FRATERNAL ORDER OF UTOPIA
ATENEO DE MANILA UNIVERSITY
SCHOOL OF LAW
ARTICLE III
BILL OF RIGHTS
Bill of Rights
• It is a formal declaration or enumeration of the fundamental
rights secured and guaranteed by the Constitution to the
individuals.
• It is a set of proscriptions setting forth the fundamental civil
and political rights of the individual, and imposing limitations
on those powers of government as a means of securing
the enjoyment of those rights.
Civil Rights
o Those rights that belong to every citizen of the state
or country, or in a wider sense to all its inhabitants,
and are not connected with the administration or
administration of government. They include rights to
property, marriage, equal protection of the laws,
freedom of contract etc. They are rights appertaining
to a person by virtue of his citizenship in a state or
community.
o Such term may also refer, in its general sense, to
rights capable of being enforced or redressed in a
civil action.
Political Rights
o They refer to the right to participate, directly or
indirectly, in the establishment or administration of
government, e.g., the right of suffrage, the right to
hold public office, the right to petition and, the general
rights appurtenant to citizenship vis-à-vis the
management of the government. (Simon v. CHR)
• The Bill of Rights is designed to preserve the ideals of
liberty, equality and security “against the assault of
opportunism, the expediency of the passing hour, the erosion
of small encroachments, and the scorn and derision of those
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who have no patience with general principles.” (quoted in
Philippine Blooming Mills EO v. PBM)
• Nature: Its nature is to protect individuals from arbitrary
exercise of governmental powers.
• Self-executing. Generally, any governmental action in
violation of the Bill of Rights is void. These provisions are
generally self-executing.
• Note: In Republic v. Sandiganbayan (2003), the SC held that
the Bill of Rights under the 1973 Constitution was not
operative from the actual and effective take-over of power by
the revolutionary government following the EDSA revolution
until the adoption on March 24, 1986, of the Provisional
(Freedom) Constitution. During this period, the directives and
orders of the revolutionary government were the supreme
law, because no constitution limited the extent and scope of
such directives and orders. Thus during the interregnum, a
person could not invoke any exclusionary right under the Bill
of Rights, because there was neither a constitution nor a Bill
of Rights at the time. However, the protection accorded to
individuals under the ICCPR and the UDHR remained in
effect during the interregnum.
Three great powers
(1) Police Power
(2) Power of eminent domain
(3) Power of taxation
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Police power • Definition: The right of the state to acquire property for
public use upon payment of just compensation.
• Definition: Police power is the power vested in legislature by
the constitution to make, ordain, and establish all manner of • Exercise of the power: Lodged primarily in the national
wholesome and reasonable laws, statutes, and ordinances, legislature, but its exercise may validly be delegated to other
either with penalties or without, not repugnant to the governmental entities. (Cruz)
constitution, as they shall judge to be for the good and
welfare of the commonwealth, and of the subjects of the Taxation
same. (CJ Shaw)
• Scope: Police power rests upon public necessity and upon • Definition: Taxation refers to the inherent power of the state
the right of the State and of the public to self-protection. For to demand enforced contributions for public purposes.
this reason, its scope expands and contracts with changing
needs. (See US v. Toribio, Green Book at 102)
• Scope: Taxation is so pervasive that it reaches even the
citizen is abroad and his income earned from source outside
• Characteristics: Police power has been characterized as the State.
“the most essential, insistent and the least limitable powers,
extending as it does to all great public needs.”Police power is
considered the most pervasive, the least limitable, and the
• Exercise of the power: Primarily vested in the national
legislature, it may now also be exercised by the local
most demanding of the three powers. It is dynamic. It may
legislative bodies in pursuant to a direct authority conferred
also use the taxing power as an implement for the attainment
by Article X, Section 51 of the Constitution. (Cruz)
of a legitimate police objective. (Cruz)

• Exercise of police power: It is lodged primarily in the

national legislature.

• Tests of police power (Cruz)

o Lawful subject- the activity of property sought to be
regulated affects public welfare
o Lawful means-The means should be reasonably
necessary and not unduly oppressive upon
individuals.
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Eminent domain “Each local government unit shall have the power to create its own sources
of revenue and to levy taxes, fees and charges, subject to such guidelines
and limitations as the Congress may provide, consistent with the basic
policy of local autonomy.”

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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.
Section 1
Due Process of Law Equal Protection of Law
Person
• The due process clause protects all persons, natural as well
as artificial. Natural persons include both citizens and the
alien. (Cruz)
• Artificial persons like corporations and partnerships are also
covered by the protection but only insofar as their property is
concerned. (Cruz citing Smith Bell & Co. v. Natividad) The
reason for the narrower scope is that the life and liberty of
artificial person, as a creature of law are derived from and
therefore subject to control of the legislature. (Cruz)
Deprivation
• To deprive is to take away forcibly, to prevent from
possessing, enjoying or using something. (Cruz citing
Webster New World Dictionary)
• As applied to due process, deprivation connotes denial of the
right to life, liberty or property. (Cruz)
Life
• Life as understood under the due process clause connotes in
the first place the integrity of the physical person. The
meaning is that it is not permissible for the government to
deprive the individual of any part of his body, and this is true
even if it be as punishment for crime. (Cruz)
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• Right to life is not just a protection of the right to be alive or
to the security of one’s limb against physical harm. The right
to life is the right to a good life. It is concerned with the quality
of living- a life of dignity and decent standards of living.
(Bernas)
• Q: Do the unborn have a constitutional right to life? A: “The
State …shall equally protect the life of the mother and the life
of the unborn from conception.” (Article II Section 12) See
Article 402 of the Family Code.
Liberty
• Liberty is the freedom to do right and never wrong. (Mabini)
• Liberty includes “the right to exist and the right to be free
from arbitrary personal restraint or servitude. xxx It includes
the right of the citizen to be free to use his faculties in all
lawful ways. (Rubi v. Provincial Board of Mindoro)
• Subject to only reasonable restrictions of the law, a person is
free to do as he pleases. (Cruz)
• According to Justice Laurel, the chief elements of the
guaranty are the right to labor, the right to contract, the right
to choose one’s employment, and the right of locomotion.
(Cruz quoting Rubi v. Prov.of Mindoro)
• Scope: Physical, spiritual, and intellectual. It includes the
right to exist and to be free from arbitrary personal restraint or
service. Freedom to enjoy his faculties to the restraints of
common welfare.
• Strictly speaking, the right to association is already
comprehended in due process, particularly as it protects the
person’s liberty.
• Note: People do not have the right to bear arms. Only those
authorized by law may bear arms. Even the provision in the
American Constitution has reference only to a collective right
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Birth determines personality; but the conceived child shall be considered
born for all purposes that are favorable to it, provided, it be born later with
the conditions specified in the following article.
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of militia to bear arms. No similar provision is found in our
Constitution. (Chavez. V. Executive Secretary)
Property
• Property is anything that can come under the right of
ownership and be subject of contract. Protected property
includes all kinds of property found in the Civil Code. It has
been deemed to include vested rights. It also include the
right to work and the right to earn a living. (Cruz, Bernas)
• It represents more than the things a person owns; it includes
the right to secure, use and dispose of them. (Torraco v.
Thompson)
Protected Property
• Profession is a property right. (Pilotage as a profession is a
property right) (Corona v. UHPAP)
• The right to labor is property within the constitutional
guarantee of due process (Batangas-Tayabas Bus Co. v. CA)
Absence of Protected Property
• Membership in the sangguiniang kabataan is not a property
right protected by the Constitution, because it is a mere
statutory right. (Montesclaros v. COMELEC)
• Public office is not property, but one lawfully ousted from it
may institute an action to recover the same, flowing from the
de jure officer’s right to office (Nunez v. Averia) Indeed while
the Court has recognized that while public office is not
property to which one may acquire as vested right, it is
nevertheless a protected right (Bince v. Comelec) One’s
employment, profession or trade or calling is a property right,
and the wrongful interference therewith is an actionable
wrong. Thus, an order of suspension, without opportunity for
hearing, violates property rights. (Crespo v. Provincial Board)
• A preventive suspension for an unreasonable length of time
violates due process. (Deloso v. Sandiganbayan)
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• Mere privileges, such as the license to operate a cockpit, are
not property rights and are revocable at will (Pedro v.
Provincial Board of Rizal) (I think this should not be taken as
an absolute statement)
• Regulation. Property’s proper regulation has been upheld
as a legitimate subject of the police power of the State,
particularly when its conduct affects eithere the execution of
legitimate governmental functions, the preservation of the
State, the public health and welfare and public morals (JMM
Promotion and Management v. CA)
Absence of Violation
• Section 56 of the Indigenous Peoples Rights Act provides
that property rights within ancestral domain already existing
or vested shall be protected. The provision respects vested
rights regardless of whether they pertain to indigenous or
non-indigenous lands and ancestral domains. (Cruz v. Sec. of
Environment and Natural Resources)
DUE PROCESS OF THE LAW
• Origin: By the 39th chapter of the Magna Carta wrung by the
barons from King John, the despot promised that “no man
shall be taken, imprisoned or disseized or outlawed, or in any
manner destroyed; nor shall we go upon him, nor send him,
but by the lawful judgment of this peers or by the law of the
land.” In 1335, King Edward III’s Stature 28 declared that “no
man, of what state or condition whoever be, shall be put out
of his lands, or tenements, nor taken, nor imprisoned, nor
indicted, nor put to death, without he be brought in to answer
by due process of law.” It is this immortal phrase that has
resounded through the centuries as the formidable champion
of life, liberty and property in all-freedom loving lands. (Cruz)
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• Definition: Embodiment of the sporting idea of fair play.
(Frankfurter, Mr. Justice Holmes and the Supreme Court pp
32-33) Responsiveness to the supremacy of reason,
obedience, to the dictates of justice. (Ermita-Malate Hotel &
Motors Association v. City of Manila)
• Due process is a guaranty against arbitrariness on the part
of the government.
• Observance of both substantive and procedural rights is
equally guaranteed by due process (Tupas v. CA)
• Who are protected: Universal in application to all persons,
without regard to any difference, in race, color or nationality.
Artificial persons are covered by the protection but only
insofar as their property is concerned (Smith Bell & Co v.
Natividad) The guarantee extends to aliens and includes the
means of livelihood. (Villegas v. Hiu Chiong)
Aspects of due process:
(1) Procedural
(2) Substantive
Procedural due process
• Procedural due process refers to the mode of procedure
which government agencies must follow in the enforcement
and application of laws. It is a guarantee of procedural
fairness.
• “Law which hears before it condemns” (Daniel Webster)
• Basically means notice and opportunity to be heard.
(+unbiased judge)
• Note: Publication is imperative to the validity of laws, PD’s,
EO’s, administrative rules and regulations, and is
indispensable part of due process.
• Purposes
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(1) It contributes to accuracy and thus minimizes errors in
deprivations.
(2) It gives the person so is subject of deprivation, a sense
of rational participation in a decision that can affect his
destiny and thus enhances his dignity as a thinking
person. (Bernas, Green Book at 116)
Notice
• Notice to a party is essential to enable it to adduce its own
evidence and to meet and refute the evidence submitted by
the other party. Every litigant is entitled to his day in court. He
has a right to be notified of every incident of the proceeding
and to be present at every stage thereof so that he may be
heard by himself and counsel for the protection of his
interests. (Cruz, Constitutional Law)
Hearing/Opportunity to be heard
• Due process does not necessarily require a prior hearing. A
hearing or an opportunity to be heard may be subsequent.
(Rural Bank of Buhi v. CA) (In this case, the SC said that,
where there is an examination and a prima facie showing that
a bank is insolvent, appointment of a receiver of a bank may
be made without hearing because of the dire consequences
of a prior hearing; bank runs would happen resulting in panic
and hysteria.)
• The ordinary requirements of procedural due process may
yield to the necessities of protecting vital public interests,
through the exercise of police power. Ex parte cease and
desist orders are permitted by law and regulations in
situations like stopping the continuous discharge of pollutants
(Pollution Board v. CA)
• “To be heard” does not only mean verbal arguments in court.
One may be heard also through pleadings. (Zaldivar v.
Sandiganbayan)
When hearing required:
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• Where a public administrative body acts in a judicial or
quasi-judicial matter, and its acts are particular and
immediate rather than general and prospective, the person
whose rights or property may be affected by the action is
entitled to notice and hearing. (PHILCOMSAT v. Alcuaz)
• Fixing rates is quasi-judicial in nature. It must be
preceded by a hearing. The fact of the order being merely
interlocutory does not alter the situation because for all
practical purposes it is final as to the period covered.
(PHILCOMSAT v. Alcuaz)
When hearing not required: (Ateneo Bar Ops Reviewer)
(1) When administrative agencies are exercising their
quasi-legislative functions.
(2) Abatement of nuisance per se.
(3) Granting by courts of provisional remedies.
(4) Cases of preventive suspension.
(5) Removal of temporary employees in government
service.
(6) Issuance of warrants or distraint and/or levy by BIR
Commissioner.
(7) Cancellation of the passport of a person charged with a
crime.
(8) Issuance of sequestration orders (considered a
provisional remedy)
(9) Judicial order which prevents an accused from traveling
abroad to maintain the effectivity of the court’s decision.
(10) Suspension of a bank’s operation by the Monetary
Board upon a prima facie finding of liquidity problems in
such bank.
• As a general rule, notice and hearing are not essential to the
validity of administrative action where the administrative body
acts in the exercise of executive, administrative, or legislative
functions. (PHILCOMSAT v. Alcuaz)
• In promulgation of general rules (Taxi-cab Operators v.
Board of Transportation)
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• Provisional Rates. The NTC can provisionally approve
rates proposed by public services without need for hearing,
but subject to hearing 30 days thereafter. It applies both to
initial and revised rates (Radio Communications v. NTC)
(Why? Provisional rates are, by their nature temporary and
subject to adjustment after final hearing. It must be noted
that it is impossible for the NTC to send notices to all
affected parties. The law does not require the impossible.
Moreover, may publication yata dito eh)
• Exercise of quasi-legislative power. (like price fixing)
(Maceda v. ERB)
• Evaluation stage of extradition process (Sec. of Justice v.
Lantion)
• Note: The filing of a motion for reconsideration cures the
defect of absence of a hearing. (Chua v. CA)
Fair and impartial judge
• Due process of law requires a hearing before an impartial
and disinterested tribunal, and every litigant is entitled to
nothing less than the cold neutrality of an impartial judge.
(Castillo v. Juan)
• Elements of due process like notice and hearing, would be
meaningless if the ultimate decision would come from a
partial and biased judge. (Webb v. People)
• Civil. The failure of the clerk to send the notice to the
defendant by mail did not destroy the jurisdiction of the Court
and that such irregularity did not infringe the requirement of
due process of law. (El Banco Espanol Filipino v. Palanca)
• Publicity and TV Coverage. To warrant a finding of
prejudicial publicity, there must be an allegation and proof
that the judges have been unduly influenced (not simply
might be), by the barrage of publicity (Webb v. De Leon)
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ARIS S. MANGUERA

• Administrative. Notice and hearing are essential only when academic and disciplinary standards.(Garcia vs. L.I.T.).
an administrative body exercises its quasi-judicial function. In However, penalties imposed by the schools must be
the performance of its rules and regulations, an administrative commensurate to the offenses committees (Malabanan vs.
body need not comply with the requirements of notice and Ramento).
hearing. (Corona v. United Harbor Pilots Association) • Q: If the Bill of Rights is invokable only against the State,
why is there due process in academic proceedings? A: See
• The essence of due process in administrative proceedings is
Bernas Green Book at 116.
an opportunity to explain one’s side or an opportunity to
seek consideration of the ruling being complained of.
(Nachura citing Arboleda v. NLRC) • STANDARDS
Proceedings Standard:
• Administrative due process does not require that the one
1.Civil El Banco Espanol Filipino v.
who heard the evidence is also the one who heard the
Palanca
evidence is also the one who renders the decision (as long as
2.Criminal Section 16 of Article III
the one who decides familiarized himself with the evidence) Rules of Court
• If the decision is appealed, the person deciding the appealed 3.Quasi-Judicial/ Administrative Ang Tibay vs. C.I.R.
decision should not decide on the appeal. 4.Deportation Lao Gi v. Court of Appeals
5.Extradition Proceedings Secretary of Justice vs. Lantion
• Deportation. Although deportation proceedings are not 6.Academic De Guzman vs. N.U. (cited in
criminal in nature, the consequences can be as serious as ADMU v Capulong)
those of a criminal prosecution. The provisions in the Rules of
Court for criminal cases are applicable.

• Extradition Proceedings. Individuals are bereft of the right

to notice and hearing during the evaluation stage of the
extradition process because it is sui generis. (Sec. of Justice
v. Lantion) The detention of a potential extraditee prior the
conclusion of the extradition proceedings does not amount to
a violation of his right to due process. Subsequent opportunity
to be heard is enough.(Gov’t of US v. Purganan)

• Academic Discipline. The proceedings in student discipline

may be summary and cross examination is not an essential
pat thereof. (Guzman vs. N.U.). The contract between the
school and student is not an ordinary contract(Non vs.
Dames). The school has the right to determine the
continuance of the schooling of a student applying their

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BANCO ESPANOL FILIPINO VS. PALANCA
As applied to a judicial proceeding, the requirement of due process is
satisfied if the following conditions are present:
1. There must be a court or tribunal clothed with judicial power to
hear and determine the matter before it:
2. Jurisdiction must be lawfully acquired over the person or the
defendant or over the property which is the subject of the
proceedings
Jurisdiction over the person is acquired by;
a. voluntary appearance of a party in court in submission
to its authority
b. coercive power of legal process exerted over the
person
Jurisdiction over property is acquired by:
a. seizure of the property under legal process, whereby it
is brought into the actual custody of the law
b. institution of legal proceedings wherein, under special
provisions of the laws, the power of the court over the
property is recognized and made effective
3. The defendant must be given an opportunity to be heard
4. Judgment must be rendered upon lawful hearing
ANG TIBAY VS. C.I.R.
The following are the cardinal primary rights, which must be respected in
proceedings, which is administrative or quasi-judicial in character;
1. The right to hearing, including the right to present one’s case
and submit evidence.
2. The tribunal must consider the evidences presented
3. The decision must be supported
4. the evidence must be substantial
5. The decision must be based on the evidence presented at the
hearing or contained at the record
6. The tribunal must act on its own independent consideration
7. The board/body must render decisions in such manner that the
parties in proceedings can know the various issues involved,
and the reason for the decision rendered
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LAO GI VS. COURT OF APPEALS
Although the deportation proceeding does not partake of the nature of a
criminal action, the constitutional right of a person to due process shall
not be denied. The Rules of Criminal Procedure in the Rules of Court
are applicable to deportation proceedings because it affects freedom
and liberty of the person
Minimum Standards:
1. Determine if there’s sufficient cause to charge deportation
2. inform of the charges/ specific grounds for deportation
3. Hearing under the Rules of Procedure presented by the CID
Commissioner
4. Order based on the determination of CID Commissioner
SECRETARY OF JUSTICE VS. LANTION
An extradition proceeding is sui generis. It is not a criminal proceeding,
which will call into operation all the rights of the accused as guaranteed
by the Bill of Rights.
GUZMAN VS. NATIONAL UNIVERSITY
The proceedings in student discipline may be summary and cross
examination is not an essential part thereof. There are withal minimum
standards which must be met to satisfy the demands of procedural due
process and these are that:
1. The students must be informed in writing of the nature and
cause of any accusation against them
2. They shall have the 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
5. The evidence must be duly considered by the investigating
committee or official designated by the school authorities to
hear and decide the case.
Note: The proceedings in student discipline may be summary and cross
examination is not an essential part thereof. (Guzman vs. N.U.). The
contract between the school and student is not an ordinary contract(Non
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vs. Dames). The school has the right to determine the continuance of
the schooling of a student applying their academic and disciplinary
standards.(Garcia vs. L.I.T.). However, penalties imposed by the schools
must be commensurate to the offenses committees (Malabanan vs.
Ramento).
Substantive Due Process
• Substantive due process requires the intrinsic validity of
the law in interfering with the rights of the person to his life,
liberty, or property. (Cruz, Constitutional Law)
• The requirement of substantive due process is not a rigid
concept. The heart to of substantive due process is the
requirement of “reasonableness” or absence of exercise of
arbitrary power. These are necessarily relative concepts
which depend on the circumstances of every case.
Requirements to pass substantive due process:
(1) Lawful subject or purpose- the law must be a valid
governmental objective- the interest of the public generally
as distinguished from those of a particular class.
(2) Lawful means- means employed must be reasonably
related to the accomplishment of the purpose and not
unduly oppressive.
Other requirements:
(1) must not contravene the constitution or a “higher”
statute
(2) must not be partial or discriminatory
(3) must not prohibit but may regulate trade
(4) must not be unfair or oppressive
(5) must be general and consistent with public policy
(6) must not be unreasonable
Requirement of Publication (Jack’s Compendium)
• Publication may not be dispensed with. Such omission would
violate due process as it would deny the public knowledge of
the laws that are supposed to govern them. The publication
must be in full or its no publication at all. (Tanada v. Tuvera)
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Presumption
• There is a presumption of validity when the State acts to
interfere with life, liberty or property. (“Prior restraint” not
included)
Hierarchy of rights
• Human Rights and Right to life are superior to right to
property. (Philippine Blooming Mills)
Void for vagueness
• When is a law vague?
(1) It violates due process for failure to accord persons fair
notice of the conduct to avoid.
(2) It leaves law enforcers unbridled discretion in carrying out its
provisions.
• When a statute lacks a comprehensible standard, it
violates due process for failure to accord persons,
especially persons targeted by it, fair notice of conduct to
avoid, and it leaves law enforcers unbridled discretion in
carrying out its provisions and becomes an arbitrary flexing
of government muscles (Estrada v. Sandiganbayan)
Q: Is PP 1017 vague?
A: A facial review on the ground of vagueness is unwarranted.
Void for vagueness doctrine hold that “a law is facially invalid if
men of common intelligence must necessarily guess at its
meaning and differ as to its application.” (In her ponencia, J
Sandoval Guttierez said void for vagueness doctrine “is also an
analytical tool for testing ‘on their faces’ statues in free
speeches.” However, Justice Tinga dissents on this matter thus
“the void for vagueness doctrine applies to criminal laws and
not merely those that regulate speech or other fundamental
constitutional right.” Justice Tinga disagrees that the “void for
vagueness doctrine” is inapplicable in no-free speech cases)
(David v. Arroyo)
Overbreadth doctrine
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• A government purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the
area of protected freedoms.
Q: Is PP 1017 overbroad?
A: A facial review of PP 1017 using the over the overbreadth
doctrine is uncalled for because:
(1) The overbreadth doctrine is an analytical
tool developed for testing “on their faces”
statutes in free speeches. (A plain
reading of PP 1017 shows it is not
primarily directed to speech or even
speech-related conduct. It is actually a call
upon AFP to prevent to prevent or
suppress all forms of lawless violence)
(2) The overbreadth doctrine is not intended
for testing the validity of a law that “reflects
legitimate state interest in maintaining
comprehensive control over harmful,
constitutionally unprotected conduct. (PP
1017 pertains to a spectrum of conduct,
not free speech, which is manifestly
subject to state regulation)
(3) The facial invalidation of laws is
considered “manifestly strong
medicine” to be used “sparingly and
only as a last resort” and is generally
disfavored.”
(4) A facial challenge on the ground of
overbreadth doctrine is the most difficult
challenge to mount successfully, since the
challenger must establish that there can
be no instance when the assailed law may
be valid. (David v. Arroyo)
Cases:
• Police power cannot interfere with private property for purely
aesthetic purposes. (Churchill vs. Rafferty)
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• The state may not under the guise of police power,
permanently divest owners of the beneficial use of their
property and practically confiscate them solely to preserve or
assure the aesthetic appearance of the community. (People
vs Fajardo)
• The liberty of the citizen may be restrained in the interest of
public health, or of the public order and safety, or otherwise
within the proper scope of the police power. (Ermita-Malate
vs. City Mayor)
• If the movement and not the slaughter is banned and
carabaos are arbitrarily confiscated, then that what constitute
violation of due process of law. (Ynot vs IAC)
• The legislature may not under the guise of protecting the
public interest, arbitrarily interfere with private business for it
is a property right of the owner. Theaters, cinematographs
and other exhibitions cannot be considered as public utilities.
(Balacuit vs. CFI)
• Promoting safe transit upon and avoid obstruction on roads
and streets is a valid governmental interest. (Agustin Vs. Edu)
• An ordinance must not contravene the constitution or any
statutes. (Magtajas vs. Prce Properties Corp.)
• The State is not required to compensate the owner for
property which it has already lawfully acquired under the
exercise of governmental authority other than the power of
eminent domain. (Bennis vs. Michigan)
• The due process requirement does not require the state to
accept the “substitute judgment” of close family members in
the absence of substantial proof that their views reflect the
patient’s. However, it may require clear and convincing
evidence of the patient’s wishes, it may also choose to defer
only those wishes rather than confide the decisions to close
family members. (Cruzan vs. Missouri Department of Health)
• Profession is a legitimate subject of police power. So long as
professionals and other workers meet reasonably regulatory
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standard no such deprivation of property exists. (JMM “All persons or things similarly situated must be treated
Promotion and Management vs. CA) alike, both as to rights and responsibilities.
• A statute must satisfactorily show the presence of compelling Equality among equals”
state interest and that the law, rule or regulation is narrowly
drawn to preclude abuses.( Ople vs. Torres) Scope of Equality (Nachura Outline)
Economic Political Social
• Public officers is not a property right but a privilege and a
(5) (1) Free access
public trust. (Montesclaros vs. COMELEC) (1) Reduction of
Free access to to courts [Art III, social, economic
• The absence of publication is fatal as held in Tañada vs. courts [Art III, Sec. Sec 11] and political
Tuvera. Even if a Manual of Operation is internal in nature, if 11] (2) Bona fide inequalities
its effects reach out other than its employees then it must be (6) candidates being [Article XIII, Sec.
published. (Pilipinas Kao vs. CA) Marine Wealth free from 1]
reserved for harassment and
• In Tañada vs. Tuvera, it was said that all statutes including Filipino citizens discrimination [Art
those of local application and private laws shall be published [Art XII, Section IX-C, Sec 10]
as a condition for their effectivity. Covered by this rule are 2(2)] (3) Reduction of
presidential decrees, executive orders, administrative rules (7) social, economic
and regulations in so far they enforce or implement existing Reservation of and political
law pursuant to a valid delegation. Interpretative regulations certain areas of inequalities
investments [Art [Article XIII, Sec.
and letter of instructions issued by administrative superiors
XII, Section 10] 1]
need not be published. Whether or not the circular addresses (8)
a small group or not, the fact that it is an administrative Reduction of
circular which enforces laws, makes publication imperative. social, economic
(Philsa vs. Sec of Labor) and political
inequities [Article
Equal Protection XIII, Secs. 1, 2 and
• Definition: The equal protection clause is a specific 3]
constitutional guarantee of the equality of person. The See
Ichong v. Hernandez,
equality it guarantees is “legal equality” or the equality of all
Villegas v. Hiu Chiong,
persons before the law.
Dumlao v. Comelec.
(Under it, each individual is dealt with as an equal person in Tan v. Del Rosario
the law, which does not treat the person differently because
of what he is or what he possesses. The goddess of justice
is portrayed as blindfold, not because she must be hindered
in seeing where right lies, but that she may not discriminate Scope of Protection.
against suitors before her, dispensing instead and even
handed justice all.) • The protection is available to all persons, including aliens,
whether accused of a crime or not. Artificial persons are also

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entitled to the guarantee, although they may be required to
open their books of accounts for examination by the State in
the exercise of police and taxing powers. (See Moncada v.
People’s Court)
• The right is personal; it may be invoked only by the person
entitled to it (Stonehill v. Diokno) As such, the right may be
waived (Lopez v. Commissioner of Customs)
• Reasonable Classification allowed. Equal protection does
not prohibit classification as long as it is based on
REASONABLE classification.
• When a classification considered reasonable.
A classification is considered to be reasonable when:
(1) Classification rests on substantial
distinction;
(2) Classification is germane to the purpose of
the law;
(3) Classification is not limited to the existing
conditions only; and
(4) Classification applies equally to all members
of the same class. (People v. Cayat)
Note:
• The Constitution does not require absolute equality. A
classification based on valid and reasonable standards does
not violate the equal protection clause. (Tiu v. CA)
• What is important is that the classification is not arbitrary
(Sison v. Ancheta)
• He who challenges the law must present proof of
arbitrariness
Cases of valid classification
• Mode of Public Transportation. A regulation that prohibits
any car beyond six years to operate as taxi is valid. Taxis are
reasonably distinct from other modes of public transportation.
The regulation is applicable to all taxis of the country.
(Taxicab Operators v. BOT)
• Taxing one particular class. Compensation earners v.
Professionals. The equal protection clause tolerates
inequalities arising from reasonable singling out of one
particular class for taxation. Taxpayers who are recipients of
compensation income are set apart as a class. As they do
not have to pay overhead expenses, they are not entitled to
make deductions from income tax purposes which is not the
case of professionals in practice of their calling and
businessmen. In the case of the latter, there is no uniformity
in the cost or expenses necessary to produce their income.
(Sison v. Ancheta)
• Occupation. The equal protection clause does not mean
that all occupation called by the same name are treated the
same way. (Basco v. PAGCOR; Gambling case)
• There is dissimilarities between land-based and sea-based
Filipino overseas workers in terms of work environment,
safety, dangers and risks to life and limb and accessibility to
social, civic and spiritual activities. (The Conference of
Maritime Manning Agencies v. POEA)
• Compulsory retirement based on age. Employees
attaining that age are subject to compulsory retirement
because of the need for new blood. (Dumlao v. COMELEC)
• Radio/Television v. News papers. There are important
differences in the characteristics of the two media. Radio and
television has more impact on people than newspapers.
(TELEBAP vs. Comelec)

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• Big investors in the secured area v. Business operators
outside the area. There are substantial differences between
the big investors who are lured to establish their industries in
the “secured area” compared to business operators outside
the area.
On one hand, we are talking of billion-peso investments, on the
other, definitely none of such magnitude. The first can give
economic impact that is national in scope, the other, merely
local.
(The real concern of RA 7227 is to convert the lands formerly
occupied by the US military bases in to economic or industrial
areas. In furtherance of such objective, Congress deemed it
necessary to extend economic incentives to attract and
encourage investors) (Tiu v. CA)
Cases of invalid classification
• Employees with the same rank and position. A practice of
giving higher pay for foreign hires than Filipinos of equal rank
is unconstitutional. The principle of “equal pay for equal work”
requires that persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar
conditions, should be paid similar salaries. If the employer
accords employees the same position and rank, the
presumption is that these employees perform equal work.
(International School Alliance of Educators v. Quisumbing)
• Imposition of tax by name. Imposition of a tax on an entity
by name is not valid even if it’s the only existing entity in the
industry. Should another entity arise, the imposition would be
discriminatory on the first named entity. (Ormoc Sugar
Central v. Ormoc City)
ON PUBLIC OFFICERS
• Public Officers. The office of the Ombudsman is different
from other investigatory and prosecutory agencies of the
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government because the subject of its jurisdiction are public
officials who through official pressure and influence can
quash, delay or dismiss investigations held against them.
(Almonte v. Vasquez)
• PNP officers. A law providing for a preventive suspension
for members of the PNP beyond 90 days until the case is
decided is valid. The PNP officers are treated differently from
other classes of persons charged criminally or
administratively insofar as preventive suspension is
concerned. It was said that policeman who carry weapon and
the badge of law which can be used to harass or intimidate
witnesses against them needs to be suspended in order to
protect his victim and the witnesses against him. (Himagan v.
People)
• Municipal Election Officers. There is a substantial
distinction between municipal/city election officers and other
COMELEC officials. The singling out of city and municipal
election officers (as prohibited from holding office in the
same city or municipality for more than 4 years) in order to
“ensure the impartiality of election officials by preventing them
from developing familiarity with the people of their place of
assignment” justifies the distinction. (The purpose of the law
is to break an important link in the chain of corruption. It is
safe to say that without the complicity of such officials, large-
scale anomalies in the registration of voters can hardly be
carried out. (De Guzman v. COMELEC)
• Official duty for purpose of detention. The performance of
legitimate and even essential duties by public officers has
never been an excuse to free a person validly in prison.
Functions and duties of the office are not substantial
distinctions, which lift the accused from the class of prisoners
interrupted in their freedom and restricted in liberty of
movement. (People v. Jalosjos)
• Elective v Appointive Officials. Substantial distinctions
exist between appointive and elective officials. The former
occupy their office by virtue of the mandate of the electorate.
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They are elected to an office foe a definite term and may be
removed only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their
designation by an appointing authority. (Fariñas v. Executive
Secretary)
ON WOMEN
• Bartending. A law prohibiting women from bartending to
protect the morals of women is valid. The physical and
psychological differences between men and women make the
difference reasonably related to the valid purpose. (Goesart
v, Cleary)
• Teaching. A law prohibiting women from becoming teachers
is invalid. The distinction between men and women serves no
valid purpose. (Bernas Primer)
• Marriage. A company’s policy of not accepting or
considering as disqualified from work any woman worker who
contracts marriage violate women’s right against
discrimination afforded by the Constitution. (PT&T v. NLRC)
ON ALIENS
• Retail Trade. A law passed prohibiting aliens from engaging
in the retail trade for the purpose of addressing a
demonstrated harmful stranglehold by aliens on the retail
trade is valid. The distinction made between citizen and
aliens is substantial and reasonably related to the valid
purpose, because citizens own greater allegiance to the state
and conversely the State owes greater protection to its
citizens. (Ichong v. Hernandez)
• Specific Nationality. A law prohibiting Chinese only from
engaging in retail trade is not valid unless the distinction
between Chinese and other aliens in relation to the purpose
of the law can be justified. (Bernas Primer)
• There is no logic in exacting the payment of fifty pesos from
aliens who have already secured a clearance for
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employment. Fee is unreasonable, because it is excessive
and it fails to consider substantial differences in the situation
of the aliens required to pay it. The same amount is collected
from every alien, whether he is casual or permanent, part-
time or full-time, a lowly employee or a highly paid executive.
(Villegas v. Hiu Chiong Pao Ho)
• There is a difference in a resident and non-resident alien.
(General Milling Corporation v. Torres)
ON THE POOR
• Free transcript of records. A law requiring courts to give
free transcript of records to indigent litigants is valid. The
classification serves to equalize opportunities in courts
between rich and poor.
• Running for Public Office. A law prohibiting indigents from
running for public office is not valid.
• Different groups may receive different treatments. Statutes
have been passed giving rights and benefits to the disabled
and the less fortunate. (Binay v. Domingo)
On TAXATION
• Tax must not be passed for a specific entity only for it will not
be applicable to future conditions as well. (Ormoc Sugar
Central v. Ormoc City)
• Inequalities which result from the singling out of one
particular class for taxation or exemption infringe no
constitutional limitation. There is a difference between a
“homeless poor’ and the “homeless less poor” because the
second group or middle class can afford to rent houses in the
meantime that they cannot buy yet their own houses. The two
social classes are thus differently situated in life. (Tolentino v.
Sec. of Finance)
• Taxpayers who are recipients of compensation income are
set apart as a class. As they do not have to pay overhead
expenses, they are not entitled to make deductions for
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income tax purposes which are not the case of professionals uneducated, religious or non-religious. No particular group or
in practice of their calling and businessmen. In the case of classes of persons are identified by the law against whom the
the latter, there is no uniformity in the costs or expenses death penalty shall be exclusively imposed. (People vs.
necessary to produce their income. (Sison v. Ancheta) Mercado)
• Special grant of tax exemption in favor of Marcos heirs will
constitute class legislation. (Chavez v. PCGG)
• There is reasonable classification under the LGC to justify
the different tax treatment between electric cooperatives that
are registered with the NEA and those under CDA. (Philreca
v. Sec. of DILG)

Other cases
• Revenue of a city. A law classifying a city as a highly
urbanized city on the basis of its regular annual income (thus
depriving residents of a vote in provincial elections) is valid.
Classification based on income is classification based on
substantial distinction. Revenue of a city shows its capability
to subsist in relative economy. (Ceniza v. COMELEC)
• Dismissal of a case. Dismissal of a case against one
defendant must apply to other if no reasonable differences
exist. (Republic v. Sandiganbayan)
• Prosecution. It is unfair to exempt a similarly situated litigant
from prosecution without allowing the same exemption to
others. (Regala v. Sandiganbayan)
• Denial of privilege. There is no basis however why all the
departments, it would be the judiciary that has been denied of
the franking privilege. (Philippine Judges Association vs.
Pardo)
• Payment of civil liability. Payment of civil liability is not
made a condition precedent to probation but is a condition for
his continued enjoyment of the same. Probation is not an
absolute right. It is a mere privilege whose grant rests upon
discretion of the trial court. (Soriano vs. C.A.)
• Death Penalty. The death penalty law applies to all persons
and to all classes of persons – rich, poor, educated or

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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.
Section 2
Freedom from unreasonable Freedom from unreasonable
Search and Seizure arrest
Purpose of the Provision
• The purpose is to protect the privacy and sanctity of the
person and of his house and other possessions against
arbitrary intrusions by the State officers.
Scope
• The provision does not prohibit all kinds of searches and
seizure, only those which are unreasonable.
• Section 2 of Article III does not protect citizens from
unreasonable searches and seizures perpetrated by private
individuals. The proscription applies only against the
government and its agencies tasked with enforcement of
the law. (People v. Marti; Waterous Drug Corp. v. NLRC)
(But see Zulueta v. CA)
SEARCH
• Search is an examination of a man’s house or other
buildings or premises, or of the person, or of his vehicle with
a view to the discovery of contraband or illicit or stolen
property or some evidence of guilt to be use in the
prosecution of a criminal action for some crime or offense.
• [Mere looking at what was in the sala and the kitchen of the
house to see if a penknife was there cannot be strictly
considered as a search (People vs. Ella, et al., C.A. 49 O.G.
1891)]
• When searches are reasonable. Searches are reasonable
when they are authorized by agencies entitled to direct such
searches. A reasonable search is not to be determined by a
fixed formula but it is to be resolved according to the facts of
each case (Valmonte vs De Villa citing foreign jurisprudence)
• The provision does not prohibit all search and seizures.
What is prohibited are unreasonable search and seizures.
Checkpoints
• Legality. Checkpoints are not illegal per se. Under
exceptional circumstances(as where the survival of the
government is on the balance, or when lives of the people are
in grave peril) checkpoints may be allowed and may be
installed by the government.(Valmonte vs. De Villa)
• Not all checkpoints are illegal. Those which are warranted by
the exigencies of public order and are conducted in a way
least intrusive to motorists are allowed. (People v. Escaño)
• When considered legal. For as long as the vehicle is
neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is limited to a visual
search, said routine checks are not constitutive of
unreasonable search. (People v. Escaño)
• Requirements for Checkpoints:
(1) Existence of exceptional circumstances
(2) conducted on a fixed area
(3) inspection limited to visual search

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(4) occupants must not subjected to physical or body search
(Caballes vs. CA)
• Illustration. 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. A warantless search of incoming and outgoing
passengers, at the arrival and departure areas of an
international airport, is a practice not constitutionally
objectionable because it is founded on public interest, safety,
and necessity. (Valmonte vs. DeVilla)
• Q: Can vehicles be stopped and extensively searched?
A: If vehicles are stopped and extensively searched, it
should be because of some probable cause which justifies a
reasonable belief of men at the checkpoints that either the
motorist is a law-offender or the contents of the vehicle are
or have been instruments of some offense. (Valmonte vs. De
Villa)
• Q: Where can warrant less searches and seizures in
checkpoints be compared to?
A: These warrantless searches and seizures at the
checkpoints are quite similar to searches and seizures
accompanying arrests during the commission of a crime, or
immediately thereafter. (Valmonte vs. De Villa)
• Q: Must checkpoints be announced?
A: No. Not only would it be impractical, it would also
forewarn those who intend to violate the ban. Even so,
badges of legitimacy of checkpoints may still be inferred from
their fixed location and the regularized manner in which they
are operated. (People v. Escano, 2000)
Areal Zoning and Saturation Drives
• Under ordinary circumstances, such would be illegal and
violative of the Bill of Rights. But under extra ordinary
circumstances (i.e. overriding social need e.g. unabated
criminality, rising lawlessness, alarming communist activities)
such can be done, provided it is with stringent procedural
safeguards. (Guazon vs. De Villa)
Search Warrant
• It is
(1) an order in writing
(2) issued in the name of the Republic of the Phils.
(3) issued by a judge
(4) directed to a peace officer
(5) commanding him to search for personal property
described therein and
(6) to bring it before the court
• Objects of the search warrant
(1) for subject of the offense
(2) for stolen or embezzled and/or proceeds or fruits of the
offense
(3) used or intended to be used as the means of committing
an offense.
• Proper procedure for search warrants:
1) police submits affidavits before a judge
2) judge should be stationed in RTC with jurisdiction over the
property to be searched
3) judge interviews the applicant for the warrant and if the
judge determines probable cause, the warrant is issued.
4) Object seized is deposited in court
5) fiscal files a case in court
ARREST
• Arrest is the depriving of a person of his liberty done by
legal authority.
• Warrant of arrest is a written order which is made in behalf
of the State and is based upon a complaint issued pursuant

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to a statute and/or court rule and which commands law
enforcement officers to arrest a person and bring him before
a magistrate.
• Burden of Proof. The burden of proof to validity of a warrant
or its reasonableness falls upon the government.
• Scope of guarantee. It is available to all persons, including
aliens, whether accused of a crime or not. Artificial persons
are also entitled to the guarantees although they may be
required to open books of accounts for examination as
required by the State in its exercise of police power of
taxation. As a rule however, the premises may not be
searched not their papers and effects seized except by virtue
of a valid warrant.
Persons- applies to everybody, to citizens as well as aliens
in the Phils., natural or artificial.
Houses- is not limited to dwelling houses but extends to
garages, warehouses, shops, stores, offices, and
even safety deposit boxes. It does not however
include open spaces and spaces belonging to an
individual.
Papers and effects- include sealed letters and packages in
the mail which may be opened and examined only
in pursuance of a valid search warrant.
• Requisites
Constitutional: See Section 2 Article III
Statutory: Must not be for more than one specific offense
(Revised Rules of Court)
• Proper procedure for obtaining arrest warrants:
1) a complaint, usually by affidavit, is first filed with the fiscal’s
office.
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2) fiscal then issued a subpoena addressed to the respondent
to submit a counter affidavit.
3) fiscal then determined whether there is prima facie case
evidence to file an information in court.
4) judge determines whether or not to issue a warrant
PROBABLE CAUSE
• Probable cause means such facts and circumstances
antecedent to the issuance of a warrant, that are in
themselves sufficient to induce a cautious man to rely upon
them and act in pursuance thereof. (People vs. Sy Juco)
• Probable cause for arrest. Such facts and circumstances
which should lead a reasonably discreet and prudent man to
believe that an offense has been committed by the person
sought to be arrested.
• Probable cause for search. Such facts and circumstances
that would lead a discreet and prudent man to believe that an
offense has been committed and that the objects sought in
connection of the offense are in the place sought to be
searched.
Other points about Probable Cause:
1) Probable cause must be defined in relation to the action
which it justifies.
2) Probable cause means probable cause of something
specific.
3) What is required is not absolute certainty nor proof beyond
reasonable doubt but probable cause.
4) Probable cause must be based upon personal knowledge of
the applicant or witness.
5) Probable cause is a factual and practical concept which is
not necessarily technical.
6) Only the judge and the judge alone can determine probable
cause. (except deportation of aliens)(Placer).
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• “Determined personally” This means that the judge
conducting the examination must do it in person and not
through a commissioner or a deputy clerk of court (Bache
case).
• It is not required that the judge personally examine the
complainant and witnesses. He may personally evaluate the
report and supporting documents submitted by the fiscal
regarding the existence of probable cause (Soliven vs.
Makasiar). However, he cannot solely rely on the certification
of the fiscal in the absence of the report and necessary
documents that will support such certification (Lim vs. Felix).
• Oath. It is an outward pledge given by the person taking it
that his attestation or promise is made under immediate
sense of responsibility to God.(Alvarez vs. CFI)
• Affirmation. A solemn and formal declaration that an
affidavit is true, this being substituted for an oath in certain
cases. Here, there is no invocation of God or a supreme
being.
• Particularity of description.
A search warrant may be said to particularly describe the
things to be seized when the description therein is as
specific as the circumstances will ordinarily allow (People vs.
Rubio); or when the description expresses a conclusion of
fact – not of law – by which the warrant officer may be
guided in making the search and seizure(People vs. Rubio);
or when the things described are limited to those which bear
direct relation to the offense for which the warrant is being
issued. (Revised Rules of Court).
The description must not be too general as to give the
executing officer too much discretion that even those that do
not bear direct relation to the offense may be seized.
(Stonehill vs. Diokno). However, where by nature of goods
to be seized, their description must be rather general, it is
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not required that a technical description be given (People vs.
Rubio).
• General Warrant. A general warrant is one that does not
allege any specific acts of omissions constituting the offense
charged in the application for the issuance of the warrant. It
contravenes the explicit demand of the Bill of Rights that the
things to be seized be particularly described.
• John Doe Warrant. John Doe warrant satisfies the
requirement of particularity of description provided it contains
a description personae such as will enable the officer to
identify the accused. (People vs. Veloso)
• However, it must be noted that John Doe warrants must be
the exception not the rule. Generally, the warrant must clearly
indicate the proper person upon whom the warrant is to be
served by stating his personal appearance and peculiarities,
his occupation and place of residence and any other
circumstances by means of which he can be identified.
• There is however a limit to John Doe warrants. Thus a
warrant for the arrest of fifty John Does is of the nature of a
general warrant which does not satisfy the requirement of
particularity description (Pangandaman vs. Casar).
Exclusionary rule
• Any evidence obtained without a warrant, by authority of
invalid warrant (and not falling to valid exceptions) shall be
inadmissible for any purpose in any proceeding. (Section
3(2) of Article III)
• Exclusionary rule is the only practical means of enforcing the
constitutional injunction against unreasonable searches and
seizures. (Stonehill v. Diokno)
• To come under exclusionary rule, the evidence must be
obtained by government agents and not by private individuals
acting on their own such as in the case of People v. Marti.
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• Even if a vessel security is armed and tasked to maintain (1) Incidental to lawful arrest (Sec 12, Rule 126 of Rules of
peace and order, he is still a private employee and does not Court)
discharge any governmental function. (People v. (2) Plain view
Bongcarawan) (3) Moving vehicle
(4) Consented warantless searches
• BUT See Zulueta vs. CA: “The intimacies between husband (5) Customs Searches
and wife do not justify any one of them breaking the drawers (6) Stop and Frisk (Terry v. Ohio; Posadas v. CA; Malacat v.
and cabinets of the other. A person, by contracting marriage CA)
does not shed his/her right to privacy as an individual.” (7) Exigent and Emergency Circumstances (People v. De
• Goods illegally seized must be returned unless the Gracia)
possession of such goods is prohibited by law (Castro v. (8) RA 6235, Search pursuant to routine airport security
Judge Pabalan) Procedure
• Firearms which have been illegally seized in a “zona” is (9) Others
[a] Armed Conflict.
inadmissible in evidence. Pending the determination of the
[b] Areal Target zone and Saturation Drives in the exercise
legality of such articles, they shall remain in custodia legis,
of military powers of the President. (Guazon v. De Villa)
subject to such appropriate disposition as the corresponding [c] Checkpoints (Valmonte v. De Villa)
courts may decide. (Alih v. Castro)
• It is not required that the property to be searched be owned
by the person against whom the search is directed. It is
sufficient that the property is under the control or possession
of the person sought to be searched. (Burgos v. Chief of
Staff)
• The objection to an unlawful search or seizure and to
evidence obtained thereby is purely personal and cannot be
availed of by third parties. (Stonehill v. Diokno)
• The moment imported goods are in possession or control of
Customs, even if seized without warrant, the Bureau of
Customs acquires exclusive jurisdiction over the goods,
subject only to appeal to the proper tax court and to the
Supreme Court. (Collector of Customs v. Judge Villaluz)
• An application for a bail has no effect of waiver of the right to
challenge the validity of a warrant. (Okabe v. Judge de Leon,
2004, page 46 of 2006 Bernas Primer)

• Allowable warrantless searches

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A. With a valid warrant
(1)Requirements:
(1) issued upon probable
cause
(2) personally examined by
the judge
(3) Examined under oath
and affirmation
(4) Particularly describing
the place to be searched
and the persons or things
to be seized(Section 2
Article III)
(5) warrant must not be for
more than one offense
(Revised Rules of Court)
(2) Warrant for administrative
inspection
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SECTION 2-FREEDOM FROM SEARCH
EXCEPTION: If search is reasonable
B. Without a valid warrant C. Without warrant (by a D. Of other nature or purpose
private individual) (See Bernas, Green Book p
(1) Incidental to lawful arrest 179)
(Sec 12, Rule 126 of Rules of (1) SOP (People vs. Marti) (1) Subpoena duces tecum
Court) (2) Security Check (People [(2) Administrative Inspection]
(2) Plain view vs Bongcarawan)
(Nachura: Inspection of
(3) Moving vehicle buildings and other premises for
(4) Consented warantless the enforcement of fire, sanitary
searches and building regulations is
(5) Customs Searches basically an exercise of police
(6) Stop and Frisk power of the State, and would not
require a search warrant. These
(7) Exigent and Emergency
are routine inspection which,
Circumstances however, must be conducted
(8) RA 6235 (People v. during reasonable hours.)
Canton)
(9) Others
[a] Armed Conflict.
[b] Areal Target zone and
Saturation Drives in the
exercise of military
powers of the President.
(Guazon v. De Villa)
[c] Checkpoints (Valmonte
v. De Villa)
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A. With a valid warrant
Procedural Rules
• Where criminal case is pending. As a matter of policy,
where a criminal case is pending, the court wherein it is filed,
or the assigned branch thereof, has primary jurisdiction to
issue the search warrant
• Where no criminal case is yet filed. Where no such
criminal case has yet been filed, the executive judges or their
lawful substitutes, in the areas contemplated in Circular 1-91,
shall have primary jurisdiction. (Malalaon v. CA)
• However, where the obtention of search warrant is
necessitated and justified by compelling considerations or
urgency, time and place, a court whose territorial jurisdiction
does not embrace the place searched may issue the warrant.
(Ilano v. CA)
• The moment an information is filed with the RTC, it is that
court which must issue the warrant of arrest. The MTC judge
who continued with the preliminary investigation and issued
warrants of arrest violated procedure. (Espino v. Salubre)
• If the case is already remanded to the MTCC, after the
information for perjury was erroneously filed with the RTC, it
was error for the RTC judge not to recall the warrant of arrest
issued, because the issuance of warrant is not a ministerial
function of the judge. (Alib v. Labayen)
• Where a search warrant is issued by one court and the
criminal action based on the results of the search is
afterwards commenced in another court, it is not the rule that
a motion to quash the warrant or to retrieve things thereunder
seized may be filed only with the issuing court. Such a motion
may be filed for the first time in either the issuing court or that
in which the criminal action is pending.
• The judge may order the quashal of the warrant he issued
even after the same had already been implemented,
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particularly when such quashal is based on the finding that
there is no offense committed.
• General Rule: Only the judge may validly issue a
warrant.
Exception: Orders of arrest may be issued by administrative
authorities, but only for the purpose of carrying a final finding
of violation of law, e.g. an order of deportation or an order of
contempt, but not for the sole purpose of investigation or
prosecution. (Morano v. Vivo) The Bureau of Immigration
may issue warrant of arrest only for the purpose of carrying
out a final decision of deportation or when there is sufficient
proof of guilt of the alien. (Sy v. Domingo) (But see Harvey
v. Santiago)
• Sec 7 Rule 126 requires that no search of a house, room or
any of the 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, in the presence of two witnesses of
sufficient age and discretion, residing in the same locality.
Failure to comply with this requirement invalidates the search.
(People v. Gesmundo)
A(1)(1) Issued upon probable cause
Probable Cause for search- such facts and circumstances that would
lead a discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection of the offense are in
the place sought to be searched.
• Existence of probable cause is determined by the facts of each case
• It must be probable cause of something specific (Stonehill vs.
Diokno)
• It must be defined in relation to the action which it justifies
• Mere conclusions of law do not establish probable cause (Corro vs.
Lising) (Burgos vs. Chief of Staff)
• Presentation of master tapes is not an absolute requirement for a
search warrant to issue (Columbia Pictures Entertainment)
History of the rule that master tapes is not an absolute
requirement for a search warrant to issue
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20th Century Fox Film
August 19, 1988
The presentation of the master copies of the copyrighted films
from which the pirated films were allegedly copied, was necessary
for the validity of search warrants against those who have in their
possession the pirated films. The applicant must present to the
court the copyrighted films to compare them with the purchased
evidence of the videos allegedly pirated to determine whether the
latter is an unauthorized reproduction of the former. This linkage
of the copyrighted films to be pirated films must be established to
satisfy the requirements of probable cause. Mere allegations as
to the existence of the copyrighted films cannot serve as basis for
the issuance of a search warrant.
Columbia Pictures, Inc. vs Court of Appeals
October 1994
Assailed warrants were issued on April 1988.
Adhered to the ruling in 20th Century fox that presentation of the
master copies of the copyrighted films is necessary to the validity
of the warrants.
Columbia Pictures et. al. v. Court of Appeals
August 28, 1996
The court ruled that the ruling in 20th Century Fox cannot be
retroactively applied on the determination of the validity of the
warrants prior the ruling of 20th Century Fox Film.
Likewise the Court ruled therein that the presentation of the
master tapes in such cases is not an absolute requirement for a
search warrant to issue.
Columbia Pictures Entertainment, Inc. v. Court of Appeals
September 20, 1996
Adopted the ruling in Columbia Pictures dated August 1996.
(Nachura outline says that presentation of master tapes is a
requirement citing the 20th Century Fox case/Columbia
case[1994]. Jack’s Compendium on the other hand cites
Columbia Pictures 19963 and Columbia Pictures Entertainment,
3
The earlier pronouncement regarding the necessity for the presentation of
the master tapes of the copyrighted films for the validity of search warrants
merely serves as a guidepost in determining the existence of probable cause
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1996)In the Green Book, it is stated that presentation of master
copies is essential only if there is doubt about the nexus between
the master tape and the copies, page 164 of the Greenboook. )
IN SHORT, PRESENTATION OF MASTER TAPES IS NOT AN
ABSOLUTE REQUIREMENT FOR A SEARCH WARRANT TO
ISSUE!
• In search warrants, proof of probable cause for a warrant need
not point to a specific offender (Webb vs. de Leon)
• On the spot tip + surveillance + suspicious action + refusal to
open bag (People vs. Tangliben)
• Information about a drug addict + reddish eyes + walking in
swaying manner + avoids a policeman (Manlili vs CA)
• Tip + bulge + suspicious failure to produce passport +
description of a Caucasian (People vs. Malmstedt)
• Specific description fits the confidential information (People vs.
Bagista)
• When the smell of marijuana emanated from the plastic bag.
• Intelligence report of a deep penetration agent (People vs. Lo Ho
Wing)
• Jack Jimenez: Breach of Checkpoint + Misrepresentation of
identity + Failure to answer what the bag contains + Passing of
bag back and forth. (People v. Elicano)
A(1)(2) Personally examined by the judge
• The judge must conduct the examination personally and not
thorough commissioner or deputy clerk of court (Bache case)
where there is a doubt as to the true nexus between the master tapes and the
pirated tapes. This directive was not intended not to be an inflexible
requirement in all copyright infringement cases. It does not rule out the use
of testimonies or documentary evidence or other classes of evidence where
the production in court of the master tapes will result in delay,
inconvenience or express out of proportion to their evidentiary value.
(Columbia Pictures Inc. v. CA 261 SCRA 944 cited in Jack’s Compendium
at 58)
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• The judge may personally evaluate the report and supporting
documents submitted by the fiscal. (Soliven vs. Makasiar)
• The judge cannot rely solely on the certification of the fiscal in
the absence of necessary documents that will support such
certification (Lim vs. Felix)
• Only the judge can determine the probable cause for issuance of
a warrant (Salazar vs. Achacoso) (exception: deportation of
aliens; [Harvey vs. Santiago])
A(1)(3) Examined under oath and affirmation
Oath- an outward pledge given by person taking it that his attestation
or promise is made under immediate sense of responsibility to God.
(Alvarez vs. CFI)
Affirmation- a solemn and formal declaration that an affidavit is true,
this being substituted for an oath in certain cases. Here, there is no
invocation of God or a supreme being.
• The oath required must refer to the truth of the facts within
the personal knowledge of the complainant or his witnesses
because the purpose is to convince the judge of the existence
of probable cause. (Alvarez v. CFI)
• The true test of sufficiency of an affidavit is whether it has been
drawn in such a manner that perjury could be charged
thereon and affiant be held liable for the damages caused.
(Alvarez v. CFI)
A(1)(4) Particularly describing the place to be searched and the
persons or things to be seized
• Test: One that would not permit seizure of the wrong property
(Sec. of Justice v. Marcos)
• Must not be too general (Stonehill vs. Diokno) Must be specific
as the circumstances will allow (People vs. Rubio)
• Must be conclusion of fact not of law (People vs Rubio)
• Things described must be limited to those which bear direct
relation to the offense for which the warrant is being issued
(Revised Rules of Court)
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• General warrants and “scatter-shot warrants” are not valid.
• Note: It is not enough that the object be sufficiently described. It
is necessary that the warrant be applied to what is described.
(Bernas, Green Book at 179)
• 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 thought, or had represented in the proofs they submitted to
the court issuing the warrant. (People v. CA)
• Mistake in the identification of the owner of the place does not
invalidate the warrant if the place id properly described. (Frank
Uy v. BIR, 2000)
A(1)(5) Warrant must not be for more than one offense
• However, in People v. Dichoso, it was held that the
Dangerous Drugs Act of 1972 is a special law that deals
specifically with dangerous drugs which are subsumed into
prohibited and regulated drugs, and defines and penalizes
categories of offenses which are closely related or which
belong to the same class or species; thus one search
warrant may be validly issued for several violations thereof.
(People v. Salanguit)
A(2) Administrative Inspection
Camara v. Municipal Court (387 US 523) arose out of the conviction
of the appellant for refusing entry to a housing inspector who,
unarmed with a search warrant, sought to inspect appellant’s
dwelling. The Supreme Court reversed the conviction saying “We
hold that administrative searches of the kind at issue here are
significant intrusions upon interests protected by the Fourth
Amendment, that such searches when authorized and conducted
without a warrant procedure lack the traditional safeguards which the
Fourth Amendment guarantees to the individual.
For the determination of probable cause the Court allowed the
issuing magistrate’s evaluation to rest upon the “passage of time, the
nature of the building or the condition of the area.” As for
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description the Court was willing to accept warrants on an area-
wide basis. (Bernas Green Book, page 183)
(However, according to Nachura, Inspection of buildings and
other premises for the enforcement of fire, sanitary and building
regulations is basically an exercise of police power of the State, and
would not require a search warrant. These are routine inspection
which, however, must be conducted during reasonable hours.)
B(1) Incidental to lawful arrest
(1) The arrest must be lawful
(2) The arrest must precede the search
(3) Search cannot be made in a place other than the place
of the arrest.
(4) Object of search must either be:
(a) weapon;
(b) anything used in the commission of the offense; or
(c) anything that may constitute as proof in the
commission of the offense. (See Section 13 Rule
126)
• “A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute
proof in the commission of an offense” (Section 13 of rule
126)
• Arrest must precede that search; the process cannot be
reversed (Malacat vs. CA) Exception: A search substantially
contemporaneous with an arrest can precede the arrest if the
police have probable cause to make the arrest at the outset
of the search (People vs. Tudtud citing 68 Am.Jur 2d)
• Purpose of search incidental to a lawful arrest:
(1) Protect the arresting officer against physical harm from
the person being arrested.
(2) To prevent the person arrested from destroying evidence
within his reach.
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• Warantless search incidental to lawful arrest should not be
strained beyond what is needed in order to serve its purpose.
(Bernas, Green Book at 184)
• Warantless search cannot be made in a place other than the
place arrest. (Bernas, Green Book at 185)
• Warantless search incidental to a lawful arrest may extend
beyond the person once arrested to include the premises or
surroundings under his immediate control. (People v. Musa)
[But see Chimel v. California, 395 US 752 (1969): “Scope of
allowable warantless search is limited to the area within which
the person arrested could reach for a weapon or reach for
evidence to destroy it.” and page 185 of Green Book.]
B(2) Plain view
Requirements:
(1) Prior valid intrusion based on the valid warantless arrest in which the
police are legally present in the pursuit of their official duty.
(2) The evidence was inadvertently discovered by the police who have
the right to be there.
(3) The evidence must be immediately apparent
(4) Plain view justified mere seizure of evidence without further search
(People vs. Valdez) (See Roan vs. Gonzales)
B(3) Moving vehicle
(1) There must exist a probable cause
(2) There must be no sufficient time to obtain a warrant
• The important thing is that there was probable cause to
conduct the warantless search (Caballes vs. CA)
• If there is time to obtain a warrant in order to search the vehicle,
a warrant must be first obtained. (Lim v. Ponce-de Leon)
• Moving vehicles include fishing vessels. (Roldan v. Arca)
B(4) Consented warantless searches
Requirements for effective waiver of rights:
(1) it must appear that the right exist
(2) the person involved had knowledge, actual or constructive of the
existence of such right.
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(3) Said person had an actual intention to relinquish the right.
(4) It must be understood to cover only what is included within the terms
of the language (Veroy vs. Layague)
• Waiver must be given by the person himself or by the one who
has the authority to execute waiver for him. (People v. Damaso)
• Search must be limited only to the extent of consent given.
(Jack)
• A permission granted for officers to enter a house to look for
rebel soldiers does not include permission for a room to room
search for firearms. (Spouses Veroy v. Layague)
B(5) Customs Searches
(1) Reasonable cause to suspect the presence of dutiable articles
(2) Search made by authorized person under the Tariff Code
(3) Search is made not in a dwelling place. (See Papa v. Mago)
Note: Searches at borders and ports of entry do not require the
existence of probable cause.
• The Tariffs and Customs Code authorizes persons having
police authority under the Code to effect search and seizures
without a search warrant to enforce customs laws.
• Exception: A search warrant is required for the search of a
dwelling house.
• Imported goods remain under the jurisdiction of Bureau of
Customs as importation is not terminated. (Tariff and Customs
Code).
• BOC acquires exclusive jurisdiction over imported goods, for the
purposes of enforcement of customs laws, from the moment the
goods are actually in its possession or control. (Papa vs. Mago)
B(6) Stop and Frisk
My requisites: (ASM)
(1) The individual has a suspicious behavior. (Terry v. Ohio; People
v. Canton)
(2) There is a belief that criminal activity is afoot. (Terry v. Ohio)
(3) Belief must be based on a genuine reason in light of the police
officer’s experience and surrounding conditions. (Malacat v. CA)
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(4) The purpose of the search is not to discover evidence of a crime
but to allow the officer to pursue his investigation without risk of
violence.
(5) Search is limited to outer clothing. (Malacat v. CA)*
(6) Search is limited to weapons. (People v. Canton)**
** But see Manalili v. CA where the object seized was a prohibited
substance.
Nachura’s requisites:
(1) The police officer should properly introduce himself and make
initial inquiries, approach and restrain a person who manifests
unusual and suspicious conduct, in order to check the latter’s outer
clothing for possibly concealed weapons.
(2) The apprehending officer must have a genuine reason, in
accordance with the police officer’s experience and the surrounding
conditions, to warrant the belief that the person to be held has
weapons or contraband concealed about him.
(3) Search and seizure should precede the arrest for the principle to
apply. (People v. Sy Chua)
2 Fold interest in stop and frisk
(1) Crime prevention and detection
(2) Self- preservation
• Even before the arrest, when an officer is justified in believing
that the individual whose suspicious behavior he is investigating
at close range is presently dangerous, he may conduct a limited
protective search.
• The purpose of this limited search is not to discover
evidence of a crime but to allow the officer to pursue his
investigation without risk of violence.
• Mere suspicion or hunch will not validate stop and frisk.
(Malacat vs. CA)
• A genuine reason must exist, in light of the police
officer’s EXPERIENCE and surrounding conditions, to
warrant the belief that the person detained has weapons
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concealed about him. (People vs. Solayao, Posadas vs. D(2) Administrative Inspection
CA) • There must exist reasonable governmental interest in
administrative inspection. Only reasonableness of need to
B(7) Exigent and Emergency Circumstances conduct periodic, area-wide inspection is needed. (See Camara
People vs De Gracia: This is a case of an attempted coup d’etat. The SC v. Municipal Court 387 US 523 (1967)) (???)
opined that the case based on the circumstances, falls under one of the
exceptions to the prohibition against warantless search. The following
• In the case of Camara v. Municipal Court, for the determination
of probable cause the Court allowed the issuing magistrate’s
facts were taken to account:
evaluation to rest upon the “passage of time, the nature of the
(1) Reasonable ground to believe that a crime was being
building or the condition of the area.” As for description the
committed.
Court was willing to accept warrants on an area-wide basis.
(2) There was no opportunity to apply for and secure a search
warrant from the courts.
(3) There was a prevailing general chaos and disorder (in
People v. De Gracia, there was an attempted coup)
(See People vs. Bolasa)

When the Constitution says that it is mean to cover “searches and

seizure of whatever nature and purpose”, the phrase extended search
and seizure clause to (1) Subpoena duces tecum and (2) administrative
inspection. (Bernas submits. Green Book at 179)

D(1) Subpoena duces tecum

(1) Good cause must be established (Rule 27)
(2) Things must be material to any matter involved in the action
(Rule 27)
(3) Things must be particularly described
(4) Things must not be privileged (Rule 27)
(5) Things cannot be used to incriminate the other party
• Subpoena duces tecum is a process directed to a person
requiring him to bring with him any books, documents or other
things under his control (Section 1, Rule 21) (See Rule 27,
Production or Inspection of Documents or Things)
• Good cause for production of documents must be established.
Documents cannot be used to incriminate the other party. Also,
the documents must be particularly described (See Material v
Judge Natividad and Oklahoma cases)

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SECTION 2: FREEDOM FROM ARREST

EXCEPTION: If arrest is reasonable

A. With Warrant B. Without Warrant

(1) Judicial Warrant
Requirements:
(1) issued upon probable cause
(2) personally examined by the judge
(3) Examined under oath and affirmation
(4) Particularly describing the place to be searched and
the persons or things to be seized(Section 2 ArticleIII)
(5) warrant must not be for more than one offense
(Revised Rules of Court)
(2) Orders of arrest by administrative authorities for the purpose
of carrying out a finding of a violation of law
(1) Sec 5 of Rule 113, Rules of Court
(2) Escape or rescue of a person lawfully arrested
(Section 13, Rule 113)
(3) Surrender of the accused by the bondsmen (Section
23, Rule 114)
(4) Attempt to leave the country without court permission
(Section 23, Rule 114)
(5) Final Order of Deportation
(6) Crimes against national security (?)

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B(1) Sec 5 of Rule 113, Rules of Court
(a) when in his presence, the person to be arrested has
committed, is actually committing, or attempting to commit
an offense;
(b) when an offense has in fact been committed and he has
personal knowledge of facts indicating that the person to
be arrested has committed it;
(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 case is
pending, or has escaped while being transferred from one
confinement to another.
In Flagrante Delicto, ELEMENTS
• For an in flagrante delicto arrest to be valid two elements must
concur:
(1) the person to be arrested must execute an overt act
indicating that he has just committed, or is actually committing
or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view
of the arresting officer.(People v. Binad Sy Chua, page 90 of
Jack’s Compendium)
In the Presence
• An offense is committed in the presence or within the view of an
officer, when the officer SEES the offense, although at a
distance, or HEARS the disturbances created thereby and
PROCEEDED AT ONCE to the scene thereof (US vs. Samonte;
Padilla v. CA)
• (Perhaps Hot Pursuit and Stop and frisk may fall under section
5(a)) (See Ateneo Bar Operations Reviewer)
Is Committing
• A person charged with rebellion, subversion, conspiracy or
proposal to commit such crimes, and crimes or offenses
committed in furtherance thereof may be arrested without a
warrant because these are continuing offenses and therefore the
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accused are assumed to be always continuing the offense. (Umil
v. Ramos) (See David v. Arroyo)
Personal Knowledge
• Policemen while patrolling in car received a radio message from
their camp directing them to proceed to “Ihaw-ihaw” where there
have been a shooting, went to the place and there saw the victim
and bystanders pointing to the accused fleeing from the scene.
The Court said that an offense had in fact just been committed,
and the officers had personal knowledge of the facts indicating
the accused had committed it. (People v. Jayson, 1997)
• Finding lifeless body with stab wounds and an informant pointed
to the accused as the assailant. Bloodstains in the accused’s
pants were found to be the same blood type as that found on the
fatal knife. (People vs. Jayson citing ____)
• Policemen went to the scene of the crime and found a piece of
wood and concrete hollow block used by the killer. A neighbor
who witnessed the killing pointed to the accused as the assailant
(People vs. Jayson citing People vs. Garente)
• Policemen received a report and immediately responded. One
of the victims pointed to the 4 persons one of which was wearing
his jacket. When they were approached they ran to different
directions. (People vs. Jayson citing People vs. Acol)
• When the policemen conducted a surveillance
• A person is seen wearing the stolen article (?)
B(2) Escape or rescue of a person lawfully arrested(Sec 13 of Rule 113)
Sec 13 of Rule 113- If a person lawfully arrested escapes or is
rescued, any person may immediately pursue or retake him without
a warrant at any time and in any place within the Philippines.
B(3) Surrender of the accused by the bondsmen (Section 23, Rule 114)
Sec 23 Rule 114 –For the purpose of surrendering the accused, the
bondsmen may arrest him or, upon written authority endorsed on a
certified copy of the undertaking, cause him to be arrested by a
police officer or any other person of suitable age and discretion.
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B(4) Attempt to leave the country without court permission (Section 23,
Rule 114)
An accused released on bail may be re-arrested without the
necessity of warrant if he attempts to depart from the Philippines
without permission of the court where the case is pending.

• If an arrest without warrant is unlawful at the moment it is made,

generally nothing that happened or discovered afterwards can
make it lawful. (People v. Burgos)

Buy-bust operation
• A buy-bust operation is a form of entrapment. The method is for
an officer to pose as a buyer. He, however, neither instigates nor
induces the accused to commit a crime. (People v. de la Cruz)
• However, if the criminal intent originates in the mind of the
entrapping person and the accused is lured into the commission
of the offense charged in order to prosecute him, there is
entrapment and no conviction may be had. (People v. Doria)

When to challenge validity of arrest

• The accused must move for the quashing of the information
against him before arraignment. Otherwise he is estopped from
questioning the validity of the arrest. (People v. Cabiles)

Filing of Bail bond

• Filing of a bail bond is a waiver of the accused of the right to
question it. (Callanta v. Villanueva)

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Section 3. third person could be held liable under RA 4200 if they

(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.
Section 3
commit any of the prohibited acts under RA 4200. (Ramirez v.
CA)
• The use of a telephone extension to overhear a private
conversation is not a violation of RA 4200 because it is not
similar to any of the prohibited devices under the law. Also, a
telephone extension is not purposely installed for the purpose
of secretly intercepting or recording private communication.
(Gaanan v. IAC)

Section 3(1): Privacy of Communication

and Correspondence
Privacy of Communication and Exclusionary Rule
Correspondence
Exceptions
Correspondence and communication
• It covers letters, messages, telephone calls, telegrams and
the like. A. Lawful Order of the Court B. When Public Safety or Order
• Letters addressed to individual Justices, in connection with Requires as prescribed by law
the performance of their judicial functions become part of
judicial record and are a matter for the entire Court. (In Re A Lawful Order of the Court
Laureta) • Probable cause is required for a court to allow intrusion.
• Written correspondence must be particularly described. As (Bernas)
regards communication, the identity of the person or persons • Written correspondence must be particularly described.
whose communication is to be intercepted, the identity of the • As regards communication, the identity of the person or
offense or offenses sought to be prevented and the period of persons whose communication is to be intercepted, the
the authorization given can be specified. identity of the offense or offenses sought to be prevented and
• Telephone extension was not among the devices covered by the period of the authorization given can be specified.
the law. (Gaanan v. IAC)
B When Public Safety or Order Requires as prescribed by law
RA 4200 Requisites:
• The law does not distinguish between a party to the private
communication or a third person. Hence, both party and a

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(1) Intrusion must be based upon a government’s officials
assessment that public safety and order demand such
intrusion
(2) Discretion of public officer must be exercised “as prescribed
by law”.
(3) Other than the President, other officers should first be
properly authorized. (Bernas)
• Public order and safety were defined as “the security of
human lives, liberty and property against the activities of
invaders, insurrectionists, and rebels. (1971 ConCon)
Note: While letters containing confidential communication
between detainees and their lawyers enjoy a limited protection
between detainees and their lawyers enjoy a limited protection in
that prison officials can open and inspect the mail for contraband
but could not read the contents thereof without violating the
inmates’ right to correspondence. Letters that are not of that
nature could be read by prison officials. (Alejano v. Cabuay)
See: Section 7 & 8 of Human Security Act
Q: How does the HSA differ from the Anti-Wiretapping Law?
A: (1) The judicial authorization under the HSA does not
necessarily identify the name and address of the suspect whose
communications are to be intercepted. It must only be specified
in the Authorization if it is known. On the other hand, the Anti-
Wiretapping Law requires that the name and person of the
suspect be identified and stated in the Judicial Authorization. (2)
The Judicial Authorization under the HSA valid for a shorter
period. The Anti-Wiretapping law grants authorization for a
straight period of 60 days. Nevertheless, the HSA amend the
Anti-Wiretapping Law to the effect that the surveillance allowed
by the HAS is not deemed a violation of the Anti-Wiretapping
Law, the contrary provisions of the latter notwithstanding.
(AHRC-A Quick Guide to HSA at 9)
Section 3(2): Exclusionary Rule
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Exclusionary rule
• Any evidence obtained without a warrant, by authority of
invalid warrant (and not falling to valid exceptions) shall be
inadmissible for any purpose in any proceeding. (Section
3(2) of Article III)
• Exclusionary rule is the only practical means of enforcing the
constitutional injunction against unreasonable searches and
seizures. (Stonehill v. Diokno)
• To come under exclusionary rule, the evidence must be
obtained by government agents and not by private individuals
acting on their own such as in the case of People v. Marti.
• Even if a vessel security is armed and tasked to maintain
peace and order, he is still a private employee and does not
discharge any governmental function. (People v.
Bongcarawan)
• BUT See Zulueta vs. CA: “The intimacies between husband
and wife do not justify any one of them breaking the drawers
and cabinets of the other. A person, by contracting marriage
does not shed his/her right to privacy as an individual.”
• Goods illegally seized must be returned unless the
possession of such goods is prohibited by law (Castro v.
Judge Pabalan)
• Firearms which have been illegally seized in a “zona” is
inadmissible in evidence. Pending the determination of the
legality of such articles, they shall remain in custodia legis,
subject to such appropriate disposition as the corresponding
courts may decide. (Alih v. Castro)
• It is not required that the property to be searched be owned
by the person against whom the search is directed. It is
sufficient that the property is under the control or possession
of the person sought to be searched. (Burgos v. Chief of
Staff)
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• The objection to an unlawful search or seizure and to

evidence obtained thereby is purely personal and cannot be
availed of by third parties. (Stonehill v. Diokno)
• The moment imported goods are in possession or control of
Customs, even if seized without warrant, the Bureau of
Customs acquires exclusive jurisdiction over the goods,
subject only to appeal to the proper tax court and to the
Supreme Court. (Collector of Customs v. Judge Villaluz)

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Section 4. No law shall be passed abridging the freedom of
speech, or expression, or of the press, or of the right of the
people to peaceably assemble and petition the government
for redress of grievances.
Section 4
• Exit polls and the dissemination of their results through mass
media constitute an essential part of the freedom of speech
and of the press. (ABS-CBN v. COMELEC)
• Plebiscite issues are matters of public concern and the
people’s right to be informed must be preserved. The
people’s choice of forum for discussion should not be
restricted. (Sanidad v. Comelec)

• Right to Privacy and Freedom of Speech. The right to

Freedom from Censorship Freedom from subsequent privacy cannot be invoked in order to resist publication and
Punishment dissemination of matters of public interest. What is protected
by the right of privacy is the right to be free from unwarranted
publicity, from wrongful publicizing of the private affairs and
Freedom of Speech activities of an individual which are outside the realm if
legitimate public concern. The right to privacy does not
• Freedom of Speech is defined by Wendell Philips as “at extend to a fictional or novelized representation of a person.
once the instrument and the guaranty and the bright
A limited intrusion into a person’s privacy has long been
consummate flower of all liberty.” (Cruz)
regarded as permissible where that person is a public figure
and the information sought to be elicited from him or to be
• Scope. Speech, Expression and press include every form of published about him constitute matters of a public character.
expression whether oral, written, tape or disc recorded. It also (Ayer Productions v. Capulong)
includes movies as well as what is referred to as symbolic
speech such as the wearing of an arm band as a symbol of
protest. Peaceful picketing has also been included within the Section 4: Freedom of Speech
meaning of speech. (Bernas)
Protected Core Not accorded with Forms of Speech
• Reasons for the Guaranty: Speech same protection as NOT Protected
(1) Freedom of expression is essential for the search of core speech.
truth. Speech which Commercial Speech (1)Libel
(2) It is needed for democracy to work properly. communicates (2)Obscenity
(3) It promotes individual self-realization and self- (1) political
determination. (Bernas, Green Book) (2) social or Reason: Such
(3) religious ideas. utterances are not
• When available. Freedom of expression is available only essential part of any
insofar as it is exercised for the discussion of matters exposition of ideas,
affecting public interest. (Cruz) and are of such

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slight social value
as a step to truth
that any benefit that
may be derived
from them is clearly
outweighed by the
special interests in
order and morality.
(Chaplinsky v. New
Hampshire)
Elements of Freedom of Expression
(1) Freedom from previous restraint or censorship;
(2) Freedom from subsequent punishment.
Freedom from prior restraint
• Prior Restraint means official governmental restrictions on
the press or other forms of expression in advance of actual
publication or dissemination.
• Prior restraint’s most blatant form is a system of licensing
administered by an executive officer.
• Legislative Restraint. The security of the freedom of the
press (and expression) requires that it should be exempt not
only from prior restraint from the executive, but also from
legislative restraints. (Near v. Minnesota)
• Closure is in the nature of restraint or censorship abhorrent
to the freedom of the press guaranteed under the
fundamental law and constitutes virtual denial of petitioner’s
freedom to express themselves in dissent. (Burgos v. Chief of
Staff)
• Censorship or prior restraint is done by suppressing
publication and punishing as contempt further publication. In
determining the extent of constitutional protection, it has been
generally, if not universally considered that it is the chief
purpose of the guaranty of freedom of press is to prevent
previous restraints of publication. (Near v. Minnesota)
• What is involved in the case of Ayer Productions v.
Capulong is a prior and direct restraint upon the exercise of
speech and of expression by petitioners. Capulong has
restrained petitioners from filming and producing the entire
proposed motion picture.
• A non-criminal process, which requires the prior submission
of a film to a censor, avoids constitutional infirmity only if it
takes place under procedural safeguards designed to obviate
the dangers of a censorship system. (Freedman v. Maryland)
• Presumption of invalidity. Any system of prior restraints of
expression bears a heavy presumption against its
constitutional validity. The Government thus carries the
burden of showing justification for the enforcement of such
restraint. (New York Times v. US)
• The VAT is not a license tax and therefore, not a form of
prior restraint. It is not a tax on the exercise if the privilege,
much less a constitutional right. It is imposed on the sale,
barter, lease or exchange (Tolentino v. Sec of Finance)
• Other Examples of Prior Restraint
o Licensing system
o Judicial Restraint
o License taxes based on gross receipts
o Flat license fees for the privilege of selling religious
books
o Press Censorship
o Movie Censorship
Movie Censorship

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• “Motion pictures are important both as a medium for the political office, although such may result in some
communication of ideas and the expression of the artistic limitation of the rights of free speech and free press.
impulse. Their effects on the perception by our people of (NPC vs. COMELEC)
issues and public officials or public figures as well as
prevailing cultural traits is considerable. It is important as an Subsequent Punishment
organ of public opinion.”(Gonzales vs. Kalaw Katigbak) • If prior restraint were all that the constitutional guarantee
prohibited and government could impose subsequent
• Standards for movie Censorship be valid punishment without restraint, freedom of expression would be
(1) The burden of proving that the film is unprotected a “mockery and a delusion.”
expression must rest on the censor.
(2) The requirement cannot be administered in a manner THREE TESTS
which would lend an effect of finality to the censor’s STANDARDS FOR ALLOWABLE SUBSEQUENT PUNISHMENT
determination whether a film constitutes a protected
expression. TESTS APPLICATION
(3) The procedure must also assure a prompt final judicial A. Dangerous Tendency • In speech cases
decision to minimize the deterrent effect of an interim involving incitement to
and possibly erroneous denial of a license.(Freedman v. sedition.
Maryland) • In cases of contempt of
Note: Philippine jurisprudence does not follow Freedman in the Supreme Court
every respect. It allows banning of movies before a court • Note: This test is more or
order is made. less discarded (Jack Jimenez;
See SWS v. COMELEC)
Exceptions to the rule of freedom from prior restraint/ B. Clear and Present Danger • In cases involving
Exceptions to the presumption of invalidity restrictions on election
(1) When a nation is at war campaigns.
(2) Obscene Publications
• In cases involving
(3) Security of community life may be protected against contempt of inferior courts.
incitements to acts of violence or overthrow by force of
• Assembly and Petitions
orderly government. (Near v. Minnesota)
C. Balancing of Interest • Commercial Speech
(4) General Welfare and Public Interest (example:
COMELEC’s power to regulate time in broadcast media • Intended for legislation
[UNIDO v. COMELEC]) whose object is not the
Note: There is no presumption of invalidity arises prevention of evil measurable
with respect to exercises of supervisory or regulatory by proximity and degree.
(Bernas)
authority on the part of the COMELEC for purposes of
• See Gonzales v.
securing equal opportunity among candidates for

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COMELEC
When is a government control-based regulation justified?
D. O’Brien Test Used in determining whether a
control based regulation is
justified.
A. Dangerous Tendency
• Speech may be curtailed or punished when it creates a
dangerous tendency which the State has the right to
prevent.
• All it requires for speech to be punishable is that there be a
rational connection between the speech and the evil
apprehended.
• On acts of force, violence or unlawfulness. It is not
necessary that some definite or immediate acts of force,
violence or unlawfulness be advocated. It is sufficient that
such acts be advocated in general terms.
• It is not necessary that the language used be reasonably
calculated to incite persons to acts of force, violence or
unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about a
substantive evil which the legislative body seeks to prevent,
(Cabansag v. Fernandez)
• Example: People v. Perez
B. Clear and Present Danger
• The question in every case is “whether the words used are
used in such circumstances and are of such nature as to
create a clear and present danger that they will bring about
the substantive evils that the State has a right to prevent.”
(Schenck v. US) It is a question of proximity and degree.
o Clear seems to point to a causal connection with the
danger of the substantive evil arising from the
utterance questioned. (Gonzales v. COMELEC)
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o Present refers to the time element. It used to be
identified with imminent and immediate danger. The
danger must not only be probable but very likely
inevitable. (Gonzales v. COMELEC)
o Substantive evil must be extremely serious and
the degree of imminence extremely high before
utterances can be punished. (Gonzales v.
COMELEC)
• An attempt to overthrow a government the government by
force, even though doomed from the outset because of
inadequate numbers or power of the revolutionists, is a
sufficient evil for Congress to prevent. (Dennis v. US)
• Violent picketing would create a clear and present danger to
the safety of persons and the public order and is therefore not
entitled to the protection of the Constitution.
• Examples: Primicias Case, Reyes v. Bagatsing, Ruiz v.
Gordon.
C. Balancing of Interest
• “When a particular conduct is regulated in the interest of
public order, and the regulation results in an indirect,
conditional, partial abridgement of speech, the duty of the
courts is to determine which of the two conflicting
interests demands greater protection under the particular
circumstances presented.” (American Communications
Associations v. Douds)
• Importance of the Balancing of Interest test:
Dangerous Tendency and Clear and Present Danger
rules are couched in terms of degree of evil and proximity
of evil. But not all evils easily lend themselves to
measurement of proximity and degree.
• Criticism of the test: The test in effect allows courts to
decide that a freedom may not be enforced unless the
courts believe it is reasonable to do so. (Justice Black)
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• In his concurring and separate opinion, Chief Justice

D. O’Brien Test
1. It is within the constitutional power of the Government;
2. If it furthers an important or substantial governmental
interest;
3. If the governmental interest is unrelated to the suppression
of free expression; and
4. If the incident restriction is no greater than is essential to the
furtherance of the interest.
COMMERCIAL SPEECH
• Commercial Speech is a communication which “no more
than proposes a commercial transaction”. Advertisement of
goods or of services is an example.
• Protection. Commercial speech does not enjoy the degree
of protection as core speech does.
To enjoy protection:
(1) Must no be false or misleading
(2) Should propose an illegal transaction
Hudson Test for Commercial Speech
Even truthful and lawful, commercial speech may be regulated if:
(1) the government has a substantial interest to
protect;
(2) the regulation directly advances that
interest;
(3) it is not more extensive than is necessary to
protect that interest. (Central Hudson Gas & Electric
Corp. v. Public Service Commission of NY)
Pharmaceutical and Health Care Association of the
Philippines v. Secretary Duque III, et al., GR No. 173034,
October 9, 2007.
Reynato S. Puno said that “the advertising and promotion of
breastmilk substitutes properly falls within the ambit of the
term commercial speech…a separate category of speech
which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression
but is nonetheless entitled to protection.”
• “[T]he absolute ban on advertising…is unduly restrictive and
is more than necessary to further the avowed governmental
interest of promoting the health of infants and young children.
It ought to be self-evident, for instance, that the
advertisement of such products which are strictly informative
cuts too deep on free speech. The laudable concern of the
respondent for the promotion of the health of infants and
young children cannot justify the absolute, overarching ban,”
said Chief Justice Puno.4
UNPROTECTED SPEECH
Libel
• Libel is a public and malicious imputation of a crime, or of
a vice or a defect, real or imaginary, or any act, omission,
condition, status or circumstance tending to cause the
dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead. (Article
353 of the RPC)
• The REQUISITES for libel are:
(a) the allegation of a discreditable act or condition
concerning another;
(b) publication of the charge
(c) identity of the person defamed; and
(d) existence of malice. (Vasquez v. CA)
4
Supreme Court Website.

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Allegation legislative, or other official proceedings which are

• An allegation is considered defamatory if it ascribes to a not of confidential nature, or of any statement,
person the commission of a crime which tends to dishonor or report, or speech delivered in said proceedings, or of
discredit or put him in contempt, or which tends to blacken any other act performed by public officers in the
the memory of one who is dead. (Vasquez v. CA) exercise of their functions. (Article 354 of RPC)
(3) Fair commentaries on matters of public
Publication interest (Borjal v. CA)
• It means making the defamatory matter, after it has been PRIVILEGED COMMUNICATION
written known to someone other than the person to whom it
has been written. (A man’s reputation is not the good opinion
Absolutely privileged Qualifiedly privileged
he has of himself, but the estimation in which others hold him)
(1) Pleadings that are relevant (1) A private communication
(Ledesma v. CA)
(2) Testimony of Witnesses made by any person to
(3) Remarks made in the course another in the performance of
Identity
of the trial any legal, moral or social duty;
• It is essential that the victim be identifiable although it is not (4) Section 11 of Article VI and
necessary that he be named. It is not sufficient that the (2) A fair and true report, made in
offended party recognized himself as the person attacked or good faith, without any
defamed, but it must be shown that at least a third person comments or remarks, of any
could identify him as the object of the libelous publication. juridical, legislative, or other
(Borjal v. CA) official proceedings which are
not of confidential nature, or of
Malice any statement, report, or
• There is malice when the author of the imputation is speech delivered in said
prompted by ill-will or spite and speaks not in response to proceedings, or of any other
duty but merely to injure the reputation of the person who act performed by public
claims to have been defamed. (Alonzo v. CA) officers in the exercise of their
• Presumption of Malice. “Every defamatory imputation is functions. (Article 354 of RPC)
presumed to be malicious even if it be true if no good (3) Fair commentaries on matters
intention and justifiable motive for making it is shown. (Article of public interest (Borjal v. CA)
354 of RPC)
Exceptions:
(1) A private communication made by any Rule on Privileged Communication
person to another in the performance of any legal, • The rule on privileged communication is that a
moral or social duty; and communication made in good faith on any subject matter in
(2) A fair and true report, made in good faith, which the communicator has interest, or concerning which he
without any comments or remarks, of any juridical,

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has duty, is privileged if made to a person having a
corresponding interest, although it contains incriminatory
matter which, without privilege, would be libelous and
actionable. (Ledesma v. CA)
• The concept of privileged communications implicit in the
freedom of the press. (Borjal v. CA)
• Pleadings. Pleadings, etc., are privileged; but, to be so, they
must be relevant to the matter under investigation. (Gutierrez
v. Abila) So also about remarks made in the course of the trial
(Malit v. People)
• Complaint in SEC. The publication of a complaint filed with
SEC before any judicial action is taken thereon is privileged
as a report of a judicial proceeding. (Reasons: (1) Said
pleadings have become part of the public record open to the
public to scrutinize; (2) Said pleadings are presumed to
contain allegations and assertions lawful and legal in nature,
appropriate to the disposition of issues ventilated before
courts for the proper administration of justice and therefore, of
general public concern.) (Cuenco v. Cuenco)
• Standards. The law against libel is protective of reputation
according to community standards and not according to
personal or family standards. (Bulletin Publishing Corp v.
Noel) Clear and Present Danger Test is used. (Reyes v.
Bagatsing, David v. Arroyo, Bayan v. Ermita)
• Derogatory remarks in newspapers. To enjoy immunity, a
publication containing derogatory information must be not
only true but also fair, and it must be made in good faith and
without comments or remarks. (Policarpio v. Manila Times
Publishing Co.)
• Honest mistake or imperfection. In preparation of stories,
press reporters and edition usually have to race with their
deadlines; consistently with good faith and reasonable care,
they should not be held to account to a point of suppression,
for honest mistake or imperfection in the choice of words
(Quisumbing V. Lopez).
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• Defamatory information against public officials. For
liability to arise without offending the press freedom, there is
the test to meet: statements was made with 'actual malice'- ie.
knowledge that it was false or with reckless disregard of
whether it was false or not (NY times v. Sullivan). This rule is
extended to a defamatory imputation against a barangay
official as well as a PCGG Commissioner. (Jalandoni v.
Drilon)
• The rule in TIMES case is extended to private sector public
figures (e.g. newscaster, political analyst etc). (Hustler
Magazine And Larry Flynt Vs. Jerry Falwell)
• HOWEVER, malice is not required in publications relating to
judicial action. One of the fundamental pubic interests is the
maintenance of the integrity and orderly functioning of the
administration of justice. The protection and maintenance of
freedom of expression itself can be secured only within the
context of a functioning and orderly system of dispensing
justice which is as important as is the maintenance of an
unmuzzled press and the free exercise of the rights of the
citizens is the maintenance of the independence of the
Judiciary.
A publication relating to judicial action in a pending case
which tends to impede embarrass or obstruct the court and
constitutes a clear and present danger to the administration
of justice is not protected by the guarantee of press freedom
and punishable as contempt (In re: Jurado)
FAIR COMMENT (US RULE): These are statements of
OPINION, not of fact, and are not considered
actionable, even if the words used are neither mild nor
temperate. What is important is that the opinion is the
true and honest opinion of the person. The statements
are not used to attack personalities but to give one’s
opinions on decisions and actions.
OPINIONS. With respect to public personalities
(politicians, actors, anyone with a connection to a
newsworthy event), opinions can be aired regarding
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their public actuations. Comment on their private lives,
if not germane to their public personae, are not
protected.
Obscenity
• Nature. Obscenity is an unprotected speech which the State
has the right to regulate.
• Old definition: People v. Kottinger (1923) defined obscenity
as something which is offensive to chastity, decency or
delicacy.
• Example: A live sexual intercourse is plain pornography
(People v. Padan)
• There is no perfect definition of obscenity but the latest word
is that of Miller v. California (Fernando v. CA, Dec. 6, 2006)
Miller Test
a) Whether the average person, applying contemporary
community standards* would find that the work, taken as
a whole, appeals to the prurient5 interest;
(b) Whether the work depicts or describes, in a patently
offensive way, sexual conduct** specifically defined by
the applicable state law;
(c) Whether the work, taken as a whole lacks serious literary,
artistic, political, or scientific value.(Miller vs. California
(1973)) (Gonzales v. Kalaw Katigbak)
* The court should not apply a national standard but the
standard of the community in which the material is being
tested. (Cruz)
** Examples include (a ) patently offensive representations
or descriptions of ultimate sexual acts, normal or perverted,
actual or simulated; and (b) patently offensive representation
5
Itching, longing; uneasy with desire or longing; of persons having itching,
morbid, or lascivious longings; of desire, curiosity, or propensity, lewd
(Roth vs. US)
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or descriptions of masturbation, excretory functions, and
lewd exhibition of genitalia. (Miller v. California)
Note:
It would be misreading of Miller to conclude that the trier of facts
has unbridled discretion in determining what is patently
offensive. (Fernando v. CA citing Jenkins v. Georgia)
Note:
Stricter rules could be followed for television, radio and schools.
• RENTON vs. PLAYTIME THEATERS
DOCTRINE: Zoning legislation dealing with adult
entertainment that does not ban adult theaters altogether is
not invalid being properly analyzed as a form of time, place
and manner of regulation. “Content-neutral time, place and
manner regulations are acceptable so long as they are
designed to serve a substantial government interest and do
not unreasonably limit alternative avenues of
communication.
BETHEL SCHOOL DISTRICT vs. FRASER
DOCTRINE: The first amendment does not prevent the
school district from disciplining students in giving offensively
lewd and indecent speech at a school assembly. The use of
an offensive form of expression may not be prohibited to
adults making a political point but it does not follow that the
same latitude must be permitted to children in public school.
It is highly appropriate function of public school education to
prohibit the use of vulgar and offensive terms in public
discourse. It is well within the power of the school to prohibit
vulgar language to be used by its students.
HAZELWOOD SCHOOL DISTRICT vs. KUHLMEIER
DOCTRINE: Schools had the authority to censor if it could
affect the education of others. This case ruled that the
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censorship in the schools was only acceptable if it were for
“valid educational purpose.” Stricter rules should be
followed for speech in school because of the nature of
the community that is involved and the relationship
between school and parents.
• Q: May sex in the internet be banned?
A: It depends. Obscenity may be banned. But attempts to
regulating sex which does not come under the definition of
obscenity for the purpose of protecting minors have failed on
the argument under the definition of obscenity and are
therefore legitimate for adults. (Reno v. American Civil
Liberties Union (1997), US v. American Library Association
(2003))
Procedure before law enforcement agencies may seize allegedly
obscene publications:
(1) The authorities must apply for the issuance of a search
warrant from a judge, if in their opinion, an obscenity rap
is in order;
(2) The authorities must convince the court that the
materials sought to be seized are “obscene,” and pose a
clear and present danger of an evil substantive enough
to warrant State interference and action;
(3) The judge must determine whether or not the same are
indeed “obscene”. The question is to be resolved on a
case-to-case basis and on His Honor’s sound discretion;
(4) If, in the opinion of the court, probable cause exists, it
may issue the search warrant prayed for;
(5) The proper suit is then brought in the court under Article
201 of the Revised Penal Code;
(6) Any conviction is subject to appeal. The appellate court
may assess whether or not the properties seized are in
deed obscene. (Pita v. CA)
ASSEMBLY AND PETITION
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• Attribute of citizenship. Right to peaceful assembly is an
attribute of citizenship. It is found wherever civilization exists.
It was not a right granted to the people by the Constitution. It
was there long before the adoption of the Constitution (of
US). (Navarro v. Villegas)
• Fundamental. The right of peaceable assembly is a right
cognate to those of free speech and free press and is equally
fundamental. (De Jonge v. Oregon)
• Enjoys Primacy. The right to peaceably assemble and
petition for redress of grievance is together with freedom of
speech, of expression of the press, a right that enjoys
primacy in the realm of constitutional protection. Fort these
rights constitute the very basis of a functional democratic
polity, without which all the other rights would be meaningless
and unprotected. (Bayan v. Ermita)
• Not Absolute. The right while sacrosanct is not absolute.
The privilege of a citizen to use the streets may be regulated
in the interest of all. The right must be exercised in
subordination to the general comfort and convenience, and in
consonance with peace and good order. (Primicias v.
Fugoso)
• A statute requiring persons using public streets for a parade
or procession to procure special license therefore for local
authorities is not an unconstitutional abridgement of the rights
of assembly or of freedom of speech and press, where the
licensing authorities are strictly limited in the issuance of
licenses, to a consideration of time, place, and manner of the
parade or procession with a view to conserving the public
convenience and of affording an opportunity to provide
policing, and are not invested with arbitrary discretion to issue
or refuse license. (Primicias v. Fugoso)
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• The authority of a municipality to impose regulations in order
to assure the safety and convenience of the people in the use
of public highways has never been regarded as inconsistent
with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately
depend. (Primicias v. Fugoso)
• Standards. The right of assembly and petition is equally as
fundamental as freedom of expression, the standards for
allowable impairment of speech and press are also used for
assembly and petition.
• Fear of serious injury cannot alone justify suppression of free
speech and assembly. To justify suppression of free speech,
there must be reasonable ground to fear that serious evil will
result if free speech is practiced. (Primicias v. Fugoso)
• The fact that speech is likely to result in some violence or in
destruction of property is not enough to justify its
suppression. (Primicias v. Fugoso)
• Peaceful Picketing.Peaceful picketing is constitutionally
protected. The guarantee of free speech protects the strikers.
(PCIB v. Philnabank Employees)
• Extent of the authority of the State to regulate public
assemblies. The Mayor is possessed of 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. (Navarro v. Villegas)
• Disciplinary action may be taken against students for
conduct which “materially disrupt class work or involves
substantial disorder or invasion of the rights of others.”
However, considering the importance of the right of assembly
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and petition, the penalty imposed is too severe. (Malabanan
v. Ramento)
• Freedom of Speech and Judiciary. There is no antimony
between free expression and the integrity of the justice
system. Freedom of expression needs to be adjusted to and
accommodated with the requirements of equally important
public interest such as the maintenance of the integrity and
orderly functioning of the administration of justice. Judicial
independence is undermined by the irascible demonstrations
outside the courthouses. They wittingly or unwittingly spoil the
ideal of sober, non-partisan proceedings before a cold and
impartial judge. A state may thus adopt safeguards necessary
to assure that the administration of justice is at all stages, free
from outside control and influence. ( In Re: Valmonte)
Bayan v. Ermita
o BP 880 is not an absolute ban of public assemblies
but a restriction that simply regulates the time, place
and manner of the assemblies.
o BP 880 refers to all kinds of public assemblies that
would use public places.
Is BP 880 Content-based? NO
o Reference to lawful cause. The reference to lawful
cause does not make it content-based because
assemblies really have to be for lawful causes,
otherwise they will not be peaceable and entitled to
protection.
o “Opinion”, “protesting”, and “influencing”. The
words opinion, protesting and influencing in the
definition of public assembly is not content-based,
since they refer to any subject.
o “Petitioning the government for redress of
grievances”. The words petitioning the government
for redress of grievances come from the wording of
the Constitution so its use cannot be avoided.
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o Maximum Tolerance is for the protection and benefit
of all rallyists and is independent of the content of the
expression in the rally.
PERMITS
o But permit can only be denied on the ground of clear
and present danger to public order, public safety,
public convenience, public morals or public health.
This is a recognized exception to the exercise of the
right even under UDHR and ICCPR.
CPR
o Calibrated Preventive Response does not mean
anything other than the maximum tolerance policy set
forth in BP 880. (CPR then serves no purpose if it
means maximum tolerance and it is illegal if it means
something else). What is to be followed is and should
be that mandated by the law itself, namely,
maximum tolerance, which specifically means the
highest degree of restraint that the military, police and
other peace keeping authorities shall observe during
a public assembly or in the dispersal of the same.
David v. Arroyo
Are dispersals of the rallies of KMU and NAFLU-KMU
members unconstitutional?
o Yes. Apparently, the dispersal was done merely on
the basis of Malacanang’s directive canceling all
permits previously issued by local government units.
This is arbitrary. The wholesale cancellation of all
permits to rally is blatant disregard of the principle
that “freedom of assembly is not to be limited, much
less denied, except a showing of clear and present
danger of a substantive evil that the State has a right
to prevent.” Respondents failed to show or convince
the Court that the rallyists committed acts amounting
to lawless violence, invasion or rebellion.
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o Moreover, under BP 880, the authority to regulate
assemblies and rallies is lodged with the local
government units. They have the power to issue
permit and to revoke such permits after due notice
and hearing on the determination of the presence of
cleat and present danger. Here, petitioners were not
even notified and heard on the revocation of their
permits. The first time they learned of it was at the
times of the dispersal. Such absence of notice is a
fatal defect.
Summary of the rules on assembly and petition in public
places
(1) Applicant should inform the licensing authority of the
date, the public place where and the time when the
assembly will take place.
(2) The application should be filed ahead of time to enable
the public official concerned to appraise whether there
are valid objections to the grant of the permit or to its
grant, but in another place. The grant or refusal should
be based on the application of the Clear and Present
Danger Test.
(3) If the public authority is of the view that there is an
imminent and grave danger of a substantive evil, the
applicants must be heard on the matter.
(4) The decision of the public authority, whether favorable or
adverse, must be transmitted to the applicants at the
earliest opportunity so that they may, if they so desire,
have recourse to the proper judicial authority. (Reyes v.
Bagatsing)
Rules on assembly in private properties:
• Only the consent of the owner of the property or person
entitled to the possession thereof is required.
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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.
Section 5
Non-establishment Clause Free Exercise Clause
A. Freedom to Believe
B. Freedom to Act
Freedom of Religion
• Freedom of religion is a fundamental right which is entitled to
the highest priority and the amplest protection for it involves
the relationship of man to his Creator. (Ebralinag v.
Superintendent)
• Freedom of religion has been accorded a preferred status by
the framers of our fundamental laws, past and present. (INK
v. CA)
• Religious freedom has 2 fold aspects: (1) Freedom to
Believe; (2) Freedom to act on one’s belief.
Religion
• Any specific system of belief, worship, conduct etc., often
involving a code of ethics and philosophy. (Webster’s New
World Dictionary)
• A profession of faith to an active power that binds and
elevates man to his Creator. (Aglipay v. Ruiz)
• Religion also includes a refusal to believe in God. (Cruz)
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2 Guarantees of Section 5
(1) Non-establishment clause
(2) Free exercise clause
Q: How does one tell whether a case is a free
exercise case or a non-establishment case?
A: One simple guide is this: every violation of
the free exercise clause involves compulsion
whereas a violation of the non-establishment
clause need not involve compulsion. (Bernas)
Non- establishment clause
• The Establishment clause does not depend upon any
showing of direct governmental compulsion and 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 non-establishment clause simply means that the state
cannot set-up a church; nor pass laws which aid one religion,
aid all religion, or prefer one religion over another nor force
nor influence a person to go to or remain away from church
against his will or force him to profess a belief or disbelief in
any religion; that the state cannot punish a person for
entertaining or professing religious beliefs or disbeliefs, for
church attendance or non-attendance; that no tax in any
amount, large or small, can be levied to support any religious
activity or institution whatever they be called or whatever form
they may adopt to teach or practice religion; that the state
cannot openly or secretly participate in the affairs of any
religious organization or group and vice versa. (Everson v.
Board of Education)
• Stated otherwise, the clause seeks to prevent sponsorship,
financial support, and active involvement of the sovereign in
religious activities.
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• Kurtzman Test: There will be no violation of the
establishment clause if:
(1) the statute has a secular legislative purpose;
(2) its principal or primary effect is one that neither
advances nor inhibits religion; and
(3) it does not foster an excessive government
entanglement with religion. (Lemon v. Kurtzman)
• The State cannot pass laws or impose requirements which
aid all religions as against non-believers.
• Study of the bible or of religion, when presented objectively
as part of a secular program of education may be effected
consistently with the Constitution. (Obiter in Abington)
• A law requiring that at least 10 verses of the bible shall be
read at the opening of each public school on every school
day found to be violative of the non-establishment clause.
(Abington v. Schempp)
• State sponsored bible readings and prayers in public schools
have been invalidated for violating (1) and (2). (School District
v. Schempp)
Other Constitutional provisions expressing the non-
establishment principle:
(1) Article VI, Section 29(2) [Prohibition against the use of public
money or property for the benefit of any religion, or of any
priest, minister, or ecclesiastic]
(2) Article II Section 6 [The separation of Church and State
shall be inviolable.]
(3) Article IX-C Section 2(5) [A religious sect or denomination
cannot be registered as a political party]
(4) Article VI Section 5(2) [No sectoral representative from the
religious sector.]
Exceptions to the Non-establishment clause
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(1) Article VI Section 28(3) [Exemption from taxation of
properties actually, directly and exclusively used for religious
purposes]
(2) Article XIV Section 4(2) [Citizenship requirement of
ownership of educational boards]
(3) Article XIV Section 3(3) [Optional religious instruction in
public elementary and high schools: at the option expressed
in writing by the parents or guardians, religious instruction
taught within regular class hours by instructors designated
and approved by the religious authorities of the religion to
which the children or wards belong, without additional cost
to the government]
(4) Article VI Section 29(2) [Appropriation allowed where the
minister or ecclesiastic is employed in the armed forces, in a
penal institution, or in a government-owned orphanage or
leprosarium.]
Government Aid
• The non-establishment clause does not prohibit all
government aid that might redound to the benefit of religion.
Standards for allowable government aid:
(1) Government aid must have a secular legislative purpose.
(2) It must have a primary effect that neither advances nor
inhibits religion.
(3) It must not require excessive entanglement with recipient
institutions.
Government must have a secular purpose
• There was no violation of the Constitution where it was
shown that the money used by a barangay council for the
purchase of a religious image was raised by it from private
contributions and did not constitute public funds. The
wooden image was purchased in connection with the
celebration of the barrio fiesta honoring the patron saint. The
barrio fiesta a socio-religious affair. (Garces v. Estenzo)
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• Lending of secular textbooks to parochial school children
and the grant of construction aid for science buildings have
been allowed satisfying (1) and (2). (Board of Education v.
Allen) (Note: According to Cruz in view of Article VI Section
29(2), Allen, Everson, and Zorach cases might not be
applicable in the Philippines)
It must have a primary effect that neither advances nor
inhibits religion.
• The Philippine SC allowed the issuance of religious
commemorative stamps as giving merely incidental benefits
to religion. (Aglipay v. Ruiz) Any benefit indirectly enjoyed by
a religious institution, as long as such benefit was only
incidental to a legitimate secular objective, would not violate
the prohibition. (Aglipay v. Ruiz)
• The expropriation of the birthplace of Felix Y. Manalo,
founder of Iglesia ni Kristo, for the purpose of preserving it as
a historical landmark, was upheld as for “public use”.
Whatever benefits the adherents of Iglesia would reap would
only be incidental to the public historical purpose. (Manosca
v. CA)
• Salary payments and reimbursements for secular textbooks
and other instructional materials under a system involving
close government supervision was invalidated as not
satisfying (3). (Committee for Public Education v. Nyquist)
• In a dispute over property belonging to a voluntary
organization (a cofradia) strictly independent of the church,
the rule is that “the use of properties of a ‘religious
congregation’ in case of division is controlled by the
numerical majority of the members. (Canete v. CA)
• Continuing government surveillance is equated to excessive
government entanglement.
• Ecclesiastical Affair is one that concerns doctrine, creed or
form of worship of the church, or the adoption and
enforcement within a religious association of needful laws
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and regulations for the government of the membership, and
the power of excluding from such associations those deemed
unworthy of membership. (Austria v. NLRC) Based on this
definition, an ecclesiastical affair involves the relationship
between the church and its members and relates to matters
of faith, religious doctrines, worship and governance of the
congregation. Examples of these affairs in which the State
cannot meddle are proceedings for excommunication,
ordination of religious ministers, administration of
sacraments, and other activities to which is attached religious
significance.
Intramural religious dispute.
• Intramural disputes regarding religious dogma and other
matters of faith are outside the jurisdiction of the secular
authorities. These are questions that may be resoled by the
religious authorities themselves, and among themselves only.
(Cruz)
• Dogma is not binding. It is also settled that whatever
dogma is adopted by a religious group cannot be binding
upon the State if it contravenes its valid laws. (Thus, while the
Church may provide for the dissolution of marriage by its own
courts, the ecclesiastical decree cannot prevail against the
Civil Code which prohibits divorce. {But see Estrada v.
Escritror})
• However, where the dispute involves the property rights of
the religious group, or the relations of the members where
property rights are involved, the civil courts may assume
jurisdiction. (Fonacier v. CA)
• The court has no jurisdiction to entertain a complaint about
an expulsion or communication from a church. (Taruc v.
Bishop, 2005)
• Where a civil right depends upon some matter pertaining to
ecclesiastical affairs, the civil tribunal tries the civil right and
nothing more. (Gonzales v. Archbishop of Manila)
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Free Exercise Clause
• The free exercise clause forestalls compulsion by law of the
acceptance of any creed or the practice of any form of
worship. It also safeguards the free exercise of the chosen
form of religion. (Cantwell v. Connecticut) Thus, the
embraces two concepts: (1) Freedom to believe and (2)
freedom to act.
Aspects of freedom of religious profession and worship:
(1) Freedom to believe
(2) Freedom to act on one’s belief
Freedom to Believe
• Absolute. Freedom to believe is absolute as long as the
belief is confined within the realm of thought.
• An individual has full freedom to believe as he pleases no
matter how absurd his beliefs are to other, even if they be
hostile and heretical to the majority. He may not be required
to prove his beliefs. He may not be punished for his inability
to do so.
Freedom to act on one’s belief
• Subject to Regulation. Freedom to act on one’s belief is
subject to regulation where the belief is translated into
external acts that affect public welfare.
• Dissemination of religious information. The constitutional
guarantee of free exercise of religious profession and worship
carries with it the right to disseminate religious information,
and any restraint of such right can be justified only on the
ground that there is a clear and present danger of an evil
which the State has the right to prevent. (INC v. CA)
• The right to proselytize is recognized as part of religious
freedom. (American Bible Society v. City of Manila)
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• Flag Salute. Members of the Jehova’s witness may refuse to
salute the flag on account of their religious scruples.
(Ebralinag v. Division Superintedndent)
• Religious Freedom and Contractual Rights. RA 3350 was
upheld exempting members of a religious sect from being
compelled to join a labor union. (Victoriano v. Elizalde Rope
Workers Union) Religious freedom although not unlimited, is
a fundamental personal right and liberty, and has a preferred
positions in the hierarchy of values. Contractual rights,
therefore, must yield to the freedom of religion.
• License on dissemination of religious articles. License
may not be required by the State for the dissemination of
religious literature unless the dissemination is done as
business operation for profit. (American Bible v. City of
Manila)
• Regulation of Solicitations. State regulations for the
protection of the public imposed on solicitations for religious
purposes do not constitute an abridgment of freedom of
religion. (Centeno v. Villalon)
• [Note that solicitations for religious purposes are not
covered by PD 1564 (Solicitation Permit Law) which requires
a prior permit from DSWD in solicitations for “charitable or
public welfare purposes.” (Centeno v. Villalon)]
• VAT. The free exercise clause does not prohibit imposing a
generally applicable sales and use tax on the sale of religious
materials by a religious organization. (Tolentino v. Secretary
of Finance) Where the resulting burden on the exercise of
religion is so incidental as to make it difficult to differentiate it
from any other economic imposition that might make the right
to disseminate religious doctrines costly, then the imposition
is not invalid. (Tolentino v. Secretary of Finance) The
registration requirement is a central feature of the VAT
system…The registration fee is a mere administrative fee,
one not imposed on the exercise of a privilege, much less a
constitutional right. (Tolentino v. Secretary of Finance)
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• Note: In the ABS case, it was a form of regulation, in the
Tolentino case, it is a form of imposition on revenue.
2 APPROACHES/STANDARDS ON RELIGION CLAUSES
A. Separation
(1) Strict Separation
(2) Strict Neutrality/ 2nd theory of government neutrality
B. Benevolent Neutrality
A(1) Strict Separation
• Strict Separationist believes that the Establishment Clause
was meant to protect the state from the church, and the
state’s hostility towards religion allows no interaction between
the two.
A(2) Strict Neutrality/ 2nd Theory of Gov’t Neutrality
• Strict Neutrality view believes that the state must be neutral
in its relations with groups of religious believers and non-
believers.
• This approach is not hostile to religion. But it holds that
religion may not be used as a basis of classification for
purposes of governmental action. It does not permit, much
less require accommodation of secular programs to religious
belief.
• Criticism: This approach could lead to a de facto voiding of
religious expression in the Free Exercise clause. To most
observers, strict neutrality has seemed incompatible with the
very idea of a free exercise clause.
B. Benevolent Neutrality/Accommodation
• Benevolent Neutrality recognizes that religion plays an
important role in the public life.
• Benevolent Neutrality theory believes that with respect to
governmental actions which incidentally aid or burden
religious exercise, accommodation of religion may be allowed
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to allow individuals and groups to exercise their religion
without hindrance.
• Benevolent neutrality recognizes that government must
pursue its secular goals and interests, but at the same time,
strive to uphold religious liberty to the greatest extent possible
within constitutional limits.
• Note: The benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and
framework underlying the Philippine Constitution.
• The power of the Courts to grant exemptions in general has
been decided twice by the Court( Ebralinag and American
Bible Society cases)
• The Court can make exemptions in cases involving criminal
laws of general application. (Estrada v. Escritor)
• Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend
compelling state interest.
• Compelling Interest Test:
(1) Whether the right to religious freedom has been
burdened
(2) Ascertain whether there is sincerity in the religious
belief.
• Benevolent Neutrality Test:
(1) Does the law impose a burden on the freedom of
religion?
(2) Is there a compelling state interest>?
(3) Did the state use 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.
Religious Tests
• The constitutional prohibition against religious tests is aimed
against clandestine attempts on the part of the government to
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prevent a person from exercising his civil or political rights

because of his religious beliefs. (Cruz)
• The purpose of the prohibition of religious tests is to render
the government powerless “to restore the policy of probing
religious beliefs by test oaths or limiting public offices to
persons who have a belief or profess to have a belief in some
parparticular kind of religious concept. (Torcaso v. Watkins)
• Duty to Vote. The duty to register and vote, when
constitutionally imposed, may well be made to yield to free
exercise of religion.
• Military Service.
Q: The Constitution imposes the duty to defend the State.
May the State allow exemptions on religious grounds?
A: Yes, as long as exemptions is not religiously motivated on
its face and is not religiously discriminatory. (Gillete v. US)
(But see People v. Zosa: “Invocation of religious scruples to
avoid military service was brushed aside by the Supreme
Court.” )
• Q: Section 2175 of the Revised Administrative Code (1917)
disqualifies an “ecclesiastic” from being elected or appointed
to a municipal office. Is this consistent with the religious
clause of the Constitution?
A: No. (7-5 decision of the SC under 1973 Constitution,
Pamil v. Teleron) (McDaniel v. Patty)
Note: Section 2175 of the Revised Administrative Code has
been repealed by Section 23 of the Election Code of 1971.
(Jack’s Compendium at 125)

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Section 6. The liberty of abode and of changing the same by in Section 6 relative to the right to travel and liberty of
within the limits prescribed by law shall not be impaired abode do not apply. (Marcos v. Manglapus)
except upon lawful order of the court. Neither shall the right • A maid has the right to transfer to another residence even if
to travel be impaired except in the interest of national she had not yet paid the amount advanced for her
security, public safety, or public health. transportation from the province, by an employment agency
which was then effectively detaining her because of the moral
duress extended on her. (Cuanca v. Salazar)
Section 6 • Where the hold-order has expired and no good reason
appears for extending it, an alien may not be indefinitely kept
from leaving the country. The right to travel is guaranteed by
Liberty of Abode: Freedom to Right to travel: Freedom to the Constitution and the Universal Declaration of Human
choose and change one’s travel both within the country Rights to which the Philippines is a signatory. (Kant Kwong v.
abode and outside PCGG)
Limitations: Limitations:
(1) Within limits prescribed (1) In the interest of national Limitation of liberty of abode: Lawful order of the court
by law; and security, public safety or • The right to change abode and travel within the Philippines
(2) Upon lawful order of the public health; OR are not absolute rights. It can be regulated by “lawful order.”
court (2) Lawful order of the court An order of the CA releasing a petitioner on bail constitute
such lawful order as contemplated by Section 6.
• A person facing criminal charges may be restrained by the
• There is a rewriting of the original rule in the Constitution, court form leaving the country or if abroad, compelled to
which was confined to the liberty of abode. The new rule return.
expressly includes the right to travel, and the exceptions have • A lessee may be judicially ejected for violation of his
been restricted. contractual duties.
• Purpose of Guaranty. To further emphasize the individual’s • The judge may prevent a person from entering certain
liberty as safeguarded in general terms by the due process premises under dispute or declared off-limits by the proper
clause. authorities.
• Right to return to one’s country is not covered. The right Limitation on right to travel: Interest of national security, public
to travel and liberty of abode are distinct from the right to safety or public health as may be provided by law.
return to one’s country, as shown by the fact that Declaration
of Human Rights and the Covenant on Human Rights have
• Public safety. An administrative order issued by the
Secretary of Labor temporarily suspending the deployment of
separate guarantees for these. Hence, the right to return to
Filipino domestic helpers abroad was uphold, in view of the
one’s country is not covered by the specific right to travel and
need to extend protection to female domestics who were
liberty of abode. Consequently, the requirements prescribed
most prone to exploitation and abuse by their foreign

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employers. The ban on their right to travel was justified on the
ground of public safety. (Philippine Association of Service
Exporters v. Drilon)
• Public Safety. Where there is threat of volcanic eruption,
residents in the affected area may be forced to evacuate and
be prevented from returning until the danger is over.
• Public Health. Health officers may restrict access to
contaminated areas and also quarantine those already
exposed to the disease sought to be contaminated. (Lorenzo
v. Director of Health)
• In Provincial Board of Mindoro v. Rubi, the respondents were
justified in requiring members of certain non-Christian tribes
to reside in a reservation, for their better education,
advancement and protection. The measure was held to be a
legitimate exercise of the police power.
• In Villavicencio v. Lukban, the mayor of Manila was not
sustained by the SC when he “deported” some 170 women of
ill-repute to Davao for ridding the city of serious moral and
health problems.
may be legally prohibited form leaving the country during the
pendency of the case. (Defensor-Santiago v. Vasquez)
• Consequence of Bail. A court may prevent a person
admitted to bail from leaving a country. This is a necessary
consequence of a bail bond which is to secure a person’s
appearance when needed. (Manotoc v. CA)
• Pending Cases. Parties with pending cases should apply for
permission to leave the country from the very same courts
which, in the first instance, are in the best position to pass
upon such applications and to impose the appropriate
conditions therefore, since they are conversant with the facts
of the cases and the ramification of implications thereof.
(Defensor-Santiago v. Vasquez)

A lawful order of the court is also a valid restriction on the

right to travel.
• Safeguarding the systems of justice. The person’s right to
travel is subject to the usual constraints imposed by the very
necessity of safeguarding the systems of justice. Whether an
accused should be permitted to leave the country for
humanitarian reasons is matter addressed to the court’s
discretion. (Romualdez- Marcos v. Sandiganbayan)
• Hold departure Order. The hold departure order is but an
exercise of the court’s inherent power to preserve and
maintain the effectiveness of its jurisdiction over the case and
over the person of the accused. (Defensor-Santiago v.
Vasquez)
• Bail. By posting bail, the accused holds herself amenable to
all times to the orders and processes of the court, thus she

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Section 7. The right of the people to information on matters • This section is related to:
of public concern shall be recognized. Access to official (1) Article VI, Section 16(4) requiring publication of the
records, and to documents and papers pertaining to official legislative journals from time to time excepting such
acts, transactions, or decisions, as well as to government parts as may, in the judgment of the House, affect
research data used as a basis for policy development shall national security.
be afforded the citizen, subject to such limitations as may be (2) Article VI, Section 20 providing that “the records and
provided by law. books of accounts of the Congress shall be open to the
public in accordance with law, and such books shall be
Section 7 audited by the COA which shall publish annually an
itemized list of amounts paid and expenses incurred for
each Member.”
• These provisions are self-executing. (Legaspi v. CSC)
• Access
Right totoinformation
informationonon matters of public
Corollary rightconcern
of accessis to
essential
matters ofto public
the proper exercise of freedom
concern of records
official expression
andon • Scope. Right to information contemplates inclusion of
such matters. documents. negotiations leading to the consummation of a transaction.
Note: These are political rights available to citizens only. The right affords only access to records, documents and
Limitation: papers, which means the opportunity to inspect and copy
(1) Must be on matters of public concern them at his expense. The exercise is also subject to
(2) These rights are subject to limitations as may reasonable regulations to protect the integrity of public
be provided by law records and to minimize disruption of government operations.
Recognized Limitations: (Chavez v. PEA and Amari)
(1) National Security matters k
(2) Intelligence information k • Access. The constitutional right gives citizens “access to
(3) Trade and Industrial Secrets official records”. But the Constitution does not accord them
(4) Banking Transactions the right to compel custodian of official records of official
records to prepare lists, abstracts, summaries and the like in
(5) Diplomatic Correspondence k
their desire to acquire information on matter of public
(6) Executive sessions
concern. (Valmonte v. Belomonte)
(7) Closed-door cabinet meetings
(8) Supreme Court deliberations
(9) Criminal Matters • Public Concern like public interest eludes exact definition.
They embrace a broad spectrum of subjects which the public
Note: Regulatory discretion must include both authority to determine may want to know either because these directly affect their
what matters are of public concern (substantive regulations) and lives or simply because such matters arouse interest of an
authority to determine the manner of access to them (procedural ordinary citizen. Each case must be examined separately.
regulations) (Legaspi v. CSC)

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• Burden. In case of denial of access, the government agency (1) National Security matters k
has the burden of showing that the information requested is (2) Intelligence information k
not of public concern, or, if it is of public concern, that the (3) Trade and Industrial Secrets
same has been exempted by law form the operation of the (4) Banking Transactions
gurantee. (5) Diplomatic Correspondence k
(6) Executive sessions
(7) Closed-door cabinet meetings
• Standards for curtailment. It is submitted that the
(8) Supreme Court deliberations
standards that have been developed for the regulation of (9) Criminal Matters
speech and press and of assembly and petition and of
association are applicable to the right of access to
information. (Bernas) • National Security Matters include State secrets regarding
military, diplomatic and other national security, and
information on inter-government exchanges prior to the
• Standing. The people are regarded as the real party in
conclusion of treaties and executive agreements. Where
interest. A relator at whose instigation the proceedings are there is no need to protect State secrets, the privilege to
instituted need not show that he has any legal or special withhold documents and other information may not be
interest in the result, it being sufficient to show that he is a invoked, provided that they are examined “in strict
citizen and as such interested in the execution of the laws. confidence” and given “scrupulous protection.”
The requirement on personal interest is satisfied by the mere
fact that the petitioner is a citizen, and therefore, part of the • Trade secrets (Intellectual Property Code, RA 8283)
general “public” which possesses the right. • Banking transactions (Secrecy of Bank Deposits Act, RA
1405)
• Remedy. The remedy is mandamus. • Criminal Matters or classified law enforcement matters
“such as those relating to the apprehension, the prosecution
• The need for publication of laws reinforces this right. In and the detention of criminals, which the courts may not
Tanada v. Tuvera, the Court said, “laws must come in the inquire into prior to such arrest, detention and prosecution.”
open in the clear light of the sun instead of skulking in the
shadows with their dark, deep secrets. Mysterious CASES
pronouncements and rumored rules cannot be recognized as • The SC sustained the rights of a municipal mayor to examine
binding unless their existence and contents are confirmed by judicial records subject to reasonable rules and conditions.
a valid publication intended to make full disclosure and give (Baldoza v. Dimaano)
proper notice to the peope.” E0 200 provides that the required • Duty of Custodians. “Except perhaps when it is clear that
publication may be alternatively in a newspaper of general the purpose of the examination is unlawful or sheer, idle
circulation in the Philippines. curiosity, we do not believe it is duty under the law of
registration officers to concern themselves with motives,
Recognized Limitations:

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reasons, and objects of the person seeking access to the to information on matters of public concern. (Gonzales v.
records.” (Subido v. Ozatea) Narvasa)
• Duty to disclose, not discretionary. While manner of • In MARQUEZ VS. DESIERTO, it was said that bank
examining public records may be subject to reasonable accounts of suspects in anti Graft cases may be examined
regulation by the government agency in custody thereof, the pursuant to the Ombudsman Act. Moreover, RA 6770
duty to disclose the information of public concern and to provides that the Ombudsman may examine and have
afford access to public records cannot be discretionary on the access to bank accounts and records and order an in camera
part of the said agencies. (Legaspi v. CSC) inspection, provided that there must be a pending case
• Civil Service Eligibility. The civil service eligibility of a before a court of competent jurisdiction. The inspection is
sanitarian is a public concern. limited to the subject matter of the pending case before the
court of competent jurisdiction
• Voting slips constituting the decision of the members of the
MTRCB are not private nor confidential because they are
• Q: What specific clarification has the new Constitution added
made in the exercise of official functions. (Aquino-Sarmiento
to the 1973 version? A: The new Constitution specifies the
v. Morato)
right of access “to government research data used as basis
• Contents of the manual setting forth the procedure for for policy development.” This has reference especially to
administering the lethal injection shall be confidential is government funded research data.
unduly oppressive because the contents of the manual are
matters of public concern affecting the lives of the people
and such matters arouse the interest of the individual citizen.
(Echegaray v. Sec. of Justice)
• When the constitutional guarantees of freedom of the press
and the right to information, on the one hand, and the
fundamenatal rights of the accused, on the other hand, along
with the constitutional power of a court to control its
proceedings in ensuring a fair and impartial race against
another, jurisprudence tells us that the right of the accused
must be preferred to win. (The SC allowed audio-visual
recording of the trial for documentary purposes, not for live or
real-time broadcast) (In Re: Request for Live-Radio-TV
Coverage)
• The Executive Secretary, upon petition of a citizen may be
ordered to give access to the name of executive officials
holding multiple positions in government, copies of their
appointments, and list of the recipients of luxury vehicles
seized by the Bureau of Customs. This is covered by the right

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Section 8. The right of the people, including those employed
in the public and private sectors, to form unions, association,
or societies for purpose not contrary to law shall not be
abridged.
Section 8
Right to form or join unions, Right not to join
associations or societies… (Reyes v. Trajano)
• This right is an aspect of the general right of liberty. More
specifically, it is an aspect of freedom of contract; and in so
far as associations may have for their object the
advancement of beliefs and ideas; freedom of association is
an aspect of expression and of belief.
• Freedom of association is the right of individuals to form a
body corporate.6 The freedom is based on the premise that it
is the right of free adults to mutually choose their associates
for whatever purpose they see fit. Given the nature of man as
gregarious, it is said that the right to associate, to come
together, is innate and rooted in natural law. The freedom is
also considered as a fundamental human right.7
• The right to organize is considered to be one phase of the
more comprehensive freedom of association.8 Strictly
speaking, “organizing” refers to the act of establishing or
persuading others to form or join a particular group.
• As applied to labor, the right to organize is usually identified
with the right of employees to organize into a labor
6 9
CAROL DEVINE ET. AL., HUMAN RIGHTS, THE ESSENTIAL REFERENCE 101 (1999).
7 10
See The Right to Unionize, 9 MISSISSIPPI COLLEGE L. REV. 154 .
8
KIRT BRAUN, THE RIGHT TO ORGANIZE AND ITS LIMITS 66 (1950).
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organizations, associations or unions.9 Self-organization is a
recognized form of promoting social justice and human rights
to the working class. The right of laborers to organize is an
exercise of every citizen to pursue his calling, whether of
labor or business, as he in his judgment thinks fit, or of the
right guaranteed by the Constitution of acquiring, processing,
and protecting property.10
• Scope. The right to form or join unions or associations,
includes the right not to join or, if one is already a member,
to disaffiliate from the association.
• The right to form association does not include the right to be
given juridicial personality. (PAFLU v. Sec. of Labor)
The right is not absolute
• It was held that the Anti-Subversion Act does not violate right
to form associations because the purpose of the statute was
to outlaw only those organizations aimed at the violent
overthrow of the government, and that the government has a
right to protect itself against subversion is a proposition too
plain to require elaboration. (People v. Ferrer)
• It was held that the right to association was not violated
when political parties were prohibited from participating in the
barangay election in order to insure the non-partisanship of
candidates; political neutrality is needed to discharge the
duties of barangay officials. (Occena v. Comelec)
• The SC upheld the validity of RA 3350 allowing workers to
disassociate from or not to join a labor union despite a closed
shop agreement, if they are members of any religious sect
which prohibits affiliation of their members in any such labor
organization. (Victoriano v. Elizalde Rope Workers Union)
QUINTIN C. MENDOZA, PHILIPPINE LABOR RELATIONS LAW 42 (1992).
31 AM JUR 2D § 33.
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• Art 245 of the Labor Code which makes managerial

employees ineligible to join, assist or form a labor union, does
not violate Section 8 Article III. (UPCSU v. Laguesma)
• A closed-shop agreement is legal. It is valid form of union
security, and such provision in a CBA is not a restriction of
the right of freedom of association guaranteed by the
Constitution. (Villar v. Inciong)
• The closed shop, the union shop, the maintenance of
membership shop, the professional shop, the maintenance of
treasury shop, and check-off provisions are valid forms of
union security and strength. They do not constitute unfair
labor practice nor are they violations of the freedom of
association. (Tanduay Distillery Labor Union v. NLRC)
• Compulsory membership of a lawyer in the IBP does not
violate the constitutional guarantee. (In Re Edillon)
• Government employees have the right to form unions. This is
guaranteed by Article III, Section 8, Article IX-B, Section 2(5)
and Article XIII, Section 3. (TUP v. NHC)

• Right to Strike. The right to strike is not included in the right

to form unions. It may be denied by law for valid reasons.

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Section 9. Private property shall not be taken for public
use without just compensation.
Eminent Domain
Definition
• The right of the state to acquire property for public use upon
payment of just compensation.
• It is the ultimate right of sovereign power to appropriate, not
only the public, but even the private property of all citizens
within the territorial sovereignty, to public purposes. (Charles
River Bridge v. Warren Bridge)
• The power of a sovereign state to take or to authorize the
taking of any property within its jurisdiction for the public use
without the owner’s consent. (Grotius)
• It is an inherent power of the State that need not be granted
even by the fundamental law. (Republic v. Tagle) It is
founded on the law of necessity.
• Like police power, power of eminent domain is inalienable.
• Eminent Domain v. Destruction from Necessity.
Destruction by necessity may be validly undertaken by private
individuals. Moreover, destruction from necessity cannot
require the conversion of the property taken to public use, nor
is there any need for the payment of just compensation.
Scope
• In the hands of Congress, the scope of eminent domain is
plenary. It can thus reach every form of property which the
State might need for public use. It can reach even private
property already dedicated to public use*** or even property
devoted to religious worship. (Barlin v. Ramirez)
• The acquisition of an easement of a right of way falls within
the purview of the power of eminent domain. (Camarines
Norte Cooperative v. CA)
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• Unlawful denial of building permit is tantamount to
expropriation.
Exercise of the power
Inherently, it is possessed by the State. (Bernas) It is lodged
primarily in the national legislature.(Cruz) It is exercised by:
(1) National Government
o Congress
o Executive (pursuant to legislation enacted by
Congress)
(2) Local Government units (pursuant to an ordinance
enacted by their respective legislative bodies)
(3) Public Entities (thru charters)
(4) Public Utilities (as may be delegated by law)
Expropriation
• Expropriation refers to the procedure for enforcing the right.
• 2 Stages in Expropriation Proceedings
(1) Determination of the authority of the plaintiff to exercise
the power of eminent domain and the propriety of its
exercise in the context of the facts.
(2) Determination of just compensation (See Rule 67.
Expropriation)
Constitutional Limitations to the exercise of eminent domain
(1) Article III, Section 1 (Due Process and Equal Protection)
(2) Article III, Section 9 (Public use and Just Compensation)
Constitutional provisions on eminent domain
(1) Article III, Section 9
(2) Article XII, Section 18 (The State may, in the interest of
national welfare or defense, establish and operate vital
industries and, upon payment of just compensation,
transfer to public ownership utilities and other
private enterprises to be operated by the government.)
(3) Article XIII, Section 4 (Agrarian Reform Program)
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(4) Article XVIII, Section 22 (Expropriation of idle or
abandoned agricultural lands)
Elements of the exercise of eminent domain
(1) There must be a taking of a private property
(2) The taking must be for public use
(3) There must be just compensation
Requisites for the exercise of eminent domain
(1) Necessity
(2) Private Property
(3) Taking in the constitutional sense
(4) Public Use
(5) Just Compensation
(6) Due Process of Law
(1) Necessity
• A reasonable or pratical necessity, such as would combine
the greatest benefit to the public with the least
inconvenience and expense to the condemning party and
property owner consistent with such benefit.
• The foundation of the right to exercise eminent domain is
genuine necessity and that the necessity must be of public
character. Government may not capriciously or arbitrarily
choose which private property should be expropriated.
(Lagcao v. Labra)
• When the power is exercised by the Legislature, the question
of necessity is generally a political question. (Meycauayan,
Bulacan v. IAC)
• But when the exercised by a delegate, the determination of
whether there is a genuine necessity for the exercise is a
justiciable question. (Republic v. La Orden)
• The issue of the necessity of the expropriation is a matter
properly addressed to the RTC in the course of the
expropriation proceedings. If the property owner objects to
the necessity of takeover, he should say so in his Answer to
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the Complaint. The RTC has the power to inquire into the
legality of the exercise of the right of eminent domain and to
determine whether there is a genuine necessity for it.
(Bardillon v. Barangay Masili, Calamba, laguna)
(2) Private Property
• All private property capable of ownership may be
expropriated, except money and choses in action11. Even
services may be subject. Even services may be subject to
eminent domain. (Republic v. PLDT)
• A franchise is a property right and may therefore be
expropriated.
• Churches and other religious properties are likewise
expropriable notwithstanding the principle of separation of
Church and State.
• Private property already devoted to public use cannot be
expropriated by a delegate of legislature acting under a
general grant of authority. (City of Manila v. Chinese
Community)
• Property already devoted to public use is still subject to
expropriation, provided this is done directly by the national
legislature or under a specific grant of authority to the
delegate. A mere general authority may not suffice.
(3) “Taking” in the constitutional sense
Requisites of Taking:
(1) The expropriator must enter upon the private property
(2) The entry must be permanent and not for a momentary
period.
(3) The entry must be under the warrant of color of legal
authority
11
A choses in action is a personal right not reduce into possession but
recoverable by a suit at law, a right to receive, demand or recover a debt,
demand or damages on a cause of action ex contractu or for a tort or
omission of duty. (Black’s Law Dictionary)
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(4) The property must be devoted for public use.
(5) Utilization of the property must be in such a way as to
oust the owner and deprive him of all beneficial
enjoyment of the property (Republic. V. Vda. De
Castellvi)
• Where there is taking in the constitutional sense, the
property owner need not file a claim for just compensation
with the COA; he may go directly to the court to demand
payment. (Amigable v. Cuenca)
• Taking may include trespass without actual eviction of the
owner.
• The imposition of an easement of a 3-meter strip on the
property was considered taking. (Ayala de Roxas v. City of
Manila)
• A municipal ordinance prohibiting a building which would
impair the plaza form the highway was likewise considered
taking. (People v. Fajardo)
• Compensable taking does not need to involve all the
property interests, which form part of the right to ownership.
When one or more of the property rights are appropriated
and applied to a public purpose, there is taking even if the
bare title to the property still remains with the private owner.
(US v. Causby) But see Penn Central v. New York: There is
no taking since the landmark law had not transferred control
over the property to the city, but only restricted the appellant’s
exploitation of it. A state statute that substantially furthers
important public policies and enhance the quality of life by
preserving the character and desirable aesthetic features of a
city may so frustrate distinct INVESTMENT-BACKED
INTERESTS.
• It is well settled that expropriation of private land for urban
development and slum clearance is for a public purpose even
if the developed area is alter sold to private homeowners,
commercial firms, entertainment and service companies.
(Reyes v. NHA)
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• If a land has been acquired for public use in fee simple
unconditionally, either by the exercise of eminent domain or
by purchase, the former owner retains no rights in the land,
and the public use may be abandoned or the land devoted to
a different use, without any impairment of the estate acquired,
or any reversion to the former owner. (Fery v. Cabanatuan)
• Police power v. Eminent Domain. By police power, property
is “regulated.” By eminent domain, property is “taken.” The
distinction is important because regulation is not
compensable whereas taking must be compensated.
• Q: When injurious property is destroyed in the public interest,
is there compensable taking?
• A: No, because no property interest is retained to be applied
thereby to public use.
• Q: To constitute compensable taking, must all the property
interests in the bundle of rights which constitute ownership be
appropriated?
• A: No. When one or more of these property interest are
appropriated and applied to some public purpose there
already is compensable taking even if the bare title to the
property remains with the private owner.
• If the State takes patrimonial property of the municipality,
that is, property acquired by the municipality with its private
funds in the its corporate or private capacity, compensation is
required.
(4) Public Use
• Public use is the general concept of meeting public need or
public exigency. It is not confined to actual use by the public
in its traditional sense. The term has now been held to be
synonymous with public interest, public benefit, public
welfare and public convenience. (Estate of Salud Jimenez
v. PEZA)
• The meaning of public use has also been broadened to
cover uses, which, while not directly available to the public,
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redound to the public’s indirect advantage or benefit.
(Heirs of Juancho Ardona v. Reyes)
• The expropriation of the birthplace of Felix Manalo, founder
of INC, for the purpose of preserving it as a historical
landmark, was upheld as for “public use” under the
broadened definition of public use. That only few would
actually benefit from the expropriation of the property does
not necessarily diminish the essence and character of public
use. (Manosca v. CA)
• Expropriation for socialized housing, is for public use.
Socialized housing is defined as “ the construction of dwelling
units for the middle and lower class members of our society,
including the construction of the supporting infrastructure and
other facilities. (Sumulong v. Guerrero)
• The Constitution understands public use in a broad sense as
meaning public welfare. That includes development of
tourism. (Heirs of Ardona v. Judge Juan Reyes)
• Expropriations for the construction of irrigation systems
to make water available for farmers, expropriation for urban
and housing reform and for agrarian reform are for public use.
• Taking of private property for subdivision and resale for land
reform is for public use. Land reform itself is mandated by
the Constitution; that fact already establishes the public
purpose of the taking for land reform. (Mataas na Lupa
Tenants v. Dimayuga)
• The condemnation of private lands in an irrational or
piecemeal fashion, or the random expropriation of small lots
to accommodate no more than a few tenants or squatters, is
certainly no the condemnation for public use contemplated by
the Constitution. This deprives a citizen of his property for the
convenience of a few without perceptible benefit to the public.
(Lagcao v. Labra, 2004)
• Justice Aquino: Appreciable number of people
• Q: What happens if the expropriator does not use the
property for a public purpose but sells it to a private user?
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• A: The predominant precept is that upon abandonment of
real property condemned for public purpose, the party who
originally condemned the property recovers control of the
land if the condemning party continues to use the property for
public purpose; however, if the condemning authority ceases
to use the property for a public purpose, property reverts to
the owner in fee simple. The government’s taking of private
property, and then transferring it to private persons under the
guise of public use or purpose is the despotism found in the
immense power of state’s power to oblige a landowner to
renounce his productive and invaluable possession to
another citizen, who will use it predominantly or his own
private gain, is offensive to our laws. (Heirs of Moreno v.
Mactan-Cebu International Airport, 2005; page 106 of 2006
Bernas Primer)
(5) Just Compensation
• Just compensation has been described as “the just and
complete equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the expropriation.”
(Province of Tayabas v. Perez)
• Just Compensation means not only the correct amount to be
paid to the owner of the land but also payment within a
reasonable time from its taking. (Eslaban v. De Onorio)
• Formula:
Where whole of the property expropriated:
JC = MV*
Manotok v. NHA: Market Value alone cannot substitute the court’s
judgment in expropriation proceeding.
Where a part of certain property is expropriated:
JC = [MV] + [(CD) – (CB)]
[Market Value*] Plus
[Consequential Damages (including attorney’s fees)] Less
[Consequential Benefits]
>But in no case shall benefits exceed damages.
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*at the time of taking or commencement of complaint, whichever is
earlier. (Eslaban v. De Onorio)
• Market value is the sum of the money which a person,
desirious compelled to buy, and an owner, willing but not
compelled to sell, would agree on as a price to be given and
received therefor.
• Judicial Prerogative. The ascertainment of what constitutes
just compensation for property taken in eminent domain
cases is a judicial prerogative. (EPZA v. Dulay)
• Form of Compensation. Compensation is to be paid in
money and no other.
• But, it was held that in agrarian reform, payment is allowed
to be made partly in bonds, because under the CARP, “we do
not deal with the traditional exercise of the power of eminent
domain; we deal with a revolutionary kind of expropriation.”
(Association of Small Landowners v. Sec, of Agrarian Reform
175 SCRA 343)
• Under Section 16(e) of RA 6657, the deposit of
compensation must be in “cash” or in “Land Bank bonds,” not
in any other form, and certainly not in a “trust account.” (Land
Bank v. CA)
• Principal Criterion. The principal criterion in determining
just compensation is the character of the land at the time of
the taking. The tax declaration is only one of the factors to be
used in determining the market value of the property.
• Delay. When there is delay in the payment of just
compensation, the owner is entitled to payment of interest if
claimed; otherwise, interest is deemed waived. (Urtula v.
Republic) The kind of interest involved here is by way of
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damages, hence Article 2209 of the Civil Code applies[6%].
(NPC v. Angas) But in some cases 12% (Wycoco v. Caspillo)
• Entitled to just compensation. The owner is entitled. All
those who have lawful interest in the property to be
condemned, including a mortgagee, a lessee, and avendee in
possession under an executory contract.
• Title to the property. Title does not pass until after payment
(Visayan v. CAmus) except in agrarian reform.
• The owner of the land subject to expropriation may still
dispose of the same before payment of just compensation
(Republic v. SIC)
• Taxes. Taxes paid by the owner after taking by the
expropriator are reimbursable. (City of Manila v. Roxas)
• Q: The contract for the construction of the NAIA International
Airport was nullified for being contrary and public policy but
after the construction of the building had almost been
completed. What remedy does the contractor have?
• A: Since the state is taking over the property, the contractor
is entitled to just compensation. Under RA 8974 the
government must make a direct payment (not just deposit
under Rule 67) of the preferred value of the property before it
can enter and exercise proprietary rights. (Republic v. Judge
Gingoyon 2005, page 109 of 2006 Bernas Primer)
(6) Due Process of Law
• The defendant must be given an opportunity to be heard.
• PD’s 1670 and 1669 were declared unconstitutional for
violating the due process clause because the decrees do not
provide for any form of hearing or procedure.
• Government may not capriciously or arbitrarily choose what
private property should be taken. Due process must be
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served. With due recognition of the power of Congress to
designate the particular property to bet taken and how much
thereof may be condemned in the exercise of the power of
expropriation, it is still a judicial question whether in the
exercise of such competence, the party adversely affected is
a victim of partiality and prejudice. (De Knecht v. Bautista)
Judicial Review
• Exercise of the power of eminent domain is subject to judicial
review.
• The following aspects of the exercise of the power have
been subjected to judicial scrutiny:
(1) The adequacy of the compensation;
(2) The necessity of the taking;
(3) The public use character of the purpose of the
taking.
• Not subject to judicial review. It is submitted that when
land is expropriated for subdivision and resale for social
justice purposes directly by the legislature and not through an
inferior agency of the State, the necessity and public purpose
of the taking are not subject to judicial review. Article XIII,
Section 4, constitutes a textual commitment of discretion on
the subject to the legislature. (Bernas)
Essential Requisites for a local government unit to validly
exercise eminent domain.
(1) An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the
LGU, to exercise the power of eminent domain or pursue
expropriation proceedings over a particular private
property.
(2) The power of eminent domain is exercised for public
use, purpose or welfare, or for the benefit of the poor
and the landless;
(3) There is payment of just compensation as required
under Article III, Section 9 and other pertinent laws.
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(4) A valid and definite offer has been previously made to
the owner of the property sought to be expropriated, but
said offer was not accepted. (Municipality of Paranaque
v. VM Realty Corp)
• Writ of Possession. The issuance of the writ of possession
becomes ministerial upon the [i] the filing of a complaint for
expropriation sufficient in form and substance, and [ii] upon
deposit made by the government of the amount equivalent to
15% of the FMV (fair market value) of the property sought to
be expropriated per current tax declaration. (Biglang-Awa v.
Judge Bacalla)
• Right to dismiss. In an expropriation cases, there is no
such thing as the plaintiff’s “matter-of-right” to dismiss the
complaint, precisely because the landowner may have
already suffered damages at the start of the taking. The
plaintiff’s right to dismiss the complaint has always been
subject to court approval and to certain conditions. (NPC &
Pobre v. CA, 2004)
• In rem proceeding. Expropriation is an in rem proceeding,
and after condemnation, the paramount title is in the public
under a new and independent title. In case of non-payment,
the right of the expropriatory authority is far from that of an
unpaid seller in ordinary sales to which the remedy of
rescission may perhaps apply. (Republic v. CA, 2002)
UDHA, Urban Development and Housing Act, RA 7279
• Expropriation proceedings may, therefore, be resorted to
only when the other modes of acquisition have been
exhausted. Compliance with these conditions must be
deemed mandatory because they are the only safeguards in
securing the right owners of private property to due process
when their property is expropriated for public use. (Filstrea,
Int’l v. CA; Lagcao v. Labra)
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• Under 7279, lands for socialized housing are to be acquired

in the following order:
(1) Government lands;
(2) Alienable Lands of the public domain;
(3) Unregistered, abandoned or idle lands;
(4) Lands within the declares Ares for Priority
Development, Zonal Improvement sites, Slum
Improvement and Resettlement sites which have
not yet been acquired;
(5) BLISS sites which have not yet been acquired;
(6) Privately owned lands.

• The mode of expropriation is subject to two conditions,

namely:
(1) It shall be resorted only when the other modes of
acquisition have been exhausted; and
(2) Parcels owned by small property owners are
exempt from such acquisition. (Small property
owners are:
[a] owners of residential lands with an area not
more than 300sq.m. in highly urbanized
cities and not more than 800 sq.m. in other
urban areas; and
[b] they do not own residential property other
than the same.

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Section 10. No law impairing the obligation of contracts shall
be passed.
Non-impairment clause
Purpose
• The purpose of the impairment clause is to safeguard the
integrity of valid contractual agreements against unwarranted
interference of the State. (Cruz) Unwarranted interference of
the state impairs commercial intercourse, threaten the
existence of credit, as well as sap the moral out of the people
and destroy the sanctity of private faith. Thus, the non-
impairment clause was constituted to guard against this evil.
(Home Building v. Blaisdell)
Contract
• The term “contract” as used in the impairment clause refers
to any lawful agreement on property or property rights,
whether real or personal, tangible of intangible. The
agreement may be executed or executory. The parties may
be private persons only, natural or artificial, or private persons
on the one hand and the government or its agencies on the
other hand. (Cruz)
• The term “contract” does not cover marriage contract. Thus,
a subsequent law allowing divorce would be applicable to
marriage previously solemnized under a law prohibiting their
dissolution.
• Not only existing laws but also “the reservation of the
essential attributes of sovereignty is read into contracts as a
postulate of the legal order.” (Tolentino v. Sec. of Finance)
• License. A license or a permit is not a contract between
the sovereignty and the licensee of permitee, and is not a
property in the constitutional sense, as to which the
constitutional proscription against impairment of the obligation
of contracts may extend. (Gonzalo Sy v. Central Bank)
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• Timber licenses, permits and license agreements are not
contracts within the purview of the due process clause and
may be amended, modified, replaced or rescinded by the
Chief Executive when national interest so requires. (TBAP v.
Comelec)
• Franchise partakes the nature of a grant which is beyond
the purview of the non-impairment clause.
• Tax exemptions contained in franchises are far from being
strictly contractual in nature. (Meralco v. Laguna)
• Note: The distinction between the license and contract is not
really necessary because even contracts yield to police
power.
Law
• As used in the impairment clause, “law” includes statutes
enacted by the national legislature, executive orders and
administrative regulations promulgated under a valid
delegation of power, and municipal ordinances passed by the
local legislative bodies.
• However, it does not include judicial decisions or
adjudications made by administrative bodies in the exercise
of their quasi-judicial powers. (Cruz) BUT WAIT, see Ganzon
v. Inserto which held that the order of the court violated the
constitutional prohibition against the impairment of contracts!
• To impair, the law must retroact so as to affect existing
contracts concluded before its enactment. There would be no
impairment, if the law is made to operate prospectively only,
to cover contracts entered into after its enactment.
• Obligation. The “obligation” of the contract is the vinculum
juris i.e., the tie that binds the parties to each other.
• Impairment is anything that diminishes the efficacy of the
contract. There is substantial impairment when
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(1) the law changes the terms of legal contract between
parties, either in the time or mode of performance, or
(2) impose new conditions, or dispenses with those
expressed, or
(3) authorizes for its satisfaction something different from
that provided in its terms. (Clements v. Nolting)
• Impairment must be substantial. To fall within the
prohibition, the change must not only impair the obligation of
the existing contract, but the impairment must be substantial.
Moreover, the law must effect a change in the rights of the
parties with reference to each other, and not with respect to
non-parties (Philippine Rural Electric Cooperatives Assoc. v.
Sec. of DILG)
• Note: Section 11, Article XII. “Neither shall any such
franchise or right be granted except under the condition that it
shall be subject to amendment, alteration or repeal by the
Congress when the common good so requires.”
• Limitations:
(1) Police Power
(2) Eminent Domain
(3) Taxation
Police Power
o Reason. The reason for this is that public welfare
is superior to private rights. (PNB v. Remigio)
o When principle applicable. While it is true that
the police power is superior to the non-
impairment clause, the principle will apply only
where the contract is so related to the public
welfare that it will be considered congenitally
susceptible to change by the legislature in the
interest of the greater number. (NDC v. PVB)
o Test: The test of validity even in the case of
legislation interfering with existing contracts is
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reasonableness. (AATI v. TMCI) (Remember
the “lawful purpose and lawful means test”)
o It is not indispensable that exceptional
circumstances must exist before police power
can be exercised. (AATI v. TMCI) (This is
opposed to the Blaisdell case which postulates
that the police power may only be invoked and
justified by an emergency)
o Tenancy legislation. Pre-existing share tenancy
contracts could be validly converted into
leasehold tenancy through the valid exercise of
police power (Ilusorio v. CAR) Tenancy
legislation is a manifestation of a deep and
earnest concern to solve an age-old problem of
Philippine society. (Del Rosario v. Delos Santos)
o BP 22 was sustained as not violative of the non-
impairment clause, and even if it were, the law
was a police measure and therefore superior to
contracts. (Lozano v. Martinez)
o BP 25 regulating the rentals of dwelling units,
was held as a constitutional exercise of the police
power, and an exception to the non-impairment
clause. (Canleon v. ADC)
o A provision prohibiting payment of purchases
already contracted is violative of non-impairment
clause. (Philconsa v. Enriquez)
o Police power and social justice. RA 809 which
increased the share of sugar planters in the
sugar milled by sugar centrals is a social
legislation designed to ameliorate the condition of
laborers in the sugar plantations. The Congress
availed of police power in enacting RA 809. It is
not police power alone that sustains its validity. It
was also enacted to enforce social justice. (AATI
v. TMCI)
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o An administrative order discontinuing the
assignment of salaries of public schoold teachers
to their creditors was declared not violative of the
guarantee, as the latter could still collect loans
after the salaries had been received by the
teachers themselves. (Tiro v. Hontanosas)
o The POEA resolution and memorandum
circular increasing and adjusting rates of
compensation and other benefits in the POEA
Standard Employment Contracts for seafarers,
being a valid implementation of EO 797 which
was enacted under the police power of the State,
prevail over the non-impairment clause. (CMMA
v. POEA)
o A municipal zoning ordinance is a police
measure and prevails over a restriction contained
in the title to property. (Ortigas v. Feati Bank)
o Court order. It was held that the non-impairment
clause would be violated by the court’s order of
substituting a mortgage with a security bond as
security for the payment of a loan, as this would
change the terms and conditions of the original
mortgage contract over the mortgage’s
objections. (Ganzon v. Inserto)
o A bank’s conservator may only revoke
contracts that are defective. It cannot repudiate
valid obligations of the bank. (FIB v. CA)
o The requirement of notice of rescission does
not violate the constitutional prohibition against
the impairment of the obligation contracts. It does
not change the time or mode of performance or
impose new conditions or dispense with the
stipulations regarding the binding effect of the
contract.(Siska Development Corp. v. Office of
President)
Moratorium statute
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o Q: What is a moratorium?
o A: The moratorium is a postponement of
fulfillment of obligations decreed by the state
through the medium of the courts or the
legislature. (Rutter v. Esteban)
o Q: What is the test of the constitutionality of a
moratorium statute?
o A: The test lies in the determination of the period
of suspension of the remedy. It is required that
such suspension be definite and reasonable.
(Rutter v. Esteban) Impairment should only refer
to the remedy and not to a substantive right.
o Note: With the acceptance of the superiority of
police power over contract, the contract clause
now has very limited usefulness. It can in fact be
removed from the Constitution without
substantive loss. The 1986 Constitutional
Commission nevertheless decided to retain the
clause for fear that removing it might fan fears
and cause economic instability. (Bernas)
Taxation
o The reservation of the essential attributes of
sovereignty is read into contracts. The
constitutional guarantee does not limit the
exercise of the power of taxation of the State.
(Tolentino v. Sec. of Finance)
o A lawful tax on a new subject, or an
increased tax on an old one, does not interfere
with a contract or impair its obligation within the
meaning of the Constitution.
o Tax exemptions. The tax exemptions
contained in the franchises are far from being
strictly contractual in nature. (Meralco v. Laguna)
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o Tax exemptions, when covered by the

clause. Where a law grants a tax exemption in
exchange for valuable consideration, such
exemptions is considered a contract and cannot
be repealed because of the impairment clause.
(Casanova v. Hord) All other tax exemptions are
not contractual and so may be revoked at will by
the legislature.
o Contractual tax exemptions (to be
considered within the coverage of the non-
impairment clause) are those agreed to by the
taxing authority in contracts such as those in
government bonds and debentures, lawfully
entered into by them under enabling laws which
the government acting in its private capacity,
sheds its cloak of authority and waives
governmental immunity. (Meralco v. Laguna)
o Q: A and B enter into a contract for the sale
of cigars. Before delivery is made a law is
passed imposing a sales tax on the seller. Does
the law impair the obligation of the contract?
o A: No. The law does not change the
relationship between A and B. What it does is to
establish an obligation of the seller to one not a
party to the contract, i.e., the government. (La
Insulare v. Machucha Go-Tanco)

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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.

Section 11

Free access to the courts Adequate legal assistance

• This is a social justice provision, implemented by the Rules

of Court provision allowing “pauper suits.”
• The new Constitution has expanded the right so that in
addition to giving free access to courts it now guarantees free
access also to “quasi-judicial bodies” and to “adequate legal
assistance.”
• The Supreme Court shall have the power to promulgate
rules concerning legal assistance to the underprivileged.
Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases. (Article VIII,
Section 5(5))
• See Rule 141, Section 19. (Indigent litigants exempt from
payment of legal fees)

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Section 12. (1) Any person under investigation for the

commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
(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.
Section 12
Rights available to persons under custodial investigation
(1) Miranda Rights (Section 12(1))
(2) Right against torture, force, etc, which vitiates the free
will (Section 12(2))
(3) Right against detention places, etc (Section 12(4))
Section 12(1)
Miranda Rights
(1) Right to remain silent
(2) Right to have competent and independent counsel,
preferably of his own choice.
(3) Right to be provided with the services of counsel of he
cannot afford the services of one.
(4) Right to be informed of these rights.
Applicability
• The Miranda doctrine was first institutionalized in the 1973
Constitution which took effect on January 17, 1973. The
rights guaranteed therein are to be given only prospective
effect. (Magtoto v. Manguera)

Section 12(1) Section 12(2) Section 12(3) Section 12(4) When rights are available:
Miranda Rights Right against Exclusionary Penal and Civil (1) AFTER a person is taken into custody.
means which Rule Sanctions for
(2) When a person is otherwise deprived of his freedom of
vitiates free violations
action in any significant way.
will.
Compensation (3) When a person is merely “invited” for questioning (RA
Right against and 7438). (People v. Domantay)
secret Rehabilitation (4) When the investigation is being conducted by the
detention to victims and government (police, DOJ, NBI) with respect to a criminal
places, their families offense.
incommunicado
etc. When rights are not available:

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(1) During a police line-up. (Exception: Once there is a
move among the investigators to elicit admissions or
confession from the suspect. Or when the person is
already under custodial investigation.)
(2) During administrative investigations (Sebastian v.
Garchitorena)
(3) Confessions made by an accused at the time he
voluntarily surrendered to the police or outside the
context of a formal investigation.(People v. Taylaran)
(4) Statements made to a private person.
• Rights are available only during custodial investigation.
The rights guaranteed in Section 12, Article III, exists only in
“custodial investigation” or “in-custody interrogation of
accused persons” (People v. Judge Ayson) which has been
defined as “any questioning initiated by law enforcement
officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way”.
• The rule begins to operate at once as soon as the
investigation ceases to be a general inquiry into an unsolved
crime, and direction is then aimed upon a particular
subject who has been taken into custody and to whom the
police would then direct interrogatory questions which tend to
elicit incriminating statements. (People v. de la Cruz)
• Miranda rights apply only from the moment the investigating
officer begins to ask questions for the purpose of eliciting
admissions, confessions, or any information from the
accused. (De la Torre v. CA)
• “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. (RA 7438)
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• Police line-up. A police line-up is not considered a part of
any custodial inquest because it is conducted before the
stage of investigation is reached. (People v. Bravo) This is
because, in a line-up, the process has not yet shifted from the
investigatory to the accusatory stage, and it is usually the
witness or the complainant who is interrogated and who gives
a statement in the course of line-up. (People v. Amestuzo,
2001) However, where the accused, having become the
focus of attention by the police after he had been pointed to
by a certain Ramie as the possible perpetrator of the crime, it
was held that when the out-of-court identification was
conducted by the police, the accused was already under
custodial investigation. (People v. Escordial, 2002)
• An out-of-court identification may be made in a “show-up”
(where the accused brought face to face with the witness for
identification), or in a “police line-up” (where the suspect is
identified by a witness from a group of persons gathered for
that purpose). During custodial investigation, these types of
identification have been recognized as “critical
confrontations of the accused by the prosecution,”
necessitating the presence of counsel for the accused. This is
because the result of these pre-trial proceedings “might well
settle the fate of the accused made in a police line-up or in a
show-up after the start of custodial investigation is
inadmissible in evidence against him. (People v. Escordial,
2002)
Not Custodial Investigation
• A person under normal audit investigation is not under
custodial investigation because an audit examiner can hardly
be deemed to be law enforcement officer contemplated in the
rule. (Navallo v. Sandiganbayan)
• An investigation conducted by a court administrator does not
constitute custodial investigation within the contemplation of
the constitutional gurantee because he is not a law
enforcement officer. (OCA v. Sumilang)
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• An investigation conducted by the Civil Service Commission
involving fake eligibility is not custodial investigation.
(Remolono v. CSC, 2001)
• Preliminary investigation is not part of custodial investigation.
The interrogation by the police, if any, would already have
been ended at the time of the filing of the criminal case in
court or in the public prosecutor’s office. (Ladiana v. People,
2002) Conceivably, however, even after charges are filed, the
police might still attempt to extract confession or admissions
from the accused outside the judicial supervision. In such
situation, Section 12(1) would still apply. (Bernas, Green
Book p. 461)
• Confession not given to police officers but to media men in
an attempt to solicit sympathy and forgiveness from the public
is not part of custodial investigation. However, because of the
inherent danger in the use of television as a medium for
admitting one’s guilt, courts are reminded that extreme
caution must be taken in further admitting similar confessions.
(People v. Endino, 2001)
• The guarantee does not apply to a spontaneous statement,
not elicited through questioning by the authorities but given in
an ordinary manner whereby the suspect orally admitted
having committed the offense.
• Spontaneous statements, or those not elicited through
questioning by law enforcement officers, but given in an
ordinary manner are admissible. (People v. Guillermo)
Right to Remain Silent
• If the suspect refuses to give a statement, no adverse
inference shall be made from his refusal to answer questions.
• The court during the trial is not duty bound to appraise the
accused that he has the right to remain silent. It is the
counsel of the accused who should claim the right for him. If
counsel does not claim the right and calls the accused to the
witness stand, then he waives the right to be silent. (People v.
Tampus)
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Right to competent and independent counsel
•
• Scope. The right exists at all stages of the investigation
(People v. Hassan) If he cannot afford the services of
counsel, he must be provided (by the Government) with one.
• The right to counsel is not imperative in administrative
proceedings. (Because such inquiries are conducted merely
to determine whether there are facts that merit disciplinary
measures.) (Lumiqued v. Exevea)
• The constitutional right to counsel extend only to testimonial
compulsion and not when the body of the accused is
proposed to be examined as in a paraffin test. (People v.
Gamboa)
• The right to counsel is not required in a police line-up,
inasmuch as police line-up is not part of the custodial inquest.
Neither may this right be invoked when the suspect is given a
paraffin test, as he is not yet under custodial investigation
(People v. De Guzman, People v. Lamsing)
• Purpose: The right to counsel is intended to preclude the
slightest coercion as would lead the accused to admit
something false. (Gamboa v. Cruz)
• Duty. The counsel should be able, throughout the
investigation, to explain the nature of the questions by
conferring with his client and halting the investigation should
the need arise. The duty of the lawyer includes ensuring that
the suspect under custodial investigation is aware that the
right of an accused to remain silent may be invoked at any
time. (People v. Sayaboc)
• The lawyer should never prevent an accused from freely and
voluntarily telling the truth (People v. Enanoria)
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• To be competent and independent, it is only required for the
lawyer to be “willing to safeguard the constitutional rights of
the accused, as distinguished from one who would merely be
giving a routine peremptory and meaningless recital of the
individual’s constitutional rights. (People v. Bagnate, 2004)
• Independent. The counsel’s interest must not be adverse as
that of the accused.
• The counsel must be independent. Obviously he cannot be a
special counsel, public or private prosecutor, counsel of the
police, or a municipal attorney, whose interest is admittedly
adverse to the accused. As legal officer of the municipality, it
seriously doubted whether a municipal attorney can
effectively undertake the defense of the accused.
• Neither can the mayor be considered an independent
counsel, because as mayor his duties were inconsistent with
his responsibilities to the suspect. (People v. Velarde, 2002)
• However, the mere fact that the lawyer was a retired
member of the Judge Advocate’s Office does not cast any
doubt on his impartiality in assiting the accused during
custodial investigation. (People v. Hernandez, 1997)
Denied with Right to counsel
• Where a lawyer, not counsel of choice, arrived at the CIS
headquarters around 9pm, the second night of appellant’s
detention, talked to the appellant about his rights, left the
appellant in the custody of the CIS agents during the actual
interrogation, and then came back the next day for
examination and signature of the statement of the appellant,
the petitioner is considered to have been denied of the right
to counsel. (People v. Lucero)
• Where lawyer left about 30 minutes from the start of the
investigation with instructions that before the accused signs
any extrajudicial statement, it should be shown to him first,
the accused here is considered to have been denied of the
right to counsel. (People v. Morial, 2001)
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• Preferably of his own choice. The phrase “preferably of his
own choice” does not convey the message that the choice of
a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys
from handling the defense; otherwise, the tempo of custodial
investigation will be solely in the hands of the accused who
can impede, nay, obstruct the progress of the interrogation by
simply selecting a lawyer who for one reason or another is
not available to protect his interest. (People v. Barasina)
• The right to counsel does not mean that the accused must
personally hire his own counsel, anyone acting on behalf of
the person under investigation, or appointed by the court
upon petition by said person or by someone on his behalf.
(People v. Espiritu, 1999)
• While the choice of lawyer in cases where the person under
custodial interrogation cannot afford the services of counsel-
or where the preferred lawyer is not available—is naturally
lodged in the police investigators, the suspect has the final
choice as he may reject the counsel chosen for him and ask
for another one.
• A lawyer provided by the investigators is deemed engaged
by the accused when he does not raise any objection to the
lawyer’s appointment during the course of investigation, and
the accused thereafter subscribes to the veracity of the
statement before the swearing officer. (People v. Jerez)
• Mere pro forma appointment of a counsel de officio who fails
to genuinely protect the interests of the accused merits
disapprobation. (People v. Bernas, 1999)
• Where the accused was not asked whether he wishes or can
afford to retain his own lawyer, but was merely told that Atty.
Cimafranca was a lawyer and asked if he needed his
services, it was clear that he was not made aware that he
could choose his own lawyer other that the one assigned by
the police. (People v. Alberto, 2002)
• Right to counsel still applies in certain pre-trial proceedings
that are considered “critical stages” in the criminal process.
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Custodial interrogation before or after charges have been
filed, and non-custodial interrogation after the accused has
been formally charged, are considered “critical pre-trial
stages” in the criminal process.
Right to be informed of such rights
• Effective Communication. This contemplates the
transmission of meaningful information rather than just the
ceremonial and perfunctory recitation of an abstract
constitutional principle. (People v. Nicandro)
• Must be understood. Making the accused read his
constitutional rights is simply not enough. The prosecution
must show that the accused understood what he read, and
that he understood the consequences of his waiver. (People
v. Canela)
• The right to be informed carries with it the correlative
obligation on the part of the investigator to explain, and
contemplates effective communication which results in the
subject understanding what is conveyed. Since it is
comprehension sought to be attained, the degree of
explanation required will necessarily vary and depend on the
education, intelligence and other relevant personal
circumstances of the person under investigation. (People v.
Manriquez, 2000)
Rights cannot be waived except in writing and signed in the
presence of his counsel
• 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, older brothers and sister, his
spouse, the municipal mayor, the municipal judge, the district
school supervisor, or priest or minister of the gospel as
chosen by him; otherwise, such extra-judicial confession shall
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be inadmissible as evidence in any proceeding. (Section 2(d)
RA 7438)
Guidelines of Arresting. Detaining, Inviting or Investigating
Officers or his Companions Must Do and Observe (People v.
Mahinay, 1999)
(1) The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must
be shown the warrant of arrest, if any. Every other warning,
information or communication must be in a language known
to and understood by said person.
(2) He must be warned that he has a right to remain silent and
that any statement he makes may be used as evidence
against him.
(3) He must be informed that he has the right to be assisted at
all times and have the presence of an independent and
competent lawyer, preferably of his own choice.
(4) He must be informed that if he has no lawyer or cannot
afford the services of a lawyer, one will be provided for him;
and that a lawyer may also be engaged by any person in his
behalf, or may be appointed by the court upon petition of the
person arrested or one acting in his behalf.
(5) That whether or not the person arrested has a lawyer, he
must be informed that no custodial investigation in any form
shall be conducted except in the presence of his counsel or
after a valid waiver has been made.
(6) The person arrested must be informed that, at any time, he
has the right to communicate or confer by the most
expedient means, e.g. by telephone, radio, letter or
messenger, with his lawyer (either retained or appointed),
any member of his immediate family, or any medical doctor,
priest or minister chosen by him or by anyone of his
immediate family or by his counsel, or be visited by/confer
with duly accredited national or international non-
government organization. It shall be the responsibility of the
officer to ensure that this is accomplished.
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(7) He must be informed that he has the right to waive any of
said rights provided it is made voluntarily, knowingly and
intelligently, and ensure that he understood the same.
(8) In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in writing
and in the presence of counsel, otherwise, he must be
warned that the waiver is void even if he insists on his
waiver and chooses to speak.
(9) The person arrested must be informed that he may indicate
in any manner at any time or stage of the process that he
does not wish to be questioned with a warning that once he
makes such indication this police may not interrogate him if
the same had not yet commenced, or the interrogation must
cease if its has already begun.
(10) The person arrested must be informed that his initial waiver
of his right to remain silent, the right to counsel or any of his
rights does not bar him from invoking it at any time during
the process, regardless of whether he may have answered
some questions or volunteered some statements.
(11) He must also be informed that any statement or evidence,
as the case may be, obtained in violation of any of the
foregoing, whether inculpatory or exculpatory, in whole or in
part, shall be inadmissible in evidence.
Waiver
• What may be waived. The right to remain silent and the
right to counsel, but not the right to be informed of these
rights.
Requisites of valid waiver of rights:
(1) Made voluntarily, knowingly and intelligently
(2) Waiver should be in writing
(3) Waiver should be made in the presence of counsel
• No retroactive effect. The doctrine that an uncounselled
waiver of right to counsel and to remain silent is not to be
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given legal effect was initially a judge-made one, and first
announced on April 26, 1983 in Morales v. Ponce-Enrile.
While this doctrine eventually became part of Section 12(1) of
Article III, the requirement and restrictions therein have no
retroactive effect and do not reach waivers made prior to
April 26, 1983. (Filoteo v. Sandiganbayan)
• In the presence of counsel. Waiver must be in writing and
made in the presence of counsel. (Section 12(1), Article III)
(But note provisions of RA 7438)
• Burden of Proof. The burden of proving that there was a
valid waiver rests on the prosecution. The presumption that
official duty has been regularly performed cannot prevail over
the presumption of innocence. (People v. Jara)
Section 12(2)
No torture, force, etc., which vitiates the free will shall be used
• Where the appellants did not present evidence of
compulsion or duress or violence on their persons; where
they failed to complain to the officers who administered the
oaths; where they did not institute any criminal or
administrative action against the alleged intimidators for
matreatment, where there appeared to be no marks of
violence on bodies and where they did not have themselves
examined by a reputable physician to buttress their claim: all
these should be considered factors indicating voluntariness of
confessions. (People v. Bagnate, 2004)
Section 12(3)
Confessions/admissions obtained in violation of rights are
inadmissible in evidence
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• There are two kinds of involuntary or coerced confessions
treated in section 12, namely:
(1) coerced confession, the product of third degree
methods, such as torture, force, violence, threat and
intimidation which are dealt in paragraph (2); and
(2) uncounselled statements given without the benefit of the
Miranda warning, which are the subject of paragraph (1).
(People v. Vallejo, 2002)
• Confession and admissions. The 1987 text covers both
“confessions” and “admissions”. Admission is the “act,
declaration, or omission of party as to a relevant fact” (Rule
130, Section 26). Confession is the declaration of accused
acknowledging his guilt of the offense charged, or of any
offense necessarily included therein. (Rule 130, Section 33)
• Confessions or admissions covered by the provision need
not be explicit, they can be merely implicit in any evidence
that is communicative in nature. Thus, the signature of an
accused on a receipt of seized property, or marijuana
cigarettes where the accused wrote his name is inadmissible.
• But where an accused is not being prosecuted for
possession of marked bills, there is no self-incrimination if the
marked bills are presented. A signature in the Booking Sheet
and Arrest Report is not an admission of guilt but only the fact
of booking and arrest.
• Even if the extrajudicial confession was in writing and signed
by counsel, because the accused was not given the Miranda
warnings [i.e., informed of his right to remain silent, that
anything he says can and will be used against him, and that
he is entitled to the assistance of counsel], the confession
was held inadmissible in evidence. (People v. Samolde)
• Oral confessions made to newsmen are not covered by
Section 12 Article III. (People v. Domantay, 1999)
• Fruit of the poisonous tree. A phrase minted by Mr. Justice
Frankfurter. According to this rule, once the primary source
(“the tree”) is shown to have been unlawfully obtained, and
secondary or derivative evidence (“the fruit”) derived from it is
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also inadmissible. The rule is based on the principle that
evidence illegally obtained by the State should not be used to
gain other evidence.
• Where a bloodstained knife is found as a consequence of an
uncounselled extra-judicial confession, the knife may not be
admitted as evidence because it’s the fruit of a
constitutionally infirmed interrogation. (Aballe v. People,1990)
• But see People v. Malimit: Infractions of the so called
“Miranda Rights” render inadmissible only the extrajudicial
confession or admission made during custodial investigation.
The admissibility of other evidence , provided they are
relevant to the issue and is not otherwise excluded by law or
rules, is not affected even if obtained or taken in the course of
custodial investigation.” (1996)
• Re-enactment of the crime. Not being clear from the record
that before the re-enactment was staged by the accused, he
had been informed of his constitutional rights, and that he had
validly waived such rights before proceeding with the
determination, the Supreme Court declined to uphold the
admissibility of evidence relating to re-enactment (People v.
Luvendino)
• Res Gestae. The declaration of the accused acknowledging
guilt made to the police desk officer after the crime was
committed may be given in evidence against him by the
police officer to whom the admission was made, as part of the
res gestae. (People v. Dy)
• Urine Sample. Urine sample is admissible. What the
Constitution prohibits is the use of physical or moral
compulsion to extort communication from the accused, but
not an inclusion of his body in evidence, when it may be
material. In fact, an accused may validly be compelled to be
photographed or measured, or his garments or shoes
removed or replaced, or move his body to enable the
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foregoing things to be done, without running afoul of the specific question which tends to incriminate him for some
proscription against testimonial compulsion. (Gutang v. crime other than that for which he is being prosecuted.
People)
Section 12(4)
• Waiver of the exclusionary rule. For failure of the accused
to object to the offer in evidence, the uncounselled confession Penal and Civil Sanctions
was admitted in evidence. (People v. Samus, 2002) • Penal sanctions are meant to be deterrent against violations.
• Civil sanction in form of damages is strictly speaking, already
Fundamental requisites for an extrajudicial confessions to covered by the Civil Code provision on actionable violations
be admissible in evidence: of constitutional rights. (Bernas, Green Book, p. 469)
(1) Confession must be voluntary • Under RA 7309, victims of unjust imprisonment, arbitrary or
(2) Confession must be made with assistance of competent and illegal detention, or of violent crimes may file a claim for
independent counsel damages with the Board of Claims under the Dept. of Justice.
(3) Confession must be express (Cruz)
(4) Confession must be in writing
(5) Confession must be signed, or if the confessant does not Compensation and Rehabilitation
know how to read and write, thumbmarked by him. • These are social welfare measures.
In fine, a person suspected of having committed a crime and
subsequently charged with its commission has the
following rights in the matter of his testifying or producing
evidence:
(1) Before the case is filed in court [or with public prosecutor, for
preliminary investigation], but after having been taken into
custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the police; the
continuing right to remain silent and to counsel, and to be
informed thereof, not to be subjected to force, violence,
threat intimidation and other means which vitiates the free
will; and to have evidence obtained in violation of these
rights rejected and inadmissible.
(2) After the case is filed in court: to refuse to be a witness; not
to have any prejudice whatsoever result to him by such
refusal; to testify on his own behalf, subject to cross-
examination; and while testifying, to refuse to answer a

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Section 13. All persons, except those charged with offenses

punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Section 13
Right to Bail Non-impairment of Right against
Right to bail by the excessive bail
suspension of the
privilege of the writ of
habeas corpus
Right to Bail
Bail
• Bail is the security given for release of a person in custody
of law, furnished by him or a bondsman, to guarantee his
appearance before any court as may be required. (Rule 114,
Section 1)
• Bail is a mode short of confinement which would, with
reasonable certainty, insure the attendance of the accused.
(De la Camara v. Enage)
• Purpose: The purpose of the bail is to insure the attendance
of the accused. It has neither punitive nor revenue raising
purpose. (Almeda v. Villaluz)
• Bail may be given in the form of corporate surety, property
bond12, cash deposit or recognizance13. (Rule 114, Section 1)
12
A property bond is an undertaking constituted as lien on the real property
given as security for the amount of the bail. (Rule 114, Section 11)
13
Recognizance is an obligation of record entered into before a court
guaranteeing the appearance of the accused for trial. It is in the nature of a
Ratio:
(1) To honor the presumption of innocence until his guilt is
proven beyond reasonable doubt;
(2) To enable him to prepare his defense without being subject
to punishment prior to conviction. (Cortes v. Catral)
• As suggested by the word “conviction”, the constitutional
provision on bail applies only when a person has been
arrested and detained for violation of Philippine criminal laws.
It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or
acquittal. (Gov’t of US v. Purganan)
Implicit limitations on the right to bail
(1) The person claiming the right must be in actual detention or
custody of law;
(2) The constitutional right is available only in criminal cases.
o As suggested by the word “conviction”, the
constitutional provision on bail applies only when a
person has been arrested and detained for violation
of Philippine criminal laws. It does not apply to
extradition proceedings, because extradition courts
doe not render judgments of conviction or acquittal.
(Gov’t of US v. Purganan): The following are
exceptions to this rule:
(1) applicant is not flight risk
(2) there exists a special humanitarian
reason.
When may be invoked; by whom
• Any person under detention even if no formal charges have
yet been filed can invoke the right bail. (Tehankee v. Rovira)
contract between the surety and the State. (People v. Abner)

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• It would be premature, not to say incongruous, to file a o Probability of ultimate punishment is so enhanced by
petition for bail for someone whose freedom has yet to be the conviction, that the accused is much more likely
curtailed. (Cortes v. Judge Catral) to attempt to escape if liberated on bail than before
conviction. (Justice Fransisco)
Who are not entitled to bail:
(1) Persons charged with offenses punishable by Reclusion Reason for denial of bail for capital offenses when the
Perpetua, life imprisonment or death when evidence of guilt evidence of guilt is strong
is strong. (Section 13 of Article III, Section 7, Rule 114) • There is nothing unreasonable in denying this right to one
charged with a capital offense, when the evidence of guilt is
(2) Persons charged with a crime punishable by reclusion strong, as the likelihood is, rather than await the outcome of
perpetua and is convicted by the trial court and sentenced
the proceeding against him with a death sentence, an ever-
to suffer such penalty. (People v. Fortes)
present threat, temptation to flee the jurisdiction would be too
(3) Persons who are members of the AFP facing court martial great to be resisted. (Justice Fernando, Camara v. Enage)
(Comendador v. De Villa)
(4) People v. Reyes: Where a person has been convicted by the Bail
trial court and sentenced to the penalty of imprisonment of
22 years, the penalty imposed is classified as reclusion Bail as a matter of Bail, when When bail shall be
perpetua, and while the case is on appeal, bail shall be right discretionary denied
denied because the offense is punishable by reclusion (1) Persons in (1) Persons (1) Persons not
perpetua and the evidence of guilt is strong. custody before or convicted by RTC entitled to bail
(5) Obosa v. CA: The principle denying bail to an accused after conviction by of an offense not
charged with a capital offense where evidence of guilt is MTC, MeTC and punishable by [See enumeration
strong, applies with equal force to the appellant who, though MCTC of an offense death, reclusion above]
convicted of an offense not punishable by death, reclusion not punishable by perpetua or life
perpetua or life imprisonment, was nevertheless originally death, reclusion imprisonment
charged with a capital offense. perpetua or life (Sec. 5, Rule 114)
Reason: imprisonment
o The accused on appeal may still be convicted of the
original capital offense charged and that thus the risk (2) Persons in
attendant to jumping bail still subsists. custody before
o The importance attached to conviction is due to the conviction by RTC
underlying principle that bail should be granted only of an offense not
where it is uncertain whether the accused is guilty or punishable by
innocent, and therefore, where that uncertainty is death, reclusion
removed by conviction, it would generally speaking, perpetua or life
be absurd to admit to bail. imprisonment

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(Sec 4, Rule 114)
Duties of the judge in case an application for bail is filed by
an accused charged with a capital offense:
(1) Notify the prosecutor of the hearing of the application for bail
or require him to submit his recommendation (Section 18,
Rule 114)
(2) Conduct a hearing of the application for bail regardless of
whether or not the prosecution refuses to present evidence
to show that the guilt of the accused is strong for the purpose
of enabling the court to exercise its sound discretion.
(Section 7 and 8, Rule 114)
(3) Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the
prosecution. (Baylon v. Sison)
(4) If the guilt of the accused is not strong, discharge the
accused upon the approval of the bailbond. (Section 19,
Rule 114) Otherwise, petition should be denied. (Basco v.
Rapatalo)
Strong Evidence of guilt for purposes of denying bail
• This means “proof evident” or “presumption great.”
• “Evident proof” or “proof evident” means clear, strong
evidence which leads a well-guarded dispassionate
judgment to the conclusion that the offense has been
committed as charged, the accused is the guilty agent, and
that he will probably be punished capitally if the law is
administered.
• “Presumption great” exists when the circumstances
testified to are such that the inference of guilt naturally to be
drawn therefrom is strong, clear, and convincing to an
unbiased judgment and excludes all reasonable probability of
any other conclusion.
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• In other words, the test is not whether the evidence
establishes guilt beyond reasonable doubt but rather whether
it shows evident guilt or great presumption of guilt.
Hearing
• Whether the motion is resolved in summary proceedings or
in the course of regular trial, the prosecution must be given
an opportunity to present all the evidence that it may wish to
introduce on the probable guilt of the accused before the
court resolves the motion for bail.
• Even if the prosecution refuses to adduce evidence, or fails
to interpose an objection to the motion for bail, it is still
mandatory for the court to conduct a hearing, or ask
searching and clarificatory questions from which it may infer
the strength of the evidence of guilt, or lack of it, against the
accused (Baylon v. Judge Sison)
Factors/Guidelines to be considered in fixing amount of bail:
(1) Financial ability of the accused to give bail;
(2) Nature and circumstances of the offense;
(3) Penalty for the offense charged;
(4) Character and reputation of the accused;
(5) Age and health of the accused;
(6) Weight of the evidence against the accused;
(7) Probability of the accused appearing at the trial;
(8) Forfeiture of other bail;
(9) Fact that the accused was a fugitive from justice when
arrested;
(10)Pendency of other cases where the accused is on bail
• Q: May a judge require strictly that a cash bond and disallow
petitioner’s attempt to post a surety bond for his provisional
liberty?
• A: No. Such a requirement is abhorrent to the nature of bail.
The sole purpose of bail is to insure attendance of the
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accused. It has neither punitive or revenue purpose. (Almeda

v. Villaluz)
• The criterion whether the offense charged is capital is the
penalty provided by the law regardless of the attendant
circumstances. (People v. IAC)
• Court order. The court’s order granting or refusing bail
must contain a summary of the evidence for the prosecution
(People v. Judge Cabral)
• A court, as a necessary consequence of the nature of a
bailbond, may prevent a person admitted to bail from leaving
the country. A bail is intended to make a person available any
time he is needed by the court. (Manotoc v. CA)

Waiver of the right to bail

(1) Appellant escapes from prison or confinement
(2) Appellant jumps bail
(3) Appellant flees to another country during the pendency of the
appeal.
(4) Failure of the accused to call the attention of the trial court to
the unresolved petition for bail is deemed a waiver of the
right to bail. Furthermore, the conviction of the accused
renders the petition for bail moot and academic. (People v.
Manes, 1999)

Right against excessive bail

• Having an excessive bail amounts to a denial of bail.

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Section 14. (1) No person shall be held to answer for a Ingredients (Found in Nachura Outline)
criminal offense without due process of law. (1) The accused has been heard in court of competent
(2) In all criminal prosecutions, the accused shall be jurisdiction;
presumed innocent until the contrary is proved, and shall (2) The accused is proceeded against under the orderly
enjoy the right to be heard by himself and counsel, to be processes of law;
informed of the nature and cause of the accusation against (3) The accused has been given notice and the
him, to have a speedy, impartial, and public trial, to meet the opportunity to be heard; and
witnesses face to face, and to have compulsory process to (4) The judgment rendered was within the authority of a
secure the attendance of witnesses and the production of constitutional law. (Mejia v. Pamaran)
evidence in his behalf. However, after arraignment, trial may Delay
proceed notwithstanding the absence of the accused • Failure of the Ombudsman to resolve a complaint that had
provided that he has been duly notified and his failure to been pending for six years clearly violates the constitutional
appear is unjustifiable. command for the Ombudsman to act promptly on complaints
and the right of the petitioner to due process of law and to
Section 14 speedy trial. In such event, the aggrieved party is entitled to
the dismissal of the complaint. (Roque v. Ombudsman)
• Unreasonable delay in the termination of the preliminary
Section 14(1) Section 14(2) Section 14(2) investigation by the Tanodbayan violated the due process
Right to Due (1)Presumption of Trial in Absencia clause. (Tatad v. Sandiganbayan)
innocence
Process (2) Right to be heard
• However, where the delay is caused by the complexity of the
(3) Right to counsel issues involved (Santiago v. Garchitorena) or caused by the
(4) Right to be informed acts of petitioner himself, there is no violation of due process
of the nature and cause of law. (Socrates v. Sandiganbayan)
of the accusation
(5) Right to speedy,
impartial and public trial • Administrative agencies may not impose criminal penalties
(6) Right to meet
witness face to face
since these agencies are not bound to follow rules of criminal
(7) Right to compulsory procedure. (Scotty’s Department Store v. Micaller)
process
• Military Tribunals. A military commission or tribunal cannot
try and exercise jurisdiction, even during the period of martial
Section 14(1) law, over civilians for offenses allegedly committed by them
as long as the civil courts are open and functioning, and that
Due process in criminal cases any judgment rendered by such body relating to a civilian is
• This means that the procedure established by law must be null and void for lack of jurisdiction on the part of the military
followed. (Bernas Primer) tribunal concerned. (Olaguer v. Military Commission)

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• Where proceedings in a military court are commenced while
respondent is a member of the military, the military court does
not lose jurisdiction when the subject is dropped from the rolls
of the military. Jurisdiction once acquired is not lost upon the
instance of the parties but continues until the case is
terminated. (Abadilla v. Ramos)
Impartial Judge
• A critical competent of due process of law is hearing before
an impartial and disinterested tribunal. (Webb v. People)
• A judge who replaces another judge may validly render a
decision although he has only partly heard the testimony of
the witnesses. This rule is rooted in practical considerations.
It is sufficient in such circumstances that the judge, in
deciding the case, must base it completely on the cold record
before him. (People v. Narajos)
• The idea of a fair and impartial judge is not that of a hermit
who is out of touch with the world. (People v. Teehankee)
• Pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. (People v. Teehankee)
• Right to a hearing. It was held that the re-opening of a case
without giving the accused the opportunity to introduce
controverting evidence is an error and a denial of due
process of law. (Defensor-Santiago v. Sandiganbayan)
• Plea of guilt to a capital offense. Standards implied by the
due process clause whenever the accused pleads guilty to a
capital offense:
(1) The trial court must conduct a searching inquiry into the
voluntariness of the plea and the full comprehension of
the consequences thereof;
(2) The prosecution shall be required to present evidence to
prove the guilt of the accused and the precise degree of
his culpability; and
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(3) The accused must be asked if he desires to present
evidence on his behalf and allow him to do so, if he so
desires. (People v. Sta. Rosa, 2001)
• It was held that the petitioner (mother of the victim in a rape
with homicide case) was denied due process when the public
prosecutor, who was under legal obligation to pursue the
action on her behalf, reneged on the obligation and refused to
perform his sworn duty. (Merciales v. CA, 2002)
Section 14(2)
Presumption of Innocence
• Every circumstance favoring the innocence of the accused
must be taken into account. The proof against him must
survive the test of reason; the strongest suspicion must not
be permitted to sway judgment (People v. Austria)
• Principal Effect of presumption: Its effect is that no person
shall be convicted unless the prosecution has proved him
guilty beyond reasonable doubt.
• No inference of guilt may be drawn against an accused for
his failure to make a statement of any sort.
• The provision of an election statute which disqualifies from
running for public office any person who has committed any
act of disloyalty to the State “provided that the filing of
charges for the commission of such crimes before a civil court
or military tribunal shall be prima facie evidence of such fact,”
was declared unconstitutional for being violative of the
presumption of innocence clause. (Although filing of charges
is only prima facie evidence and may be rebutted, the
proximity of elections and consequent risk of not having time
to rebut the prima facie evidence already in effect make him
suffer as though guilty even before trial.) (Dumalao v.
Comelec)
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• Against another presumption. The constitutional
presumption may be overcome by contrary presumptions
based on the experience of human conduct.
• The legislature may provide prima facie evidence of guilt and
shift the burden of proof provided that there be a rational
connection between the facts provided and the ultimate fact
presumed so that inference of the one from proof of the
others is not unreasonable and arbitrary because of lack of
connection between the two in common experience. (Banares
v. CA citing People v. Mingoa)
• However, it was held that the prima facie presumption of
accountability does not shatter the presumption of innocence.
(Agullo v. Sandiganbayan, 2001) The presumption that the
possessor of a forged or falsified document is the author of
the forgery or falsification will not prevail over the
presumption of innocence. (Monteverde v. People, 2002)
• Preventive Suspension pendente lite does not violate the
right to be presumed innocent because preventive
suspension is not a penalty. (Gonzaga v. Sandiganbayan)
• Equipoise Rule. The equipoise rule invoked by the
petitioner is applicable only where the evidence adduced by
the parties are evenly balanced, in which case the
constitutional presumption of innocence should tilt the scales
in favor of the accused. (Corpus v. People)
• Who may invoke. The right to presumption of innocence
can be invoked only by an individual accused of a criminal
offense; a corporate entity has no personality to invoke the
same. (Feeder International Line v. CA)
Right to be Heard
• This right is already implicit in due process.
Elements of right to be heard:
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(1) The right to be present at the trial
(2) The right to counsel
(3) The right to an impartial judge
(4) The right of confrontation
(5) The right to compulsory process
• Scope: From arraignment to promulgation of sentence. BUT
after arraingment, trial may proceed even in the absence of
the accused IF failure to appear is unjustifiable and he has
been duly notified.
• Waiver. The right may be waived provided that after
arraignment he may be compelled to appear for the purpose
of identification by the witnesses of the prosecution, or if he
unqualifiedly admits in open court after his arraignment that
he is the person named as the defendant in the case on trial.
• When the accused waives his appearance in further
proceedings and says “he may be identified by witnesses
even in his absence”, he may still be compelled to appear for
purposes of identification. In order for him to be excused
completely from appearance it is not enough that he allows
himself to be identified by the witnesses in his absence. He
must further unqualifiedly admit that every time a witness
mentions his name by which he is known, the witness is to be
understood as referring to him. (Carredo v. People)
Trial in Absencia
Requisites for trial in absentia:
(1) The accused has already been arraigned
(2) He has been duly notified of the trial
(3) His failure to appear is unjustifiable.
• Reason: To speed up the disposition of cases. (People v.
Salas)
• The text of the Constitution makes arraignment a
prerequisite for trial in absentia. The reason for this is that it is
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during arraignment that the accused is informed of the nature
and cause of the accusation against him. (Borja v. Mendoza)
• The provision on trial in absentia does not preclude forfeiture
of bail bond under the Rules of Court for one who jumps bail.
(People v. Judge Prieto)
• Presumption. Whenever a protection given by the
Constitution is waived by the person entitled to that
protection, the presumption is always against the waiver.
(People v. Jara)
Right to Counsel
• Right to counsel means an efficient and truly decisive legal
assistance, and not simply a perfunctory representation.
(People v. Bernas)
• Right to counsel proceeds from the fundamental principle of
due process which basically means that a person must be
heard before being condemned.
• PAO lawyer is an independent counsel. (Estrada v. Badoy,
2003)
• Ratio: Even the most intelligent or educated man may have
no skill in the science of law, particularly in the rules of
procedure, and without counsel, he may be convicted not
because he is guilty but because he does not know how to
establish his innocence. (CJ Moran in People v. Holgado)
• According to Nachura reviewer “Right to counsel during the
trial is not subject to waiver.” (Flores v. Ruiz, 90 SCRA 428).
But, I think this is wrong. The Green Book of Bernas says
“Like any other rights, the right to counsel may be waived.”
(page 503 citing US v. Go-Leng, US v. Kilayko and People v.
Sim Ben) Also the same case of People v. Sim Ben (98 Phil
138 (1955)) was assigned by Atty Jack Jimenez.
• Right to counsel may be waived. It need not be in writing.
Waiver may be oral. Waiver may be made even without the
presence of counsel. (People v. Sim Ben)
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• Failure of the record to disclose affirmatively that the trial
court advised the accused of his right to counsel is not
sufficient ground to reverse conviction. The trial court must be
presumed to have complied with the procedure prescribed by
law for the hearing and the trial cases, and such presumption
can be overcome only by an affirmative showing to the
contrary. (People v. Agbayani, 1998) However, the Court
admonished all trial courts to have their compliance with their
pre-arraignment duties put on record.
• The decision of conviction was set aside where it appeared
that there was merely a pro forma appointment of a counsel
de officio who did not exert his best efforts for the protection
of the accused. (People v. Magsi)
• Where the accused manifested that he had lost confidence
in his counsel de officio and wanted to retain a counsel de
parte, but the court still appointed the same lawyer as
counsel de officio, and proceeded with the trial, there was
deemed a denial of this constitutional guarantee (People v.
Manlusing)
• There is no denial of the right to counsel where the counsel
de oficio was appointed during the absence of the accused’s
counsel de parte pursuant to the court’s desire to finish the
case as early as possible under the continuous trial system.
(Amion v. Judge Chiogson)
• Where after conviction, accused discovers that the “lawyer”
who defended her was not a member of the bar, she may be
granted a new trial. (People v. Santocildes)
• A promise to recommend a specific penalty such as the fine
does not render the sentence void if the Court ignores the
recommendation and metes out to the defendant a penalty
which is provided by law. (People v. Sim Ben)
• Even in times of emergency, a person may not be denied the
right to confer with counsel. (Diokno v. Enrile)
• A client is bound by the mistakes of his lawyer (Andrada v.
People) except when the negligence or incompetence of
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counsel is deemed so gross as to have prejudiced the
constitutional right of the accused to be heard.
• An examination of related provisions in the Constitution
concerning the right to counsel, will show that the “preference
in the choice of counsel” pertains more aptly and specifically
to a person under investigation rather than one who is the
accused in a criminal prosecution. (Amion v. Judge
Chiongson)
Pre-arraignment duties of a trial judge:
(1) To inform the accused that he has the right to have his own
counsel before being arraigned;
(2) To ask accused whether he desires the aid of counsel;
(3) If he so desires to procure the services of counsel, the court
must grant him reasonable time to do so;
(4) If he desires to have counsel but is unable to employ one,
the court must assign counsel de oficio to defend him.
(People v. Agbayani, Rule 116, Section 6)
Right to be informed
Purpose and Scope of the right to be informed:
(1) To furnish the accused with such a description of the charge
against him as will enable him to make his defense;
(2) To avail himself of his conviction or acquittal for protection
against a further prosecution for the same cause;
(3) To inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction, if
one should be had.
In order that that this requirement may be satisfied, facts
must be stated, not conclusions of law. Complaint must
contain specific allegation of every fact and circumstance
necessary to constitute the crime charged. (US v. Karelsen)
Contents of a criminal information:
(1) Name of the accused
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(2) Designation given to the offense by the statute;
(3) Statement of the acts or omissions so complained of as
constituting the offense;
(4) Name of the offended party;
(5) Approximate time and date of the commission of the offense;
and
(6) Place where the offense had been committed. (Rule 110)
• The real nature of the crime is determined not from the
caption or preamble of the information nor from the
specification of the provision of law alleged to have been
violated but from the recital of facts. (Matilde v. Jobson)
The right is not violated where the allegations in the
information clearly sets the essential elements in the crime
charged. (Abaca v. CA)
• The information need not allege the precise time of the
commission of an offense, unless time is an essential
element of the crime charged. (People v. Bugayong)
• An accused cannot be convicted of rape where the evidence
shows that the rape was committed on some other date
different from the date indicated in the information. (People v.
Cruz)
• Section 11, rule 110 of the Rules of Court requires that the
time of the commission of the offense must be alleged as
near to the actual date as the information or complaint will
permit. Otherwise, his right to be informed would be violated.
However, the accused must raise the issue of defective
information in a motion to quash or in a motion for a bill of
particulars. (People v. Razonable, 2000)
• Qualifying circumstances must be alleged.
• Void for vagueness. The accused is also denied the right to
be informed of the charge against him, and to due process as
well, where the statue itself is couched in such indefinite
language that it is not possible for men of ordinary
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intelligence to determine therefrom what acts or omissions
are punished. (See Estrada v. Sandiganbayan)
Right to Speedy Trial
Speedy Trial
• A trial free from vexatious, capricious and oppressive delays
(Flores v. People) is intended to relieve the accused of
needless anxieties and inconveniences before sentence is
pronounced upon him.
• This is consonant with Section 16 of the Bill of Rights
providing that “all persons shall have the right to a speedy
disposition of cases before all judicial, quasi-judicial or
administrative bodies.”
• Concept is relative. The concept of speedy trial is
necessarily relative and determination of whether the right
has been violated must be based on the balancing of various
factors. Length of delay is certainly a factor to consider; but
other factors must also be considered such as the reason for
the delay, the effort of the defendant to assert his right, and
the prejudice caused the defendant.
• What offends the right. In determining the right of the
accused to speedy trial, courts should do more than a
mathematical computation of the number of postponements
of scheduled hearings of the case. What offends the right are
unjustified postponements which prolong trial for an
unreasonable length of time. (People v. Tampal) The rifht to
speedy trial is violated only when the proceeding is attended
by vexatious, capricious and oppressive delays or when
without cause or justifiable motive, a long period of time is
allowed to elapse without the party having the case tried.
(Dela Rosa v. CA)
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• The delay contemplated by the Constitution is unreasonable
delay. One begins to count the delay of the trial only after
filing of the information. (Martin v. Ver) (But note that the new
Constitution guarantees not just “speedy trial” but “speedy
disposition of cases” a broader concept than “speedy trial.”
Objectives:
• It is intended to relieve the accused of needless anxieties
and inconveniences before sentence is pronounced upon
him.
• Justice and fairness, not speed, are the objectives. (See
Amberti v. CA, Acevedo v. Sarmiento, Martin v. Ver)
• Dismissal. Accused is entitled to dismissal, equivalent to
acquittal, if trial is unreasonably delayed.
• Where a prosecuting officer, without good cause, secures
postponements of the trial of a defendant against his protest
beyond a reasonable period of time, as in this instance for
more than a year, the accused is entitled to relief by a
proceeding in mandamus to compel a dismissal of the
information, or if he be restriained of his liberty, by habeas
corpus to obtain freedom. (Conde v. Rivera)
• Effect of dismissal. Dismissal for violation of the right to
speedy trial is equivalent to acquittal and is a bar to another
prosecution for the same offense.
RA 8493
• The Speedy Trial Act provides, among others, that the
arraignment of an accused shall be held within 30 days from
filing of the information, or from the date the accused
appeared before the justice, judge or court in which the
charge is pending whichever date last occurs. Thereafter,
where a plea of not guilty is entered, the accused shall have
at least 15 days to prepare for trial. Trial shall commence
within 30 days from arraignment as fixed by the court. In no
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case shall the entire trial period exceed 180 days form the
first day of trial, except as otherwise authorized by the Chief
Justice of the Supreme Court.
Right to an impartial trial
• The original constitution required the trial of the accused to
be only public and speedy. The new Bill of Rights provides
that it also be impartial as an added guaranty of due process
of law (Cruz)
• It has been remarked that this requirement will call for no
less that “the cold neutrality of an impartial judge,” to
insure that justice is done to the defendant. (Gutierrez v.
Santos) Part of the rule that the judge must not only be
impartial but must appear to be impartial. (Fernandez v.
Presbitero)
• Examination of Witnesses. It is not only the right but oft-
duty of a trial judge to examine witnesses when it appears
necessary for the elucidation of the record. (People v.
Manalo)
Right to a public trial
• A trial is public when attendance is open to all irrespective
of relationship to defendants. However, when the evidence
to be presented may be characterized as “offensive to
decency or public morals,” the proceeding may be limited to
friends, relatives, and counsel. (Garcia v. Domingo)
• Exceptions
(1) Sensitive Rape cases
(2) Military Secrets
(3) National Security Issues
• Justice Black: The requirement is satisfied if the accused
could “have his friends, relatives and counsel present no
matter with what offense ha may be charged.” (In re Oliver
mentioned in Garcia v. Domingo)
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• Purpose: To safeguard against any attempt to employ our
courts as instruments of persecution. The knowledge that
every criminal trial is subject to contemporaneous review in
the forum of public opinion is an effective restraint on possible
abuse of judicial power. (Garcia v. Domingo)
• A public trial is not synonymous with a publicized trial; it only
implies that the court doors must be open to those who wish
to come, sit in available seats, conduct themselves with
decorum and observe the trial process. (Re: Request for Live
TV Coverage of the Trial of Estrada, 2001)
Right to meet witness face to face
• Ratio: To prevent conviction of the accused upon deposition
or ex parte affidavits, and particularly to preserve the right of
the accused to test the recollection of the witness in the
exercise of the right of cross-examination.(US v. Javier)
Normally, there is less propensity to lie on the part of the
witness when actually confronted by the accused that when
the testimony is given behind his back. Testimony in open
court under oath, thus deterring lying because of threat of
perjury.
• Purpose:
(1) To afford the accused an opportunity to test the
testimony of the witness by cross-examination; and
(2) To allow the judge to observe the deportation of the
witness. (People v. Ortiz-Miyake)
• When available: It is a right available during trial which
begins only upon arraignment. (Dequito v. Arellano)
• Note: From Rule 112, it is clear that unlike in the preliminary
investigation proper, an accused is not entitled as a matter of
right to be present during the preliminary examination nor to
cross-examine the witness presented against him before his
arrest, the purpose of said examination being merely to
determine whether there is sufficient reason to issue a
warrant of arrest. The provision commanding the
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determination of probable cause prior to the issuance of a
warrant of arrest, requires no notice to an accused. A
preliminary examination is generally a proceeding ex parte in
which the person charged has no right to participate or to be
present. (Marinas v. Siochi, 1981)
• Rule: The testimony of a witness who has not submitted
himself to cross-examination is not admissible in evidence.
The affidavits of witnesses who are not presented during the
trial—and thus are not subjected to cross-examination—are
inadmissible because they are hearsay. (People v. Quidato,
1998)
• Exceptions:
(1) Admissibility of Dying declarations
(2) Trial in Absentia
(3) With respect to child testimony
• Note also that that the right to cross-examine may be
waived.
• Also, where it is impossible to produce a witness who
has already testified in a previous proceeding, his
previous testimony is made admissible as a distinct piece
of evidence. (See People v. Ortiz-Miyake)
Dying Declarations
• Rationale: When a person is at the point of death, every
motive to falsehood is silenced, and the mind is induced by
the most powerful consideration to speak the truth, and
therefore, the statements under such circumstances deserve
weight. (People v. Bacunawa)
• Elements:
(1) That the declaration is one made by a dying person;
(2) That the declaration was made by said dying person
under a consciousness of his imminent death;
(3) That the declaration refers to the cause and
circumstances surrounding the death of the declarant
and not of anyone else;
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(4) That the declaration is offered in a case where the
declarant’s death is subject of inquiry. People v. Matito,
2004; Rule 130, Sec. 37)
• Incomplete Cross-examination
(1) Where the right to cross-examination is lost wholly or in
part through the fault of cross-examiner, then the
testimony on direct may be recognized.
(2) When the cross-examination is not and cannot be done
or completed due to causes attributable to the party
offering the witness then the uncompleted testimony
becomes incompetent and inadmissible.
(3) The direct testimony of the witness who dies before the
completion of the cross-examination can thus be stricken
only insofar as not covered by the cross-examination.
(People v. Seneris)
• No Cross. Where death prevent cross-examination under
such circumstances that no responsibility of any sort can be
ascribed to the plaintiff or witness, it seems harsh measure to
strike out all that has obtained in the direct examination. The
prudent alternative should have been to admit the direct
examination so far as the loss of cross-examination could
have been shown to be not in that instance a material loss.
And more compelling so, in the case where it has become
evident that the adverse party was afforded a reasonable
chance for cross-examination but through his own fault to
cross-examine the witness. (People v. Narca)
Right to Compulsory Process
• The 1935 version speaks of the right to compulsory process
“to secure the attendance of witness in his behalf”, whereas,
the 1973 and 1987 versions add the right “to have
compulsory process to secure… the production of evidence in
his behalf.
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• The accused is entitled to the issuance of subpoena and

subpoena duces tecum for the purpose of compelling the
attendance of witnesses and the production of evidence that
he may need for his defense. (Cruz)
• He is also entitled to employ the various methods of
discovery allowed under the Rules of Court, like letters
rogatory and written interrogatories. (Cruz)
• Failure to obey the process is punishable as contempt of
court; if necessary, the witness may even be arrested so he
can give the needed evidence. (See People v. Bardaje)
• Since a preliminary investigation can result in arrest and
therefore in a deprivation of liberty, the accused should not be
denied access to evidence favorable to him, in this case an
earlier version of an affidavit made by witness for the
prosecution. (People v. de Leon)
• Subpoena. It is a process directed to a person requiring him
to attend and to testify at the hearing or trial of an action or at
any investigation conducted under the laws of the Philippines,
or for the taking of his deposition. (Caamic v. Galapon)

• Requisites for the attendance of witnesses and the

production of evidence:
(1) The evidence is really material;
(2) Accused is not guilty of neglect in previously obtaining
the production of such evidence;
(3) The evidence will be available at the time desired;
(4) No similar evidence can be obtained. (People v. Chua,
2001)
• The right to compulsory process must be invoked during the
trial. Failure to do so constitutes a waiver that cannot be
rectified or undone on appeal. (US v. Garcia)

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Section 15. The privilege of the writ of habeas corpus shall
not be suspended except in cases of invasion or rebellion
when public safety requires it.
Habeas corpus
• Writ of Habeas Corpus. It is a writ directed to the person
detaining another, commanding him to produce the body of
the prisoner at a designated time and place, with the day and
cause of his caption and detention; to do, submit to, and
receive whatever the court or judge awarding the writ shall
consider in that behalf. (Hence, an essential requisite for the
availability of the writ is actual deprivation of personal liberty.)
• Other instances where writ is applicable:
(1) Where as a consequence of judicial proceeding, there
has been deprivation of a constitutional right resulting in
the restraint of the person;
(2) Where the court has no jurisdiction to impose the
sentence;
(3) Where an excessive penalty has been imposed, since
such sentence is void as to the excess. (Feria v. CA,
2000)
(4) It may also extend to cases by which rightful custody of
any person is withheld from the person entitled thereto.
(Tijing v. CA, 2001)
(5) The writ may issue on the ground that moral restraint
was being exerted by the employer to prevent the
housemaid from leaving. (Caunca v. Salazar)
(6) A person detained during the Japanese occupation for
an offense of political complexion could demand his
release after the legitimate government was restored.
(Alcantara v. Dir. Of Prisons)
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• Privilege. The right to have an immediate determination of
the legality of the deprivation of physical liberty.
• Suspension. The writ is never suspended. It always
issues as a matter of course. What is suspended is the
privilege of the writ, i.e., once the officer making the return
shows the court that the person detained is being detained for
an offense covered by the suspension, the court may not
enquire any further.
• It is the President who may suspend the privilege.
• Suspension of the privilege does not suspend the right to
bail.
• “Release” renders a petition moot and academic. Such
release must be one which is free form involuntary restraints.
(Moncupa v. Enrile)
• Requisites for Suspension:
(1) The existence of actual invasion or rebellion;
(2) Public safety requires the suspension.
• Limitations of Power to Suspend: Article III, Section 18
• Non-compliance. There is need to comply with the writ;
disobedience thereof constitutes contempt of court. (Contado
v. Tan)
Q: What is writ of amparo?
A: “Amparo” comes from Spanish verb “amparar” meaning to
protect. Justice Azcuna defines it as “a special constitutional
writ to protect or enforce a constitutional right (other than
physical liberty).”
Q: Does writ of amparo have a place in our legal firmament?
A: Yes, when the Constitution allowed the SC to promulgate
rules to protect constitutional rights. (Article VIII, Section
5(5))
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Q: How does it work in the context of disappearances?
A: Panganiban explained that the writ of amparo would
compel the state agents to look for the missing person. And
if the court were to find the officials did not exert enough
effort in finding the person, it could hold them liable.
• The Court has already issued writ of amparo to several
persons. The first writ was issued for UP students Sherlyn
Cadapan and Karen Empeno and farmer Manuel Merino. The
second was issued for farmer brothers Raymond and
Reynaldo Manalo, who sought the Court’s protective custody
and to stop their arrest.
• The writ of amparo, has been described by Chief Justice
Puno as “the greatest legal weapon to protect the
constitutional rights of our people.” The Rule, which took
effect last October 24, is the most potent remedy available to
any person whose right to life, liberty, and security has been
violated or is threatened with violation by an unlawful act or
omission by public officials or employees and by private
individuals or entities. The Rule was promulgated pursuant to
the recommendations from the National Consultative Summit
on Extrajudicial Killings and Enforced Disappearances called
last July by the Chief Justice. (Min. Res., GR No. 180054,
Rubrico v. President Arroyo, October 31, 2007)
Rubrico v. President Arroyo, Min. Res., GR No.
180054October 31, 2007.14
14
In her complaint, Rubrico said that she was abducted in
Dasmariñas, Cavite on April 3 this year by armed men belonging to
the 301st Air Intelligence and Security Squadron and later illegally
detained at the Philippine Air Force Field Station, Fernando Air Base,
Lipa City, Batangas. She claimed that she was detained until last
April 10, when her abductors had released her after having signed a
statement that she would become their asset.
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• The Supreme Court, upon the authority of Chief Justice
Reynato S. Puno on October 31, issued a writ of amparo to
protect the 63-year old urban poor leader who had been
allegedly abducted, illegally detained, and subsequently
released by military agents last April.
In a three-page resolution, the Court En Banc ordered the
respondents, including President Arroyo, to make a return of
the writ before the Court of Appeals by November 9. It also
directed the CA to hear the petition of Ugnayan ng Maralita
Para sa Gawa at Adhikain (UMAGA) Federation Chairperson
Lourdes D. Rubrico, et al. on November 13, 2007 at 2 p.m.
and decide the case within 10 days after its submission for
decision.
“You, respondents President Gloria Macapagal-Arroyo,
(Armed Forces of the Philippines Chief of Staff) Gen.
Hermogenes Esperon, (Philippine National Police Director)
Gen. Avelino Razon, Major Darwin Sy a.k.a. Darwin Reyes,
Jimmy Santana, Ruben Alfaro, Cap. Angelo P. Cuaresma, a
certain Jonathan, Police Supt. Edgar B. Roquero, and Police
Senior Insp. Arsenio C. Gomez are hereby required to make
a return of the writ before the Court of Appeals Ninth Division
on or before 4:00 p.m. of November 9, 2007,” the Court said.
Rubrico said that since her release, she and her two daughters and
co-petitioners Jean Rubrico Apruebo and Mary Joy Rubrico Carbonel
have been harassed by motorcycle-riding men wearing bonnets or
ski masks, adding that they were subsequently forced to leave their
house in Bagong Bayan, Dasmariñas, Cavite, fearing for their lives.
(Supreme Court Website)
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Section 16. All persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or
administrative bodies.
Speedy Disposition of Cases
• Speedy trial in Section 14 covers only the trial phases of
criminal cases, whereas section 16 covers all phases of any
judicial, quasi-judicial or administrative proceedings.
• Concept: It is a relative term and must be a flexible concept.
CASES:
PEOPLE vs. SESBRENO
The 90 day period applies only after the case is submitted for decision, not
from the start of the trial.
BINAY vs. SANDIGANBAYAN
The right is deemed violated only when the proceedings is attended by
vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause
or justifiable motive a long period of time is allowed to elapse without the
party having his case tried.
GONZALES vs. SANDIGANBAYAN
Equally applicable is the balancing test used to determine whether a
defendant has been denied his right to a speedy trial, or a speedy
disposition of a case for that matter, in which the conduct of both the
prosecution and the defendant are weighed and factors as length of the
delay, reason for the delay, the defendant’s assertion or non-assertion of his
right, and prejudice to the defendant resulting from the delay, are
considered.
TY-DAZO vs. SANDIGANBAYAN
In the determination of whether or not that right has been violated, the
factors that may be considered and balanced are: The length of the delay,
the reasons for the delay, the assertion or failure to assert such right by the
accused, and the prejudiced caused by the delay. Mere Mathematical
reckoning of the time involved would not be sufficient. Certain fact and
circumstances peculiar to each cases must also be taken into consideration.
DOMINGO vs. SANDIGANBAYAN
If the delay, if any, was actually more beneficial, rather than prejudicial, to
petitioner in that it was intended to afford him the opportunity to refute the
charges made against him, there is no violation of right.
CASTILLO vs. SANDIGANBAYAN
While petitioners certainly have the right to a speedy disposition of their
case, the structural reorganization of the prosecutorial agencies, the
procedural changes brought about by the Zaldivar case as well as the
Sandiganbayan's heavy caseload certainly are valid reasons for the delay in
the disposition of petitioners' case. For those reasons, the delay certainly
cannot be considered as vexatious, capricious and oppressive.
LOPEZ vs. OFFICE OF THE OMBUDSMAN
The constitutional right to speedy trial is not limited to accused in criminal
proceedings but extends to all parties in all cases including civil and
administrative cases and all proceeding including judicial and quasi judicial.
PEOPLE vs. MONJE
To order the remand of the criminal case to the court to enable the
prosecution to prevent additional evidence would violate the constitutional
right to speedy determination of case.

CERVANTES vs. SANDIGANBAYAN

Long delay (three years) in the termination of the preliminary investigation by
the Tanodbayan" was violative of the Constitutional right of "speedy
disposition" of cases because "political motivations played a vital role in
activating and propelling the prosecutorial process in this case.

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Section 17. No person shall be compelled to be a witness
against himself.
Right against self-incrimination
Purpose:
The guarantee is established in the grounds of:
(1) Public Policy
(2) Humanity
Of public policy, because, if the party were required to testify,
it would place the witness under the strongest temptation to
commit perjury.
Of humanity, because it would prevent the extorting of
confession by duress. (US v. Navarro)
Scope.
(1) Testimonial Compulsion
(2) Application of intelligence and Attention (Handwriting)
(3) Private Books of Private individuals
• The kernel of the privilege was the prohibition of
“testimonial15 compulsion.” (Alih v. Castro)
• Handwriting. A person may not be compelled to produce a
sample of his handwriting to be used as evidence against
him. Writing is something more than moving the body, or the
hand, or the fingers; writing is not a purely mechanical act,
because it requires the application of the intelligence and
attention. For the purpose of the constitutional privilege, there
is a similarity between one who is compelled to produce a
document, and one who is compelled to furnish a specimen
15
TWO TYPES OF EVIDENCES
Real Evidence – Evidence furnished by things themselves on view or inspection
as distinguished from a description of them by the mouth of the witness
Testimonial evidence – any form of communication which requires the application
of intelligence elicited from a witness, it may be oral or written.
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of his handwriting, for in both cases, the witness is required to
furnish evidence against himself. (Beltran v. Samson)
• Private Books of Private Individuals. Compulsory
production of private books and papers of the owner is
compelling him to be a witness against himself. (Boyd v. US)
Exception: The privilege which exists as to private papers
cannot be maintained in relation to “records required by law
to be kept in order that there may be suitable information of
transactions which are the appropriate subjects of
governmental regulation and the enforcement of restrictions
validly established. (Shapiro v. US)
Not Covered by the guaranty
(1) Inclusion of body in evidence
(2) Object Evidence
(3) Records required by law
• What is prohibited by the constitutional guarantee is the use
of physical and moral compulsion to extort communication
from the witness, not an inclusion of his body in evidence,
when it may be material.
o A person may be compelled to submit to
fingerprinting, photographing and paraffin testing, as
there is no testimonial compulsion involved.
o Substance emitting from the body of the defendant
was received as evidence in a prosecution for acts of
lasciviousness (US v. Tan-Teng)
o Morphine forced out of the mouth of the accused was
received. (US v. Ong Siu Hong)
o An order by the judge for the witness to put on a pair
of pants for size was allowed. (People v. Otadora)
o Taking of pictures of an accused even without the
assistance of counsel, being purely mechanical act, is
not a violation of his constitutional right against self-
incrimination. (People v. Gallarde, 2000)
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o Hair samples taken from the accused may be
admitted in evidence. (People v. Rondero, 1999)
o DNA. Evidence involving DNA is likewise admissible.
(People v. Yatar, 2004)
o Voice. (Jack)
• The guaranty does not apply to a case where evidence
sought to be excluded is not an incriminating statement but
an object evidence. (People v. Malimit)
• When is question incriminating. A question would have
tendency to incriminate, even if it tends to elicit only one of
the elements of a crime. The right thus includes a right to
refuse to testify to a fact which would be a necessary link in a
chain of evidence to prove the commission of a crime by a
witness. (Isabela Sugar Co. v. Macadaeg)
• Who are protected. Only natural persons are protected.
Thus, a corporation may be compelled to submit to the
visitorial powers of the State even if this will result in
disclosure of criminal acts of the corporation. (Hale v. Henkel)
• When may be asserted:
Accused in a criminal case: May assert the right from the
moment he is asked to testify
Respondent in administrative proceeding where the
respondent may be subjected to sanctions of a penal
character: May assert the right from the moment he is
asked to testify. (Cabal v. Kapunan)
Witness who is not an accused: May assert the right when
the incriminating question is asked.
Respondent in a civil case: May assert the right when the
incriminating question is asked.
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• Where may be asserted. In any judicial or administrative or
in any official government inquiry. (Bernas) Including
legislative investigations. (Nachura)
Exceptions:
(1) Waiver
(2) Immunity
(3) Amnesty
• Waiver. The right against self-incrimination may be waived
either directly or by failure to invoke it, provided that waiver is
certain and unequivocal and intelligently made. Thus, the
accused who takes the witness stand voluntarily and offers
testimony in his behalf may be cross-examined and asked
incriminating questions on any matter he testified to on direct
examination.
Immunity
(1) Transactional Immunity
o Such as that which may be granted by the CHR to
any person whose testimony or whose possession of
documents or other evidence is necessary or
convenient to determine the truth in any investigation
conducted by it or under its authority, which makes
the witness immune from criminal prosecution for an
offense to which his compelled testimony relates.
(Article XIII, Section 18(8))
(2) Use and fruit Immunity
o Prohibits the use of the witness’ compelled testimony
and its fruits in any manner in connection with the
criminal prosecution of the witness. (Galman v.
Pamaran)
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Section 18. (1) No person shall be detained solely by reason (6) Return to work order in industries affected with public
of his political beliefs and aspirations. interest. (See Manggagawa sa Kahoy v. Gotamco
(2) No involuntary servitude in any form shall exist except as Sawmills)
a punishment for a crime whereof the party shall have been (7) Compelling the stenographer to transcribe his court
duly convicted. stenographic notes in the exercise of judicial power.
(See Aclaracion v. Gatmaitan)
Section 18(1) Section 18(2)
Right against detention solely by Right against involuntary
reason of his political beliefs and Servitude
aspirations

Involuntary Servitude
• It is every condition of enforced or compulsory service of one
another no matter under what form such servitude may be
disguised. (Rubi v. Provincial Board)
• The concept includes slavery, which is defined as the “civil
relation in which one man has absolute power over the life,
fortune and liberty of another.” (Blacks Law Dictionary)
• The concept includes peonage or “a condition of enforced
servitude by which the servitor is retrained of his liberty and
compelled to labor in liquidation of some debt or obligation,
real or pretended, against his will.” (Peonage Case)
• See Art. 272 of the RPC

Exceptions to Involuntary Servitude:

(1) Punishment for a crime whereof the party shall have
been duly convicted. (Article III, Section 18(2))
(2) In the interest of national defense, all citizens may be
compelled by law to render personal military or civil
service. (Article II, Section 4)
(3) Naval (merchant marine) enlistment (See Robertson v.
Baldwin)
(4) Posse Comitatus [Power of the County] (See US v.
Pompeya)
(5) Patria Potestas [Parental Authority] (Art. 209 FC)

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Section 19. (1) Excessive fines shall not be imposed, nor actual evil. (People v. Echegaray) However, the
cruel, degrading or inhuman punishment inflicted, neither circumstances under which a specific law may allow the
shall death penalty be imposed, unless, for compelling death penalty may make it cruel and unsual under such law.
reasons involving heinous crimes, the Congress hereafter (See Furman v. Georgia)
provides for it. Any death penalty already imposed shall be • To be violative of the provision, the punishment must be
reduced to reclusion perpetua. flagrantly and plainly oppressive; wholly
(2) Employment of physical, psychological, or degrading disproportionate to the nature of the offense as to shock
punishment against any prisoner or detainee or the use of the moral sense of the community. (People v. Estoista)
substandard or inadequate penal facilities under subhuman o However, it has been held that a penalty not normally
conditions shall be dealt with by law. proportionate to the offense may be imposed in some
instances without violation of the Constitution. This
Section 19 (1) Section 19(2) would be allowed, for example, where the offense
Right against imposition of Right against physical, has become so rampant as to require the adoption of
excessive fines psychological, or degrading more effective deterrent, like the punishment of the
Right against infliction of cruel, punishment. stealing of jeeps or coconuts in the RPC as qualified
degrading or inhuman Right against the use of theft.
punishment substandard or inadequate penal Cruel
Abolition of death penalty*** facilities under subhuman • Cruelty must be inherent in the penalty, as whipping the
conditions. post.
• Torture is a cruel punishment because it involves a
Section 19 (1) deliberate design to increase the suffering of the prisoner in
a manner so flagrant and oppressive as to revolt the moral
Excessive fines sense of the community.
• A fine is excessive when under the circumstance it is • But where an unforeseeable accident adds to the suffering of
disproportionate to the offense. the convict, a penalty otherwise valid does not become cruel
or unusual. (Louisiana v. Resweber)
Cruel, Degrading, Inhuman
• Mere fines and imprisonment are not violative of the Degrading and Inhuman
provision. • Where a prostitute is required to go naked in public in
• The fact that the punishment authorized by the statute is expiation for her crime or a thief to wear a stigmatizing
severe does not make it cruel and unusual. (People v. emblem of his calling, the punishment is certainly degrading
Dionisio) and inhuman.
• The death penalty per se is not a cruel or unusual PEOPLE vs. PUDA
punishment (Harden v. Director of Prisons) It is an exercise Guidelines in determining if a punishment is cruel and unusual:
of the State’s power to security against the threatened and

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1) punishment must no be so severe as to be degrading to the
dignity of human beings
2) It must not be applied arbitrarily
3) It must not be unacceptable to contemporary society
4) It must not be excessive e.g. it must serve a penal purpose
more effectively than a less severe punishment would.
Factors to consider if a penalty is “cruel”
1) the nature of the penalty
2) the nature of the penalty as against penalties of other
crimes of the same nature
3) the act itself.
Death Penalty
• The 1987 Constitution abolished the death penalty.
However, it does not prohibit the legislature from from
restoring it for “compelling reasons involving heinous crimes.”
Conversely, Congress may also abolish the death penalty
even after it has reimposed it.
• The power of the Congress to reimpose the death penalty is
not subsumed under its plenary legislative power because it
is subject to clear showing of compelling reasons involving
heinous crimes. (People v. Echegaray, 1997)
The constitutional exercise of the Congress’ limited power to
• Nothing in Article III, Section 19(1) imposes a requirement
reimpose the death penalty entails:
that for a death penalty bill to be valid, a positive
manifestation in the form of higher incidence of crime should
first be perceived and statistically proven following the
suspension of the death penalty. Neither does the said
provision require that the death penalty be resorted to as a
last recourse when all other criminal reforms have failed to
abate criminality in society. (People v. Echegaray)
• Plea of guilt in capital offenses. When accused pleads
guilty to a capital offense, the stringent constitutional
standards of the due process clause require that the trial
court must conduct a searching inquiry to the voluntariness of
the plea, and the accused’s full comprehension of the
consequences thereof. It shall also require the prosecution to
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present evidence to prove the guilt of the accused and the
precise degree of culpability. The accused must also be
asked if he desires to present evidence, and in the
affirmative, allow him to do so.
• Automatic review in death penalty cases shall proceed
even in the absence of the accused.
• Reasons why the Constitution abolished the death
penalty:
(1) It inflicts traumatic pain not just on the convict but also
on the family, even if the penalty is not carried out;
(2) There is no convincing evidence that it acts effectively as
a deterrent of serious crime;
(3) Penology favors reformative rather than vindictive
penalties;
(4) Life is too precious a gift to be placed at the discretion of
human judge;
(5) The law itself, by imposing so many safeguards before a
death penalty is carried out, manifests a reluctance to
impose the death penalty.
(1) That Congress define or describe what is meant by
heinous crimes;
(2) That Congress specify and penalize death, only crimes
that qualify as heinous in accordance with the definition
or description set in the death penalty bill and/or
designate crimes punishable by reclusion perpetua to
death in which latter case, death can only be imposed
upon the attendance or circumstances duly proven in
court that characterize the crime to be heinous in
accordance with the definition or description set in the
death penalty bill; and
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(3) That Congress, in enacting this death penalty bill be
singularly motivated by “compelling reasons involving
heinous crimes.” (People v. Echegaray)
Heinous Crimes
• RA 7659 (Death Penalty Law, 1993) provides that crimes are
heinous “for being grievous, odious, and hateful offenses and
which, by reason of their inherent or manifest wickedness,
viciousness, atrocity and perversity are repugnant and
outrageous to the common standards and norms of decency
and morality in a just, civilized and ordered society.”
A: Father B opines that it does not. He submits that the
mandatory character of the death penalty for heinous crimes
prescribed and defined in RA 7659 notwithstanding, the
courts are not precluded, given mitigating factors or
conditions duly established in evidence, (a) from declaring
the crime charged to be in fact, non-heinous in character, or
(b) from concluding that no compelling reasons exist to
warrant the imposition of the death penalty. (page 176 of
2006 Bernas Primer; See People v. Purazo (2003))
Section 19 (2)

Q: Does the death penalty violate international law under • As worded, the provision already embodies the constitutional
ICCPR? authorization for the Commission on Human Rights to take
A: Article 6 of the Covenant enshrines the individual’s right action in accordance with Article XIII, Section 18. Moreover,
to life. Nevertheless, Article 6(2) of the Covenant explicitly and parallel with Article III, Section 12(4), there is a command
recognizes that capital punishment is an allowable limitation addressed to Congress to pass whatever civil or penal
on the right to life, subject to the limitation that it be imposed legislation might be required for the subject. (Bernas, Green
for the “most serious crimes.” Book p 561)
Q: Does the death penalty violate equal protection since it is
most often used against the poor?
A: This statement is too sweeping to merit further serious
consideration. Anyone regardless of his economic status in
life, may commit a crime. While there may be perceived
imbalances in the imposition of penalties, there are adequate
safeguards in the Constitution, the law, and procedural rules
to ensure due process and equal protection of the law.
(People v. Mercado, 2000)

Q: If a court finds a punishment attached to a law cruel,

degrading or inhuman, or a fine excessive, may a person be
convicted under such law?
A: No. Without a valid penalty, the law is not a penal law.

Q: When Congress characterizes a crime “heinous” is sich

characterization conclusive on the court?

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Section 20. No person shall be imprisoned for debt or non-
payment of a poll tax.
Non-imprisonment for debt
• The provision means that “No persons may be imprisoned
for debt in virtue of an order in a civil proceeding, either as a
substitute for satisfaction of a debt or a means of compelling
satisfaction; but a person may be imprisoned as a penalty for
crime arising from a contractual debt and imposed in a proper
criminal proceeding.”
• History: The constitutional prohibition against imprisonment
for debt is a safeguard that evolved gradually during the early
part of the nineteenth century which permitted creditors to
cause the incarceration of debtors who could not pay their
debts. (The Roman Law, for all its durable justice and
wisdom, allowed brutal quartering of the body of delinquent
debtor by his creditors, in proportion to their claims. This
barbaric treatment was refined somewhat in the Middle Ages,
when the debtor was not killed for his defaults but merely
imprisoned until he was able to pay his just obligation)
• BP 22. The gravamen of the offense in BP 22 is not the non-
payment of a debt but the putting into circulation of a
worthless check. (Lozano v. Martinez)
• Poll tax. A poll tax can be understood as the cedula tax or
residence tax. The Constitution does not prohibit the cedula
tax but it prohibits imprisonment for non-payment of the
cedula or residence tax.
• A poll tax may also be understood as a tax, the payment of
which is made a requirement for the exercise of the right of
suffrage. The imposition of a poll tax in that sense is
prohibited by Article V, Section which disallows “literacy,
property, or other substantive requirement” for the exercise of
suffrage.

• Debt. It means any liability to pay money growing out of a

contract, express or implied. (Bernas Primer)
• A person may be imprisoned for fraudulent debt only if:
(1) the fraudulent debt constitutes a crime (e.g. estafa) and
(2) the debtor has been duly convicted.
• Conversion of the monetary indemnity, imposed as part of a
criminal penalty, into subsidiary imprisonment does not
violate the prohibition of imprisonment for debt. The
obligation to indemnify was not ex contractu but ex delicto.
(Alejo v. Judge Inserto)

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Section 21. No person shall be twice put in jeopardy of the second; (2) Filed before a
punishment for the same offense. If an act is punished by a (2) The first competent court;
law and an ordinance, conviction or acquittal under either jeopardy must have (3) To which the
shall constitute a bar to another prosecution for the same terminated; defendant had pleaded;
act. (3) The second (4) Of which he had
jeopardy must be for the been previously acquitted or
Jeopardy same offense, one that convicted or which he was
dismissed or otherwise
• Jeopardy means “danger.” [<OFr. jeu parti, even game.] includes or is necessarily
included in the first offense, terminated without his express
• Fittingly described as “res judicata in prison grey,” the right consent.
against double jeopardy prohibits the prosecution again of or is an attempt or frustration
any person for a crime of which he has previously been of the first, or is an element
acquitted or convicted. thereof.
• The object is to set off the effects of the first prosecution
forever at rest, assuring the accused that he shall not 1st REQUISITE: FIRST JEOPARDY MUST HAVE ATTACHED
thereafter be subjected to the danger and anxiety of a second PRIOR TO THE SECOND;
charge for the same offense.
When does jeopardy ATTACH:
Two kinds of Jeopardy 1. A person is charged
First Sentence of Section 21 Second Sentence of Section 21
No person shall be twice put in When an act is punished by law
2. Under a complaint or information sufficient in form
and substance to sustain a conviction
jeopardy of punishment for the and an ordinance, conviction or
same offense. acquittal under either shall 3. Before a court of competent jurisdiction
constitute a bar to another 4. After the person is arraigned
prosecution for the same act. 5. Such person enters a valid plea. (See People v.
Here, conviction, acquittal or Here, only conviction or acquittal Ylagan)
dismissal of the case without will bar a subsequent
express consent of the accused prosecution. Valid Complaint and Information
will bar a subsequent • Both substance and form must be valid:
prosecution. (1) Substance- when the complaint adequately
informed the accused of the nature and cause of the
accusations which means that:
(a) The essential facts are alleged
Requisites for a valid defense of double jeopardy (b) The legal description of the offense is
Bernas Primer Cruz/ Nachura alleged
(c) In ordinary and concise language
(1) First jeopardy (1) A valid complaint (2) Form
must have attached prior to or information;

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3. If the information for an offense cognizable by the RTC is filed

• Remedy: If the complaint/information is defective, the remedy is
with the MTC.
to quash the information.
4. If a complaint filed for preliminary investigation is dismissed.
• Double Jeopardy does not attach in preliminary investigation.
(Icasiano v. Sandiganbayan)
• A defective complaint (such that it was quashed) does not place 2nd REQUISITE: THE FIRST JEOPARDY MUST HAVE
the accused in first jeopardy. (People v. Judge Consulta) TERMINATED;
• An infirmity in the information, such as lack of authority of the
officer signing it bars the first jeopardy from attaching. (See Cudia
v. CA) When does first jeopardy TERMINATE:
1. Acquittal
Filed before a competent court 2. Final conviction
• Where the criminal case was dismissed by the RTC so that 3. Dismissal W/O the EXPRESS consent of the accused
appropriate information may be filed before the Sandiganbayan 4. Dismissal on the merits.
which had jurisdiction, the defense of double jeopardy cannot be
availed of. (Cunanan v. Arceo)
• Where the accused had been acquitted without trial but only for Examples of termination of jeopardy:
pre-trial where the prosecution raised objection, jeopardy does not 1. Dismissal based on violation of the right to a speedy trial. This
attach. The prosecution was denied a day in court. The acquittal amounts to an acquittal.
was without jurisdiction. (People v. Judge Santiago) 2. Discharge of an accused to be a state witness. This amounts to
an acquittal.
After a person is arraigned
• Where the private respondent had not yet been arraigned, double 3. Dismissal based on a demurrer to evidence. This is a dismissal
jeopardy may not be validly invoked. (Flores v. Joven, 2002) on the merits.
4. Dismissal on motion of the prosecution, subsequent to a motion
Person enters a valid plea for reinvestigation filed by the accused.
• There is no valid plea when the court [commission] is not in • Verbal dismissal is not final until written and signed by the judge.
session. (Jimenez v. Military Commission) (Rivera v. People)
• The grant of motion to quash, filed before the accused makes his • Promulgation of only one part of the decision (civil liability) is not
plea, can be appealed by the prosecution because the accused has bar to the subsequent promulgation of the other part (the
not yet been placed in jeopardy. (Rule 117, Section 9) imposition of criminal liability) Double jeopardy is not violated.
(Cuison v. CA)
• When the accused, after pleading guilty, testified to prove
• A dictated and coerced and scripted verdict of acquittal is a void
mitigating circumstances, the testimony had the effect of vacating judgment at all. It neither binds nor bars anyone. It is a lawless
his plea of guilty. And since no new plea was entered, there was no thing which can be treated as an outlaw. Thus, the first jeopardy
first jeopardy. (People v. Balisacan) was never terminated. (See Galman v. Sandiganbayan)

When does jeopardy NOT attach:
1. If information does not charge any offense
2. If, upon pleading guilty, the accused presents evidence of
complete self-defense, and the court thereafter acquits him
without entering a new plea of not guilty for accused. There is no
valid plea here.
• Q: Where the accused was arraigned, pleaded not guilty, and was
tried upon a valid and sufficient information but the case was
dismissed by the trial court on the ground that the information was
not sufficient and without the consent and not upon the motion of
the accused, may the case be reinstated?

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A: Although the dismissal is a miscarriage of justice (Because the
information was valid), the case may not be reinstated. (People v.
Judge Laggui)
When can the PROSECUTION appeal from an order of dismissal:
1. If dismissal is on motion of the accused.
Exception: If motion is based on violation of the right to a
speedy trial or on a demurrer to evidence.
2. If dismissal does NOT amount to an acquittal or dismissal on the
merits.
3. If the question to be passed upon is purely legal.
4. If the dismissal violates the right of due process of the
prosecution.
5. If the dismissal was made with grave abuse of discretion.
Waiver or estoppel
• Doctrine of Waiver/Salico Doctrine: When the case is
dismissed with the express consent of the accused, the dismissal
will NOT be a bar to another prosecution for the same offense
because his action in having the case dismissed CONSTITUTES A
WIAVER OF HIS RIGHT, for the reason that he thereby prevents
the court from proceeding to the trial on the merits and rendering
a judgment against him.
• Doctrine of Estoppel: When the trial court dismisses the case on
a disclaimer of jurisdiction upon the instigation of the accused, he
is estopped to appeal from asserting the jurisdiction of the lower
court in invoking double jeopardy.
• Defendant’s motion to dismiss for lack of jurisdiction constituted
waiver of the defense of double jeopardy. (People v. Salico)
• Where the accused moved to dismiss the case and claimed the
information did not alleged facts constituting an offense, he is in
effect saying he was not in jeopardy under such information. This
is a case of estoppel. (Bernas)
• By considering a provisional dismissal, the accused waived his
right to the defense of double jeopardy.
• Q: The accused was charged and duly arraigned for homicide with
the CFI. Subsequently and for the same act, he was charged with
murder and arraigned before a Military Commission. He pleaded
not guilty. Later, pleading double jeopardy, the accused sought to
prohibit the Commission from trying his case. Proper?
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• A: No. Since neither case has as yet been terminated, the defense
of double jeopardy is premature. Moreover, by pleading not guilty
to the second charge instead of moving to quash, the accused
waived the defense of double jeopardy. (Silvestre v. Military
Commission)
3rd REQUISITE: THE SECOND JEOPARDY MUST BE FOR THE
SAME OFFENSE AS THE FIRST.
What are considered to be the “SAME OFFENSE”: (under the 1st
sentence of Sec. 21)
1. Exact identity between the offenses charged in the first and
second cases.
2. One offense is an attempt to commit or a frustration of the
other offense.
3. One offense is necessarily included or necessary includes
the other.
NOTE: Where a single act results in the violation of different laws or
different provisions of the same law, the prosecution for one will not
bar the other so long as none of the exceptions apply.
• Same evidence test: There is identity between the two offenses
when the evidence to support a victim for one offense would be
sufficient to warrant a conviction for the other. (See Melo v.
People, People v. Regala)
• If the accused is charged with homicide and pleads not guilty, the
charge may not be dismissed in order to amend it to murder. That
would place him in second jeopardy. (Dionaldo v. Dacucuy)
• Q: Convicted of physical injuries through reckless imprudence,
accused was subsequently charged with damage to property
through the same act of reckless imprudence, both under Article
365. RPC?
• A: Yes. The essence of criminal negligence under Article 365 is the
imprudent or negligent act. Hence, the second jeopardy is for the
same offense. (Buerano v. CA)
• Q: To avail the defense of double jeopardy must the second
offense charged in every case be the same as the first offense?
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• A: (1) When one act violates two different statutes or two
different provisions of a statute. The rule in such a case is that if
the one act results in two distinct offenses, prosecution under one
is not a bar to prosecution under the other. The test is not whether
the defendant has already been tried for the same act, but whether
the defendant has already been put in jeopardy for the same
offense. (People v. Cabrera)
(2) The situation is different under the second sentence of Section
22. The second sentence says “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.” Hence, in this
case, the offenses need not be the same, provided, however, that
they flow from the same act. (Yap v. Lutero, People v. Relova)
Inseparable Offenses
• Where one offense is inseparable from another and proceeds from
the same act, they cannot be the subject of separate prosecutions.
Thus, a person indicted for smoking opium cannot be charged also
with possessing opium.
• However, it is possible for one to act to give rise to several crimes,
in which case separate prosecutions for each crime may be filed,
provided the elements of the several crimes are not identical.
Definition of double jeopardy (2nd sentence of Sec. 21)
Double jeopardy will result if the act punishable under the law and
the ordinance are the same. For there to be double jeopardy, it is
not necessary that the offense be the same.
DOCTRINE OF SUPERVENING EVENT
Doctrine: The accused may still be prosecuted for another offense if
a subsequent development changes the character of the first
indictment under which he may have already been charged or
convicted.
Under the Rules of Court, a conviction for an offense will not bar a
prosecution for an offense which necessarily includes the offense
charged in the former information when:
(a) The graver offense developed due
to a supervening fact arising from the same act or omission
constituting the former charge.
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(b) The facts constituting the graver
offense became known or were discovered only after the
filing of the former information.
(c) The plea of guilty to the lesser
offense was made without the consent of the prosecutor and
the offended party.
 Under (1)(b), if the facts
could have been discovered by the prosecution but were not
discovered because of the prosecution’s incompetence, it would
not be considered a supervening event.
APPEALS:
• Finality of Acquittal Rule: An acquittal is final and
unappealable on the ground of double jeopardy, whether it
happens at the trial court or before an appellate court.
• The prosecution may not appeal a judgment of acquittal. No
error, however, flagrant, committed by the court against the
State, can be reserved by it for decision by the SC when the
defendant has once been placed in jeopardy and discharged
even though the discharge was the result of the error
committed. (People v. Ang Cho Kio)
o Exception: Where the prosecution has not been given
due process, acquittal or dismissal is no bar to
refilling of the case. (People v. Bocar)
o Where the travesty of justice, there was no valid trial
and therefore no termination of the first jeopardy.
(Galman v. Sandiganbayan)
EFFECT OF APPEAL BY THE ACCUSED:
If the accused appeals his conviction, he WAIVES his right to plead
double jeopardy. The whole case will be open to review by the
appellate court. Such court may even increase the penalties
imposed on the accused by the trial court.
• Note: When accused is convicted for a lesser offense on a
plea of guilty to that lower offense, the conviction is not a bar
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to a second prosecution if the plea to a lesser offense was

made without the consent of the Fiscal. (People v. Villarama)
• Note: The discharge of an accused in order to make him a
state witness, even if its erroneous for failure to comply with
all the requirements of Rule 119, is equivalent to an acquittal
and is a bar to reinstatement of the case against him.
• However, if the accused so discharged fails or refuses to
testify against his co-defendant the defense of double
jeopardy is withdrawn from him and becomes unavailable to
him. (Bogo-Medellin Milling Co. v. Son)

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Section 22. No ex post facto law or bill of attainder shall be
enacted.
Ex post facto law
(1) One which makes an action done before the passing of the
law and which was innocent when done criminal, and
punishes such action; or
(2) One which aggravates a crime or makes it greater than when
it was committed; or
(3) One which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was
committed;
(4) One which alters the legal rules of evidence and receives
less or different testimony than the law required at the time
of the commission of the offense in order to convict the
defendant. (Mekin v. Wolfe)
(5) One which assumes to regulate civil rights and remedies
only BUT in effect imposes a penalty or deprivation of a right
which when done was lawful;
(6) One which deprives a person accused of a crime of some
lawful protection to which he has become entitled, such as
the protection of a former conviction or acquittal, or a
proclamation of amnesty. ( In Re Kay Villegas Kami)
• A law shortening the prescriptive period for a crime is ex
post facto. (Peple v. Sandiganbayan)
• Analogous to an ex post facto law and covered by the same
prohibition would be an official interpretation of a penal law
given by the DOJ which is subsequently changed to the
prejudiced of one who had relied on the earlier interpretation.
(Co v. CA)
Characteristics of an ex post facto law
(1) Refers to criminal matters
(2) Retrospective
(3) Causes prejudice to the accused
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• RA 8249 is not a penal law, but a substantive law on
jurisdiction which is not penal in character. The right to appeal
is not a natural right but statutory in nature that can be
regulated by law. (Lacson v. Executive Secretary)
• A law is penal when it prescribes a criminal penalty
imposable in a criminal trial. A law is also a penal law of it
prescribes a burden equivalent to a criminal penalty (e.g.
disqualification from the practice of a profession) even if such
burden is imposed in an administrative proceeding. (Pascual
v. Medical Examiners)
• A law on criminal procedure may be an ex post facto law
when the law alters the legal rules of evidence or mode of
trial, unless the changes operate only in a limited and
unsubstantial manner to the disadvantaged of the accused.
(Beazell v. Ohio)
• Doctrines laid down in cases before the Supreme court was
part of jurisprudence, hence part of the law of the land. New
doctrines should be applied prospectively and should not
apply to parties who relied on the old doctrine in good faith.
(People v. Jabinal)
Bill of Attainder
• Essential elements:
(1) There must be a law;
(2) The law imposes a penal burden on
named individual or easily ascertainable members of a
group;
(3) The penal burden is imposed directly by
the law without judicial trial.
• Bill of attainder is a legislative act which inflicts punishment
without juridical trial. If the punishment be less than death, the
act is termed a bill of pains and penalties.” Within the
meaning of the Constitution, bills of attainder include bills of
pains and penalties. (Cummings v. Missouri)
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• Bill of attainder substitutes legislative fiat for a judicial

determination of guilt.
• Legislative acts, no matter what their form , that apply either
to name individuals or to easily ascertainable members of a
group in such a way as to inflict punishment on them without
judicial trial are bills of attainder prohibited by the
Constitution. (US v. Lovett)
• The Anti-Subversion Law or RA 1700 is not a bill of attainder
because no one is made to suffer under this law except after
conviction in a trial by a proper court. (People v. Ferrer)

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