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Memory Aid
Kelvin Jaluag Culajara
Section 1. No person shall be deprived of life, liberty or property without due process of law, nor shall
any person be denied the equal protection of the laws.
Notes:
Only political subdivisions, like cities and municipalities, may exercise police power. Hence,
MMDA which is a metropolitan development authority, has no power to execute the same.
Franchises are subject to police power and regulation.
Protected rights
8. What rights are protected by the Bill of Rights?
The right to life, liberty, and property.
Note: generally, privileges are withdrawable if the public interest requires its withdrawal.
However, it has been enjoyed for so long, has been the subject of substantial investment, and
has become the source of employment for thousands, then it may evolve into some form of
property right.
11. Do life and property enjoy identical protection from the Constitution?
No. The primacy of human rights over property rights is recognized.
12. How does the state manifest the primacy of human rights over property rights?
The fact that a mere reasonable or rational relation between the means employed by the
law and its object or purpose – that the law is neither arbitrary nor discriminatory nor
oppressive – would suffice to validate a law which restricts or impairs property rights. On
the other hand, a constitutional or valid infringement of human rights requires a more
stringent criterion, namely existence of a grave and immediate danger of a substantive evil
which the State has the right to prevent.
Due process
14. What are the essential requirements of procedural due process in courts in non-criminal cases?
There must be a court or tribunal clothed with judicial power to hear and determine the
matter before it;
Jurisdiction must be lawfully acquired over the person of the defendant or over the property
which is the subject of the proceedings;
The defendant must be given an opportunity to be heard;
Judgment must be rendered upon lawful hearing.
15. When is a law considered “so vague” as not to satisfy the due process need for notice?
It is considered so vague when men it lacks comprehensible standards that men of common
intelligence must guess as to its meaning and differ as to its application.
It is repugnant to the Constitution in two (2) respects:
o It violates due process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and
o It leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.
16. What are the requisites of procedural due process before administrative agencies?
The right to actual or constructive notice of the institution of proceedings which may affect
a respondent’s legal rights;
A real opportunity to be heard personally or with the assistance of counsel, to present
witnesses and evidence in one’s favor, and to defend one’s rights;
A tribunal vested with competent jurisdiction and so constituted as to afford a person
charged administratively a reasonable guarantee of honesty as well as impartiality; and
A finding by said tribunal which is supported by substantial evidence submitted for
consideration during the hearing or contained the records of made known to the parties
affected.
Note: A publication for the effectivity of laws is a requirement of due process. Moreover, a
respondent in an administrative case is not entitled to be informed of the findings and
recommendations of an investigating committee created to inquire into the charges filed. He
is only entitled to the administrative decision based on substantial evidence made of record,
and a reasonable opportunity to meet the charges and the evidence presented against him
during the hearing of the investigation committee.
19. When do laws interfere with life, liberty, or property satisfy substantive due process?
It must appear:
o That the interests of the public generally, as distinguished from those of a particular
class, require such interference; and
o That the means are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.
Equal protection
Section 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
Probable cause
Note:
o Probable cause for issuance of warrant of arrest – such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that an
offense has been committed by the person sought to be arrested.
o Probable cause for issuance of search warrant – such facts and circumstances
which would lead a reasonably 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.
Note: A Commissioner on Immigration may order the arrest of an alien for the purpose of
carrying out a deportation order that has already become final. However, since he is not a
judge, he may not issue warrants of arrest in aid merely of his investigatory power.
Personal examination
28. What is the meaning of “personally” in the search and seizure clause?
It is the exclusive and personal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. He is not required to personally examine the complainant and
his witnesses. He may, therefore, rely on the fiscal’s report or on the supporting affidavits of
witnesses to determine the existence of probable cause. Hence, what it contemplates is
personal determination and not personal examination.
29. What are the procedures the judge may follow to determine probable cause?
The judge must examine the complainant and his witnesses under oath or affirmation. This
has been interpreted as requiring a personal and not merely delegated examination by the
judge or by the proper officer, because the purpose of the examination is to convince the
judge or officer himself and not any other individual. Note: in this case, the examining
judge has to take depositions in writing of the complainant and the witnesses he may
produce and to attach them on record. This is necessary in order that the judge may be
able to properly determine the existence or non-existence of the probable cause, to hold
liable for perjury the person giving it if it will be found later that his declarations are false.
Personally evaluate the report and supporting documents submitted by the prosecutor
regarding the existence of probable cause, and on the basis thereof, he may already make a
personal determination of the existence of probable cause;
If the judge is not satisfied that probable cause exists, he may disregard the prosecutor’s
report and require the submission of supporting affidavits of witnesses to aid him in arriving
at a conclusion as to the existence of probable cause.
Particularity of description
31. May bank deposits be freely examined (based on R.A. No. 1405 Secrecy of Bank Deposits Law)
Generally, no, unless under any of the following circumstances:
o Where the depositor consents in writing;
o In impeachment cases;
o By court order in bribery or dereliction of duty cases against public officials;
o Deposit is subject of litigation.
32. What is the ruling on the constitutionality of RA No. 9165 (Comprehensive Dangerous Drugs Act
of 2002) which required mandatory drug testing?
As to candidates for national public office – it is unconstitutional because it adds
qualifications for such offices prescribed by the Constitution;
As to students – it is constitutional under the following reasonings:
o Schools and administrators stand in loco parentis with respect to their students;
o Minor students have contextually fewer rights than an adult, and are subject to
custody and supervision of their parents, guardians, and schools;
o Schools, acting in loco parentis, have a duty to safeguard the health and well-being
of their students and may adopt measures to discharge such duty; and
o Schools have the right to impose conditions on applicants for admission that are
fair, just, and non-discriminatory.
As to employees – constitutional.
As to candidates for local office – it was deemed unreasonable and oppressive to privacy.
As to those charged before the prosecutor’s office – unconstitutional.
33. What is the consequence of a search or seizure without a warrant or by authority of an invalid
warrant (exclusionary rule)?
Any evidence obtained shall be inadmissible. Note: the defense of unreasonable search or
seizure is a personal defense and cannot be availed of by third parties.
Note: it is not enough that there is reasonable ground to believe that the person to be
arrested has committed a crime. A crime must in fact or actually have been committed first.
Any objection involving a warrant of arrest must be made before he enters his plea, otherwise
his objection is deemed waived.
Section 3. (1) The privacy of communication and correspondence shall be inviolable, except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
37. What forms of correspondence and communication are covered by this provision?
It covers letters, messages, telephone calls, telegrams, and the like.
38. When is intrusion into the privacy of communication and correspondence allowed?
Upon lawful order of the court, or when public safety or order requires otherwise as
prescribed by law.
41. What are the requisites when intrusion is made without judicial order?
When public safety or order requires so as prescribed by law.
Note: An application for bail or the admission to bail by an accused is not considered a waiver
of his right to assail the warrant issued for his arrest or the legalities or irregularities thereof.
45. Discuss the main points of the Cybercrime Law (R.A. 10175).
The State recognizes the vital role of information and communications industries such as
content production, telecommunications, broadcasting electronic commerce, and data
processing, in the nation’s overall social and economic development.
The State also recognizes the importance of providing an environment conducive to the
development, acceleration, and rational application and exploitation of information and
communications technology to attain free, easy, and intelligible access to exchange and/or
delivery of information;
The State also recognizes the need to protect and safeguard the integrity of computer,
computer and communications systems, networks, and databases, and the confidentiality,
integrity, and availability of information and data stored therein, from all forms of misuse,
abuse, and illegal access by making punishable under the law such conduct or conducts.
In this light, the State shall adopt sufficient powers to effectively prevent and combat such
offenses by facilitating their detection, investigation, and prosecution at both the domestic
and international levels, and by providing arrangements for fast and reliable international
cooperation.
46. What are the factors to determine violation of the right to privacy?
A court must determine whether a person has exhibited a reasonable expectation of
privacy; and if so
Whether that expectation has been violated by unreasonable government intrusion.
Section 4. No law shall be passed abridging the freedom of speech, of expression, of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances.
No prior restraint
50. What are the different types of considerations in regulation contemplated in Section 4?
Content-based regulation – the restraint is aimed at the message or idea of the expression.
Apply the Strict Scrutiny Test and the challenged act must overcome the clear and present
danger rule.
Content-neutral regulation – restraint is aimed to regulate the time, place or manner of the
expression in public place without any restraint on the content of the expression. Apply the
Intermediate Approach Test wherein a regulation is justified if it is within the constitutional
power of government, furthers an important or substantial government interest,
government interest is unrelated to the suppression of free expression, and the incident
restriction on the alleged freedom of speech and expression is no greater than is essential to
the furtherance of that interest. Here, it only requires substantial government interest for
validity.
Facial challenge concept – it is an exception to the rule that only persons who are directly
affected by a statute have legal standing to assail the same. This is only applicable to
statutes involving free speech, impeached on the grounds of overbreadth or vagueness.
Here, the litigants are permitted to challenge a statute not because their own rights of free
expression are violated, but because of a judicial prediction or assumption that the statute’s
very existence may cause others not before the court to refrain from constitutionally
protected speech or expression.
Note: Imbong vs. Ochoa: While this Court has withheld the application of facial challenges
to strictly penal statutes, it has expanded its scope to cover statutes not only regulating free
speech, but also those involving religious freedom, and other fundamental rights. The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to
settle actual controversies involving rights which are legally demandable and enforceable,
but also to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.
Note: The Overbreadth Doctrine is a ground to declare a statute void when it offends the
constitutional principle that a government 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.
51. Since movie censorship is a form of prior restraint, how can it escape unconstitutionality
according to Freedman vs. Maryland?
It avoids constitutional infirmity only if it takes place under procedural safeguards:
o First, the burden of proving that the film is unprotected expression must rest on the
censor;
o Second, only a procedure requiring judicial determination suffices to impose a valid
final restraint;
o Third, the procedure must also assure a prompt judicial decision to minimize the
effect of an interim and possibly erroneous denial of a license.
Note: We do not entirely adopt the ruling in Freedman vs. Maryland because prior restraint and
censorship are not ruled entirely by the Court. The MTRCB, an administrative body, was granted
quasi-judicial power to preview and classify TV programs and enforce its decision subject to
review by our Courts. Hence, the second procedure in Freedman does not apply to us.
53. What are the tests for valid government interference to freedom of expression?
Clear and present danger test – the words must be of such a nature that by uttering them
there is a danger of a public uprising and that such danger should be both clear and
imminent. The danger sought to be apprehended must be clear and imminent, something
that the State has the right to prevent, and would probably result to the injury of the State.
Dangerous tendency test – if the words tend to create a danger of public uprising.
Balancing of interest test – the Courts should balance the public interest served by
legislation on one hand and the freedom of speech (or any other constitutional right) on the
other. The Courts will then decide where the greater weight should be placed.
54. What are some forms of state regulation of different types of media?
Broadcast and radio media – it must first procure a legislative franchise to operate, and it
must register and be subject to regulations set by the National Telecommunications
Commission (NTC);
Print media
55. What are some forms of valid prior restraint (or unprotected speech)?
Movies, television, and radio broadcast censorship in view of its access to numerous people;
Pornography
False or misleading commercial statement
Advocacy of imminent lawless action
Danger to national security
Commercial speech
57. In order for government to curtail commercial speech, what must be shown?
That the government has substantial interest to protect
The regulation directly advances that interest
It is not more extensive than is necessary to protect that speech
Note: To enjoy protection, commercial speech must not be false or misleading and should not
propose and illegal transaction.
Subsequent punishment
58. What is the second basic prohibition of the free speech and press clause?
It also prohibits systems of subsequent punishment which have the effect of unduly
curtailing expression.
59. What are the standards for allowable subsequent punishment of expression?
Clear and present danger test – the words must be of such a nature that by uttering them
there is a danger of a public uprising and that such danger should be both clear and
imminent. The danger sought to be apprehended must be clear and imminent, something
that the State has the right to prevent, and would probably result to the injury of the State.
Dangerous tendency test – if the words tend to create a danger of public uprising.
Balancing of interest test – the Courts should balance the public interest served by
legislation on one hand and the freedom of speech (or any other constitutional right) on the
other. The Courts will then decide where the greater weight should be placed.
Symbolic speech
Libel
63. State the rule on privileged communication in Article 354 in the Revised Penal Code
Every defamatory imputation is presumed to be malicious, even if it be true if no good
intention and justifiable motive for making it is shown, except in the following cases:
o A private communication made by any person to another in the performance of any
legal, moral, or social duty; and
o A fair and true report, made in good faith, without any comments or remarks, of any
juridical, legislative, or other official proceedings which are not of confidential
nature, or of any statement, report, or speech delivered in said proceedings, or of
any other act performed by public officers in the exercise of their functions.
68. What is the extent of authority of the state to regulate public assemblies?
The State has reasonable discretion to determine or specify the streets or public places to
be used for the assembly in order to secure convenient use thereof by others and provide
adequate and proper policing to minimize the risks of disorder and maintain public safety
and order.
To justify limitations on freedom of assembly, there must be proof of sufficient weight to
satisfy the “clear and present danger” test.
Demonstrations are not allowed in the vicinity of courts, specifically within a radius of 200
meters from, the outer boundary of the Supreme Court Building and any Hall of Justice, and
any other building that houses at least one (1) court sala.
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.
71. What are the other constitutional provisions relating to the non-establishment clause?
No public money or property shall be appropriated, applied, paid or employed, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher, minister, or other religious
teacher or dignitary as such, except when such priest, preacher minister, or dignitary is
assigned to the Armed Forces, or to any penal institution, or government orphanage or
leprosarium. Article VI, Section 29.
The separation of Church and State shall be inviolable. Article II, Section 6.
Religious denominations and sects shall not be registered. Article IX, Section 2 (5).
Non-establishment of religion
74. When can the State be allowed to provide aid which might redound to the benefit of religion?
The government aid must have a secular legislative purpose;
It must have a primary effect that neither advances nor inhibits religion;
It must not require excessive entanglement with recipient institutions.
79. What are the tests for valid government regulation on religious freedom?
Clear and present danger test – when words are used in such circumstance and of such
nature as to create a clear and present danger that will bring about the substantive evil that
the State has a right to prevent.
Compelling state interest test – when a law of general application infringes religious
exercise, albeit incidentally, the state interest sought to be promoted must be so paramount
and compelling as to override the free exercise claim. Note: This has a three step test: (1)
Has the statute or government action created a burden on the free exercise of religion? (2)
Is there a sufficiently compelling state interest to justify this infringement of religious
liberty? (3) Has the state in achieving its legitimate purposes 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?
Conscientious objector test – persons who are conscientiously opposed to participation in
war in any form by reason of religious training and belief may be exempted from the combat
training and service in the armed forces. Religious training and belief means an individual’s
belief in relation to a Supreme Being involving duties superior to those arising from any
human relation, but does not include essentially political, sociological, or philosophical views
or merely personal code.
Section 6. The liberty of abode or of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by law.
Notes:
Human Security Act, Section 26: In cases where evidence of guilt is not strong, and the person charged
with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same,
the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the
municipality or city where he resides or where the case is pending, in the interest of national security
and public safety. Travel outside said municipality or city without the authorization of the court, shall be
deemed a violation of the terms and conditions of his bail, which shall then be forfeited under the Rules
of Court.
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.
85. What are some of the recognized limitations to the exercise of the right to information and state
policy of public disclosure?
National security matters
Trade secrets and banking transactions
Criminal matters or classified law enforcement matters
Diplomatic correspondence
Closed door cabinet meetings
Executive sessions of either Houses of Congress
Internal deliberations of the Supreme Court
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.
Section 9. Private property shall not be taken for public use without just compensation
Taking
Note: Franchises are subject to police power, and the mandatory regulation by the government
is not a form of taking but a form of police power regulation.
Note: There is no compensable taking when the thing seized or taken is injurious private
property.
Public use
Just compensation
Judicial review
93. Is the exercise of the powers of eminent domain subject to judicial review?
Yes, under the following issues:
o The adequacy of the compensation
o The necessity of the taking
o The public use character of the purpose of the taking
94. What are the essential requisites for a local government unit to validly exercise eminent
domain?
An ordinance must authorize it. Thus, a local government may not expropriate on the
strength of a sanggunian resolution alone.
95. What are the other limitations on the eminent domain powers of local governments?
There are mandatory limits with respect to (1) the order of priority in acquiring land for
socialized housing, and (2) the resort to expropriation proceedings as a means to acquiring
it.
Private lands rank last in the order of priority for purposes of socialized housing.
Expropriation proceedings may be resorted to only after the other modes of acquisition are
exhausted.
Note: Franchises are public contracts and protected by Section 10. However they are subject to
the modifications by the State in its valid exercise of police power. Licenses, on the other hand,
are not contracts but are mere privileges to which the constitutional proscription against
impairment of the obligation of contracts may not extend. Licenses are always revocable by the
State, and they do not constitute any form of property to the grantee.
Section 11. Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty.
Notes:
Free access to the courts shall not be denied to any person by reason of poverty. This
constitutional provision is the basis for the provision of Section 17, Rule 5 of the New Rules
of Court allowing litigation in forma pauperis. Those protected include low paid employees,
domestic servants, and laborers. They need not to be persons so poor that they must be
supported at public expense. It suffices that plaintiff is indigent.
The difference between paupers and indigent persons is that the latter are ‘persons who
have no property or sources of income sufficient for their support aside from their own
labor though self-supporting when able to work and in employment”.
An indigent party is one who is authorized by the court to prosecute his action or defense as
an indigent upon an ex parte application and hearing showing that he has no money or
property sufficient and available for food, shelter and basic necessities for himself and his
family.
Legal provisions on free access
(2) No torture, force, violence, threat, intimidation or any other means which vitiates the free will
shall be used against him. Secret detention places, solitary, incommunicado, or other similar
forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.
98. What is the reason for making the rule applicable to investigations?
It is but recognition of the fact that the psychological, if not physical atmosphere of
custodial investigations, in the absence of proper safeguards, is inherently coercive.
The right to counsel is intended to preclude the slightest coercion as would lead the accused
to admit something false. The lawyer, however, should never prevent an accused from
freely and voluntarily telling the truth.
This constitutional right extends only to testimonial compulsion and not when the body of
the accused is proposed to be examined. Hence, an accused cannot assail violation of his
rights when he was subjected to paraffin test without the presence of his lawyer.
99. When did these guarantees in favor of a person under investigation take effect?
It took effect upon the effectivity of the 1973 Constitution on January 17, 1973. The
Supreme Court ruled that the provision has no retroactive effect.
Note: The rights above are not available before police investigators become involved. Thus, the
protection is not available to:
Persons undergoing audit because an audit examiner is not a law enforcement officer.
Navallo vs. Sandiganbayan, 234 SCRA 175 (1994)
Where a person, not being under investigation, presents himself to the police and in the
process makes his admissions, People vs. Tayaran, 108 SCRA 373, 378-9 (1981)
Note: The statement of a person who verbally, spontaneously and accidentally admitted his
guilt and pointed out the mastermind of the robbery is admissible in evidence. The
constitutional procedures on custodial investigations do not apply to a spontaneous statement,
not elicited through questioning by the authorities, but given in an ordinary manner whereby
the accused orally admitted having committed the crime.
Note: The right of the person under investigation to be “informed” implies a correlative obligation on
the part of the police officer to explain, and contemplates an effective communication that results in
understanding what is conveyed. There is denial of the right if the person/accused has not been truly
informed of his rights.
104. When is a lawyer provided by the investigators deemed engaged by the accused?
When the accused never raised any objection against the lawyer’s appointment during the
course of the investigation and the accused thereafter subscribes to the veracity of his
statement before the swearing officer.
105. What does the phrase “preferably of his own choice” mean?
That while the police investigators may choose a lawyer in cases where the person under
custodial interrogation cannot afford the services of the counsel, or where the preferred
lawyer is not available, the person may reject the counsel chosen for him and ask for
another one.
108. What are the fundamental requisites for an extrajudicial confession to be admissible in
evidence?
The confession must be voluntary;
The confession must be made with the assistance of competent and independent counsel;
The confession must be express;
The confession must be in writing;
The confession must be signed, or if the confessant does not know how to read and write,
thumbmarked by him.
Note: A confession not compliant with the said requisites are inadmissible as evidence.
Note: The protection afforded by Section 12 does not apply to processes or phases outside the
above-mentioned processes.