to file his brief within
the time prescribed by this Rule, except where the appellant is
represented by a counsel de oficio.


It is clear under the foregoing provision that a criminal case may be
dismissed by the CA motu proprio and with notice to the appellant
if the latter fails to file his brief within the prescribed time. The
phrase "with notice to the appellant" means that a notice must first
be furnished the appellant to show cause why his appeal should
not be dismissed.13
compliance with the requirement of notice or show cause order

before the motu proprio dismissal under Section 8, paragraph 1 of
Rule 124 had thereby been cured. Under the circumstances, the
petitioner was properly declared to have abandoned his appeal for
failing to diligently prosecute the same.
In the case at bar, there is no showing that petitioner was served

with a notice requiring him to show cause why his appeal should
not be dismissed for failure to file appellants brief. The purpose of
such a notice is to give an appellant the opportunity to state the
reasons, if any, why the appeal should not be dismissed because
of such failure, in order that the appellate court may determine
whether or not the reasons, if given, are satisfactory.
In this case of ANGELES VERSUS SEMPIO-DIY, the court here

also asked for several extensions because a Motion for
Reconsideration was not resolved within a period of six months.
However, the Supreme Court admonished the judges concern
even if there were several extensions sought; the Court said that
the judge must still resolve such motion within a reasonable time
limit, 3 months.
Notwithstanding such absence of notice to the appellant, no grave

abuse of discretion was committed by the CA in considering the
appeal abandoned with the failure of petitioner to file his appeal
brief despite four (4) extensions granted to him and noncompliance to date. Dismissal of appeal by the appellate court
sans notice to the accused for failure to prosecute by itself is not
an indication of grave abuse. Thus, although it does not appear
that the appellate court has given the appellant such notice before
dismissing the appeal, if the appellant has filed a motion for
reconsideration of, or to set aside, the order dismissing the appeal,
in which he stated the reasons why he failed to file his brief on time
and the appellate court denied the motion after considering said
reasons, the dismissal was held proper. Likewise, where the
appeal was dismissed without prior notice, but the appellant took
no steps either by himself or through counsel to have the appeal
reinstated, such an attitude of indifference and inaction amounts to
his abandonment and renunciation of the right granted to him by
law to prosecute his appeal.
Here, the Court notes the repeated non-observance by petitioner
and his counsel of the reglementary periods for filing motions and
perfecting appeal. While still at the trial stage, petitioners motion to
admit and demurrer to evidence was denied as it was not
seasonably filed (petitioner was granted fifteen (15) days from
August 8, 2001 within which to file demurrer to evidence but filed
his motion to dismiss only on September 4, 2001), in accordance
with Section 23, Rule 119 of the Revised Rules of Criminal
Procedure, as amended. Before the CA, petitioner and his counsel
filed no less than four (4) motions for extension to file brief, which
was never filed nor attached in the motion for reconsideration of
the August 29, 2007 Resolution dismissing the appeal. The last
extension given expired on June 6, 2007, without any brief
submitted by petitioner or his counsel. And even when he filed the
Omnibus Motion on May 8, 2008, still no appellants brief was
attached by petitioner. Neither did petitioner file any petition before
this Court questioning the validity of the August 29, 2007 resolution
and the November 27, 2007 denial of his motion for
reconsideration. The dismissal of his appeal having become final, it
was indeed too late in the day for petitioner to file the Omnibus
Motion on May 8, 2008, which was four (4) months after the finality
of the resolution dismissing the appeal.
Having been afforded the opportunity to seek reconsideration and
setting aside of the motu proprio dismissal by the CA of his appeal
for non-filing of the appeal brief, and with his subsequent inaction
to have his appeal reinstated after the denial of his motion for
reconsideration, petitioner cannot impute error or grave abuse on
the CA in upholding the finality of its dismissal order. Non-
94
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COLLEGE OF LAW
A.M. No. RTJ-10-2248

September 29, 2010
JUDGE ADORACION G. ANGELES vs.
JUDGE MARIA ELISA SEMPIO DIY
It appears that respondent has simply forgotten about the pending
motion for reconsideration in Criminal Case Nos. Q-95-61294 and
Q-95-62690 after said cases became inactive due to the failure of
the defense to submit its reply. The realization of the blunder came
only during the semi-annual inventory of the courts cases. This
situation could have been avoided had respondent adopted an
effective system of record management and organization of
dockets to monitor the flow of cases for prompt and efficient
dispatch of the courts business. Elementary court management
practice requires her to keep her own records or notes of cases
pending before her sala, especially those that are pending for more
than 90 days, so that she can act on them promptly and without
delay.
The case of RAYMUNDO VERSUS ANDOY the Summary

Rules, BP 22 Case the case was submitted for decision on
October 19, 2005 and a Motion for Reconsideration was filed on
2006. The judge despite two motions to render judgment failed to
render a decision or resolution on the motion for reconsideration
after 3 years. The judge here was fined Php 20,000.00.
A.M. No. MTJ-09-1738
October 6, 2010
(Formerly OCA I.P.I. No. 08-2033-MTJ)
CIRILA S. RAYMUNDO
vs.
JUDGE TERESITO A. ANDOY
The Constitution mandates that all cases or matters filed before all
lower courts shall be decided or resolved within 90 days from the
time the case is submitted for decision. Judges are enjoined to
dispose of the courts business promptly and expeditiously and to
decide cases within the period fixed by law. Failure to comply with
the mandated period constitutes a serious violation of the
constitutional right of the parties to a speedy disposition of their
cases a lapse that undermines the peoples faith and confidence
in the judiciary, lowers its standards and brings it to disrepute. This
constitutional policy is reiterated in Rule 3.05, Canon 3 of the Code
of Judicial Conduct which requires a judge to dispose of the courts
business promptly and decide cases within the required periods.


In the present case, the subject cases had been submitted for
decision since October 12, 2005. As correctly pointed out by the
OCA, while the respondent judge attributed his failure to render a
decision to the heavy caseload in his sala, he did not ask for an
extension of time to decide the cases. This failure to decide within
the required period, given that he could have asked for an
extension, is inexcusable; it constitutes neglect of duty as well as
gross inefficiency that collectively warrant administrative sanction.
Unlike speedy trial, if there is a valid claim and the grant is also
valid and justified, it will be put to a stop to the criminal
prosecution. It means that the Court will grant the right of the
accused to speedy trial, will dismiss the case, and the dismissal
is always with prejudice. It would be considered as an
adjudication of the merits, and the accused is thereby freed. But
if all the evidences are in, the trial has already been terminated
and the only reason why there is no disposition yet is because
the court has failed to resolve the case by failing to render a
decision or failing in to render a resolution on the motion for
reconsideration on account of a motion for reconsideration filed.
This will not mean that if the right to speedy disposition of cases
is claimed that that court will consider the case dismissed.
The only situation, as you may have noticed in all these cases on
the speedy disposition of the cases you may have read, that will
result in the dismissal of the charges is when it is still on
reinvestigation stage.
Take for example the old case of TATAD VERSUS
SANDIGANBAYAN. When Tatad was investigated it took eleven
years for the investigation to be completed. And so when Tatad
asked for dismissal, the Sandiganbayan refused. However, the
Supreme Court granted the petition, and it caused the dismissal
of the case because there is no justifiable reason why the
investigation by the investigating officer would determine whether
there is probable cause or well founded belief to charge
respondent in court. This is not a full-blown trial on the merits
where the guilt or innocence of the accused is determined.
So if there is such delay, again, the Supreme Court has used the
FOUR FOLD FACTORS: the length of the delay in disposing the
case; the reason for such delay in disposing the case; the fact
that the respondent has claimed or not claimed his right to
speedy disposition of cases, and the prejudice that is caused by
the delay on the person of the respondent. The Supreme Court
has applied the FOUR FOLD FACTORS to balance if whether
the State has still the right to prosecute upon finding probable
cause or should the accused be freed from the anxiety of criminal
prosecution despite the lapse and delay in resolving whether or
not there is probable cause to charge him in court. Again, when
there is already full presentation of evidence, the clam for speedy
disposition of cases will not be resolved for dismissal. But if there
95
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is yet to be a formal charge or information in court, the delay will

be or within the stage of the investigation level then the court
may grant the right to resolve the claim for speedy disposition of
cases which eventually dismiss the case. This must have to be
related to the provisional dismissal of cases, which we shall be
taking up later, based on double jeopardy. The same principle
must still be applied in provisional dismissal. You remember this
TIME BAR RULE, right? The one year period. Does that change
the substantive law on presentation of offenses? The answer is
no. But under the TIME BAR RULE, the principle is that, if there
is failure to prosecute within that one or two years, there is a
disputable presumption that the State could no longer prove this
case and it therefore waived to prosecute the offender. The
rationale behind the TIME BAR RULE is the same with
disposition of cases when the case is still under investigation. If
indeed, there is a prima facie case or probable cause and wellfounded belief to charge accused in court, why take so long? It
does not need a full-blown trial on the merits. But the
investigating officer has to read and compare the complaint,
counter-affidavits and other pleadings. If there is so much
unjustified delay, then there is that presumption that the State
waived its right to prosecute; and therefore it dismissed the
criminal charges, and not the information itself as there is yet to
be one.
G.R. No. 72335-39 March 21, 1988

FRANCISCO S. TATAD vs. SANDIGANBAYAN
We find the long delay in the termination of the preliminary
investigation by the Tanodbayan in the instant case to be violative
of the constitutional right of the accused to due process.
Substantial adherence to the requirements of the law governing
the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law.
Not only under the broad umbrella of the due process clause, but
under the constitutional guarantee of "speedy disposition" of cases
as embodied in Section 16 of the Bill of Rights (both in the 1973
and the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three (3) years
can not be deemed reasonable or justifiable in the light of the
circumstance obtaining in the case at bar. We are not impressed
by the attempt of the Sandiganbayan to sanitize the long delay by
indulging in the speculative assumption that "the delay may be due
to a painstaking and gruelling scrutiny by the Tanodbayan as to
whether the evidence presented during the preliminary
investigation merited prosecution of a former high ranking
government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected.
Secondly, three out of the five charges against the petitioner were
for his alleged failure to file his sworn statement of assets and
liabilities required by Republic Act No. 3019, which certainly did not
involve complicated legal and factual issues necessitating such
"painstaking and gruelling scrutiny" as would justify a delay of
almost three years in terminating the preliminary investigation. The
other two charges relating to alleged bribery and alleged giving of
unwarranted benefits to a relative, while presenting more


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COLLEGE OF LAW
substantial legal and factual issues, certainly do not warrant or

justify the period of three years, which it took the Tanodbayan to
resolve the case.
KINTANAR, LOVELY
LIMBO-CABUHAT, VERNA
DINIAY, DONNI
You can only become truly accomplished at something you

love. Dont make money your goal. Instead pursue the
things you love doing and then do them so well that people
cant take their eyes off of you.
Maya Angelou
...kapag binisita ka ng idea, gana o inspirasyon,

kailangan mong itigil LAHAT ng ginagawa mo para
lang di masayang ang pagkakataon. Walang sandali
lang o teka muna. Dahil pag lumagpas ang
maikling panahong yon, kahit mag-umpog ka ng ulo
sa pader mahihirapan ka nang maghabol.
Bob Ong, Stainless Longganisa
96


The future belongs to those who believe in the

beauty of their dreams.
Eleanor Roosevelt
August 30, 2012

SUBSTANTIVE RIGHTS UNDER THE DUE
PROCESS CLAUSE
A. What acts cannot be criminalized
the protection of non-payment or non-imprisonment for nonpayment of civil debts and obligations because that would
substantively change the nature of the violation of a mere civil
obligation to one which would be criminal in character. As have
been discussed therein the Supreme Court said that the
gravamen of the offense is the introduction into the economy or
in circulation checks which are valueless or which would bounce
or without which could not have been cashed upon presentment
or when it is presented for payment when it is due and
demandable. So it is not simply by reason of non-payment of a
debt.
Lozano vs. Martinez (Dec. 18, 1986)
Section 18.
No person shall be detained solely by reason of his political
beliefs and aspirations.
Mere beliefs and aspirations under Sec. 18 (1) this is part of
freedom of political beliefs. This is actually a part of the general
discussion of due process as well as on the free speech and
expression. In relation to free speech on the so called freedom of
thought or freedom of thoughts, for so long as it remains in the
realm of thought, no person should be penalized for such mere
beliefs and aspirations. As we all know, once the thoughts are
converted into overt acts, these overt acts may be subjected to
reasonable regulations.
Non-imprisonment for non-payment of debts and other civil
obligations under Sec. 20
Section 20. No person shall be imprisoned for debt or nonpayment of a poll tax.
This is largely traceable to the age of slavery in the US
experience because the prohibition is based on coercive
payment or non-payment of debt, either by cancellation of the
debtor or his being taken as a slave for failing to pay an honest
debt. It must be remembered however with respect to debts and
civil obligations that the liability to pay the money or debt must be
one arising from contract which must constitute a debt, whether
express or implied. And that payment or the act of compelling
payment must have to be by reason of a valid contract and not
one which may have been entered through fraud or
misrepresentation.
So this old case of Lozano vs. Martinez with respect to the
constitutionality of Batas Pambansa Bilang 22 while ostensibly it
would show that the penalty imposable under the said law was
placed there to compel, to make good the payment of the check,
the check being paid for an outstanding obligation. The fact that
the issuance of check was attended by fraud takes it away from
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COLLEGE OF LAW
Facts: A motion to quash the charge against the petitioners for

violation of the BP 22 was made, contending that no offense was
committed, as the statute is unconstitutional. Such motion was
denied by the RTC. The petitioners thus elevate the case to the
Supreme Court for relief. The Solicitor General, commented that it
was premature for the accused to elevate to the Supreme Court
the orders denying their motions to quash. However, the Supreme
Court finds it justifiable to intervene for the review of lower court's
denial of a motion to quash.
Issue: Whether BP 22 transgresses the constitutional inhibition
against imprisonment for debt.
Held: The offense punished by BP 22 is the act of making and
issuing a worthless check or a check that is dishonored upon its
presentation for payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or designed to
coerce a debtor to pay his debt. The thrust of the law is to prohibit,
under pain of penal sanctions, the making of worthless checks and
putting them in circulation.
So is the same reason for the subsidiary imprisonment for nonpayment of a fine. Under the Revised Penal Code the judgment
imposed of penalizing the accused to pay a fine and if such fine
may not be paid, subsidiary imprisonment may be imposed. That
is not a violation of this Section 20 because the payment of a fine
is not a payment of a contractual debt. It is supposed to be a
form of a penalty which if not paid can make the accused convict
subjected to subsidiary imprisonment.
Acts which when done were innocent this discusses the
concept of ex post facto laws as well as bill of attainder
under Section 22.
Section 22. No ex post facto law or bill of attainder shall be
enacted.
A bill of attainder technically involves a law which makes a
person liable for the crime defined therein without the need of a
judicial trial. Technically by history it is supposed to impose the
capital penalty. If it is less than the capital penalty it is supposed
to be called bills of pains and penalties not bills of attainder. But


in our jurisdiction there is not much distinction between the
penalties imposable without need of judicial trial. If there is such
a law it will be considered as a bill of attainder.
To distinguish it from the ex post facto law, a bill of attainder is
always ex post facto, meaning it is always applied retroactively
to cover acts which when done were not supposed to be criminal
or punishable. Conversely however, not all ex post facto laws are
considered bill of attainders because the 6 most common listed
forms of ex post facto laws are not necessarily bill of attainders
because they do not impose a penalty without a judicial trial.
The 6 common instances of ex post facto laws are:
1. It criminalizes an act which when done was innocent;
2. It aggravates a crime;
3. It changes a penalty of a crime and increases it;
4. One which alters legal rules of evidence requiring less
for conviction;
5. One which assumes civil rights or remedies but in
effect penalizes an innocent man; and
6. Deprivation of some lawful protection such as former
conviction, acquittal or amnesty.
Now these 6 situations or instances must have to be applied
retroactively. Because if there is prospective application as it is
always presumed when there is a criminal statute passed by
Congress, then this is not considered as ex post facto law
because the covered subjects or persons targeted by the law can
avoid being penalized under a new law which is applied
prospectively by refusing to commit the act or by nonperformance of the act or omission covered by the said new law.
What makes it ex post facto in any of the 6 circumstances is
when the law is applied retroactively and therefore there is no
escape from liability from the targeted class of persons or
requirements.
ATENEO DE DAVAO
COLLEGE OF LAW
training with respect to defense of the State. When we discussed

the freedom of religion we discussed that matter of conscientious
objector, a person by reason of his freedom of conscience or
thought or religion may object to such form of compulsory military
service because this is disallowed by his religion. But
nonetheless that is a form of an involuntary service that the
Constitution would allow.
Now similar with non-imprisonment for non-payment of debt, this
involuntary servitude was based on the anti-slavery provision in
the American Constitution under its Thirteenth Amendment. The
13th Amendment of the US Constitution prohibits or punished
acts of slavery. This technically ended the slavery period as
practiced in the American jurisdiction. However when as mention
if it is by reason of punishment for a crime upon a lawful order of
the court where the accused has been duly convicted there may
be a form of involuntary servitude. And when one is under
detention to serve the sentence this form of forced labor, the
chained gangs during the days of slavery have been reaming as
rehabilitation. So when prisoners are compelled to perform work,
they are not actually forced to work but are actually rehabilitated.
This is part of their rehabilitation in order to make them ready for
their future reintegration into the society.
Now the early cases on domestic service which are the usual
form of involuntary servitude are before the enactment of the
Labor Code and its amendment particularly on the rights and
benefits or privileges of helpers or house helpers. The common
practice is that these house helpers if they would still have some
debt from their employers they are made to work continuously
until their debts are paid. Under the Labor Code now as
amended in relation to the rights of house helpers that are not
supposed to be allowable. If the employer still has money claim
against the house helper or employee then the employee cannot
be forced to continue working because that is a form of
involuntary servitude.
What punishments cannot be imposed?

INVOLUNTARY SERVITUDE
Section 18.
xxx
No involuntary servitude in any form shall exist except as a
punishment for a crime whereof the party shall have been duly
convicted.
The first there is under Section 18 (2) that would be involuntary
servitude. We all understand that involuntary servitude is allowed
only when it is so provided for in the Constitution or by law. And
these would cover only involuntary servitude based upon a lawful
order of the court. The other is when there is involuntary
servitude in the sense or in the form of compulsory military or civil
98
EXCESSIVE FINES, CRUEL, DEGRADING AND

INHUMAN PUNISHMENTS
Section 19.
1.
Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall death
penalty be imposed, unless, for compelling reasons involving
heinous crimes, the Congress hereafter provides for it. Any death
penalty already imposed shall be reduced to reclusion perpetua.
Now the form of punishments to make them excessive, cruel,
degrading or inhuman is not the type, kind of imposable
punishment which makes it excessive, cruel, degrading or
inhuman. There are acceptable forms of penalties like death for
example. Death per se is not supposed to be cruel, degrading or


inhuman. Or it should refer to a fine just because the fine is of
such amount that it should be considered to be per se as
excessive. With respect to the imposition of the fine, what makes
it excessive is when the penalty of fine must be flagrantly or
grossly disproportionate to the offense no matter under what
circumstance the offense may be committed.
Differently stated, if there is no public interest consideration in the
imposition of the fine and therefore the imposed fine or the fine
as imposed by law which may be imposed by the court is so
grossly disproportionate then the fine maybe excessive. But by
reason of certain considerations of public interest, more common
example would be price control laws or for example special
protection for special kinds of people like special protection to
children under Republic Act 7610. You may have noticed that in
7610 the imposed penalties of incarceration as well as fines are
so much increased. Even the recommendation for bail, places
7610 under heinous offenses, where the normal
recommendations with the Department of Justice is P1,000 for
every year of imprisonment has been provided for by law, in 7610
places it under heinous offenses the recommended bail is
normally placed at P10,000.00 for every year of service. So for
slapping a child which is supposed to be slight physical injuries
where there may be no warrant of arrest issued, if it is under
7610 it becomes a minimum of prision mayor. That is a special
law because of the intent of Congress to protect special, in this
case children. So absent any of these special circumstances
affecting the imposition of a fine that it will be greatly
disproportionate and in the language in another case it is
flagrantly and plainly oppressive that shocks the moral senses of
the community, then it will be considered as excessive. Again it
is not the value as imposed but it should be based on lack of any
special consideration for imposing the fine which will make it
grossly disproportionate to the offense having been committed
and to the penalty to be imposed for that particular offense.
The cruel, degrading and inhuman punishment refers to the form
or character of the penalty or how it is implemented rather than
the severity of the penalty. Acceptable in our jurisdiction would be
incarceration for certain periods as well as the capital penalty of
death. Those per se are acceptable forms of penalties. But as to
the character of form of that penalty or as to how the penalty is
implemented may make the penalty cruel, inhuman or degrading.
Death now in the Philippines at least per law which has been
suspended will be implemented by lethal injection. In some states
in the US they still have this death penalty and most are by lethal
injection. I dont think in China they have lethal injection, they
have firing squad. You have to pay for the cost of the bullet that
is to be placed at the back of your head. So for them it is not
cruel, degrading or inhuman. And it is largely based on societies
and for those who probably would not believe in the propriety of
the imposition of death penalty, death for them per se is not
99
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COLLEGE OF LAW
acceptable, it is cruel, degrading and inhuman. But there is a

debate whether death per se or it is the manner that death
penalty is supposed to be imposed.
In one case the Supreme Court said that if it is supposed to be
considered cruel, degrading and inhuman, it must be one that
involves torture, lingering death or something barbaric or
barbarous. It is the severity with respect to the implementation of
the penalty imposed. Imprisonment, we have accepted it that
there are ranges, and there is a range that even what we know
as reclusion perpetua. How long is reclusion perpetua? Better
than cadena perpetua which we know as marriage.
PROTECTION AGAINST DOUBLE JEOPARDY
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
There are two basic situations contemplated, the same act and
the same offense. The same act rule or the same offense rule
are the two situations contemplated under Section 21. The same
act, which is the 2nd sentence actually, when an act is punished
by a statute and an ordinance, the prosecution, conviction or
acquittal in one constitutes a bar to another prosecution. This is
to prevent from being harassed or punished twice for the same
act. Its easy to understand, one act is punished by a national law
or statute and the other is by a local ordinance. So that if one is
prosecuted, convicted or acquitted in one, in either the law or the
ordinance, then that person may no longer be charged again for
the same act in relation to the other. This has been provided as
the second situation contemplated in the double jeopardy rule
because the original context of the double jeopardy protection
only covers the same offense rule. Under the same offense rule,
if a person is charged before a statute in an ordinance it could
never fall under the same offense rule because both laws are not
enacted by the same legislative body. One is by a local council
and the other is by a statue and normally they do not have the
same elements or one is not necessarily included in the other or
vice versa and therefore there could be no protection from being
prosecuted twice for the same act. Now that has been added on
again as part of the double jeopardy protection.
Now with respect to the same offense rule, an act must be
punished by the same statute or of different statutes but are
considered of the same offense. Of the same statutes or of
different statutes but they are considered to be falling under the
term same offense. The reason for this is to prevent from being
harassed or punished twice for the same offense not for the
same act. Now invariably you have come across a lot of cases
involving double jeopardy and the requisites of double jeopardy


would range from 3 to 5 to 6, depending on the decision of the
Supreme Court. But to put in simpler terms, the requisites of
double jeopardy are as simple as:
1. The first jeopardy must have attached; and
2. The accused is charged for the same offense.
Those are the simplest requisites of when the double jeopardy
protection would be claimable. The first jeopardy has attached
and he is charged again for the same offense. But when should
the first jeopardy attach? This is when the decisions of the
Supreme Court would put on all those 5 or 6 conditions as
depending on who wrote the decision. So,
1. there must have to be a court of competent jurisdiction;
2. that there is a valid information sufficient in form and
substance;
3. that the accused must have been validly arraigned;
meaning there is a valid entry of plea
4. that the case has been terminated, dismissed or the
accused have been convicted or acquitted; (and then
they put on the next)
5. that the accused is charged for the same offense
But if we try to look into when is it considered that the first
jeopardy have attached, it simply would require that there is a
valid indictment in a court with competent jurisdiction with the
case has been dismissed without the express consent of the
accused or that the accused have been convicted or acquitted.
And then the second requisite would be that the accused is
charge for the same offense.
When we say that there is a court of competent jurisdiction,
obviously the simplest test there is on the penalty ranges. But
because of the Supreme Court circulars on other special courts,
there are some cases which would discuss that if this should
have been tried in a special court, even in the same RTC that
court which is not designated as a special court where that case
or information should have been filed would be considered that
the court has no jurisdiction, so the first jeopardy will never
attach. So, again while ordinarily the penalty range is
determinative of whether the court has jurisdiction or not, there
are special instances by reason of Supreme Court circulars in
relation to existing laws that special courts re designated to
handle special kinds of cases.
When is information considered sufficient in form and substance?
If just like in your Criminal Procedure the information is sufficient
to convict the accused. Meaning there is at least a prima facie
recitation of facts in the information which is sufficient to afford a
conviction. So that if conversely the information is totally
defective in form and substance even if the accused pleads guilty
thereto, the accused cannot be convicted of any crime simply
because the information charges no offense.
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COLLEGE OF LAW
Now, with respect to the case being dismissed without the

expressed consent of the accused, that would accept of two
exceptions.
The first would be when the accused invokes his right to speedy
trial. Of course when the accused files a motion to dismiss
invoking his right to speedy trial that is with his consent. But
nevertheless because we all know that the court grants the
dismissal because of the valid claim of right to speedy trial, it is
considered an adjudication on the merits, the accused is
considered acquitted and first jeopardy will attach.
The second situation is when the accused files a demurrer to
evidence. We all know that after the presentation of the
prosecutions evidence, the accused may ask within five days
therefrom motion for leave to review to evidence and file
thereafter within ten days from the grant the demurrer to
evidence, simply asking the court that based on the prosecutions
evidence, the evidence cannot be sufficient to prove his guilt
beyond reasonable doubt. If the court grants it even if the
dismissal is sought by the accused, it is considered an
adjudication on the merits, the accused considered acquitted and
therefore first jeopardy will attach.
When the second offense is filed, when is it considered that it is
filed for the same offense?
One, it is literally for the same offense.
The second case is literally the same as that of the first. When
the second case is an attempt of the crime subject of the first
case.
Third, when the second case is a frustration of the crime subject
of the first case.
Next, when the second offense is necessarily included in the
crime subject of the first offense. So necessarily included,
meaning all of the elements in the second case constitutes some
of the elements of the first case.
Good example would be second case is homicide, first case is
murder. And conversely if the second offense necessarily
includes that of the first case. Some of the elements in the
second case constitute all of the elements of the first case.
And under the Rules of Court, when there is a valid plea of
guilty to a lesser offense. Under the present rules now, the plea
of guilt to a lesser offense is subject to two conditions:
1.
There must have to be the express consent of the
private offended party and of the prosecutor. That of the private
offended party can be dispensed with if that private offended
party fails to appear during the pre-trial but generally, his consent
must have to be sought also when there is a plea of guilt to a
lesser offense.


2.
The second requisite which is the more important
requisite is that the lesser offense must necessarily be connected
or included in the offense charged. Prior to this amendment in the
Rules of Criminal Procedure, you can plead guilty to any lower
offense. There is no requirement that the lower offense must be
included in the original offense as charged. So you were charged
before with say rape, you can plead guilty to the felony of
trespass to dwelling or illegal whatever. Now it must necessarily
be included in the offense charged.
So if you are charged say of murder, can you plead guilty to a
lesser offense of physical injuries? So the question is is physical
injuries necessarily included in murder? Is it? Pitik nimo ang
mata, naigo, nilakay, naa may lansang, homicide. Okay, for so
long as the lesser offense is necessarily included in the original
offense as charged then you can.
Now the exceptions to the application of the claim of double
jeopardy:
1.
Supervening fact. In the supervening fact, it
presupposes that the graver offense was or has developed as a
supervening fact after the first jeopardy had attached. Now there
are three cases here in your outline: Melo vs. People, People vs.
City Court and People vs. Yorac.
In this case of Melo vs. People, it involved the supervening fact
doctrine. So for example the accused was charged with
attempted homicide, he immediately pleaded guilty but the victim
was not yet discharged from the hospital, even if the accused has
already pleaded guilty and thereafter died of the same injuries he
sustained which was then present when the accused was
charged and was convicted of attempted homicide. Will the case
for consummated homicide now be allowable or would it be
barred by reason of double jeopardy protection? The answer is it
should be allowed because of the concept or the doctrine of
supervening fact.
MELO VS. PEOPLE
The
rule
of
identity
does
not
apply
when
the
second offense was not in existence at the time of the first
prosecution, for the simple reason that in such case, there is no
possibility for the accused, during the first prosecution, to be
convicted for an offense that was then inexistent. Thus, where the
accused was charged with physical injuries and after conviction,
the injured person dies, the charged for homicide against the same
accused does not put him twice in jeopardy.
In a later case, the SC, the case of People vs. Yorac, the SC did
not apply the supervening fact doctrine because the victim was
mauled and he was hit in different parts of his body including his
head but the initial medical examination showed that his injuries
will heal or there is only a 10-day period for him to heal or to be
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COLLEGE OF LAW
out of his regular confinement(?) for which he was only charged

with slight physical injuries. Not more than 10 days, slight
physical injuries. The accused upon arraignment has pleaded
guilty and was sentenced accordingly. However, when the victim
was still in the hospital had undergone another medical
examination. And found that under the second medical
examination that the victim was actually suffering from or has
suffered from severe head concussion which if not attended may
result to his death. There was actually a crack which was not
seen before when he underwent his first medical examination. So
they filed this time another case for frustrated murder and the SC
said that this is not a supervening fact. The injury was there
before, however, it was not discovered and so the
2.
Second exception now has been provided for by the
rules, the facts constituting the graver offense became known or
were discovered only after the filing of the former information.
I think that they put it in a very simple term that there is a filing of
a former information. It should have been that after the first
jeopardy could have attached. Filing an information and there
must have to be arraignment at least of the accused. At the very
least. Just the same when it could not be a supervening fact, the
fact constituting graver offense was discovered or was made
known to him only after the first information.
3.
When there is an invalid plea of guilt to a lesser
offense.
PEOPLE VS. YORAC (1971)
Rodrigo Yorac was prosecuted for frustrated murder arising
allegedly from having assaulted, attacked, and hit with a piece of
wood the offended party, for which he had been previously tried
and sentenced for slight physical injuries, his plea being one of
guilt. The later information for frustrated murder was based on a
second medical certificate after the lapse of one week from the
former previously given by the same physician who, apparently,
was much more thorough the second time, to the effect that the
victim did suffer a greater injury than was at first ascertained. The
lower court, considering that there was no, supervening fact that
would negate the defense of double jeopardy, sustained the
motion to quash.
Issue: Whether the defendant, who had already been convicted of
slight physical injuries before the City Court of Bacolod for injuries
inflicted upon Lam Hock, and had served sentence therefore, may
be prosecuted anew for frustrated murder for the same act
committed against the same person.
Held: If after the first prosecution a new fact supervenes on which
defendant may be held liable, resulting in altering the character of
the crime and giving rise to a new and distinct offense, the
accused cannot be said to be in second jeopardy if indicted for the
new offense.
We attribute the new finding of fracture, which evidently
lengthened the period of healing of the wound, to the very


superficial and inconclusive examination made on December 10,
1956. Had an X-ray examination been taken at the time, the
fracture would have certainly been disclosed. The wound causing
the delay in healing was already in existence at the time of the first
examination, but said delay was, caused by the very superficial
examination then made. As we have stated, we find therefore that
no supervening fact had occurred which justifies the application of
the rule in the case of Melo vs. People and People vs. Manolong
for which reason we are constrained to apply the general rule of
double jeopardy.
Motions for reconsiderations or appeals. Generally, if there is an

acquittal, there is no motion for reconsideration or appeal
allowed. Well there is always an exception from that general rule,
if there is a denial of due process on the part of the State. When
the State is precluded by reason of grave abuse of discretion
from publicly trying the accused in proving his guilt, the trial court
supposed to be ousted of its jurisdiction. And the people or
prosecution may therefore seek a review of the dismissal order or
acquittal order by the trial court.
There is one case here in your outline, the case of Flores vs.
Montemayor. This case involves a BIR Regional Director in
Region IV who was charged with the Presidential Anti-Graft
Commission (PAGC) for failing to include in his SALN 3 motor
vehicles (an Expedition, Land Cruiser and a Galant) and so he
was charged administratively in the PAGC and the PAGC
recommended to the Office of the President that he be removed
from service. Before the Office of the President was able to
promulgate its decision, another complaint was filed before the
Office of the Ombudsman for administrative liability as well as
criminal liability for unexplained wealth. Now, we all know that the
Office of the Ombudsman under RA 6770 has two primary
functions with respect to malfeasance, misfeasance,
nonfeasance or other feasances like other public officers and
employees and administratively, they can hear, try, and impose
administrative liabilities and penalties but with respect to criminal
liability, they can only conduct preliminary investigation. They
could not impose any penalties.
Side story about a lawyer applying with the Office of the
Ombudsman and he was asked to decide a criminal case. He
decided guilty. Lesson: The Office of the Ombudsman is not
empowered to find public officers guilty.
Atty. Montemayor raised basically that question of whether or not
the investigation subjecting him to another investigation with the
Office of the Ombudsman violates his right or privilege against or
his protection against double jeopardy. The SC said no because
the elements of double jeopardy are not present. When he was
charged, found liable in the Office of the President, that was for
an administrative liability. Even if he were to be charged again in
the Office of the Ombudsman administratively, double jeopardy
will not apply because double jeopardy protection is only
102
ATENEO DE DAVAO
COLLEGE OF LAW
applicable in criminal prosecutions. With respect to the criminal

charge in the Office of the Ombudsman where he was made to
undergo or his case was processed under the power of the
Ombudsman to conduct criminal investigation, the SC said still
double jeopardy does not apply because preliminary investigation
is not part of trial. Jeopardy attaches when there is a valid
complaint or information in a court of competent jurisdiction
sufficient in form and substance in the information and the
accused has pleaded guilty and the case has been dismissed,
accused has been acquitted or convicted.
When the case is subjected or processed to PI in any
investigating body, if the investigator says there is no case, there
is no prima facie case and therefore the case is dismissed,
question: can it be filed again? Will double jeopardy apply?
On the first question: can it be filed again? It depends. If there
are new evidence probably it can be re-filed but if the argument is
that it cannot be filed because there is violation of double
jeopardy, that should not apply because PI, the results of the PI
is of the same result as the accused has been acquitted or
convicted or the case is dismissed against him after an
information which is sufficient in form and substance has been
filed in the court of competent jurisdiction. PI is never part of trial.
Perhaps if your normal argument with respect to the fact that it
could not be re-filed, is that it is now as to the parties the law
between them. If you have like did not file for a motion for a
motion for reconsideration, did not seek further review on appeal,
then it becomes final. The dismissal becomes final and it may be
constitutive of res adjudicata between the parties, you can argue
on that line. But definitely you cannot argue that to re-file it would
violate your privilege or protection against double jeopardy.
Double jeopardy; elements. Double jeopardy attaches only (1)
upon a valid indictment, (2) before a competent court, (3) after
arraignment, (4) when a valid plea has been entered, and (5)
when the defendant was convicted or acquitted, or the case was
dismissed or otherwise terminated without the express consent of
the accused. None of these requisites applies where the
Ombudsman only conducted a preliminary investigation of the
same criminal offense against the respondent public officer. The
dismissal of a case during preliminary investigation does not
constitute double jeopardy, preliminary investigation not being
part of the trial. Hon. Waldo Q. Flores, et al v. Atty. Antonio F.
Montemayor, G.R. No. 170146, June 8, 2011.
WRIT OF HABEAS CORPUS
Then the final items here in your outline would be the privilege of
the writ of habeas corpus. The writ of habeas corpus as we have
discussed under Section 18 of Article 7 is the appropriate remedy
to inquire into all matter of involuntary restraint and to leave such


person therefrom. It is sometimes used as the most efficient and
effective way and expeditious way to leave a person from any
form of involuntary or unlawful restraint. The principle purpose
here is to set the individual to liberty. Some would ask why not
file a petition for writ? The problem is in bail petitions, it is usually
applicable only when the person is based under custody by
reason of a criminal violation. There are instances where a
person is detained and there is no criminal charge and the most
effective way to go(?) there is to file a petition for a writ of habeas
corpus.
This is also used as a post-conviction remedy where the
incarceration or continued incarceration of the petitioner is
supposed to be without any legal basis either because the
accused has already served his full sentence or that the accused
should benefit from any reduction of period of incarceration by
reason of a law which is beneficial to him or the decision of the
SC on the same term of imprisonment which is beneficial to him.
As to the excess, there is no more legal justification for the
continued incarceration of the accused. The accused cannot go
to court, go back to that court which has convicted him because
once the accused starts to serve sentence, everything is finished,
the court is ousted of jurisdiction. The court cannot entertain
anymore anything because that accused has already started
serving sentence, the proceedings is considered to have become
final already. So if he wishes to be relieved from further
incarceration because of the beneficial law or decision of the SC
he must have to file a petition for habeas corpus as a postconviction remedy.
This does not however theres this case here of Fletcher vs.
Director of Bureau, the petitioner here contends that he should
be released from detention because he has already served the
minimum of the indeterminate sentence imposed by law. He said
that his continued incarceration has no legal basis already.
Remember that under the Indeterminate Sentence Law, while an
accused can be released as a parolee, released on parole, there
is yet to be a determination to be made whether indeed you are
eligible for parole. It is not automatic. So that one cannot file a
petition for habeas corpus simply because he has supposedly
serve the minimum sentence under the ISL. There must have to
be a determination by the Parole Board whether that person is
eligible or not eligible for parole.
ATENEO DE DAVAO
COLLEGE OF LAW
H: Petitioner is not entitled to the issuance of the writ.

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

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

courage to pursue them. - Walt Disney
Anyone whose goal is 'something higher' must expect
someday to suffer vertigo. What is vertigo? Fear of
falling? No, Vertigo is something other than fear of
falling. It is the voice of the emptiness below us which
tempts and lures us, it is the desire to fall, against
which, terrified, we defend ourselves.
~Milan Kundera, The Unbearable Lightness of Being
Fletcher vs. Director of Bureau (2009)

F: Petitioner Martin Gibbs Fletcher seeks his release from prison in
this petition for the issuance of the writ of habeas corpus. He
claims that his prison sentence of 12 to 17 years was commuted
by then President Fidel V. Ramos to nine to 12 years. Since he
had already served 14 years, three months and 12 days, including
his good conduct allowance, his continued imprisonment is illegal.
103


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COLLEGE OF LAW
being committed.
MANILA ELECTRIC COMPANY, ALEXANDER S. DEYTO and
RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM
G.R. No. 184769. October 5, 2010
August 31, 2012
Writ of Amparo and Writ of Habeas Data as

distinguished from Writ of Habeas Corpus
IMPORTANT DISTINCTIONS
In Habeas Corpus, the subject of this petition is any form of
involuntary restraint or detention.
In Writ of Amparo, it involves a violation, or a threatened violation
of the right to life, liberty or security.
SC: Respondents plea that she be spared from complying with

MERALCOs Memorandum directing her reassignment to the
Alabang Sector, under the guise of a quest for information or data
allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.
In Habeas Data, it is a violation, or a threatened violation of the

right to privacy, life, liberty or security by those engaged in
gathering and collecting, or storing data or information.
Section 1 of the Rule on the Writ of Habeas Data provides:
The respondent in Habeas Corpus would be any private or public

person, same with Amparo.
In Habeas Data, private or public person but he must have to be
tasked with gathering, collecting, or storing data or information.
In Habeas Corpus, the respondent must show cause to the court
why the person detained must not be released. There must have
to be a legal justification for the continued detention. The
respondent must show to the court the victim designated in the
writ.
With respect to the writ of Amparo, the respondent/respondents
must show what actions or steps were taken to determine the
name or whereabouts of the aggrieved party, the identity of
persons responsible.
While in Habeas Data, the respondents must show what data or
information has been gathered or protected by this court, and
what steps or action were taken to ensure the security or
confidentiality of the data or information.
Now, both the Writ of Amparo and the Writ of Habeas Data, as
discussed in this case of Manila Electric Company versus
Rosario Gopez Lim, 632 SCRA 195 (2010), are both based on a
reaction of the court to so-called extra-legal killing and enforced
disappearances or threats thereof.
This case of Manila Electric Company somehow made the
comparison that both these Writ of Amparo and Habeas Data are
anchored on those basic or two situations contemplated: extralegal killing and enforced disappearances or threats of them
104
By respondents allegation, petitioners unlawful act and omission

consisting of their continued failure and refusal to provide her with
details or information about the alleged report which MERALCO
purportedly received concerning threats to her safety and security
amount to a violation of her right to privacy in life, liberty and
security, correctible by habeas data. Respondent thus prayed for
the issuance of a writ commanding petitioners to file a written
return x x x
Section 1. Habeas Data. The writ of habeas data is a remedy

available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of
a public official or employee or of a private individual or entity
engaged in the gathering, collecting or storing of data or
The habeas data rule, in general, is designed to protect by means
of judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a
forum to enforce ones right to the truth and to informational
privacy, thus safeguarding the constitutional guarantees of a
persons right to life, liberty and security against abuse in this age
of information technology.
It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address
violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing Rules.
Manila Electric Company case does not actually say what are the
matters actually covered, like the Writ of Habeas Data, unlike in
the case of Tapuz vs. del Rosario and this case of Secretary vs.
Manalo (568 SCRA 1), the Supreme Court was able to explain
what the so-called Writ of Amparo should or would lie on.
And by reason of this lack of decision, that lack of discussion as
to what Writ of Habeas Data is, we are left with the definitions as
provided for in Section 1 of the Supreme Court Circular (A.M. No.
08-1-16-SC) on what this would actually cover.
DANIEL MASANGKAY TAPUZ et al. VS. HONORABLE JUDGE
ELMO DEL ROSARIO, et al.
G.R. No. 182484. June 17, 2008


SC: The petition for the issuance of the writ of amparo, on the
other hand, is fatally defective with respect to content and
substance.
under threat of being once again abducted, kept captive or even

killed, which constitute a direct violation of their right to security of
person.
The writ of amparo was originally conceived as a response to the

extraordinary rise in the number of killings and enforced
disappearances, and to the perceived lack of available and
effective remedies to address these extraordinary concerns. It is
intended to address violations of or threats to the rights to life,
liberty or security, as an extraordinary and independent remedy
beyond those available under the prevailing Rules, or as a remedy
supplemental to these Rules. What it is not, is a writ to protect
concerns that are purely property or commercial. Neither is it a writ
that we shall issue on amorphous and uncertain grounds.
Consequently, the Rule on the Writ of Amparo - in line with the
extraordinary character of the writ and the reasonable certainty
that its issuance demands - requires that every petition for the
issuance of the Writ must be supported by justifying allegations of
fact, x x x
In sum, respondents assert that their cause of action consists in

the threat to their right to life and liberty, and a violation of their
right to security.
Petitioners' present recourse via the remedy of the writ of amparo

is a mere subterfuge to negate the assailed orders that the
petitioners sought and failed to nullify before the appellate court
because of the use of an improper remedial measure. We discern
this from the petitioners' misrepresentations pointed out above;
from their obvious act of forum shopping; and from the recourse
itself to the extraordinary remedies of the writs of certiorari and
amparo based on grounds that are far from forthright and
sufficiently compelling. To be sure, when recourses in the ordinary
course of law fail because of deficient legal representation or the
use of improper remedial measures, neither the writ of certiorari
nor that of amparo - extraordinary though they may be - will suffice
to serve as a curative substitute. The writ of amparo, particularly,
should not issue when applied for as a substitute for the appeal or
certiorari process, or when it will inordinately interfere with these
processes - the situation obtaining in the present case.
At the core of this guarantee is the immunity of one's person,

including the extensions of his/her person - houses, papers, and
effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person himself.
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF

STAFF, ARMED FORCES OF THE PHILIPPINES vs. RAYMOND
MANALO and REYNALDO MANALO
G.R. No. 180906. October 07, 2008
(First petition for a writ of amparo filed before Supreme Court. Writ
of Amparo took effect on October 24, 2007.)
Brothers Raymond and Reynaldo Manalo were abducted by
several armed soldiers wearing white shirts, fatigue pants and
army boots. They were detained and tortured for 18 months,
thereafter they escaped.
SC: We now come to the right of the respondents to the privilege
of the writ of amparo. There is no quarrel that the enforced
disappearance of both respondents Raymond and Reynaldo
Manalo has now passed as they have escaped from captivity and
surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not
"free in every sense of the word as their "movements continue to
be restricted for fear that people they have named in their Judicial
Affidavits and testified against (in the case of Raymond) are still at
large and have not been held accountable in any way. These
people are directly connected to the Armed Forces of the
Philippines and are, thus, in a position to threaten respondents'
rights to life, liberty and security. Respondents claim that they are
105
ATENEO DE DAVAO
COLLEGE OF LAW
Let us put this right to security under the lens to determine if it has
indeed been violated as respondents assert. The right to security
or the right to security of person finds a textual hook in Article III,
Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the
judge...
In addition, it was likewise ruled that a petition for a writ of amparo

is confined to instances of extralegal killings and enforced
disappearances or to threats thereof.
In the case of Manalo, the Supreme Court mentioned that the

rights which fall within the protected mantle of the Writ of Amparo
are:
1. right to life;
2. right to liberty;
3. right to security.
Right to Life. What is included in the right to life? It is
mentioned, essentially the right to be alive and the security of,
and a secure quality of life, live not in fear that this person may
be unreasonably violated by a powerful ruler, but a life lived with
the assurance that the Government he established and
consented to will protect the security of this person.
And it goes to tell that it includes therefore the right to be
protected or secure in your whole person and in your limbs and in
your parts of your body there will be nothing that should harm,
much more that will cause your death, because again it is a
reaction against extra-legal killings.
Right to liberty. According to the Supreme Court, citing the
case of City of Manila vs. Honorable Judge Laguio, includes the
right to live and the right to be free from arbitrary restraint or
servitude, not limited to freedom from physical restraint of a
person or citizen, but is deemed to embrace the right to
command and the right to enjoy the liberties in which he has
been endowed by his creator, subject only to such restraint as


may be necessary for common welfare.
detained by them.
Again, in reaction to supposed forced extra-legal disappearances

so one, the Writ of Amparo covers that right to liberty.
It has happened a lot, in a lot of circumstances, that when, say,

for example, PNP personnel or the Armed Forces are made
respondents for a petition for a Writ of Habeas Corpus for an
annullable warrantless arrest, the subsequent detention or
charge, they can easily the defeat the Writ of Habeas Corpus by
reasoning out with the court that they are not in our custody.
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the

City of Manila, HON. JOSELITO L. ATIENZA, in his capacity as
Vice-Mayor of the City of Manila and Presiding Officer of the
City Council, et al. vs. HON. PERFECTO A.S. LAGUIO, JR., as
Presiding Judge, RTC, Manila and MALATE TOURIST
DEVELOPMENT CORPORATION
G.R. No. 118127. April 12, 2005
The issue in this Petition under Rule 45 seeking the reversal of the
Decision of the RTC of Manila is the validity of Ordinance No. 7783
of the City of Manila.
The Ordinance disallows the operation of sauna parlors, massage
parlors, karaoke bars, beerhouses, night clubs, day clubs, super
clubs, discotheques, cabarets, dance halls, motels and inns in the
Ermita-Malate area. In Section 3 thereof, owners and/or operators
of the enumerated establishments are given three (3) months from
the date of approval of the Ordinance within which to wind up
business operations or to transfer to any place outside the ErmitaMalate area or convert said businesses to other kinds of business
allowable within the area. Further, it states in Section 4 that in
cases of subsequent violations of the provisions of the Ordinance,
the premises of the erring establishment shall be closed and
padlocked permanently.
It is readily apparent that the means employed by the Ordinance
for the achievement of its purposes, the governmental interference
itself, infringes on the constitutional guarantees of a persons
fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include the right to exist and the right to be free from
arbitrary restraint or servitude. The term cannot be dwarfed into
mere freedom from physical restraint of the person of the citizen,
but is deemed to embrace the right of man to enjoy the facilities
with which he has been endowed by his Creator, subject only to
such restraint as are necessary for the common welfare. In
accordance with this case, the rights of the citizen to be free to use
his faculties in all lawful ways; to live and work where he will; to
earn his livelihood by any lawful calling; and to pursue any
avocation are all deemed embraced in the concept of liberty.
Right to security. It includes guarantee of bodily and

psychological integrity, freedom from fear, freedom from threat
and the guarantee of protection of ones rights by the
government.
For which reason, the basic distinction between Writ of Habeas
Corpus and the Writ of Amparo is that, while in the Writ of
Habeas Corpus, the respondents who are supposed to have
taken into custody a person can, has detained that person (sic).
For him to defeat the Writ of Habeas Corpus, they can simply
reason with the court that the person supposedly detained is not
106
ATENEO DE DAVAO
COLLEGE OF LAW
In the Writ of Amparo, it goes right beyond that because the right
of security includes a guarantee that the State will protect you.
The Writ of Amparo requires the respondent not simply to show
reason why the writ is defeated or it to be dismissed, but to show
to the courts what steps or actions were taken by the, to
ascertain what happened to this person, what is the fate of this
person supposedly subject of the Writ of Amparo.
It is not enough for them to just to state that these persons are
not in their custody, or they were not responsible for their arrest
but there must have been steps taken by them once the report or
demand be made by those who filed the petition for the persons
who disappeared to show to the court what actions or steps were
taken by them to ascertain the whereabouts and fate.
It goes beyond the usual coverage or command or directive of
Habeas Corpus.
Now, if you relate this to Writ of Habeas Data based on the
Manila Electric Company case, it seems that those are based on
so-called extra-legal killings and enforced disappearances.
But with respect to Habeas Data, it is quite clear that it refers to
the right of privacy over ones right to life, liberty, or security, that
the data stored or data gathered, collected and stored would
somehow affect the right of a persons privacy with respect to his
right of liberty or security.
Now what exactly is that?
In real terms or common experience, the enforced
disappearances or extra-legal killings has somehow been the
result of actions of State agents by or over those persons who
are supposedly believed to be enemies of the State.
And the reason why these persons are considered enemies of
the State, so to speak, is because the Government has collected
information or data against them through prolonged surveillance.
And normally this will result into the, what is commonly known as
dossier, where there is a recording of data or information of this
particular person that this person is considered the enemy of the
State and thereafter, that person could disappear and eventually
some would turn up dead and some would turn up, would turn


out not to be found at all.
Now if you relate this to the Writ of Habeas Data based on the
Manila Electric Company case, it seems that both are based on
the so called extra-legal killings and enforced disappearances.
But with respect to Habeas Data, it is quite clear that it refers to
the right of privacy over ones right to life, liberty or security.
That the data gathered, collected and stored would somehow
affect the right of a persons privacy with respect to his right
to liberty and security. Now what exactly is that?
In real terms or common experience, the enforced
disappearances and extra-legal killings, have somehow been the
result of actions of state agents over those persons who are
supposed to be or believed as enemies of the state. And the
reason why these persons are considered as enemies of the
state, so to speak, is because the government has collected
information or data against them through prolonged surveillance.
And normally this would result into what is commonly known as
dossier where there is a recording of data or information on this
particular person that this person is considered an enemy of the
state and thereafter that person would disappear and eventually,
some would turn up dead, some would turn up, well not to be
found at all.
Just like yesterday, there was this supposed suspect in the killing
of that gym instructor. And supposedly that suspect fought it out
with the police, that is why he died. Common sense would dictate
that that is not easily acceptable, if you only knew where that
killing happened. It was in that Panganiban St. if youre familiar
with that. Its that small alley, its a road actually, perpendicular to
both Torres and Mapa, where only one vehicle can pass at a time
or if two, they must have to be very careful so that their sidemirrors would not hit each other. And with the number of polices
officers which supposedly had to shoot down, its a house or a
shanty actually, would you expect that the suspect would fight it
out with the police officers?
So this is part of, perhaps, with by reason of the practices of
these state agents and where information is gathered, stored and
collected and thereafter stored on some individuals which will
meet the definition of the state, that you have a right, this is the
ruling
in
the
case
of
Manila
Electric Company, the Supreme Court said this is the sign to
protect by means of judicial complaint, the image, privacy, honor,
information and freedom of information of an individual. It is
meant to provide a forum to enforce ones right to the truth and to
informational privacy.
Thus safeguarding the constitutional guarantee of a persons
right to life, regarding liberty and security against abuse in this
age of information or technology.
107
ATENEO DE DAVAO
COLLEGE OF LAW
In the Writ of Habeas Data Rule, if a complaint is filed, and the

court finds the petition to be sufficient and duly proven in the
course of time, the court can direct these persons who are
responsible for collecting, storing and gathering and storing these
data to:
1.
2.
Erase the data if it is not correct, or to

Correct it if it is not accurate.
The court can do that. But who are the persons tasked with
gathering, collecting or storing data? Nobody would admit that.
We have filed a case here, involving some lawyers who were
supposed to have been in the list of, in the order of battle(?) of
the military. The problem is nobody would admit that there is
such a order of battle.The military officers simply argued before
the court, No we dont have any recording. Do you store or
gather data, No we dont. So what is there to erase or what is
there to correct? So that petition was dismissed. We filed a
review by certiorari to the Supreme Court. It still has to be acted
on. The practice may be known but the practice is not part of the
standard operating procedure. This is like your spy; no one would
actually admit they have done it.
I dont know if you are familiar with Republic Act 9595 the Antiphoto and Voyeurism Act of 2009. This republic act penalizes
the act of taking a photograph or video recording of, well the
law says, naked body, female breasts, private parts, private area,
(Sir M: I dont know what that is.) and the violation of ones
right to privacy or expectation, reasonable expectation to
privacy. So that probably means that if you were in a room and
you were doing a private act, whatever that private act is, and
you take the photograph or a video of your partner without his or
her consent, that would be punishable under this law. And the
subsequent copying and distribution of these would also be
punishable. Now I raise the matter because, if you were the
object of that sex photograph or sex video scandal can you file
a petition to the court for a Writ of Habeas Data? That your
partner, a private person, has collected gathered and stored
information against you which would violate your right to privacy
of life, because your limbs were shown, or perhaps of security.
Can you do that?
This Manila Electric Company case involves an employee who
has supposed to have been subject of a transfer order because
of a complaint. He filed a petition for a Writ of Habeas Data,
wanting to get a copy of that complaint. The Manila Electric
Company refused him. And so this case reached the court
because the court granted it. The Supreme Court said that just
like the Writ of Amparo, this covers what is supposed to be within
the ambit of right to life, right to liberty and right to security. It
does not include purely, or those which involve property rights or
those filed for commercial, amorphous or uncertain grounds.


ATENEO DE DAVAO
COLLEGE OF LAW
Since employment is a property right, the Wirt of Habeas Data is

not applicable when it pertains to the employee. The data
collected, gathered and stored must have to be in relation to your
right to privacy in life, liberty and security.
MANILA
ELECTRIC COMPANY, ALEXANDER S. DEYTO
and RUBEN A. SAPITULA vs. ROSARIO GOPEZ LIM, (G.R. No.
184769, October 5, 2010)
ISSUE: May an employee invoke the remedies available under
such writ where an employer decides to transfer her workplace on
the basis of copies of an anonymous letter posted therein
imputing to her disloyalty to the company and calling for her to
leave, which imputation it investigated but fails to inform her of the
details thereof?
HELD: No. Respondents plea that she be spared from complying
with MERALCOs Memorandum directing her reassignment to the
Alabang Sector, under the guise of a quest for information or data
allegedly in possession of petitioners, does not fall within the
province of a writ of habeas data.
Section 1 of the Rule on the Writ of Habeas Data provides:
Section 1. Habeas Data. The writ of habeas data is a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of
a public official or employee or of a private individual or entity
engaged in the gathering, collecting or storing of data or
The habeas data rule, in general, is designed to protect by means
of judicial complaint the image, privacy, honor, information, and
freedom of information of an individual. It is meant to provide a
forum to enforce ones right to the truth and to informational
privacy, thus safeguarding the constitutional guarantees of a
persons right to life, liberty and security against abuse in this age
of information technology.
Nalaman kong hindi pala exam na may

passing rate ang buhay. Hindi ito multiple
choice, identification, true or false, enumeration,
o fill-in-the-blanks na sinasagutan, kundi essay
na isinusulat araw-araw. Huhusgahan ito hindi
base sa kung tama o mali ang sagot, kundi base
sa kung may kabuluhan ang mga naisulat o
wala. Allowed ang erasures.
Bob Ong, ABNKKBSNPLAKo?!
It bears reiteration that like the writ of amparo, habeas data was
conceived as a response, given the lack of effective and available
remedies, to address the extraordinary rise in the number of
killings and enforced disappearances. Its intent is to address
violations of or threats to the rights to life, liberty or security as a
remedy independently from those provided under prevailing Rules.
Castillo v. Cruzunderscores the emphasis laid down in Tapuz v.
del Rosario that the writs of amparo and habeas data will NOT
issue to protect purely property or commercial concerns nor when
the grounds invoked in support of the petitions therefor are vague
or doubtful.[16] Employment constitutes a property right under the
context of the due process clause of the Constitution.
That should end our discussion.
CALIZO, RUBY
LINOG, HANNAH
108


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CONSTITUTIONAL LAW REVIEW

THE MONTEJO LECTURES

Lawful Subject viz Lawful Means

FACTS: Article XIII on Social Justice and Human Rights includes a

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these two classes of owners that is clearly visible except to those

Now eminent domain as understood is the highest and most

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compensation. In the end, that would be for the court to decide

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(3) charitable institutions, churches, and parsonages or

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

principle and policy (not self-executing);

ISSUE: Whether or not RB should be admitted as the highest

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There are several provisions in the Constitution which may refer

personally by the judge after examination under

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The study of law can be disappointing at times, a

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DUE PROCESS IN GENERAL

PROCEDURAL AND SUBSTANTIVE DUE PROCESS

habeas corpus, speedy disposition of cases, use of inadequate

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

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Also in the case of Southern vs. Anti-Terrorism, 632 SCRA

does not involve speech and any of those fundamental rights,

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Thus, the U.S. Supreme Court in Jacksonville declared the

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Meanwhile, IBP and CODAL base their claim of locus

ii. The over breadth doctrine decrees that a

This rationale does not apply to penal statutes. Criminal

A statute or acts suffers from the defect

Offender commits an act punishable under

b. Petitioners contend that the element of unlawful